United States District Court, M.D. Pennsylvania
H. RAMBO United States District Judge.
the court is Joseph Gallardo's motion for change of venue
(Doc. 121) related to his pending petition filed pursuant to
28 U.S.C. §2255 (Doc. 104). Gallardo seeks this change
of venue for two reasons: (1) for the convenience of the
parties pursuant to 28 U.S.C. § 1404(a), and (2) alleged
prejudice of the judge who has jurisdiction over this case.
is proper in the Middle District of Pennsylvania. The cause
of action accrued here; a guilty plea was entered here; and
both defense counsel and the former AUSA are located here.
Thus, venue will not be changed for the convenience of the
his second basis, Gallardo seeks recusal of the undersigned
judge pursuant to 28 U.S.C. § 144. For the following
reasons, Gallardo's request will be denied.
144 of Title 28 states in its entirety:
Whenever a party to any proceeding in a district court makes
and files a timely and sufficient affidavit that the judge
before whom the matter is pending has a personal bias or
prejudice either against him or in favor of any adverse
party, such judge shall proceed no further therein, but
another judge shall be assigned to hear such proceeding.
The 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. A party may file
only one such affidavit in any case. It shall be accompanied
by a certificate of counsel of record stating that it is made
in good faith.
28 U.S.C. § 144.
the responsibility of the district judge against whom an
affidavit is filed to assess the legal sufficiency of the
affidavit. Conklin v. Warrington Twp., 476 F.Supp.2d
458, 462, n.10 (M.D. Pa. 2007) (citing United States v.
Townsend, 478 F.2d 1072, 1073 (3d Cir. 1973)). The court
must examine the facts alleged in the affidavit to determine
if they are sufficient to convince a reasonable person that
the judge had a relevant bias. United States v.
Thompson, 483 F.2d 527, 528 (3d Cir. 1973).
mere filing of an affidavit under 28 U.S.C. § 144 does
not automatically disqualify a judge. Townsend, 478
F.2d at 1073. In addition, more than mere conclusions are
required. Id. at 1074. “An affidavit is
legally sufficient if the facts alleged therein: (1) are
material and stated with particularity; (2) would convince a
reasonable person to conclude a bias exists; and (3) evince
bias that is personal, as opposed to judicial in
nature.” Oliver v. Beard, 2012 WL 7963128, *5
(M.D. Pa. 2012) (citing Thompson, 483 F.2d at 528).
The court will examine the legal sufficiency of
Gallardo's affidavit against the above standards.
Whether the alleged facts are material and stated with
affidavit alleges that AUSA Fawcett, who prosecuted this
case, has been a prosecutor in this district “at least
since 2006.” Since the undersigned judge has been at
the bench since 1979, Gallardo argues “it would present
a miscarriage of justice to have the same judge review the
claim of prosecutorial misconduct and ineffective assistance
of counsel.” Gallardo attaches to the affidavit
documents which set out the alleged conspiracy and collusion
between Fawcett and defense counsel which is the basis for
his § 2255 petition.
does not claim that this judge knew of the alleged collusion
or fraudulent documents or participated in the alleged
fraudulent conduct. Gallardo's observations are