D'Amario v. Bailey , 182 F. App'x 102 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-31-2006
D'Amario v. Bailey
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1167
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"D'Amario v. Bailey" (2006). 2006 Decisions. Paper 1015.
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DPS-179 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-1167
________________
ARTHUR D’AMARIO, III
Appellant
v.
WARDEN NANCY BAILEY
_______________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 00-cv-2400)
District Judge: Honorable Joseph E. Irenas
_______________________________________
Submitted For Possible Summary Action
Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
March 30, 2006
Before: ROTH, FUENTES and VAN ANTWERPEN, CIRCUIT JUDGES
(Filed: May 31, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Arthur D’Amario appeals from the District Court’s order denying his motions to
hold witnesses in contempt and for recusal of the Distict Judge.1 Because D’Amario’s
appeal presents no substantial question, we will summarily affirm.
On June 15, 2000, D’Amario filed a petition for habeas corpus under 28 U.S.C.
§ 2241 in the United States District Court for the District of New Jersey, challenging the
Bureau of Prisons’ calculation of his sentence. On July 25, 2000, the United States
District Court for the District of New Jersey denied D’Amario’s petition for habeas
corpus. His appeal was dismissed as moot and D’Amario began serving a new sentence
for a later federal conviction. See United States v. D’Amario, 350 F.3d 348 (3d Cir.
2003).
After attempting several times to gain relief from the District Court’s judgment,
D’Amario filed the instant motions. He moved for the recusal of the District Judge from
this and other cases that D’Amario was pursuing in the District of New Jersey. He also
moved that two government witnesses be adjudged in contempt of court for allegedly
lying in affidavits that they submitted relating to the Bureau of Prisons’ calculation of
D’Amario’s sentence. The District Court denied both motions without a hearing.
D’Amario filed a timely notice of appeal.
Adverse legal rulings are not proof of prejudice or bias and, almost never, a basis
for recusal under 28 U.S.C. §§ 144 or 455(b)(1). Liteky v. United States, 510 U.S. 540
1
The order appealed from also denied D’Amario’s motions for a certificate of
appealability and to correct the record in a separate case. D’Amario’s request for a
certificate of appealability in that case is pending in this Court. See D’Amario v. United
States, No. 05-5502.
2
(1994); Securacomm Consulting, Inc. v. Securacom, Inc., 224 F.3d 273, 278 (3d Cir.
2000). Other than his complaints about the District Judge’s legal rulings, D’Amario
supports his recusal motion with a fantastic conspiracy theory for which he provides no
evidence. Because the motion, to the extent that it is not just a collection of conclusory
allegations, is no more than a disagreement with the legal conclusions of the District
Judge, it was properly denied. See Jones v. Pittsburgh Nat’l Corp., 899 F.2d 1350, 1356
(3d Cir. 1990).
D’Amario’s motion, titled “motion for sanctions” wherein he moves to have two
government witnesses placed in contempt, was also properly denied by the District Court.
While false statements in an affidavit may be perjury, save for exceptions not applicable
here, they cannot be the basis for a finding of contempt. See In re Michael, 326 U.S. 224,
228 (1945). Further D’Amario offers no evidence that the affidavits in this case were
false in any way.
In short, upon consideration of D’Amario’s letter in opposition to summary action,
we conclude that his appeal presents us with no substantial question. See Third Circuit
L.A.R. 27.4 and I.O.P. 10.6. Accordingly, we will affirm the District Court’s order.2
2
D’Amario was advised that this Court would consider whether to issue a certificate of
appealability. Because this appeal relates to a petition brought under § 2241, no
certificate of appealability is required. See 28 U.S.C. § 2253(c)(1)(B); Sugarman v.
Pitzer, 170 F.3d 1145, 1146 (D.C. Cir. 1999).
3