Dino Iacullo v. United States , 463 F. App'x 896 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11319 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 4, 2012
________________________ JOHN LEY
CLERK
D.C. Docket Nos. 0:09-cv-61928-JIC,
0:97-cr-06023-JIC-5
DINO IACULLO,
lllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 4, 2012)
Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.
PER CURIAM:
Dino Iacullo, proceeding pro se, appeals the denial of his motion to vacate,
28 U.S.C. § 2255. On appeal, Iacullo argues that the magistrate judge and district
court erroneously denied his request for a new magistrate. The government argues
that we should dismiss the appeal for lack of jurisdiction because Iacullo’s claim is
moot. For the reasons set forth below, we affirm.
I.
Iacullo filed a motion to vacate, 28 U.S.C. § 2255, in 2009, and Patrick A.
White, a magistrate, was assigned to the case. Iacullo also filed an unsealed
supplemental memorandum. Magistrate White ordered the government to respond
to Iacullo’s motion to vacate within 45 days. Iacullo asked for a 45-day extension
to reply to the government’s response, and White granted him 30 days to file a
reply.
Iacullo filed a motion for reassignment, asking that a new magistrate be
assigned due to an appearance of conflict with White. Iacullo explained that he
had filed a judicial complaint against White, which was resolved in 2005. Next,
Iacullo filed a motion to hold his case in abeyance pending the resolution of the
motion for reassignment. He argued that White was biased because: (1) White had
only allowed Iacullo, a pro se litigant, a 30-day extension to file a reply, while the
government had been allowed 45 days to file a response; (2) Iacullo’s
supplemental memorandum was not sealed, even though Iacullo had asked the
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clerk to seal that document; and (3) Iacullo had not received a number of
documents that had been filed in the case.
White denied the motion for reassignment because Iacullo had not shown
that White was biased against Iacullo. Iacullo moved for reconsideration, and he
submitted an affidavit, in which he declared that his judicial complaint against
White concerned White’s failure to follow the doctrine of stare decisis. White
denied the motion for reconsideration. Following White’s issuance of a report and
recommendation, the district court denied Iacullo’s motion to vacate, finding, in
part, that White did not need to recuse himself under 28 U.S.C. § 455. Iacullo
filed a motion for amended judgment, which the district court also denied.
Iacullo was unable to obtain a certificate of appealability (“COA”), but, in
denying his motion for a COA, we did note that Iacullo could appeal the denial of
his motion for reassignment.
II.
We consider our jurisdiction, including whether an appeal is moot, sua
sponte. Seay Outdoor Adver., Inc. v. City of Mary Esther, Fla., 397 F.3d 943, 946
(11th Cir. 2005). A judge’s failure to recuse himself is reviewed for an abuse of
discretion. Murray v. Scott, 253 F.3d 1308, 1310 (11th Cir. 2001).
We only have jurisdiction to consider “actual, ongoing cases or
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controversies,” not questions that are moot. Brooks v. Ga. State Bd. of Elections,
59 F.3d 1114, 1118-19 (11th Cir. 1995). To determine whether a case is moot, we
determine what relief we may grant if the district court erred. Aquamar S.A. v. Del
Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1287 (11th Cir. 1999). “[I]f
intervening events have made it impossible for [us] to grant any effectual relief,”
the case is moot and must be dismissed. Id. (quotation omitted).
A magistrate must recuse “himself in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). He must also
recuse himself if he is personally biased or prejudiced towards a party.
Id. § 455(b). The purpose of § 455(a) is to foster “the public’s confidence in the
impartiality and integrity of the judicial process.” Potashnick v. Port City Constr.
Co., 609 F.2d 1101, 1111 (5th Cir. 1980). Thus, a judge should recuse himself if a
reasonable person, aware of the circumstances, “would harbor doubts about the
judge’s impartiality.” Id. Where a judge improperly fails to recuse himself, we
may reverse the district court judgment and order a retrial before a different judge.
Id. at 1112, 1120. In Mixon v. United States, 620 F.2d 486 (5th Cir. 1980), a
prisoner appealed the denial of his motion to vacate. Id. at 487. The magistrate in
that case was disqualified based on his participation as a government attorney in
the prisoner’s criminal case. Id. “Because of the disqualification, [the Fifth
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Circuit] treat[ed] the proceedings and the disposition below as a nullity” and
vacated and remanded for further proceedings. Id.To require recusal, a judge’s bias “must stem from an extrajudicial source
and result in an opinion on the merits on some basis other than what the judge
learned from his participation in the case.” Jaffe v. Grant, 793 F.2d 1182, 1188-89
(11th Cir. 1986) (quotations omitted). Adverse judicial rulings are generally
“proper grounds for appeal, not for recusal.” Liteky v. United States, 510 U.S.
540, 555, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). “A judge’s ordinary
efforts at courtroom administration” also do not show bias. Id. at 556, 114 S.Ct. at
1157. Finally, in the Southern District of Florida, a party opposing a motion is
generally allowed 14 days to respond to the motion, and the movant is generally
then allowed 7 days to reply to the response. S.D. Fla. L.R. 7.1(c).
First, Iacullo’s recusal argument is not moot. As in Mixon, if we determine
that White should have recused himself, we can grant relief by reversing the
district court judgment and ordering that the case not be assigned to White on
remand. See 620 F.2d at 487; Potashnick, 609 F.2d at 1120. Even if the
government is correct that Iacullo cannot prevail on the merits, § 455 is intended
to protect against unfair judicial proceedings. See Potashnick, 609 F.2d at 1111.
Therefore, if we remanded the case and Iacullo’s motion to vacate was again
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denied, the error of allowing his case to proceed before a biased magistrate will
nonetheless have been remedied. See Aquamar S.A., 179 F.3d at 1287.
Iacullo’s argument that White should have recused himself is meritless.
First, as to the judicial complaint, no reasonable observer would question White’s
impartiality simply because, more than four years before the instant motion to
vacate was filed, Iacullo questioned White’s judicial reasoning. See Potashnick,
609 F.2d at 1111. Second, no bias is evident from the fact that Iacullo did not
receive some filings from the court. While this problem may indicate that the
clerk’s office was slow to mail some documents or that some of Iacullo’s mail was
lost before it reached him in prison, it bears no relevance to White’s decisions and
recommendations regarding Iacullo’s motion to vacate. Third, no bias is evident
from the failure to seal Iacullo’s supplemental memorandum because he did not
request that that document be sealed. Finally, White showed no bias in allowing
the government 45 days to file a response while only allowing Iacullo a 30 days to
file a reply. Rather, that judicial ruling was an example of courtroom
administration, and it, therefore, did not show bias. See Liteky, 510 U.S. at 556,
114 S.Ct. at 1157. Moreover, the ruling was consistent with the local rules for the
Southern District of Florida, which grant the party opposing a motion twice as
much time to file a response as the movant is granted to file a reply. See S.D. Fla.
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L.R. 7.1(c). Therefore, Iacullo has not shown that White was biased or prejudiced.
For the foregoing reasons, we affirm the denial of Iacullo’s motion to
vacate.
AFFIRMED.
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