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United States v. Coble

United States District Court, S.D. Alabama, Southern Division

January 26, 2018

UNITED STATES OF AMERICA,
v.
JEFFREY DEAN COBLE, Defendant.

          ORDER

          KRISTI K. DuBOSE, CHIEF UNITED STATES DISTRICT JUDGE

         This action is before the Court on Defendant Jeffrey Dean Coble's pro se Motion for Disqualification pursuant to 28 U.S.C. § 144 and § 455(a) and Affidavit (docs. 70, 70-1). Upon consideration, and for the reasons set forth herein the Motion is DENIED.

         I. Procedural background

         Coble was indicted for the offense of receiving and distributing material that contained child pornography (doc. 15). In calculating Coble's sentencing guideline range, the Probation Office applied U.S.S.G. § 2G2.2 with four enhancements (doc. 19, Sentencing Guideline Worksheet). As a result, Coble's adjusted offense level was 36. With a criminal history category of I and a deduction of three levels for acceptance of responsibility, his total offense level was calculated to be 33 and his lowest sentencing guidelines range was 135-168 months. (Id.) Counsel for Coble later filed the Certification Regarding the Preliminary Guideline Calculations of the Probation Officer wherein he certified that the preliminary calculations had been reviewed and discussed with Coble (doc. 20). Coble was advised that the preliminary calculations were not binding on the Court and that the final calculations might be different. (Id., p. 2).

         Coble filed a notice of intent to plead guilty along with a plea agreement with a factual resume (docs. 21, 23). The change of plea hearing was held on February 22, 2016 (doc. 24), and Coble was informed that he was facing a sentence of five to twenty years. Coble's sentencing date was set for May 26, 2016. The Probation Office then prepared a draft Presentence Investigation Report (PSIR). The Probation Office applied U.S.S.G. § 2G2.2 and only three enhancements. Coble's total offense level was calculated as 31. With a criminal history category of I, his sentencing guidelines range was 108 to 135 months (doc. 25, Draft PSIR, April 14, 2016).

         On May 26, 2016, the day of sentencing, the Court, having reviewed the Final PSIR, held an in chambers conference with counsel without Coble's presence. After the conference, the Court stated in open court, that “[u]pon review of the presentence investigation, I have determined that the guidelines have been incorrectly calculated. There is information that I have and that was admitted to in the factual resume that has not been included” in the Final PSIR (Doc. 67, p. 2). The Probation Office was instructed to re-calculate the Final PSIR, the sentencing hearing was continued until June 30, 2016, and Coble was given an opportunity to object to the recalculated guidelines.

         Later that day, the Probation Office docketed the revised Final Presentence Investigation Report (doc. 28). The Probation Office indicated that the “guideline for 18 U.S.C. § 2252A(a)(2) offenses is found at U.S.S.G. § 2G2.2(a)(2) of the guidelines. Pursuant to U.S.S.G. § 2G2.2(c)(1) “if the offense involved causing, transporting, permitting, or offering or seeking by notice of advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct” then § 2G2.1 would apply. As a result of the cross-reference from § 2G2.2 to § 2G2.1, Coble's total offense level increased to 35. (Id.) With a criminal history category of I, his sentencing guidelines range increased to 168 to 210 months. (Id.)

         Coble and the United States both filed objections to the revised PSIR. Coble objected to the application of the cross-reference provision (docs. 36, 40 (sealed)). The United States objected that there were two specific offense characteristics[1] relevant to the guideline calculation - the age of the victims and Coble's relationship to them - as to which the United States would present testimony at sentencing. (doc. 37).

         The sentencing hearing was held June 30, 2016 (doc. 63, Sentencing Transcript). The Court overruled Coble's objection to the application of the cross-reference provision.[2] The Court sustained the United States' objection to the PSIR that six levels should be added (doc. 37, doc. 63, p. 6). As a result, the Court recalculated Coble's total offense level as 40 (doc. 63, p. 6-8). With a criminal history category of I, his sentencing guidelines range increased to 292 to 365 months. However, Coble was subject to the statutory maximum of 240 months. Therefore, the statutory maximum became the sentencing guideline range (doc. 63, p. 8). Coble was sentenced to 240 months (doc. 41, Judgment).[3]

         In 2017, Coble filed a motion to vacate pursuant to 28 U.S.C. § 2255, which is pending before the undersigned (doc. 54). Coble now moves pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455 to disqualify the Court and for a different judge to review his motion to vacate.

