The opinion of the court was delivered by: LUONGO
On August 4, 1967 Rudolph E. Boyance instituted the instant proceeding under 28 U.S.C. § 2255 to set aside concurrent year and a day sentences imposed by this court in August 1962 on each of four counts of conspiracy and counterfeiting to which Boyance had entered guilty pleas. On October 4, 1967 Boyance filed an affidavit pursuant to 28 U.S.C. § 144
seeking my disqualification on the ground of personal bias and prejudice.
The affidavit seeking disqualification must be considered first. It is the duty of the judge to whom such an affidavit is addressed to consider whether the facts set forth therein, accepted as true, are legally sufficient to charge personal bias and prejudice. If the affidavit is legally sufficient, the judge to whom it is addressed may proceed no further. Simmons v. United States, 302 F.2d 71 (3d Cir. 1962); and see Berger v. United States, 255 U.S. 22, 41 S. Ct. 230, 65 L. Ed. 481 (1921); Green v. Murphy, 259 F.2d 591 (3d Cir. 1958).
Some background facts are essential to an understanding of the charges in the affidavit.
Boyance was one of several defendants charged in this court with conspiracy and violations of the counterfeiting laws of the United States in Criminal No. 20914. After that trial began before me, Boyance changed his plea to guilty, and the sentences now sought to be attacked were imposed. At the time of the trial on the federal charges Boyance was already serving concurrent 5 to 10 year state sentences on several counts of burglary, larceny and related charges.
Sometime in May 1964 Boyance filed a habeas corpus petition in this court (M-2543) attacking the state convictions. That matter was assigned originally to Judge Abraham L. Freedman and when Judge Freedman was elevated to the Court of Appeals, was reassigned to me. There has been much litigation in this court relating to the state convictions and it has not yet ended.
On July 12, 1967 Boyance was paroled from his state sentences and was turned over to federal custody to commence service of the sentence imposed by this court in August 1962. The instant § 2255 proceeding was filed promptly thereafter.
(b) Sufficiency of the Affidavit.
Accepting, as I must, the truth of all the factual allegations of the affidavit, I conclude that the affidavit is legally insufficient to support a charge of personal bias and prejudice and I may not, therefore, disqualify myself from consideration of the § 2255 application.
Asserted as the bases for the charge of personal bias and prejudice are (1) an erroneous ruling, in the habeas corpus petitions (M-2728 and M-3008) attacking the state court convictions, refusing to consider search and seizure questions on the ground of failure to exhaust state remedies on abridgement of counsel questions raised in one of those petitions; (2) an adverse ruling on Boyance's 32(d) motion to withdraw the guilty plea in Criminal No. 20914; and (3) "harassment and judicial impropriety" toward Boyance and his court appointed attorney during the hearing on the 32(d) motion.
(1) and (2). The first and second asserted grounds are clearly insufficient. Rulings by the court afford no basis for a claim of personal bias and prejudice since they are subject to appeal and erroneous ones can be corrected through the normal appellate processes. Ex parte American Steel Barrel Co., 230 U.S. 35, 33 S. Ct. 1007, 57 L. Ed. 1379 (1913); Simmons v. United States, supra; Tucker v. Kerner, 186 F.2d 79, 23 A.L.R.2d ...