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United States v. Bailey

United States District Court, D. Nebraska

June 22, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
BRENT BAILEY, Defendant.

MEMORANDUM AND ORDER

JOHN M. GERRARD, District Judge.

Currently before the Court are several pro se submissions from defendant Brent Bailey, including various motions and a new notice of appeal of his September 2012 conviction. For the reasons discussed below, the Court finds that Bailey's latest appeal is frivolous and not brought in good faith, and Bailey's motions will either be denied or denied as moot.

I. BACKGROUND

In September 2012, the Court sentenced Bailey to 156 months' imprisonment after he pleaded guilty to receipt or distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2). See filing 44. Over a year later, in October 2013, Bailey filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, which the Court denied in an order and judgment dated December 19, 2013. See filings 50, 53, 55, and 56.

In July 2014, Bailey filed an untimely notice of appeal, accompanied by several motions, including a request to proceed in forma pauperis. See filings 58, 59, 60, and 61. Bailey was not appealing the Court's denial of his § 2255 motion, but his original 2012 conviction. See filing 63 at 1. On September 16, 2014, the Court entered an order finding that Bailey's appeal was frivolous and not brought in good faith, and denying Bailey's request to proceed in forma pauperis. See filing 63. On February 2, 2015, the Court of Appeals for the Eighth Circuit dismissed Bailey's appeal as untimely and denied his motion to proceed in forma pauperis as moot. See filing 72.

II. ANALYSIS

A. Motion to Disqualify

The Court will begin with Bailey's Motion to Disqualify. Filing 80. Bailey asserts that the undersigned judge should recuse himself from this case. The procedure to disqualify a judge for bias or prejudice is set forth in 28 U.S.C. § 144.

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

28 U.S.C. § 144 (emphasis supplied).

Leaving aside the issue of timeliness, Bailey's submission is legally insufficient. First, the general basis of Bailey's argument is that he disagrees with the Court's rulings. But "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky v. United States, 510 U.S. 540, 555 (1994). Bailey's motion does not prove the exception to this rule. Second, Bailey has not submitted a properly sworn affidavit. Bailey's purported affidavit contains a space for a notary's seal, which is blank. Nor does the statement substantially comply with the requirements of 28 U.S.C. § 1746, which permits unsworn declarations to substitute for an affiant's oath if the statement contained therein is made under penalty of perjury and verified as true and correct. See, In re World Trade Center Disaster Site Litig., 722 F.3d 483, 488 (2d Cir. 2013); Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988). An affidavit must strictly comply with all of the statutory requirements before it will effectively disqualify a judge. In re Medlock, 406 F.3d 1066, 1073 (8th Cir. 2005). Bailey's affidavit does not satisfy this standard, and his Motion to Disqualify will be denied.

B. Notice of Appeal and Related Filings

In connection with his latest notice of appeal, Bailey has filed a Motion to Extend Time to File Notice of Appeal (filing 85) and an accompanying affidavit; (filing 75); a Renewed Motion for Leave to Appeal As Pauper (filing 83); a Motion for Release Pending Appeal (filing 78); and a Motion to Appoint Counsel (filing 84).

In his Motion to Extend Time to File Notice of Appeal, Bailey asks that the time to appeal be extended to November 29, 2015. Filing 85 at 2. Pursuant to Fed. R. App. P. 4(b), a criminal defendant's notice of appeal must be filed within 14 days of the entry of judgment. The Court may extend this deadline by an additional 30 days upon a finding of excusable neglect or good cause. Fed. R. App. P. 4(b)(4). Bailey maintains that he is appealing the original judgment in this case, which was entered on September 20, 2012. See, filing 44; filing 85 at 2. His notice of appeal was therefore due in October 2012. Bailey's request for an extension is years late, and no extension is possible.

Nor, lack of timeliness aside, is an extension warranted. Bailey asserts that he was unable to comply with the deadline because he was unable to contact his attorney. Filing 85 at 3. In his accompanying affidavit, Bailey claims that he attempted to contact his attorney many times but was "unable to establish contact in spite of [his] attempts that went above and beyond the call of due diligence on [his] part." Filing 75. Bailey has not shown good cause or excusable neglect. First, Bailey's affidavit and motion are neither properly sworn nor notarized. Second, Bailey has not explained why he could not have brought this matter to the Court's attention at an earlier time-for example, within one of his many previous motions. The Court will therefore deny Bailey's request for an extension.

