U.S. v. ENIGWE

The opinion of the court was delivered by: DuBOIS, District Judge.

ORDER & MEMORANDUM

ORDER

AND NOW, this 8th day of June, 2001, upon consideration of Defendant's Motion for Recusal of Judge (Document No. 273, filed January 28, 1999), for the reasons stated in the attached Memorandum, IT IS ORDERED that Defendant's Motion for Recusal of Judge (Document No. 273) is DENIED and the Affidavit Under 28 U.S.C. § 144 Against Judge Jan E. DuBois is DISMISSED.

MEMORANDUM

I. BACKGROUND

On May 6, 1992, defendant Ifedoo Noble Enigwe ("Enigwe," "defendant" or "petitioner") was indicted on four counts by a Grand Jury in the Eastern District of Pennsylvania for trafficking in heroin. On August 7, 1992, he was convicted by a jury on all four counts and, on August 13, 1992, was sentenced by this Court, inter alia, to 235 months in prison. The conviction and sentence were affirmed by the Third Circuit in an unpublished Memorandum on April 28, 1994.

On August 24, 1994, defendant filed a pro se Motion pursuant to 28 U.S.C. § 2255 seeking to vacate his sentence. After an evidentiary hearing, at which defendant appeared pro se, his Motion was denied by Order dated September 11, 1995. See United States v. Enigwve, Crim. A. No. 92-00257, 1995 WL 549110 (E.D.Pa. Sept. 11, 1995). Defendant's Motion for Reconsideration was denied on March 1, 1996. See United States v. Enigwe, Crim. A. No. 92-00257, 1996 WL 92076 (E.D.Pa. Mar. 1, 1996). On appeal, by Order dated July 23, 1996, the Third Circuit vacated the denial of defendant's § 2255 Motion and remanded the case to this Court for appointment of counsel and further proceedings. On remand, this Court appointed counsel for defendant and conducted a second evidentiary hearing. Thereafter, defendant's § 2255 Motion was again denied; that ruling was subsequently affirmed by the Third Circuit. See United States v. Enigwe, Crim. A. No. 92-00257, 1997 WL 430993 (E.D.Pa. July 16, 1997), affd 141 F.3d 1155 (3d Cir. 1998) (No. 971632). Defendant's petition to the United States Supreme Court for a writ of certiorari was denied. See Enigwe v. United States, 523 U.S. 1102, 118 S.Ct. 1573, 140 L.Ed.2d 806 (1998) (No. 97-8516).

On January 22, 1998, defendant filed a Letter/Motion to Vacate the "Judgment entered at my sentencing" under Federal Rule of Civil Procedure 60(b)(6) (Document No. 216, filed January 26, 1998). The Court treated this as a second or successive motion under 28 U.S.C. § 2255 and denied the Motion by Order dated February 13, 1998. The Court also denied, by Order dated February 25, 1998, defendant's Reply (Document No. 220, filed February 20, 1998), which was treated, at defendant's request, as a motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e). Next, the Court denied defendant's Motion for Reconsideration of its Orders of February 13 and February 25, 1998. See United States v. Enigwe, Crim. A. No. 92-00257, 1998 WL 150974 (E.D.Pa. Mar. 30, 1998). Then, in July 1998, the Court denied two additional motions filed by Enigwe: defendant's Motion to Compel the United States Marshals to Return the Money Retained on a Writ of Execution, see United States v. Enigwe, Crim. A. No. 92-00257, 17 F. Supp.2d 388 (E.D.Pa. July 8, 1998), and defendant's Motion for Production of the Grand Jury Ministerial Records, see United States v. Enigwe, Crim. A. No. 9200257, 17 F. Supp.2d 390 (E.D.Pa. July 8, 1998). Defendant then filed a Motion for Reconsideration of the Court's Orders of July 8, 1998 (Document No. 257, filed July 30, 1998); it was denied by Order dated September 2, 1998. See United States v. Enigwe, Crim. A. No. 92-00257 (E.D.Pa. Sept. 2, 1998).

