US v. Angelo Galloway

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:10-cr-00096-MSD-TEM-2 Copies to all parties and the district court/agency. [999661035]. Mailed to: Everhart, Galloway. [15-6324]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6324

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANGELO GALLOWAY, a/k/a Gelo,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Mark S. Davis, District
Judge. (2:10-cr-00096-MSD-TEM-2)

Submitted:

September 14, 2015

Before SHEDD and
Circuit Judge.

DUNCAN,

Circuit

Decided:

Judges,

September 16, 2015

and

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.

Angelo Galloway, Appellant Pro Se. Sherrie Scott Capotosto,
Benjamin L. Hatch, Assistant United States Attorneys, Norfolk,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Angelo Galloway appeals the district court’s order denying
his motion for recusal and his Fed. R. Civ. P. 60(b) motion
seeking relief from its judgment denying 28 U.S.C. § 2255 (2012)
relief, as well as the court’s order denying his Fed. R. Civ. P.
59(e) motion seeking to alter or amend the order denying Rule
60(b)

relief.

For

the

reasons

that

follow,

we

affirm

the

district court’s orders.
A

prisoner

proceeding

cannot

unless

a

appeal

a

circuit

final

justice

certificate of appealability (COA).
(2012).

order
or

judge

F.3d

a

§ 2255

issues

a

28 U.S.C. § 2253(c)(1)(B)

Generally, a COA is required to appeal an order denying

a Rule 60(b) motion in a § 2255 proceeding.
369

in

363,

369

(4th

Cir.

2004).

Reid v. Angelone,

This

court

recently

clarified, however, that a COA is not required in the limited
circumstance in which the district court dismisses a Rule 60(b)
motion as an unauthorized, successive habeas petition.

United

States v. McRae, 793 F.3d 392, 399-400 (4th Cir. 2015).
To file a successive § 2255 motion in the district court, a
prisoner must first obtain preauthorization from this court.
U.S.C. §§ 2244(b)(3)(A), 2255(h) (2012).
permitted
judgment

to
in

seek
a

Rule

§ 2255

60(b)

relief

proceeding,

“a

28

Although a prisoner is

from

a

district

district

court

court’s
has

no

discretion to rule on a Rule 60(b) motion that is functionally
2

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equivalent

to

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a

successive

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[§ 2255]

application.”

States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003).

United
Where a

Rule 60(b) motion “challenges some defect in the integrity of
the federal habeas proceedings,” it is a true Rule 60(b) motion
and may be reviewed without preauthorization.
at

397

(internal

quotation

marks

omitted).

McRae, 793 F.3d
Applying

these

principles, we conclude the § 2253(c) COA requirement does not
apply to this appeal.
We

review

for

abuse

of

discretion

the

district

denial of a Rule 59(e) or a Rule 60(b) motion.

court’s

Mayfield v.

Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 378
(4th Cir. 2012) (Rule 59(e)); MLC Auto., LLC v. Town of S.
Pines, 532 F.3d 269, 277 (4th Cir. 2008) (Rule 60(b)).

We also

review for abuse of discretion the district court’s denial of a
recusal motion.

United States v. Whorley, 550 F.3d 326, 339

(4th Cir. 2008).
As the district court properly concluded, Galloway’s Rule
60(b) motion seeking relief from the district court’s § 2255
judgment is the functional equivalent of a successive § 2255
motion, and the district court lacked jurisdiction to consider
it.

Similarly,

the

portion

of

Galloway’s

Rule

59(e)

motion

challenging the dismissal of his Rule 60(b) motion and repeating
his

challenges

to

his

criminal

3

judgment

was

equivalent

to

a

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successive § 2255 motion and therefore properly dismissed for
lack of jurisdiction.
Insofar

as

Galloway’s

Rule

59(e)

motion

challenged

the

district court’s treatment of a pro se ethics grievance filed
against the prosecutor in his criminal case, those arguments are
not

properly

proceeding.

raised

in

a

Moreover,

postjudgment

the

ethics

motion

complaints

in

his

§ 2255

addressed

in

Galloway’s informal brief are based on the same allegations of
prosecutorial misconduct that have been rejected by the district
court and this court.

Galloway’s refusal to accept the courts’

rulings on these claims is not a valid basis for postjudgment
relief.
Galloway

based

his

demand

for

recusal

on

the

district

judge’s adverse rulings and status as a defendant in Galloway’s
42

U.S.C.

§ 1983

prosecution.
constitute

(2012)

However,

a

valid

action

“judicial

basis

for

a

related
rulings
bias

or

to
alone

his

criminal

almost

partiality

Liteky v. United States, 510 U.S. 540, 555 (1994).

never

motion.”
Rather, a

judge’s opinions formed during the current or prior proceedings
are not grounds for recusal “unless they display a deep-seated
favoritism
impossible.”
Cir.

2008)

or

antagonism

that

would

make

fair

judgment

United States v. Lentz, 524 F.3d 501, 530 (4th
(internal

quotation

marks

omitted).

We

find

no

evidence of such antagonism or partiality by the district judge.
4

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Nor

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does

judge’s

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Galloway’s

recusal.

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unsuccessful

See

993-94 (10th Cir. 1993).

United

§ 1983

States

v.

action
Cooley,

require
1

F.3d

the
985,

Thus, the district court did not abuse

its discretion in denying Galloway’s recusal motion.
Accordingly, we affirm the district court’s orders.
deny

Galloway’s

transcripts.

request

for

in

camera

review

of

grand

We
jury

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials
before

this

court

and

argument

would

not

aid

the

decisional

process.
AFFIRMED

5