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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-14168
Non-Argument Calendar
________________________
D.C. Docket No. 3:10-cr-00017-MMH-JRK-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY JEROME TERRY,
a.k.a. Flip,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 19, 2021)
Before JILL PRYOR, LUCK, and BLACK, Circuit Judges.
PER CURIAM:
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Anthony Terry, a federal prisoner, appeals the district court’s denial of his
pro se motion for a reduced sentence under
18 U.S.C. § 3582(c)(1)(A), as amended
by Section 603(b) of the First Step Act of 2018. 1 First, Terry asserts the district
court erred by not granting his request for appointment of counsel, as his access to
the courts was impeded due to his restricted access to relevant legal materials,
preventing him from making a comprehensive
18 U.S.C. § 3553(a) sentencing
factors argument. Second, Terry contends the district judge erred by failing to
recuse sua sponte due to bias.2 After review, we affirm the district court.
I. DISCUSSION
A. Appointment of Counsel
Post-judgment motions to reduce a sentence under
18 U.S.C. § 3582 are
criminal in nature. United States v. Fair,
326 F.3d 1317, 1318 (11th Cir. 2003).
However, a defendant has no constitutional or statutory right to counsel for
§ 3582(c)(2) motions. United States v. Webb,
565 F.3d 789, 794-95 (11th Cir.
2009). This is because § 3583(c)(2) motions are simply ways to urge a court to
exercise leniency and are not a true challenge to the appropriateness of the original
1
Pub. L. No. 115-391,
132 Stat. 5194, 5239 (Dec. 21, 2018).
2
Terry does not challenge the denial of his motion for compassionate release and has
abandoned any argument regarding the denial. See Timson v. Sampson,
518 F.3d 870, 874 (11th
Cir. 2008) (explaining while pro se briefs are liberally construed, issues not briefed by a pro se
litigant are deemed abandoned). Additionally, Terry has waived his argument that U.S.S.G.
§ 1B1.13 did not apply to his motion for compassionate release by raising it for the first time in
his reply brief. See United States v. Levy,
379 F.3d 1241, 1244 (11th Cir. 2004).
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sentence, and thus, the Sixth Amendment right to counsel does not attach.
Id. at
794. Moreover, because defendants do not have to be present at § 3582(c)(2)
hearings, the Fifth Amendment right to counsel does not attach. Id. at 794-95.
Finally, because § 3582(c)(2) motions are not “ancillary matters appropriate to the
[original criminal action],” there is no statutory right to counsel, either. Id. at 795.
District courts have the discretion to appoint counsel in the interest of
justice. Id. at 795 n.4. The complexity of the issue presented is a relevant factor in
the district court’s determination of whether to exercise its discretion and appoint
counsel. United States v. Berger,
375 F.3d 1223, 1227 (11th Cir. 2004) (discussing
the lack of complexity involved in a Rule 33 motion did not warrant appointment
of counsel). In addition, in the civil context, counsel may be appointed if the
defendant establishes “exceptional circumstances, such as the presence of facts and
legal issues [which] are so novel or complex as to require the assistance of a
trained practitioner.” Kilgo v. Ricks,
983 F.2d 189, 193 (11th Cir. 1993)
(quotations omitted, alteration in original).
The district court did not abuse its discretion in not appointing counsel for
Terry during his § 3582(c)(1)(A) proceedings. See Webb,
565 F.3d at 793-94
(reviewing a district court’s decision not to appoint counsel for an abuse of
discretion). First, Terry was not constitutionally or statutorily entitled to counsel
for his § 3582(c)(1)(A) motion proceedings. See id. at 794-95. Second, the record
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demonstrates Terry adequately presented his claims without the assistance of
counsel due to the non-complex nature of his issues. See Berger,
375 F.3d at 1227.
Specifically, Terry identified and coherently set forth several non-complex but
potentially appropriate reasons, namely the Bureau of Prisons’ handling of the
COVID-19 pandemic and his family’s medical history of hypertension and
diabetes in conjunction with his irregular heartbeat that indicated sinus
bradycardia. The court determined that sinus bradycardia did not establish that
Terry’s health was at grave risk, and the court had determined previously the
§ 3553(a) factors did not support a sentence reduction. Apart from wanting
additional testing, Terry did not indicate which medical records he had been unable
to access or how they might support his claim. Furthermore, Terry adequately
presented his legal arguments and cited to legal authority in his § 3582(c)(1)(A)
motion and appellate briefs, demonstrating he was capable of representing himself
without the assistance of a trained legal practitioner. See Kilgo,
983 F.2d at 193.
In sum, the district court did not plainly err by failing to appoint counsel for Terry
and, although it did not address his request for counsel in its order, we affirm. See
United States v. Chitwood,
676 F.3d 971, 976 (11th Cir. 2012) (stating we can
affirm for any reasons supported by the record and that, even though the district
court did not reach an issue, we could still decide it).
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Moreover, to the extent Terry brings an access-to-the-courts challenge—and
assuming it is cognizable in the post-conviction context of a § 3582(c) motion—
such a claim may only be reviewed for plain error because he is bringing the claim
for the first time on appeal. See United States v. Hano,
922 F.3d 1272, 1283 (11th
Cir. 2019) (stating issues not raised in the district court are reviewed for plain
error). Terry cannot show his access to the courts was limited in a way that was so
“clear” or “obvious” that the district court should have noticed it and corrected it.