         II. Coble's motion pursuant to 28 U.S.C. § 144

         Title 28 U.S.C. § 144, captioned “Bias or prejudice of judge”, provides as follows:

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.

         “Judges must recuse themselves when they are personally biased or prejudiced against a party or in favor of an adverse party.” Klayman v. City Pages, 650 Fed.Appx. 744, 748 (11th Cir. 2016) (citing 28 U.S.C. § 144). “Disqualification under § 144 requires that a party file an affidavit demonstrating the judge's personal bias or prejudice against that party or in favor of an adverse party.” United States v. State of Alabama, 828 F.2d 1532, 1540 (11th Cir. 1987) (superseded by statute on other grounds, as recognized in Lussier v. Dugger, 904 F.2d 661, 664 (11th Cir.1990)); Dae Eek Cho v. United States, 687 Fed.Appx. 833, 839 (11th Cir. 2017) (“Relief pursuant to 28 U.S.C. § 144 requires an affidavit, which must ‘state the facts and the reasons for the belief that bias or prejudice exists.'”). “‘To warrant recusal under § 144, the moving party must allege facts that would convince a reasonable person that bias actually exists.'” Klayman, 605 Fed.Appx. at 748 (quoting Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000)).

         Also, the “statute mandates that the affidavit be filed within a specified time period and that it be accompanied by a certificate of good faith by a counsel of record.” United States v. State of Alabama, 828 F.2d at 1540. “If an affidavit is timely and technically correct, the trial judge may not pass upon the truthfulness of the facts stated in the affidavit even when the court knows these allegations to be false.” Id.; see also Christo, 223 F.3d at 1333 (“Properly pleaded facts in a § 144 affidavit must be considered as true.”) “The statute restricts the trial judge to determining whether the facts alleged are legally sufficient to require recusal. United States v. State of Alabama, 828 F.2d at 1540. “The test for legal sufficiency adopted by this Court requires a party to show: 1. The facts are material and stated with particularity; 2. The facts are such that, if true they would convince a reasonable person that a bias exists; 3. The facts show that the bias is personal, as opposed to judicial, in nature.” Id.; Young v. Smith, 2015 WL 1541686, at *1 (S.D. Ga. Mar. 31, 2015) (same). Therefore, “(b)efore a judge recuses herself, a § 144 affidavit must be ‘strictly scrutinized for form, timeliness, and sufficiency.'” United States v. Perkins, 787 F.3d 1329, 1343 (11th Cir. 2015) (quoting United States v. Womack, 454 F.2d 1337, 1341 (5th Cir. 1972));[4] Young, 2015 WL 1541686, at *1 (“Because the statute ‘is heavily weighted in favor of recusal, ' [the] requirements are to be strictly construed to prevent abuse.”) (citation omitted).

         As to form, Coble submits a notarized affidavit wherein he states the facts supporting his belief that personal bias or prejudice exists (doc. 70-1). Coble is proceeding pro se. (doc. 70-1, p. 8). His affidavit is not accompanied by a certificate of counsel of record stating that it is made in good faith. Therefore, it does not meet the procedural requirements of § 144. See United States v. Perkins, 787 F.3d at 1343 (finding that the district court did not abuse its discretion in denying Perkins' pro se motion pursuant to 28 U.S.C. § 144 because his affidavit “did not meet the procedural requirements of § 144 because it was not accompanied by a good-faith certificate from his appointed counsel of record” without discussion of the other procedural requirements); Guthrie v. Wells Fargo Home Mortgage. NA, 2015 WL 1401660, at *2 (N.D.Ga. Mar. 26, 2015) (“In light of the mandatory and automatic nature of recusal under the statute, its potential for abuse, and the availability of other statutory mechanisms pursuant to which an unrepresented litigant may seek the recusal of a federal ...


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