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Bonds v. United States

United States District Court, W.D. Washington, Seattle

May 15, 2018

NATHAN BONDS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE..

         This 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 explained herein.

         I. BACKGROUND

         A jury 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 United States v. Bonds, 679 Fed.Appx. 635, No. 15-30341 (9th Cir. 2017) (unpublished).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).

         Petitioner 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.)

         II. DISCUSSION

         A. Request for Recusal

         Petitioner 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.

         Recusal 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.

         Petitioner 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 recusal.

         B. Legal Standard

         A 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.).

         C. Issuance of Ex Parte Jury Instructions

         Petitioner 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 ...


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