The Court will also deny Bailey's Renewed Motion for Leave to Appeal As Pauper (filing 83). A litigant seeking to appeal a judgment must either pay the required filing fees, see Fed. R. App. P. 3(e), or proceed in forma pauperis. Because Bailey was previously found to be eligible for appointment of counsel, he would normally be allowed to proceed on appeal in forma pauperis without further authorization. Fed. R. App. P. 24(a)(3). But an appeal may not be taken in forma pauperis if the trial court certifies in writing that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A).

An appellant demonstrates good faith by seeking appellate review of any issue that is not frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962); Ellis v. United States, 356 U.S. 674, 674 (1958). An indigent appellant should be allowed to proceed in forma pauperis unless the issues raised are so frivolous that the appeal would be dismissed in the case of a non-indigent litigant. Coppedge, 369 U.S. at 447; Ellis, 356 U.S. at 675. An appeal is frivolous where none of the legal points are arguable on their merits-when the result is obvious or the appellant's argument is wholly without merit. See, Neitzke v. Williams, 490 U.S. 319, 325 (1989); Misischia v. St. John's Mercy Health Sys., 457 F.3d 800, 806 (8th Cir. 2006).

The Court has already found that Bailey's previous appeal was frivolous and not brought in good faith. See filing 63. Nothing has changed to improve Bailey's grounds for appeal. The Court therefore finds that Bailey's appeal is frivolous and is not taken in good faith, and his motion to proceed in forma pauperis will be denied. As a result, Bailey's Motion to Appoint Counsel and Motion for Release Pending Appeal will be denied as moot. Filings 78 and 84.

C. Motion for Transcript

Bailey has requested that a transcript of the proceedings in this case be prepared, and asks that the United States be ordered to pay for such transcript pursuant to the Criminal Justice Act. Filing 88. However, the United States is only obligated to pay for such fees when the defendant has been allowed to proceed on appeal in forma pauperis. See 28 U.S.C. § 753(f). Bailey will not be allowed to proceed in forma pauperis, and his request for a free transcript will be denied.

D. Miscellaneous Pretrial Motions

Bailey has also filed a number of motions relating to pretrial matters, such as a motion to suppress and a request for a mental examination. See filings 74, 76, 77, 79, 86, and 90. However, the time for filing pretrial motions has passed. Judgment and sentence have been entered in this case. All of these motions will, accordingly, be denied as moot. Bailey has also filed a Motion for Return of Seized Property and For Suppression of Evidence. Filing 87. To the extent this submission is a motion to suppress, it is likewise denied as moot. To the extent it is a motion for the return of property, Bailey has failed to specify the property he wants returned, and to that extent, the motion is denied.

E. Recent Correspondence from Bailey

Finally, the Court has recently received a letter from Bailey inquiring as to the status of his filings and requesting a copy of the docket sheet. This Memorandum and Order has disposed of all of Bailey's pending motions. The Court will enclose a copy of the docket sheet. Bailey is advised, however, that further such requests are not likely to be granted-a criminal defendant does not have a right to obtain copies of court filings without payment.

THEREFORE, IT IS ORDERED:

1. Bailey's Motion to Disqualify (filing 80) is denied.
2. Bailey's Motion to Extend Time to File Notice of Appeal (filing 85) is denied.
3. The Court finds that Bailey is not entitled to proceed in forma pauperis on appeal. Bailey's Renewed Motion for Leave to Appeal As Pauper (filing 83) is denied.
4. Bailey's request for a transcript (filing 88) is denied.
5. Bailey's Motion for Return of Seized Property and For Suppression of Evidence (filing 87) is denied as moot in part and denied in part, as set forth above.
6. Bailey's remaining motions (filings 74, 76, 77, 78, 79, 84, 86, and 90) are denied as moot.
7. The Clerk of the Court is directed to forward a copy of this Memorandum and Order to the Court of Appeals for the Eighth Circuit, and to mail a copy to the defendant at his address of record.

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