United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE.
18, 2013, the Court sentenced defendant to 144 months in
prison. On August 5, 2016, the Court overruled
defendant's motion to vacate sentence under 28 U.S.C.
§ 2255. See Memorandum And Order (Doc. #242).
On September 23, 2016, the Court overruled defendant's
motion to reconsider. See Memorandum And Order (Doc.
#252). Defendant appealed. On January 24, 2017, the Tenth
Circuit Court of Appeals denied defendant's request for a
certificate of appealability and dismissed his appeal.
See Order Denying Certificate Of Appealability And
Dismissing The Appeal (Doc. #259). On April 17, 2017,
the Court dismissed defendant's motion to set aside his
convictions. See Memorandum And Order (Doc. #261).
On June 15, 2017, the Court overruled defendant's motion
to reconsider. See Memorandum And Order (Doc. #270).
On August 22, 2017, the Court dismissed defendant's
Motion Under Federal Rule Of Civil Procedure 60(b)(3),
(6) (Doc. #277), which the Court also construed as a
second or successive motion under 28 U.S.C. § 2255, and
overruled defendant's Motion For An Investigation For
Obstruction Of Justice Pursuant To 28 U.S.C. § 535
(Doc. #276) and defendant's Motion To Reconsider
Pursuant To Fed. Rule Of Civil Procedure 59 (Doc. #278).
This matter is before the Court on defendant's Motion
To Reconsider Pursuant To Fed. R. Civil Procedure 59
(Doc. #282) defendant's Motion For Disqualification
Of Judge Kathryn H. Vratil Pursuant To 28 U.S. Code §
455(a)(b)(1) (Doc. #283) and defendant's
Petition For 28 U.S. Code § 1651 Writ (Doc.
#284), all filed September 8, 2017, which the Court construes
as a supplemental motion to reconsider. For reasons stated
below, the Court overrules defendant's motions.
Motion To Disqualify (Doc. #283)
asks the undersigned judge to recuse from deciding further
motions in his case. Under 28 U.S.C. § 455(a), federal
judges must disqualify themselves in any proceeding in which
their partiality might reasonably be questioned. Switzer
v. Berry, 198 F.3d 1255, 1257 (10th Cir. 2000); see
also Code of Conduct for United States Judges, Canon 3,
§ C(1) (judge shall disqualify herself in proceeding in
which judge's impartiality might reasonably be
questioned). The test is whether a reasonable person, knowing
all the relevant facts, would harbor doubts about the
judge's impartiality. Hinman v. Rogers, 831 F.2d
937, 939 (10th Cir. 1987). The statutory guidance for recusal
must also be read in light of a judge's “duty to
sit” on cases filed with the Court. Nichols v.
Alley, 71 F.3d 347, 351 (10th Cir. 1995). The statute is
not intended to give litigants a veto power over judges or as
a vehicle for obtaining a judge of their choice. United
States v. Cooley, 1 F.3d 985, 992-93 (10th Cir. 1993).
Consequently, a judge should not recuse on unsupported,
irrational or highly tenuous speculation. Hinman,
831 F.2d at 939.
defendant asserts that he intends to file a tort claim
against the United States based on the undersigned
judge's directions to have deputy marshals assault him at
sentencing. Motion For Disqualification (Doc. #283)
at 1. Based on defendant's disruptive behavior in the
courtroom, the Court moved the sentencing hearing to a
holding cell. Defendant's claim that the Court instructed
deputy marshals to assault him is unsubstantiated and
frivolous. See United States v. Sealander, 1996 WL
408368, at *19 (10th Cir. July 19, 1996) (affirming denial of
recusal motion based on unsubstantiated and facially
frivolous complaint against judge).
next claims that the judge's impartiality has
“consistently been subjected to racial and prejudice
skepticism by [him].” Motion For
Disqualification (Doc. #283) at 1. Defendant's
subjective beliefs and skepticism are insufficient to warrant
recusal. In addition, adverse rulings almost never provide a
basis for recusal, nor do opinions formed or expressed by a
judge based upon the record “unless they display a
deep-seated favoritism or antagonism that would make fair
judgment impossible.” Liteky v. United States,
510 U.S. 540, 554-55 (1994). Defendant has not identified any
such stated opinions. As to adverse rulings, defendant has
the potential remedy of an appeal to address any claims that
the Court misapplied the law.
