Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Akers

United States District Court, D. Kansas

June 15, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MONTGOMERY CARL AKERS, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL United States District Judge.

         This matter is before the Court on Defendant's Combined Motion For Recusal Of Presiding Judge Kathryn H. Vratil; And Motion To Reopen Habeas Proceedings In This Case Due To Fraud Being Perpetrated Upon The Court In The First Habeas Proceeding (Doc. #457) filed January 23, 2017. On April 11, 2017, the Court ordered defendant to show good cause in writing why pursuant to the Court's Memorandum And Order (Doc. #416) filed August 7, 2013, the Court should not sanction him $500.00 based on the filing of his combined motion (Doc. #457). See Order To Show Cause (Doc. #461). On May 1, 2017, defendant filed a response. See Response/Objection To The Order To Show Cause (Doc. #463).

         Initially, defendant objects to the order to show cause because the undersigned judge issued the order before ruling on his motion to recuse. See id. at 1-2. The Court issued the show cause order to give defendant an opportunity to show some non-frivolous basis for his combined motion to recuse and to reopen habeas proceeding. The issues of recusal, reopening the habeas proceeding and sanctions are interrelated. All three issues involve the merits of defendant's combined motion to recuse and to reopen habeas proceeding. Accordingly, the Court properly considers these issues collectively in this order.

         I. Motion To Recuse

         Defendant asks the undersigned judge to recuse from this case. For reasons the Court has repeatedly explained, defendant's unsubstantiated allegations of bias and conspiracy are untrue, irrational and insufficient to warrant recusal. See, e.g., Memorandum And Order (Doc. #421) filed September 11, 2013 at 1; Memorandum And Order (Doc. #416) filed August 7, 2013 at 2; Memorandum And Order (Doc. #390) filed March 16, 2012 at 2; Memorandum And Order (Doc. #328) filed October 30, 2009 at 1-2; Memorandum And Order (Doc. #233) filed July 19, 2007 at 2-3.[1]

         II. Motion To Reopen Habeas Proceeding

         Under Rules 60(b)(3) and 60(d)(3), Fed. R. Civ. P., defendant asks the Court to reopen consideration of his motion to vacate under 28 U.S.C. § 2255. Defendant asserts fraud on the Court based on his allegations that (1) the undersigned judge conspired with the prosecutor and (2) the Court's rulings on his Section 2255 motion were tainted with bias and prejudice. Doc. #457 at 11-12. Defendant simply reasserts the same allegations which this Court has repeatedly denied. For reasons stated elsewhere in the record, defendant has not shown sufficient grounds to reopen his Section 2255 proceeding.

         III. Sanctions

         On August 7, 2013, the Court ordered filing restrictions as follows:

if defendant files any document in this criminal case which the Court deems frivolous, the Court will sanction defendant a minimum of $500.00 for each violation and may impose further restrictions on future filings in the District of Kansas. This restriction does not apply to documents filed on defendant's behalf by a licensed attorney who is admitted to practice in the District of Kansas.

Memorandum And Order (Doc. #416) at 3. As noted, the Court has provided defendant an opportunity to show cause why the Court should not sanction him $500.00 for the filing of his combined motion to recuse and to reopen habeas proceeding (Doc. #457).

         A document generally is considered “frivolous” where it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (frivolous complaints include “fanciful factual allegation”or challenges to “inarguable legal conclusion”). Defendant states that his combined motion is not frivolous because it is “grounded with sworn affidavits and exhibits.” Response/Objection To The Order To Show Cause (Doc. #463) at 2. The fact that a party attaches affidavits and exhibits to a motion alone is insufficient to show that the motion is not frivolous. In his motion, defendant continues to advance unsubstantiated factual allegations that the undersigned judge is biased and has conspired with the prosecutor. Defendant also continues to assert that the indictment is legally defective because of fraud on the Court. The Court has repeatedly rejected nearly identical factual allegations and legal theories. Defendant has appealed numerous orders involving these issues.[2] In light of this Court's prior rulings involving similar claims, defendant's combined motion to recuse and to reopen habeas proceeding (Doc. #457) includes fanciful factual allegations and legal theories.[3] Neitzke, 490 U.S. at 325. The Court therefore finds that Defendant's Combined Motion For Recusal Of Presiding Judge Kathryn H. Vratil; And Motion To Reopen Habeas Proceedings In This Case Due To Fraud Being Perpetrated Upon The Court In The First Habeas Proceeding (Doc. #457) is frivolous. The Court sanctions defendant $500.00 for filing the motion.

         IT IS THEREFORE ORDERED that Defendant's Combined Motion For Recusal Of Presiding Judge Kathryn H. Vratil; And Motion To Reopen Habeas Proceedings In This Case Due To Fraud Being Perpetrated Upon The Court In The First Habeas Proceeding (Doc. #457) filed January 23, 2017 is OVERRULED.

         IT IS FURTHER ORDERED that based on defendant's filing of Defendant's Combined Motion For Recusal Of Presiding Judge Kathryn H. Vratil; And Motion To Reopen Habeas Proceedings In This Case Due To Fraud Being Perpetrated Upon The Court In The First Habeas Proceeding (Doc. #457), which contains frivolous factual allegations and legal theories, the Court sanctions defendant in the amount of $500.00. On or before July 31, 2017, defendant shall pay this amount to the Clerk of the Court. If the Clerk of the Court does not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.