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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 ...


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