United States v. Antonio U. Akel , 610 F. App'x 875 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11671
Non-Argument Calendar
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D.C. Docket No. 3:07-cr-00136-LC-EMT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO U. AKEL,
a.k.a. Tony Akel,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(May 7, 2015)
Before ED CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges.
PER CURIAM:
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A jury found Antonio Akel guilty of three crimes (conspiracy to distribute
and to possess with intent to distribute various drugs, possession with intent to
distribute various drugs, and possession of a firearm by a convicted felon) and not
guilty of three others (two distribution charges and possession of a firearm in
furtherance of a drug trafficking crime). After his convictions were upheld on
appeal, Akel sought habeas relief under 28 U.S.C. § 2255. His § 2255 motion was
assigned to the same judge who had presided over his criminal trial. See 28 U.S.C.
§ 2255(a). Akel filed a pro se motion for recusal, contending that the judge lacked
impartiality and harbored a personal bias against him. The judge denied the
motion. Akel later filed a motion for reconsideration, which the judge denied after
holding a two-day hearing on the matter. This is Akel’s pro se appeal of the
district court’s denial of his motions for recusal and for reconsideration.
I.
As a preliminary matter, the government contends that Akel’s appeal is
untimely under Federal Rule of Appellate Procedure 4(b)(1)(A), which governs
appeals in criminal cases. We review de novo whether an appeal should be
dismissed as untimely. See United States v. Glover, 686 F.3d 1203, 1205 (11th
Cir. 2012).
Akel’s motions for recusal and for reconsideration relate to his § 2255
motion. Motions filed under § 2255 for most purposes are considered civil in
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nature. See Brown v. United States, 748 F.3d 1045, 1065 (11th Cir. 2014). Thus,
Federal Rule of Appellate Procedure 4(a)(1)(B), which governs appeals in civil
cases, applies. See Butcher v. United States, 368 F.3d 1290, 1293 n.1 (11th Cir.
2004). Under that rule, Akel had 60 days to file a notice of appeal from the district
court’s order denying his motion for reconsideration. See Fed. R. App. P.
4(a)(1)(B)(i) (providing that “[t]he notice of appeal may be filed by any party
within 60 days after entry of the judgment or order appealed from if one of the
parties is . . . the United States”). The district court denied Akel’s motion for
reconsideration on February 21, 2014, and Akel filed a notice of appeal 49 days
later, on April 11, 2014.1 His appeal is timely.
II.
We review for abuse of discretion the district court’s rulings on Akel’s
motions for recusal and for reconsideration. See Giles v. Garwood, 853 F.2d 876,
878 (11th Cir. 1998) (motion for recusal); Wilchombe v. TeeVee Toons, Inc., 555
F.3d 949, 957 (11th Cir. 2009) (motion for reconsideration). We will address each
in turn.
1
Under the “prison mailbox rule,” a pro se prisoner’s court filing is deemed filed on the
date it is delivered to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266, 276,
108 S. Ct. 2379, 2385 (1988); see also Fed. R. App. P. 4(c)(1) (“If an inmate confined in an
institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is
deposited in the institution’s internal mail system on or before the last day for filing.”).
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A.
Akel filed his motion for recusal under 28 U.S.C. § 455, arguing that two
provisions of § 455 supported his position. The first was § 455(a), which requires
a federal judge to “disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.” Akel argued that the judge could not rule
impartially on his § 2255 motion because he had given “improper and repeated
Allen charges” to the jury at Akel’s trial and had sentenced Akel as an Armed
Career Criminal “despite knowing he couldn’t per the jury verdict.” See generally
Allen v. United States, 164 U.S. 492, 501–02, 17 S. Ct. 154, 157 (1896) (holding
that a trial court may instruct a deadlocked jury to keep deliberating); 18 U.S.C.
§ 924(e). The second provision that Akel relied on was § 455(b)(1), which
requires a federal judge to “disqualify himself . . . [w]here he has a personal bias or
prejudice concerning a party.” According to Akel, the judge’s personal bias
against him was clear from several improper statements that the judge had
allegedly made to the jury outside of Akel’s presence, including “berat[ing] the
jury for finding Akel not guilty on three (3) of the six (6) counts” and calling Akel
“a son of a bitch.” Akel attached an affidavit in which he declared that his trial
attorney had told him that an anonymous juror had told him that the judge had
made those statements.
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The district judge did not abuse his discretion in denying Akel’s motion for
recusal. Akel’s argument that the judge should have recused because of a lack of
impartiality stems from the judge’s rulings at Akel’s trial and sentence hearing.
Just because those rulings were not in Akel’s favor does not mean that they
establish any bias or prejudice. See Liteky v. United States, 510 U.S. 540, 551,
555, 114 S. Ct. 1147, 1155, 1157 (1994); Hamm v. Members of Bd. of Regents,
708 F.2d 647, 651 (11th Cir. 1983). “[B]ias or prejudice must be personal and
extrajudicial; it must derive from something other than that which the judge
learned by participating in the case.” United States v. Amedeo, 487 F.3d 823, 828
(11th Cir. 2007) (quotation marks omitted). And Akel’s allegations of personal
bias or prejudice depend on double hearsay — that is, Akel’s report about what his
trial attorney said about what an anonymous juror said. “A judge should not recuse
himself based upon unsupported, irrational, or tenuous allegations,” and Akel’s
allegations were exactly that. Giles, 853 F.2d at 878. The district judge was not
required to recuse himself.
B.
After the district judge denied his motion for recusal, Akel filed a motion for
reconsideration. He made two arguments. First, he argued that the district judge
should have considered his motion for recusal under 28 U.S.C. § 144, another
federal statute that governs recusal, as well as 28 U.S.C. § 455, the statute he had
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cited in his original motion. Second, Akel argued that the district judge had denied
his motion for recusal without considering an important piece of evidence that
supported his claims about the judge’s alleged misbehavior: a letter that Akel’s
trial attorney had written to Akel’s father. Akel had included that letter in his reply
to the government’s response in opposition to his motion, but the district court had
returned the reply as deficient because local rules do not allow parties to file a
reply without first obtaining the court’s permission. The district judge considered
Akel’s arguments, held a two-day evidentiary hearing on the motion for
reconsideration, and denied it.
The district judge did not abuse his discretion in denying Akel’s motion for
reconsideration. A litigant cannot use a motion for reconsideration to raise “new
arguments that were previously available, but not pressed” or to “present evidence
that could have been raised prior to the entry of judgment.” Wilchombe, 555 F.3d
at 957 (quotation marks omitted). Akel used his motion for reconsideration to do
exactly those things. He raised an argument he could have raised in his original
motion and presented evidence he could have presented before the court denied his
motion. Although the district judge could have denied Akel’s motion for
reconsideration on those grounds alone, the judge instead held a two-day
evidentiary hearing before reaching his decision. There was no abuse of
discretion.
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AFFIRMED. 2
2
Akel’s motion for leave to file a corrected brief is GRANTED.
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