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UNITED STATES v. RANKIN

March 26, 1998

UNITED STATES OF AMERICA
v.
KEVIN J. RANKIN



The opinion of the court was delivered by: CAHN

MEMORANDUM

 Cahn, C.J.

 March 26, 1998

 Before the court are a petition and two motions by Defendant Kevin J. Rankin ("Rankin"), who is proceeding pro se. Rankin petitions the court for coram nobis relief. In addition, Rankin moves the court to reassign this case outside the Eastern District of Pennsylvania, and to disqualify the U.S. Attorney's Office for this district, particularly Assistant U.S. Attorney Louis R. Pichini ("Pichini"), from this case. For the reasons that follow, the court denies the petition and the motions.

 I. BACKGROUND

 The long history of this case, and of a related criminal matter involving Rankin, No. 83-314 (the "83 case"), need not be recited in detail here. Other courts, including this one, have previously described the background of these cases, see, e.g., United States v. Rankin, 870 F.2d 109, 110-11 (3d Cir. 1989); United States v. Rankin, 1994 U.S. Dist. LEXIS 7444, No. Civ. A. 92-7199, 1994 WL 243862, at *1-2 (E.D. Pa. June 7, 1994), and the parties' familiarity with the facts recited in these opinions is presumed. A brief summary of events, however, is appropriate.

 A. The 83 Case

 On August 10, 1984, after a jury trial in the 83 case before Judge Hannum, Rankin was found guilty of numerous narcotics felonies. Judge Hannum sentenced Rankin to fifty-four years in prison. The court of appeals, however, vacated the conviction on January 6, 1986, and ordered a new trial. Rankin then filed a motion, pursuant to 28 U.S.C. §§ 144 & 455(a), requesting Judge Hannum's recusal from the second trial. Rankin prevailed on the motion pursuant to § 144. *fn1" The second trial, which was reassigned to this court, commenced on October 20, 1986. The jury found Rankin guilty of violating 21 U.S.C. § 843(b) (unlawful use of a communications facility to facilitate the commission of a narcotics felony). The court sentenced Rankin to ten years in prison, and subsequently reduced the sentence to time served, plus probation. The court of appeals affirmed the conviction and sentence.

 B. This Case

 On April 13, 1988, Rankin was indicted in this case, No. 88-150, for allegedly making perjurious statements in the affidavit he filed in support of his § 144 motion in the 83 case. On April 25, 1988, Chief Judge Gibbons of the Third Circuit Court of Appeals assigned this case to Judge Wolin from the District of New Jersey, and directed Judge Wolin to hold court in this district pending the disposition of the case. A superseding indictment charging Rankin with additional crimes was filed on May 11, 1988. A trial commenced on July 31, 1989, and the jury found Rankin guilty of violating 18 U.S.C. §§ 1001 (making a false statement to a federal agency) & 1503 (endeavoring to obstruct justice). Judge Wolin fined Rankin and sentenced him to three years' probation, to run concurrently with Rankin's probationary period in the 83 case. The court of appeals affirmed the conviction and sentence.

 Rankin then filed three motions: (1) a motion for relief pursuant to 28 U.S.C. § 2255; (2) a motion to disqualify the U.S. Attorney's office for this district from this case; and (3) a motion to transfer this case to the District of New Jersey. In a memorandum and order dated October 23, 1992, Judge Wolin denied all three motions. The court of appeals affirmed.

 Rankin's probationary period ended on September 27, 1992.

 On April 23, 1997, Rankin filed the instant petition for writ of coram nobis. On May 29, 1997, Rankin filed the instant motion to disqualify the U.S. Attorney's office for this district, particularly Pichini, from this case. On July 11, 1997, this case was reassigned to this court. On November 20, 1997, Rankin filed the instant motion to reassign this case outside this district.

 II. DISCUSSION

 A. Motion for Reassignment Outside This District

 Rankin moves for reassignment pursuant to 28 U.S.C. §§ 144 & 455(a). In support of the motion, Rankin makes two general claims, which the court summarizes as follows: (1) the biased attitude and conduct of Judge Hannum, which gave rise to his recusal in the 83 case, can be imputed to all judges in this district, (see Reassignment Mot. P 2); and (2) this court, in the course of presiding over the second trial in the 83 case, once expressed to Rankin its disapproval of him, (see id. P 6). *fn2" Rankin argues that "there exists [sic] circumstances in which the[] impartiality [of the judges in this district] might reasonably be questioned." (Id. P 17.) He also argues that "this Court has a personal bias and prejudice against him and in favor of the United States." (Id. P 3.)

 Although the analysis under §§ 144 and 455(a) differs, reassignment of this case is not warranted under either statute.

 1. 28 U.S.C. § 455(a)

 Section 455(a) provides that "any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C.A. § 455(a) (West 1993). The inquiry under this section is whether "a reasonable [person] knowing all the circumstances would harbor doubts concerning the judge's impartiality." Edelstein v. Wilentz, 812 F.2d 128, 131 (3d Cir. 1987) (citation omitted).

 Rankin fails to meet the reasonableness test of § 455(a). With respect to Rankin's imputation claim, the court finds that a reasonable person would conclude that the irregularities in the trial before Judge Hannum in the 83 case were cured by the vacation of the conviction, and the subsequent reassignment of the second trial in the 83 case to this court. *fn3" The court further finds that a reasonable person would conclude that the relationship between Judge Hannum and Rankin has not tainted the other judges in this district, as there is no support for Rankin's conclusion to the contrary. *fn4"

 With respect to Rankin's claim that this court is biased and prejudiced, the court finds that Rankin fails to meet the requirement that the alleged bias and prejudice stem from an extrajudicial source. See Liteky v. United States, 510 U.S. 540, 544, 554, 127 L. Ed. 2d 474, 114 S. Ct. 1147 (1994) (describing requirement as applied to § 144 and applying it to § 455(a)). Rankin alleges that the court cannot be fair because of its involvement in the 83 case. A court's involvement in a prior proceeding, however, ordinarily does not qualify as an extrajudicial source of bias or prejudice. The Supreme Court has suggested that

 
opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.

 Id. at 555 (emphasis added). The remarks of this court cited by Rankin certainly do not suggest a deep-seated favoritism or antagonism such that they are exempt from the extrajudicial-source requirement. In addition, even if the extrajudicial- source requirement were met, the court finds that a reasonable person would conclude that the court's remarks do not evidence bias or prejudice against Rankin or in favor of the government that would warrant the court's disqualification. It is well-established that

 
judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.

 Id. at 555. Rankin's claim that this court is biased and prejudiced is also refuted in light of the fact that, as noted supra p. 2, the court of appeals affirmed Rankin's conviction and ...


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