United States v. Tommy Alexander, Sr. ( 2018 )

Case: 17-20573 Document: 00514511891 Page: 1 Date Filed: 06/13/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-20573 June 13, 2018
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
TOMMY ALEXANDER, SR.,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:89-CR-331-1
Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
Tommy Alexander, Sr., federal prisoner # 07193-035 and proceeding pro
se, challenges the denial of his motion to recuse the district judge who denied
his motions under 18 U.S.C. § 3582(c)(2) (reduction of sentence). Alexander
asserts the denials were contrary to the law and facts and, therefore, the
rulings must be the result of bias.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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No. 17-20573
The denial of a recusal motion is reviewed for abuse of discretion. United
States v. Bremers, 195 F.3d 221, 226 (5th Cir. 1999). Recusal should occur if a
reasonable person, aware of “the relevant circumstances surrounding the
judge’s failure to recuse, would harbor legitimate doubts about that judge’s
impartiality”. Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003) (cleaned
up).
Two statutes govern the recusal of district judges: 28 U.S.C. § 144 and
28 U.S.C. § 455. Although Alexander did not specify under which statute he
seeks relief, his contention of general bias implicates both statutes. In any
event, he has not shown he is entitled to relief under either.
Section 144 requires a judge to reassign a case in the event of actual bias.
Henderson v. Dep’t of Pub. Safety & Corr., 901 F.2d 1288, 1296 (5th Cir. 1990).
But, Alexander did not meet the pleading requirements to obtain relief under
§ 144 because he did not submit the required affidavit delineating facts and
reasons that would convince a reasonable person of the existence of bias. See
§ 144; Patterson v. Mobil Oil Corp., 335 F.3d 476, 483 (5th Cir. 2003).
Section 455 requires a judge to disqualify himself in any proceeding
where “his impartiality might reasonably be questioned”, or where he “has a
personal bias or prejudice concerning a party, or personal knowledge of
disputed evidentiary facts concerning the proceeding”. 28 U.S.C. § 455(a) &
(b)(1). Aside from conclusory assertions that the judge was prejudiced,
Alexander did not offer facts suggesting the judge’s impartiality might
reasonably be questioned or that the judge had an actual personal extrajudicial
bias against him. 28 U.S.C. § 455(a) & (b); Patterson, 335 F.3d at 484; United
States v. Mizell, 88 F.3d 288, 299 (5th Cir. 1996).
In that regard, his assertion the judge ignored the law and facts in
denying his § 3582(c)(2) motions, thereby suggesting bias, is unavailing
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No. 17-20573
because it is based solely on the unfavorability of the rulings. These rulings,
which did not reflect a high degree of antagonism as to make fair judgment
impossible, do not support a claim of bias. Liteky v. United States, 510 U.S.
540, 555 (1994) (adverse rulings alone do not support a claim of bias). Further,
to the extent the judge articulated negative opinions of Alexander in earlier
proceedings, the opinions, while critical, were based on facts that had been
presented during the proceedings and, therefore, do not reflect bias or
prejudice. See id.
AFFIRMED.
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