United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE..
matter comes before the Court on Petitioner Nathan
Bonds's motion to vacate his conviction and set aside his
sentence (Dkt. No. 1). Having thoroughly considered the
parties' briefing and the relevant record, the Court
finds an evidentiary hearing unnecessary and hereby DENIES
the motion and DISMISSES the petition for the reasons
convicted Petitioner on four counts relating to the sex
trafficking and prostitution of minors. United States v.
Bonds, No. CR14-0074-JCC, Dkt. No. 108 (W.D. Wash 2014).
He was sentenced to 120 months of detention. Id.,
Dkt. No. 154 at 2. The Ninth Circuit affirmed his conviction
on March 10, 2017. United States v. Bonds, 679
Fed.Appx. 635, No. 15-30341 (9th Cir. 2017) (unpublished).
Petitioner filed this timely petition collaterally attacking
his conviction on January 26, 2017 (Dkt. No. 1). The Court
ordered a response from the Government (Dkt. No. 4), which it
provided (Dkt. No. 11).
alleges that the Court issued ex parte oral
instructions to the jury. He further alleges that he received
ineffective assistance of counsel from both his trial and
appellate attorneys. Consequently, Petitioner makes two
requests of the Court. First, he asks the Court to recuse
itself because of the alleged ex parte contact. (Dkt
No. 1 at 6.) Second, he asks the Court to vacate his
conviction and set aside his sentence pursuant to 28 U.S.C.
§ 2255, or, alternatively, to order an evidentiary
hearing on the issues he raises. (Id.)
Request for Recusal
moves for recusal under 28 U.S.C. sections 144 and 455(a). He
asserts that his petition should be heard by another judge
because it includes a claim of ex parte contact
between the Court and the jury.
is required under 28 U.S.C. § 144 when a party files an
affidavit under oath which both alleges prejudice by the
judge and sets forth specific facts demonstrating the
potential that the judge may be biased against it. In re
Beecher, 50 F.Supp. 530, 531-32 (E.D. Wash. 1943). Under
28 U.S.C. § 455(a), recusal is mandated when a
judge's “impartiality might be reasonably
questioned.” Under both statutes, the alleged prejudice
must arise from an external source, not from regular judicial
activities. Litkey v. United States, 510 U.S. 540,
554 (1994); United States v. Grinnell Corp., 384
U.S. 563, 583 (1966). The complaining party must also
demonstrate actual bias. Demjanjuk v. Petrovsky, 776
F.2d 571, 577 (6th Cir. 1985); Hasbrouck v. Texaco,
842 F.2d 1034, 1046 (9th Cir. 1987). Undesirable rulings or
knowledge of unfavorable case-specific facts acquired
throughout the litigation process is not evidence of
prejudice. Hasbrouck, 842 F.2d at 1046;
Grinnell, 384 U.S. at 583.
has not met his burden under either statute. His request
under section 144 was not made under oath, and thus fails to
meet the statutory requirements. See Beecher, 50
F.Supp. at 531. In addition, his allegations fail to identify
an extrajudicial origin of bias. Rather, Petitioner asserts
recusal is necessary because the Court allegedly issued
ex parte jury instructions. This argument fails in
that it does not comply with the purpose of section 2255,
which requires that courts hear petitions filed by prisoners
they sentenced. Demjanjuk, 776 F.2d at 577.
Familiarity with the intricacies of a defendant's trial
allows the Court to render accurate evaluations based on the
totality of the proceedings. See Shah v. United
States, 878 F.2d 1156, 1160 (9th Cir. 1989);
Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977).
Under Petitioner's approach, this benefit would be lost.
Because he has not met the statutory prerequisites, and in
light of the policy considerations underpinning 28 U.S.C.
§ 2255, the Court DENIES Petitioner's request for
prisoner in federal custody who believes her or his sentence
violates the Constitution or federal law may petition the
sentencing court to vacate the conviction or set aside the
sentence. 28 U.S.C. § 2255(a). A “collateral
attack on a criminal conviction must overcome the threshold
hurdle that the challenged judgment carries with it a
presumption of regularity, and that the burden of proof is on
the party seeking relief.” Williams v. United
States, 481 F.2d 339, 346 (2d Cir. 1973). In reviewing
such a petition, a court may rely upon the original
proceeding's record and evidence filed by the parties.
Shah, 878 F.2d at 1160. It may also employ its own
recollection, experience, and common sense. Id.; Gustave
v. United States, 627 F.2d 901, 903-04 (9th Cir. 1980);
Watts v. United States, 841 F.2d 275, 278 (9th Cir.
1988). If the written record does not foreclose the
prisoner's claims, the Court must order an evidentiary
hearing, and make findings of fact and conclusions of law. 28
U.S.C. § 2255(b). However, a section “2255 motion
can be dismissed without a hearing if . . . the
petitioner's allegations cannot be accepted as true
because they are contradicted by the record, inherently
incredible, or conclusions rather than statements of fact. To
avoid dismissal, the movant must present some credible,
non-conclusory evidence” in support of her or his
claims. Sanders v. United States, 341 F.3d 720, 722
(8th Cir. 2003); see United States v. Jackson, 209
F.3d 1103, 1106 (9th Cir. 2000) (no relief is warranted when
the prisoner's claims are contrary to the record or
incredible when weighed against it.).
Issuance of Ex Parte Jury Instructions
first moves for an evidentiary hearing to resolve his
allegation of an ex parte oral instruction. But not
all ex parte contacts prejudice a defendant.
Rushen v. Spain,464 U.S. 114, 118-19 (1983). Even
when a petitioner proves an ex parte contact
occurred, “[e]x parte contact alone
does not suffice for purposes of a new trial; petitioner
still must demonstrate that communications resulted in
‘actual prejudice.'” Bradley v. United
States, 676 Fed. App'x. 895, 906 (11th Cir. 2017)
(unpublished). Accordingly, a ...