United States District Court, D. South Dakota, Central Division
CHARLES B. KORNMANN, UNITED STATES DISTRICT JUDGE
pleaded guilty to second degree murder and was sentenced by
the undersigned on May 10, 2004, to 168 months imprisonment
followed by five years supervised release.
was released to supervision on April 28, 2015. He was
arrested on a petition to revoke supervised release on
December 3, 2015. His supervised release was revoked on
January 5, 2016, and he was sentenced to ten months
imprisonment followed by three years supervised release.
was released to supervision on September 30, 2016. He was
arrested on a second petition to revoke supervised release on
November 18, 2016. His supervised release was revoked on
January 6, 2017, and he was sentenced to 20 months
imprisonment followed by 30 months supervised release. He
appealed his revocation sentence and the United States Court
of Appeals for the Eighth Circuit affirmed. United States
v. Eagle Chasing. 2018 WL 1602972, 717 Fed.Appx. 647
(8th Cir. 2018).
was released to supervision on May 1, 2018. He was arrested
on a third petition to revoke supervised release on July 27,
has filed a motion for recusal and transfer to another judge.
The defendant questions this Court's impartiality based
upon my previous imposition of a sentence upon the
defendant's second revocation of supervised release which
exceeded the discretionary guideline range. Defendant further
states that he desires to be sentenced as soon as possible,
prior to May or June, 2019.
has filed an affidavit wherein he contends that I previously
failed to provide a basis for imposing a sentence in excess
of the guideline range, that he is concerned that I will
sentence him to the maximum sentence available upon his third
revocation without considering the sentencing factors set
forth in 18 U.S.C. § 3553, and that I have predetermined
the sentence that I will impose which raises a concern that I
am biased or prejudiced.
to 28 U.S.C. § 455(a), a United States District Judge
"shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned." Judges are
"presumed to be impartial" and the defendant
"bears the substantial burden of proving
otherwise." United States v. Dehghani, 550 F.3d
716, 721 (8th Cir. 2008).
contends that I am biased against him based upon the facts of
his case and my previous sentencing decisions in his case.
The bias necessary to require recusal must come from an
extra-judicial source - opinions formed by the judge on the
basis of facts learned during the course of prior proceedings
do not ordinarily constitute a basis for a finding of bias.
United States v. Martin. 757 F.3d 776, 778 (8th Cir.
2014). My previous unfavorable ruling in defendant's case
"does not raise an inference of bias or require the
trial judge's recusal." Harris v. State of
Mo.. 960 F.2d 738, 740 (8th Cir. 1992). "[J]udicial
rulings alone almost never constitute a valid basis for a
bias or partiality motion." Liteky v. United
States, 510 U.S. 540, . 555, 114 S.Ct. 1147, 1157, 127
L.Ed.2d 474 (1994) ("Almost invariably, they are proper
grounds for appeal, not for recusal."). "[O]pinions
formed by the judge on the basis of facts introduced or
events occurring in the course of the current proceedings, or
of prior proceedings, do not constitute a basis for a bias or
partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment
impossible." Liteky v. United States, 510U.S.
540, 555, 114 S.Ct. 1147, 1157, 127 L.Ed.2d474 (1994). No
deep-seated favoritism or antagonism exists in this case.
is not required when it appears the defendant is attempting
to manipulate the judicial system by judge shopping.
United States v. Beale, 574 F.3d 512, 519-20 (8th
Cir. 2009). Motions to recuse should not "be viewed as
an additional arrow in the quiver of advocates in the face of
[anticipated] adverse rulings." In re Kansas Pub.
Employees Ret. Sys., 85 F.3d 1353, 1360 (8th Cir. 1996)
(quoting TV Communications Network. Inc. v. ESPN.
Inc.. 767 F.Supp. 1077, 1081 (D.Colo.1991)).
is facing a third revocation of supervised release. His
second sentence of 20 months imprisonment for violating his
second period of supervised release was above the
discretionary guideline range. That range was based upon his
violation conduct. The guideline range did not take into
account that it was defendant's second revocation. The
Eighth Circuit held that the sentence I imposed, which was
based upon record evidence, was not an abuse of discretion.
United States v. Eagle Chasing, supra.
is apparently concerned about the length of the sentence he
faces upon his third revocation. His concern is well placed.
Defendants who continue to flaunt the orders of the Court by
violating the conditions imposed upon them rightly assume
that they will be subject to harsher penalties with each
additional revocation. However, increased punishment does not
reflect any personal bias or prejudice against any defendant
but instead is reflective of the defendant's conduct in
the case. I bear no bias or prejudice against this defendant
of a judge under 18 U.S.C. § § 144 and 45 5 is not
required where the defendant has not filed a timely, legally
sufficient affidavit. Hollowav v. United States, 960
F.3d 1348, 1354-55 (8th Cir. 1992). Defendant has identified
no evidence that I harbor a personal bias or prejudice
against him based upon any extra-judicial matter. The
contention that I previously imposed a harsher sentence than
called for by the guidelines, while true, is not legally
sufficient to show bias or prejudice.
the motion to recuse and affidavit are untimely. Petitioner
was arrested on the third petition to revoke on July 27,
2018. He requested a preliminary hearing and that hearing was
twice set and continued at defendant's request. He was
adamant that counsel raise a legal challenge to revocation
based upon alleged advice of penalties given to him in ...