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United States v. Davies

United States District Court, W.D. Pennsylvania

May 16, 2018

UNITED STATES OF AMERICA,
v.
ROBERT DAVIES Petitioner

          OPINION

          Joy Flowers Conti Chief United States District Judge.

         I. Introduction

         On December 18, 2007, a federal grand jury returned a one-count indictment charging petitioner Robert Davies (“petitioner”) with knowingly traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with another person, as defined in 18 U.S.C. § 2423(f)(1), in violation of 18 U.S.C. § 2423 (b) and (e). (ECF No. 14.) On May 27, 2009, petitioner pleaded guilty to count one of the indictment. On October 16, 2009, petitioner- after spending nineteen months incarcerated-was sentenced to a term of imprisonment of time served and a lifetime term of supervised release, with all conditions of release outlined. (ECF Nos. 75, 76, 79.) Petitioner previously filed two § 2255 motions with this court (ECF Nos. 85, 110), which the court denied (ECF Nos. 103, 181.) Petitioner appealed each of the court's decisions denying his § 2255 motions, and the Third Circuit Court of Appeals declined to issue a certificate of appealability with respect to either of those motions. (ECF Nos. 108, 189.) Petitioner has also filed other post-conviction motions, which the court has denied or denied as moot. (ECF Nos. 110, 121, 123, 125, 172, 179, 186, 188, 190, 194, 196, 202, 203, 208, 209, 256.)

         Currently pending before the court are four motions filed by petitioner: (1) a motion for recusal of presiding judge (ECF No. 274); (2) a motion to terminate or modify conditions of supervised release (ECF No. 265); (3) a motion to strike (ECF No. 271); and (4) a motion to appoint counsel (ECF No. 266). For the reasons stated herein, and the motion for recusal of presiding judge will be denied, the motion to terminate supervised release will be denied, the motion to appoint counsel will be denied, and the motion to strike will be denied as moot.

         II. Motion for recusal of presiding judge (ECF No. 274)

         Petitioner in his motion for recusal of presiding judge argues that the undersigned judge should recuse from this case because she has “alter[ed] facts adduced and opinions…to avoid vacating Defendant's conviction and sentence[, ]” which “displays a deep-seated favoritism toward the government or antagonism toward Defendant that makes fair judgment impossible.” (ECF No. 274 at 8.) Specifically, petitioner argues for recusal because the undersigned judge:

(1) after petitioner pleaded guilty, denied his pro-se motion to suppress, which was filed when petitioner was represented by counsel (id. ¶ 12);
(2) denied petitioner's first motion filed under 28 U.S.C. § 2255 because petitioner failed to show that his sentence would have been different if his counsel had filed a motion to suppress, and, therefore, “rewrote” the law “to prevent Defendant from meeting the real burden of proof” (id. ¶¶ 13, 14);
(3) relied upon “irrelevant events” when it denied petitioner's section § 2255 motion (id. ¶ 15);
(4) denied petitioner's motion for return of property even though forfeiture was not noticed in the indictment and his computer did not contain child pornography (ECF No. 274 ¶ 18);
(5) at the time of sentencing did not determine whether images found on petitioner's computer were child pornography (id. ¶¶ 19-20);
(6) did not grant petitioner's request in his second § 2255 motion to vacate his sentence even though one of his prior state court convictions was vacated (id. ¶ 21);
(7) did not vacate petitioner's sentence, which was based in part on his need for medication, even though he presented evidence that he no longer requires medication (id. ¶¶ 21-22); and
(8) misunderstood petitioner's claims of fraud against the assistant United States attorney who prosecuted his case and did not resolve the argument actually made by petitioner (id. ¶ 23.)

         The statute governing judicial disqualification provides, in pertinent part:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

28 U.S.C. § 455(a). The test for disqualification pursuant to § 455(a) is “whether a reasonable person, with knowledge of all the facts, would conclude that the judge's impartiality might reasonably be questioned.” In re Kensington Int'l Ltd., 353 F.3d 211, 220 (3d Cir. 2003). “It is ‘vital to the integrity of the system of justice that a judge not recuse himself on unsupported, irrational or highly tenuous speculation.'” Pondexter v. Allegheny Cnty. Housing Auth., Civ. No. 11-857, 2012 WL 1621370, at *2 (W.D. Pa. May 9, 2012) (quoting McCann v. Commc'ns Design Corp., 775 F.Supp. 1506, 1523 (D. Conn. 1991) (alteration in original)). A court's “rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). The Supreme Court has explained:

[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion. See United States v. Grinnell Corp., 384 U.S., at 583, 86 S.Ct., at 1710. In and of themselves (i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal.

Liteky, 510 U.S. at 555.

         All the arguments raised by petitioner are attacks on the undersigned judge's judicial rulings. Petitioner's arguments do not show a degree of favoritism or antagonism that is required for recusal. Under those circumstances, a reasonable person with knowledge of all the facts would not conclude that the undersigned judge's impartiality might reasonably be questioned in this case. Petitioner's motion for recusal (ECF No. 274) will, therefore, be denied.

         III. Motion to Terminate Supervised Release (ECF No. 265)

         A. Consideration of certain enumerated factors in 18 U.S.C. § 3553(a)

         Petitioner requests the court to terminate the lifetime term of supervised release under 18 U.S.C. § 3583(e)(1) or, in the alternative, modify the conditions of release under 18 U.S.C. § 3583(e)(2). (ECF No. 265 at 1.) After considering certain enumerated factors in 18 U.S.C. § 3553(a), the court may,

terminate a term of supervised release and discharge the defendant released at any time after the expiration of one year of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice
[or]…
modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision

18 U.S.C. § 3583(e)(1).[1]

         The pertinent § 3553(a) factors the court must consider before terminating the term of supervised release or modifying the conditions of release are:

• the nature and circumstances of the offense and the history and characteristics of the defendant, ...

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