Nelson Cintron v. United States , 401 F. App'x 495 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15385 ELEVENTH CIRCUIT
OCTOBER 29, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket Nos. 09-60740-CV-WPD,
07-60049-CR-WPD
NELSON CINTRON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 29, 2010)
Before TJOFLAT, EDMONDSON and MARTIN, Circuit Judges.
PER CURIAM:
This is an appeal of the denial of a motion to vacate filed pursuant to 28
U.S.C. § 2255 by Nelson Cintron. We construe the certificate of appealability that
issued as follows:
Whether Cintron was denied due process of law when the district
judge denied his motion to recuse based on bias, prejudice, and/or
lack of impartiality, and/or whether Cintron was denied his due
process rights due to presumed judicial bias and prejudice during his
guilty plea and sentence.
Before he denied Cintron’s § 2255 motion, the district judge denied
Cintron’s motion that the judge recuse on the ground that a close relative of the
judge had been the victim of a crime similar to the underlying offense that Cintron
committed. Cintron argues that the judge could not be impartial in his case
because of the similarity between his case and an incident involving the judge’s
close relative. He contends that he was denied his statutory rights under under 28
U.S.C. §§ 455(a) and 144.
We review for abuse of discretion a judge’s denial of a motion to recuse.
United States v. Amedeo, 487 F.3d 823, 828 (11th Cir. 2007). A district judge
abuses his discretion when he “applies the wrong law, follows the wrong
procedure, bases its decision on clearly erroneous facts, or commits a clear error in
judgment.” Tran v. Toyota Motor Corp., 420 F.3d 1310, 1315 (11th Cir. 2005)
(quotation omitted).
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Under 28 U.S.C. § 455(a), a judge shall “disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.” Recusal is
appropriate under § 455(a) only if “an objective, disinterested, lay observer fully
informed of the facts underlying the grounds on which recusal was sought would
entertain a significant doubt about the judge’s impartiality.” Amedeo, 487 F.3d at
828 (quotation omitted). As a general rule, “a judge’s rulings in the same case are
not valid grounds for recusal.” Loranger v. Stierheim, 10 F.3d 776, 780 (11th Cir.
1994).
Pursuant to 28 U.S.C. § 144, recusal of a district judge is required when a
party “makes and files a timely and sufficient affidavit that the judge has a personal
bias or prejudice either against him or in favor of an adverse party.” 28 U.S.C.
§ 144. In other words, to warrant recusal under § 144, “the moving party must
allege facts that would convince a reasonable person that bias actually exists.”
Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000). Moreover,
“unsupported, conclusory, or tenuous allegations” are not sufficient to warrant
disqualification. Giles v. Garwood, 853 F.2d 876, 878 (11th Cir. 1988).
Because Cintron failed to meet the statutory requirements to warrant recusal
under 28 U.S.C. §§ 455(a) and 144, the district judge did not abuse his discretion
in not disqualifying himself from passing on Cintron’s § 2255 motion.
AFFIRMED.
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