defendant claims that the undersigned judge's rulings
reflect racial bias because they disproportionately imprison
more blacks than whites. Motion For Disqualification
(Doc. #283) at 2. Defendant has not cited any statistics and
the Court is not aware of any readily available statistics
which show a comparative analysis of sentences for a
particular judge based on race and type of crime. In any
event, statistics alone cannot support a claim of recusal,
particularly in the criminal context in which the Court
sentences each criminal defendant based on an array of
factors. See 18 U.S.C. § 3553(a); see also
Matter of Beverly Hills Bancorp, 752 F.2d 1334, 1341
(9th Cir. 1984) (unfavorable rulings alone legally
insufficient to require recusal on grounds of personal bias
even when number of unfavorable rulings extraordinarily high
on statistical basis); In re Int'l Bus. Machines
Corp., 618 F.2d 923, 930 (2d Cir. 1980) (trial judge
must be free to make rulings on merits without apprehension
that if she makes disproportionate number in favor of one
litigant, she may have created impression of bias; judicial
independence cannot be subservient to statistical study of
rulings made during litigation).
reasonable person with access to the relevant facts would not
question the impartiality of the undersigned judge. The
conduct and rulings here were based upon the case before the
undersigned judge, not some extra-judicial source, and they
do not reflect deep-seated favoritism or antagonism that
would make fair judgment impossible. See Liteky, 510
U.S. at 555-56 (expressions of impatience, dissatisfaction,
annoyance and even anger do not support bias challenge unless
they display deep-seated favoritism or antagonism);
United States v. Wisecarver, 644 F.3d 764, 771-72
(8th Cir. 2011) (no reasonable observer would have perceived
that judge could not continue to rule impartially in
subsequent proceedings despite comment at sentencing that
defendant's factual argument was “just a figment of
his imagination” and finding for sentencing purposes
that defendant committed assault despite jury acquittal on
that count); United States v. Stewart, 378 Fed.Appx.
773, 776-77 (10th Cir. 2010) (recusal not required based on
comment that defendant “cannot control himself in any
context, let alone before a jury”); Hinman,
831 F.2d at 939 (judge should not recuse on unsupported,
irrational or highly tenuous speculation); cf. Berger v.
United States, 255 U.S. 22, 28 (1921) (finding extreme
bias where district judge stated that it was difficult
“not to be prejudiced against the German
Americans” because “[t]heir hearts are reeking
with disloyalty”). The Court therefore overrules
defendant's motion under Section 455(a).
Motion To Reconsider (Doc. #282)
asks the Court to reconsider its Memorandum And
Order (Doc. #280) which dismissed his second or
successive motion under Section 2255 and overruled his
motions to reconsider and for an investigation. Under Rule
59(e), Fed. R. Civ. P., the Court has discretion to
reconsider a final decision if the moving party can establish
(1) an intervening change in the controlling law; (2) the
availability of new evidence that could not have been
obtained previously through the exercise of due diligence; or
(3) the need to correct clear error or prevent manifest
injustice. Servants of Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000). Such a motion does not permit a
losing party to rehash arguments previously addressed or to
present new legal theories or facts that could have been
raised earlier. Id.; Brown v. Presbyterian
Healthcare Servs., 101 F.3d 1324, 1332 (10th Cir. 1996).
argues that the Court erroneously found that his Rule 60(b)
motion was submitted “nearly one year after the Court
ruled on his Section 2255 motion.” Doc. #282 at 2.
Defendant notes that he actually filed his motion several
days before the one-year deadline. The Court's order did
not suggest otherwise. As explained in the order, absent
excusable neglect, defendant ordinarily must raise claims of
judicial error under Rule 60(b)(1) by the deadline for filing
a notice of appeal. Memorandum And Order (Doc. #280)
at 7-8 (citations omitted). Because defendant did not
sufficiently allege or establish excusable neglect for
raising his claims beyond the deadline to appeal, the Court
overruled them. Id. at 8. Defendant has not shown
any factual or legal error in the Court's rulings.
Accordingly, the Court overrules defendant's motion to
Relief Under 28 U.S.C. § 1651
under the All Writs Act, 28 U.S.C. § 1651, such as
audita querela and coram nobis are
unavailable to a defendant when other remedies exist (such as
a motion to vacate sentence under 28 U.S.C. §
2255).See United States v. Torres, 282
F.3d 1241, 1245 (10th Cir. 2002). After a defendant has
exhausted his direct appeal in a criminal action, his
exclusive remedy for raising a challenge to his sentence is
under Section 2255 unless that remedy is inadequate or
ineffective. See United States v. McIntyre, 313
Fed.Appx. 160, 162 (10th Cir. 2009); Bradshaw v.
Story, 86 F.3d 164, 166 (10th Cir. 1996). Failure to
obtain relief under Section 2255 does not establish that the
remedy so provided is either inadequate or ...