United States District Court, S.D. Alabama, Southern Division
K. DuBOSE, CHIEF UNITED STATES DISTRICT JUDGE
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.
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).
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,
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.
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.
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 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).
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. 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,
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.
Coble's motion pursuant to 28 U.S.C. § 144
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.
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)).
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)); 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).
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