In Re: Robert Nelson v. ( 2011 )

BLD-198 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-1748
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IN RE: ROBERT L. NELSON,
Petitioner
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On a Petition for Writ of Mandamus from the
United States District Court for the Middle District of Pennsylvania
(Related to M.D. Pa. Crim. No. 09-cr-00211-001)
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Submitted Pursuant to Rule 21, Fed. R. App. P.
May 26, 2911
Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges
(Opinion filed : June 15, 2011)
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OPINION
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PER CURIAM
Robert Nelson filed a pro se petition for a writ of mandamus pursuant to 28 U.S.C.
§ 1651, asking that we compel the District Judge currently presiding over his criminal
case to recuse himself and require a new judge to give him an evidentiary hearing.
Through that hearing, Nelson seeks to establish a defense of outrageous government
misconduct based on his belief that the government induced him to commit a crime
through an informant and worked in cahoots with his court-appointed attorneys, who
allegedly altered evidence, requested continuances to benefit the government, and refused
to put forth his outrageous government misconduct defense. For the following reasons,
we will deny Nelson’s petition.
I.
Nelson was charged in a superseding indictment with conspiracy to possess with
intent to distribute and possession with intent to distribute cocaine and cocaine base, and
with being a felon in possession of a firearm. The District Court appointed three different
attorneys to represent Nelson, but Nelson “found fault with all three, alleging that they
were assisting the government in concealing and altering evidence of purported
outrageous government misconduct.” (Apr. 29, 2011 Mem., Doc. 242, at 1.)
Accordingly, Nelson moved to proceed pro se, and the District Court permitted him to do
so with the assistance of standby counsel.
Approximately a week before trial, Nelson filed numerous pretrial motions,
including: (1) a motion for expanded discovery, seeking information that Nelson believed
was germane to his outrageous government misconduct defense; (2) a motion to produce
an individual named Charles Dillard, who Nelson believed was serving as the
government’s informant and who would purportedly establish a link between his first
court-appointed attorney, Thomas Thornton, and the government’s plan to set him up;
and (3) a motion for grand jury minutes, which was also based on the alleged link
between Dillard, Thornton, and the government. Nelson also filed two suppression
motions and a motion to suppress or dismiss the indictment. Those motions were based
on the government’s alleged misconduct and defense counsels’ alleged constitutional
2
deficiencies. The District Court denied Nelson’s motions as meritless, noting in one of
its many pretrial orders that “the government, in documents submitted to this court under
penalty of perjury, declared that Charles Dillard was not involved in this case” and that
Nelson’s “argument that his first attorney . . . was working on behalf of the government
to gather evidence against [him] is completely unsubstantiated, as are [Nelson’s] other
allegations of a vast conspiracy to entrap him.” (Dec. 3, 2010 Order, Doc. 192 at 1-2
n.1.)
Nelson also filed two identical motions requesting that Judge Conner recuse
himself, arguing that the Judge had appointed constitutionally deficient counsel and had
exhibited bias by questioning Nelson’s defense. Judge Conner denied both motions,
concluding that they were wholly meritless.
On the first day of trial, Nelson informed the District Court that he sought to plead
guilty and wanted standby counsel to be reinstated as counsel for purposes of the plea
proceeding. Ten days later, Nelson filed a motion to withdraw his guilty plea, alleging
that he pled based on counsel’s misleading advice and that he should be permitted to
withdraw his plea in light of additional evidence supporting his defense. While his
motion was pending, Nelson filed a request for an evidentiary hearing.
After a hearing,1 the District Court denied Nelson’s motion to withdraw his guilty
plea, finding, among other things, that Nelson lacked any evidence of government
1
During the hearing, Nelson apparently requested that Judge Conner recuse
himself for the third time, which the Judge declined to do.
3
misconduct or entrapment. Accordingly, the District Court, construing Nelson’s request
for an evidentiary hearing as a request for a hearing on his motion to withdraw his guilty
plea, denied that request as moot.
Nelson filed a notice of appeal, seeking to challenge the District Court’s denial of
his motion to withdraw his guilty plea.2 Around the same time, he filed this petition for a
writ of mandamus, which he amended with our permission.
II.
Mandamus is a “drastic and extraordinary remedy,” justifiable only in
“exceptional circumstances amounting to a judicial usurpation of power, or a clear abuse
of discretion.” Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380
(2004) (citation omitted). To obtain relief, a petitioner must establish that no other means
of relief is adequate, a “clear and indisputable” right to the relief, and that issuance of the
writ is appropriate under the circumstances. In re Pressman-Gutman Co., 459 F.3d 383,
399 (3d Cir. 2006). If a district court judge’s refusal to recuse does not constitute an
abuse of discretion, it will not satisfy the standard for mandamus relief.3 See Alexander
v. Primerica Holdings, Inc., 10 F.3d 155, 163 & n.9 (3d Cir. 1993).
We see no error in Judge Conner’s refusal to recuse himself. That Judge Conner
2
The appeal, docketed at No. 11-1746, has been stayed pending imposition of a
Judgment and Commitment order by the District Court. A sentencing hearing has
been scheduled in the District Court for July 22, 2011.
3
Nelson did not seek recusal under 28 U.S.C. § 144. Mandamus will not lie to
review the denial of recusal under § 144. Green v. Murphy, 259 F.2d 591, 594 (3d
Cir. 1958) (en banc).
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ruled against Nelson and expressed doubt as to his outrageous government misconduct
defense is insufficient to establish personal bias or prejudice warranting recusal. See 28
U.S.C. § 455; Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone
almost never constitute a valid basis for a bias or partiality motion.”).). Furthermore,
Nelson’s suggestions that Judge Conner is somehow involved in the alleged conspiracy
against him because the Judge was responsible for appointing the attorneys who allegedly
sabotaged him are wholly unsubstantiated.4
Nor has Nelson established that he is entitled to mandamus relief with respect to
his request for an evidentiary hearing. To the extent Nelson seeks to challenge the
District Court’s rejection, in connection with its denial of the motion to withdraw his
guilty plea, of his outrageous government misconduct defense without providing him an
evidentiary hearing, he is free to do so on appeal. See Madden v. Myers, 102 F.3d 74, 77
(3d Cir. 1996) (“[A] writ of mandamus may not issue if a petitioner can obtain relief by
appeal . . . .”). And to the extent Nelson alleges that counsel was ineffective, he may seek
relief in the normal course of appellate and collateral proceedings.
For the foregoing reasons, we will deny Nelson’s petition for a writ of mandamus.
4
Nelson’s request for a “certificate of necessity for [his] case to be heard by a [sic]
impartial non-biased district court judge,” (Mem. of Law in Supp. of Pet. 4), is
likewise denied.
5