See United States v. Innocent,
977 F.3d 1077, 1081 (11th Cir. 2020) (explaining an
error is plain if it is a “clear” or “obvious” error, such as a violation of the explicit
language of a statute or rule or precedent that directly resolves the issue).
Although he had a colorable underlying claim for which he sought relief—his
motion for compassionate release—Terry could not have demonstrated that he
suffered any actual injury because he could not show he was unconstitutionally
prevented from exercising his right of access to the courts. See Akins v. United
States,
204 F.3d 1086, 1090 (11th Cir. 2000) (“The inmate must show that this
inability caused an actual harm, or in other words, unconstitutionally prevented
him from exercising that fundamental right of access to the courts in order to attack
his sentence . . . .”). In fact, Terry made numerous filings with the district court
which contained case citations, a medical exhibit, and relevant information
regarding conditions at FCI Jesup. Terry also did not show he suffered actual
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injury based on his inability to make a comprehensive sentencing factors argument
because the district court’s denial of relief was only alternatively based on its
consideration of sentencing factors. See
id. Thus, Terry’s access-to-the-courts
claim fails. See Al-Amin v. Smith,
511 F.3d 1317, 1332 (11th Cir. 2008) (“[P]rison
officials’ actions that allegedly violate an inmate’s right of access to the courts
must have impeded the inmate’s pursuit of a nonfrivolous, post-conviction claim or
civil rights action.” (quotations omitted, alteration in original))
B. Recusal
“Two statutes govern the recusal of a federal district judge.” Hamm v.
Members of Bd. of Regents of State of Fla.,
708 F.2d 647, 651 (11th Cir. 1983).
Under
28 U.S.C. § 144, a party may timely file an affidavit if a district court judge
has “a personal bias or prejudice either against him or in favor of any adverse
party.”
28 U.S.C. § 144. The affidavit must contain “the facts and the reasons for
the belief that bias or prejudice exists.”
Id. Under
28 U.S.C. § 455, a judge must
sua sponte recuse herself “in any proceeding in which [her] impartiality might
reasonably be questioned” or “[w]here [s]he has a personal bias or prejudice
concerning a party.”
28 U.S.C. § 455(a), (b)(1).
“The general rule is that bias sufficient to disqualify a judge must stem from
extrajudicial sources, and must be focused against a party to the proceeding.”
Hamm,
708 F.2d at 651 (citations omitted). “Challenges to adverse rulings are
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generally grounds for appeal, not recusal.” In re Evergreen Sec., Ltd.,
570 F.3d
1257, 1274 (11th Cir. 2009). Bias may be shown where a judge openly exhibits “a
partisan zeal for the defendants or step[s] down from the bench to assume the role
of advocate on the defendants’ behalf.” Hamm,
708 F.2d at 651 (quotations
omitted).
Although Terry expressed in one of his district court filings that he felt the
district court had a bias against him for his past conviction, he failed to move or
argue for the district judge’s recusal in the district court proceedings. Thus,
because the district judge did not have an opportunity to address his recusal
argument, it is reviewed for plain error only. See Hamm,
708 F.2d at 651 (stating
when a party failed to seek the recusal of the judge in the proceedings below, we
review only for plain error).
Terry cannot show the district court plainly erred by failing to recuse sua
sponte. He was allowed to file several motions and responses, which he did
frequently, and the judge did not strike his filings. Terry argued the judge showed
a pervasive bias and prejudice against him because the judge repeatedly stated “the
[victim] reported being raped” and showed impartiality through a “fixation on the
word ‘rape.’” The record shows the district court referred to his prior conviction as
a lewd and lascivious battery conviction. The court’s mention of the 14-year-old
victim’s report of being raped referred to its sentencing finding that Terry had
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committed a crime of violence, which went to support its determination that he
should not be granted a sentence reduction based on the § 3553(a) factors.
Notably, too, on direct appeal this Court upheld the district court’s specific
determination “that Terry’s conduct of raping the 14-year-old victim” rendered it a
“crime of violence.” See United States v. Terry, 494 F. App’x 991, 997 (11th Cir.
2012) (concluding “the district court did not err in determining that Terry’s
conduct of raping the 14-year-old victim, such that she had tears and abrasions
near her vagina, involved purposeful, violent, and aggressive conduct”). As such,
the district court’s reference to a previous adverse ruling at Terry’s sentencing
hearing is not a ground for recusal. In re Evergreen,
570 F.3d at 1274. And,
notwithstanding Terry’s remark at sentencing that the judge might see his lewd and
lascivious battery conviction differently because she is “a female,” he failed to
identify any extrajudicial sources of bias. See Hamm,
708 F.2d at 651.
II. CONCLUSION
The district court did not abuse its discretion in not granting Terry’s
embedded motion for appointment of counsel because he did not have a
constitutional or statutory right to counsel, he could adequately bring the claim on
his own, and the issues involved were not complex. To the extent Terry brings a
denial of access-to-the-courts claim, Terry is unable to show that an impediment to
his access to the courts was so clear or obvious that the lack of review of such error
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was plain. Additionally, because Terry does not point to any source of
extrajudicial bias or evidence of bias in the record, the district judge did not plainly
err by not sua sponte recusing.
AFFIRMED.
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