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United States v. Bailey

United States District Court, D. Nebraska

April 6, 2016

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

MEMORANDUM AND ORDER

John M. Gerrard United States District Judge

This matter is before the Court on several motions filed by the defendant, Brent Bailey. Bailey's motion for "speedy disposition" of his motions (filing 123) will be granted, and his remaining motions will be denied.

Bailey was charged on March 20, 2012 with one count of receiving and distributing of child pornography, in violation of 18 U.S.C. § 2252A, and one count of knowingly possessing visual depictions of a minor engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252. Filing 1. On June 21, Bailey pled guilty to Count I of the Indictment. Filing 23. Bailey specifically admitted that he was using his computer on the Internet to locate and download child pornography, and admitted that he had conversations with purported minors asking to trade pictures. Filing 27 at 15-17. The Court ultimately sentenced Bailey to 156 months' imprisonment. Filing 44.

Motion to Disqualify

Bailey moves for disqualification of the undersigned pursuant to 28 U.S.C. § 144. Filing 124. That section provides that

[w]henever 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.

Id. But an affidavit must strictly comply with all of the statutory requirements before it will effectively disqualify a judge.[1] United States v. Anderson, 433 F.2d 856, 859 (8th Cir. 1970). To be legally sufficient, an affidavit must allege bias or prejudice, and such bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. United States v. Faul, 748 F.2d 1204, 1211 (8th Cir. 1984); see Liteky v. United States, 510 U.S. 540, 545-47 (1994).

The only grounds for disqualification Bailey identifies are the Court's alleged interest in affirming its own judgment, and that the undersigned has "made judgments" that are "contradicted by the record" and "contradicted by his other judgments in this very case." Filing 124. Bailey does not identify those "judgments" or contradictions, nor would it matter if he did: the Court's rulings are not an "extrajudicial" source of bias. A court's ruling on a question of law does not show the personal bias required for disqualification. Anderson, 433 F.2d at 860.

In addition, Bailey's motion is clearly untimely. An affidavit seeking disqualification "shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time." 28 U.S.C. § 144. The burden is on the affiant to show good cause for failing to file a timely motion. Holloway v. United States, 960 F.2d 1348, 1355 (8th Cir. 1992). Bailey has articulated no basis for good cause.

When an affidavit does not meet the requirements imposed by law, the judge has an obligation not to disqualify himself. Anderson, 433 F.2d at 860. Bailey's motion to disqualify (filing 124) will be denied.

Motion for Appointment of Counsel

Bailey moves for appointment of counsel. Filing 125. But he has no right to counsel, and therefore, whether to appoint counsel is committed to the Court's discretion. See United States v. Harris, 568 F.3d 666, 668-69 (8th Cir. 2009). Bailey contends that the proceedings "stemming from these motions are going to be so varied and complex that denial of counsel would amount to denial of Due Process." Filing 125. Bailey is wrong: these proceedings are neither varied nor complex, because Bailey's motions have no merit. The Court finds no reason to appoint counsel to represent him.

Petition for Writ of Habeas Corpus

Bailey has filed what he styles as a "Petition for A Writ of Habeas Corpus (28 U.S. ยง 2241) [sic]." Filing 126. In it, he presents a mix of purported constitutional claims: some challenge the validity of his conviction and sentence, some challenge the conditions of his ...


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