United States District Court, S.D. Illinois
AHAMAD R. ATKINS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE.
matter comes before the Court on petitioner Ahamad R.
Atkins' second motion for the Court to recuse itself from
this case, this time pursuant to 28 U.S.C. § 455(a) or,
in the alternative, to certify this case for interlocutory
appeal pursuant to 28 U.S.C. § 1292(b) (Doc. 18). Atkins
also has filed a motion for a ruling on the motion for
recusal or to certify an interlocutory appeal (Doc. 19).
September 24, 2014, Atkins pled guilty to one count of
conspiracy to distribute crack cocaine and heroin in
violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C) and
846. At the time of the plea, the petitioner was represented
by Eugene Howard. Before sentencing, Howard asked to withdraw
as counsel, and the Court replaced him with Rodney H. Holmes.
On May 18, 2015, after hearing testimony from a number of
witnesses, the Court sentenced the petitioner to serve 216
months in prison, and judgment was entered May 28, 2015. The
petitioner appealed his conviction to the United States Court
of Appeals for the Seventh Circuit, which on March 18, 2016,
dismissed the appeal as frivolous. See United States v.
Atkins, 640 Fed.Appx. 549 (7th Cir. 2016). Atkins did
not file a petition for a writ of certiorari to the
United States Supreme Court. He filed a motion under 28
U.S.C. § 2255 on February 10, 2017.
now asks the Court to recuse itself from this § 2255
proceeding under 28 U.S.C. § 455(a) on the grounds that
there is an appearance of impropriety and the Court's
impartiality might reasonably be questioned. He asserts that
the Court (1) was made aware of illegal conduct by the
officers investigating Atkins and did nothing to correct the
illegal conduct; (2) made a finding that Atkins made certain
drug sales based in part on evidence Atkins believes did not
support the finding; (3) and found relevant conduct amounts
from a period of drug activity that exceeded the period of
the criminal investigation. He claims these findings during
the disposition hearing, along with other statements during
the hearing, created the appearance of impropriety by the
Recusal Under 28 U.S.C. § 455(a)
455(a) states, “Any justice, judge, or magistrate of
the United States shall disqualify himself in any proceeding
in which his impartiality might reasonably be
questioned.” The standard set forth by this provision
is objective and “asks whether a reasonable person
perceives a significant risk that the judge will resolve the
case on a basis other than the merits.” In re
Hatcher, 150 F.3d 631, 637 (7th Cir. 1998) (quoting
Hook v. McDade, 89 F.3d 350, 354 (7th Cir. 1996)).
The decision to recuse turns not on the judge's actual
partiality but on the appearance of partiality. In re
Hatcher, 150 F.3d at 637 (citing Liteky v. United
States, 510 U.S. 540, 548 (1994)). “[T]he
judge's actual state of mind, purity of heart,
incorruptibility, or lack of partiality are not the
issue.” United States v. Cooley, 1 F.3d 985,
993 (10th Cir. 1993). “Section 455(a) requires recusal
if the judge's impartiality might reasonably be
questioned by a well-informed, thoughtful observer rather
than to a hypersensitive or unduly suspicious person.”
O'Regan v. Arbitration Forums, Inc., 246 F.3d
975, 988 (7th Cir. 2001) (internal quotations omitted);
accord Nichols v. Alley, 71 F.3d 347, 351 (10th Cir.
1995). The risk of perceived partiality must be
“substantially out of the ordinary” before
recusal is justified. Hook, 89 F.3d at 354 (citing
In re Mason, 916 F.2d 384, 385-86 (7th Cir. 1990)).
Each occasion to consider recusal must be evaluated on its
own facts and circumstances. Nichols, 71 F.3d at
351. Doubts about whether recusal is required, however,
should be resolved in favor of recusal. New York City
Hous. Dev. Corp. v. Hart, 796 F.2d 976, 980 (7th Cir.
1986); Nichols, 71 F.3d at 352.
a judge has an obligation to hear cases before him where
there is no legitimate reason for recusal. Hart, 796
F.2d at 980-81; Nichols, 71 F.3d at 351. “The
statute must not be so broadly construed that it becomes, in
effect, presumptive, so that recusal is mandated upon the
merest unsubstantiated suggestion of personal bias or
prejudice.” Nichols, 71 F.3d at 351 (internal
quotations omitted). The Court is also mindful that the
statute is not a judge-shopping device. Id.;
Hook, 89 F.3d at 354.
has not described any basis for a reasonable, well-informed,
thoughtful observer to question the undersigned judge's
impartiality. The factual basis for Atkins' request for
recusal is found in the public file and is nothing out of the
ordinary for a criminal case. Instead, his assertions merely
amount to a disagreement with the Court about its
interpretation and weighing of the evidence and the legal
rulings to which the evidence led. Nothing Atkins describes
creates an appearance of impropriety or of a significant risk
the Court would decide this case on a basis other than the
merits. The Court will therefore deny Atkins' motion for
recusal under § 455(a).
Certification for Interlocutory Appeal Under 28 U.S.C.
Court of Appeals, in its discretion, may hear an
interlocutory appeal after certification from the district
court that the appeal presents “a controlling question
of law as to which there is substantial ground for difference
of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the
litigation.” 28 U.S.C. § 1292(b). Accordingly,
“[t]here are four statutory criteria for the grant of a
section 1292(b) petition to guide the district court: there
must be a question of law, it must be
controlling, it must be contestable, and
its resolution must promise to speed up the
litigation.” Ahrenholz v. Board of Trs. of Univ.
of Ill., 219 F.3d 674, 675 (7th Cir. 2000) (emphasis in
original). The party seeking an interlocutory appeal bears
the burden of demonstrating that “‘exceptional
circumstances justify a departure from the basic policy of
postponing appellate review until after the entry of a final
judgment.'” Coopers & Lybrand v.
Livesay, 437 U.S. 463, 475 (1978) (quoting Fisons,
Ltd. v. United States, 458 F.2d 1241, 1248 (7th Cir.
the first statutory criterion, a “question of
law” within the meaning of § 1292(b) “has
reference to a question of the meaning of a statutory or
constitutional provision, regulation, or common law doctrine.
. . .” Ahrenholz, 219 F.3d at 676. The Court
of Appeals explained,
We think [Congress] used “question of law” in
much the same way a lay person might, as referring to a
“pure” question of law rather than merely to an
issue that might be free from a factual contest. The idea was
that if a case turned on a pure question of law, something
the court of appeals could decide quickly and cleanly without
having to study the record, the court should be enabled to do
so without having to wait till the end of the case.
Id. at 676-77. The Court of Appeals concluded that,
in the § 1292(b) context, “‘question of
law' means an abstract legal issue. . . .”
Id. at 677.
has not pointed to any pure question of law or abstract legal
issue he seeks to appeal before final judgment. Instead, the
issue he seeks to appeal involves the application of settled
recusal law to the facts of this case, specifically, evidence
Atkins claims creates an appearance of partiality. Nor has
Atkins convinced the Court that resolution of the recusal
question-which is not reasonably contestable for the reasons
the Court has offered for declining to recuse itself-will
control the outcome of the case or materially speed up this
litigation. Because ...