United States District Court, D. Nebraska
F. Rossiter, Jr. United States District Judge
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
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”).
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.
does not provide a legal basis for his recusal request.
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.
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)).
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.”).
recusal motion is denied.
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