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United States v. Bartunek

United States District Court, D. Nebraska

May 10, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
GREGORY BARTUNEK, Defendant.

          ORDER

          Robert F. Rossiter, Jr. United States District Judge

         This matter is before the Court on defendant Gregory Bartunek's (“Bartunek”) Motion for Release (Filing No. 84) and Motions to Recuse and to Appoint Independent Counsel (Filing No. 86). Bartunek has also filed a Notice to Court and Public Defender stating the Court, his “Public Defender, and the Public Defenders [sic] Office are violating [his] due process and constitutional rights by preventing [him] from access to technology, resources, legal books, and not providing [him] any legal assistance” (Filing No. 93). Bartunek has attached two letters to that notice describing the difficulties he is having preparing his case and his considerable expectations for his standby counsel. For the reasons stated below, the motions are denied.

         I. Release

         In his first motion, Bartunek again asks the Court to release him before trial. As the Court explained in its order dated April 25, 2017, Bartunek's appeal of this Court's detention decision divested this Court “of jurisdiction over aspects of the case that are” related to his detention. United States v. Queen, 433 F.3d 1076, 1077 (8th Cir. 2006) (per curiam). Bartunek's Motion for Release is denied for lack of jurisdiction. See Fed. R. Crim. P. 37(a)(2) (authorizing the denial of a motion “for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending”).

         II. Recusal

         Bartunek asks me to recuse myself. As grounds for his Motion to Recuse, Bartunek alleges that I

would not be able to give the defendant a fair trial or a reasonable sentence if convicted because the defendant has offended [me] to such a great extent by going Pro Se, by accusing [me] of judicial abuse in regard to his detention hearing, and of gross misconduct.

         Bartunek does not provide a legal basis for his recusal request.

         By statute, a judge must “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The Eighth Circuit has “recast the issue as ‘whether the judge's impartiality might reasonably be questioned by the average person on the street who knows all the relevant facts of a case.'” Moran v. Clarke, 296 F.3d 638, 648 (8th Cir. 2002) (en banc) (quoting In re Kan. Pub. Emps. Ret. Sys., 85 F.3d 1353, 1358 (8th Cir. 1996)).

         A judge must “also disqualify himself . . . [w]here he has a personal bias or prejudice concerning a party.” Id. at § 455(b)(1); see also 28 U.S.C. § 144. “When a party seeks to establish bias or prejudice from court conduct, the party must show ‘that the judge had a disposition so extreme as to display clear inability to render fair judgment.'” United States v. Melton, 738 F.3d 903, 905 (8th Cir. 2013) (quoting United States v. Denton, 434 F.3d 1104, 1111 (8th Cir. 2006)). “Because a judge is presumed to be impartial, ‘the party seeking disqualification bears the substantial burden of proving otherwise.'” United States v. Dehghani, 550 F.3d 716, 721 (8th Cir. 2008) (quoting United States v. Denton, 434 F.3d 1104, 1111 (8th Cir. 2006)).

         Bartunek does not meet this exacting standard. Bartunek “points to no statement or other indications . . . that would suggest the type of deep-seated antagonism necessary to demonstrate bias or partiality.” United States v. Gamboa, 439 F.3d 796, 817 (8th Cir. 2006). Bartunek alleges I was offended by his actions. That is not true. While I do not think it is wise for Bartunek or any other criminal defendant to proceed pro se, I recognize his right to do so and will make every effort to ensure that Bartunek receives a fair trial and that justice is served in this case. See Faretta v. California, 422 U.S. 806, 834-35 (1975). Nothing in my demeanor or interactions with Bartunek or my decisions in this case would lead an objective person on the street with knowledge of the relevant facts to reasonably question my impartiality or my ability to render a fair judgment. My denials of Bartunek's repeated requests for release do not suffice. Harris v. State of Mo., 960 F.2d 738, 740 (8th Cir. 1992) (“An unfavorable judicial ruling . . . does not raise an inference of bias or require the trial judge's recusal.”).

         Bartunek's recusal motion is denied.

         III. Standby Counsel

         The Sixth Amendment to the U.S. Constitution provides a criminal defendant “the right to counsel and the right to self-representation.” Faretta, 422 U.S. at 807. In his motion, Bartunek asks the Court to “hire an independent attorney to assist the defendant in his case.” According to Bartunek, his standby counsel, Michael F. Maloney (“Maloney”) “is non-communicative and not providing proper assistance to the defendant.” More specifically, Bartunek complains Maloney (1) does not answer his “repeated ...


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