Defendant filed a Second or Successive Petition for Vacation of Conviction Pursuant to § 2255 (Document No. 258, filed July 15, 1998), which was supplemented by defendant's Additional Claims to Petitioner's Second § 2255 Motion Sub Judice (Document No. 261, filed August 26, 1998). The Court denied these motions by Order dated September 28, 1998 and transferred the motions to the Third Circuit pursuant to 28 U.S.C. § 1631. See United States v. Enigwe, Crim. A. No. 92-00257, 1998 WL 670051 (E.D.Pa. Sept. 28, 1998). By summary order dated June 3, 1999, the Third Circuit denied defendant's application to file a second or successive § 2255 motion. Defendant also filed an Application for Bail Pending Resolution of Petitioner's Habeas Corpus Petition Sub Judice (Document No. 260, filed August 14, 1998); it was denied by Order dated September 3, 1998. See United States v. Enigwe, Crim. A. No. 92-00257 (E.D.Pa. Sept. 3, 1998).

While defendant's second or successive § 2255 petition was pending before the Third Circuit, Enigwe filed Defendant's Motion to Modify Sentence Pursuant to 18 U.S.C. § 3582(c)(2) (Document No. 272, filed January 6, 1999) and Defendant's Motion for Recusal of Judge (Document No. 273, filed January 28, 1999). After filing the Motion for Recusal of Judge, defendant filed eleven additional motions as follows: (1) Defendant's Rule 60(b)(6) Motion to Vacate This Court's Decision on Section 2255 Motion Entered Against Petitioner on July 16, 1997 (Document No. 274, filed February 10, 1999); (2) Defendant's Second or Successive Petition for Vacation of Conviction Pursuant to § 2255 (Document No. 278, filed January 20, 2000);*fn1 (3) Defendant's Supplemental Motion to § 2255 Motion Pending Before This Court (Document No. 279, filed March 23, 2000); (4) Defendant's Motion to Dismiss the Indictment Pursuant to Rule 12(b)(2) Fed.R.Crim.P. (Document No. 282, filed June 30, 2000); (5) Defendant's Addendum to the Motions Sub Judice (Document No. 283, filed July 11, 2000); (6) Defendant's Emergency Motion for Bail (Document No. 285, filed July 31, 2000); (7) Defendant's Pro Se 28 U.S.C. § 2255 Motion to Vacate, Set Aside or Correct Sentence (Document No. 292, filed November 16, 2000);*fn2 (8) Defendant's Pro Se Motion to Expedite (Document No. 296, filed January 16, 2001); (9) Defendant's Pro Se Motion to Dismiss Without Prejudice (Document No. 297, filed January 16, 2001); (10) Defendant's Pro Se Motion for Bail (Document No. 298, filed February 5, 2001); and (11) Defendant's Pro Se Motion to Expedite Ruling of This Case (Document No. 299, filed April 4, 2001). By Order dated May 31, 2001, the Court granted Defendant's Motion to Dismiss Without Prejudice (Document No. 297, filed January 16, 2001) in which defendant asked that seven (7) of his pending motions be dismissed without prejudice.

In addition to the numerous motions filed in this Court, after filing his motion for recusal, defendant filed two petitions for a writ of mandamus to the Third Circuit, both of which were denied in unpublished opinions. See In re Ifedoo Noble Enigwe, 254 F.3d 1077 (3d Cir. 2001) (unreported) (writing that mandamus relief is not available to correct a judge's refusal to recuse himself); In re Ifedoo Noble Enigwe, No. 01-1594 (3d Cir. Apr. 27, 2001) (unreported) (denying without prejudice defendant's request for mandamus relief seeking an order directing the district court to rule on his § 2255 motion).

On January 20, 1999, Enigwe filed an action under the Racketeering Influenced Corrupt Organization Act (RICO), 18 U.S.C. § 1964(a), against the undersigned Judge, his law clerks, his courtroom deputy, and his secretary. With his complaint, Enigwe filed an application for leave to proceed in forma pauperis. The RICO action was assigned to the Honorable Norma Shapiro. By order dated April 9, 1999, Judge Shapiro denied the application for leave to proceed in forma pauperis on the ground that Enigwe had sufficient assets to enable him to pay the full $150.00 dollar filing fee. Enigwe's request for reconsideration was denied by Judge Shapiro on May 12, 1999.

Presently before the Court is defendant's recusal motion. For the following reasons, defendant's Motion for Recusal of Judge (Document No. 273, filed January 28, 1999) is denied.

II. DISCUSSION

Defendant moves for disqualification under 28 U.S.C. § 144, which provides as follows:

The statute further provides, in pertinent part, that "[t]he affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. . . ." 28 U.S.C. § 144. Because petitioner's ...