Bryant v. United States of America
MEMORANDUM OPINION. Signed by Judge R David Proctor on 8/12/2013. (AVC)
Bryant v. United States of America
2013 Aug-12 PM 02:12
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MICHAEL ANDRE BRYANT,
UNITED STATES OF AMERICA,
Case No.: 2:10-cv-8044-RDP-JHE
Before the court are ten motions filed by Petitioner Michael Andre Bryant pursuant to the
Federal Rules of Civil Procedure. Seven of these motions are requests concerning discovery. Two
of these motions ask for a change of counsel. Two more ask the court to disqualify itself from this
case. After carefully reviewing all of these filings, the court concludes that, with the exception of
the Motion to Withdraw (Doc. #46), all of these motions are due to be denied for the following
I. The Discovery Motions
Petitioner has filed seven motion requesting discovery and the exclusion of evidence. (See
Doc. #27 (motion to exclude evidence); Doc. #48 (same request as Doc. #27); Doc. #28 (motion for
leave to conduct discovery); Doc. #31 (motion for additional discovery); Doc. #39 (motion to compel
discovery); Doc. #43 (motion for additional discovery); and Doc. #51 (motion to compel discovery)).
These motions suggest that Petitioner is under the mis-impression that a § 2255 proceeding is like
a second trial. It is not. Federal habeas petitions are only technically categorized as civil actions;
"[a] habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as
a matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 904 (1997). Habeas petitions seek
to collaterally attack judgments reached in cases where discovery has already been conducted. As
such, the Supreme Court held in Harris v. Nelson, 394 U.S. 286, 295 (1969), that the "broad
discovery provisions" of the Federal Rules of Civil Procedure do not apply in habeas proceedings.
To address the particular concerns that arise in federal habeas proceedings, the Supreme
Court promulgated, and Congress adopted, the Rules Governing Section 2254 and 2255 Proceedings.
Particularly relevant to the requests for discovery is Rule 6(a) of the Rules Governing Section 2255
Proceedings, which provides that a judge may, "for good cause," authorize a party to conduct
discovery. What constitutes "good cause" is expounded upon in the Advisory Committee Notes to
Rule 6 of the Rules Governing Section 2254 Proceedings to include reasons that are not based in
fantasy, but rather on specific allegations that give the court reason to believe that a petitioner's
allegations, if proven, show that he is illegally incarcerated.
There is an insufficient basis to justify granting discovery here. There are no new claims of
the violation of a constitutional right. It appears that Petitioner now seeks discovery in order to get
a second bite at the apple. Petitioner simply has not shown "good cause" to conduct this discovery.
II. Motions for New Attorney
For this instant § 2255 motion, Petitioner was appointed counsel, who has ably and fully
briefed the issues and zealously argued this case on behalf of Petitioner. Now, Petitioner wishes to
disqualify his current attorney and have the court appoint him a new one. Accordingly, his attorney
has filed a Motion to Withdraw (Doc. #46) and Petitioner has filed a Motion for Appointment of
New Counsel (Doc. #62). As it is clear that Petitioner does not want to be represented by his current
counsel, the Motion to Withdraw (Doc. #46) is due to be granted. With regard to Petitioner's Motion
for Appointment of New Counsel, there is not right to counsel in a post-conviction proceeding. See
Pennsylvania v. Finley, 481 U. S. 551, 555 (1987) (holding that "the right to appointed counsel
extends to the first appeal of right, and no further"). The court previously appointed counsel for
Petitioner, but Petitioner has asked the court to discharge him. Therefore, Petitioner's Motion for
Appointment of New Counsel (Doc. #62) is due to be denied.
III. Motions for Recusal
Petitioner has filed two motions for recusal. (Docs. #47 & 61). These motions are both due
to be denied. Under 28 U.S.C. § 455(a), a judge shall "disqualify himself in any proceeding in which
his impartiality might reasonably be questioned." Recusal is appropriate under § 455(a) only if "an
objective, disinterested, lay observer fully informed of the facts underlying the grounds on which
recusal was sought would entertain a significant doubt about the judge's impartiality." United States
v. Amedeo, 487 F. 3d 823, 828 (11th Cir. 2007) (internal citations omitted). In this case, Petitioner's
motion for recusal is due to be denied for two reasons: (1) it is untimely; and, in any event, (2)
Petitioner has failed to state a valid reason for recusal.
A motion to disqualify a judge under § 455(a) must be timely raised. United States v. Slay,
714 F.2d 1093, 1094 (11th Cir. 1983); see also Delesdernier v. Porterie, 666 F.2d 116, 121–23 &
n. 3 (5th Cir. 1982); United States v. Conforte, 624 F.2d 869, 879–80 (9th Cir. 1980); In re
International Business Machines Corp., 618 F.2d 923, 932 (2d Cir. 1980). While there is no set
number of days within which a movant must file a motion to recuse, it is generally accepted that a
timely motion to recuse under §455(a) should be filed well before the end of a trial. See U.S. v.
Siegelman, 640 F.3d 1159, 1188 (11th Cir. 2011); Summers v. Singletary, 119 F.3d 917, 921 (11th
Cir. 1997); In re United States, 572 F.3d 301, 309 (7th Cir. 2009), American Prairie Construction
Co. v. Hoich, 560 F.3d 780, 790-791 (8th Cir. 2009); In re Kensington Intern. Ltd., 368 F.3d 289,
294 (3d Cir. 2004); Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 664 (8th Cir. 2003); Green v.
Branson, 108 F.3d 1296, 1305 (10th Cir. 1997); U.S. v. Brinkworth, 68 F.3d 633, 639–640 (2d Cir.
1995); Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404, 1410 (5th Cir. 1994). This
requirement of timeliness is not a trivial technicality. The Fifth Circuit has explained the
requirement in Delesdernier v. Porterie:
If disqualification may be raised at any time, a [party] is then
encouraged to delay making a § 455(a) motion as long as possible if
he believes that there is any chance that he will win at trial. If he
loses, he can always claim the judge was disqualified and get a new
trial. This result would not comport well with the purposes behind §
666 F.2d at 121. In this case, Petitioner's § 455(a) motion comes upon a post-conviction collateral
attack aimed at a final criminal judgment issued years ago. Such a submission appears to be at best
a litigation ploy rather than a good-faith attempt to ensure judicial fairness. This is precisely the sort
of behavior the Eleventh Circuit has discouraged. See Slay, 714 F.2d at 1094.
For similar reasons, it is also well-established in this jurisdiction that a movant seeking
recusal under § 455(a) must do so because there are legitimate reasons to doubt a judge's impartiality,
not merely because the movant disagrees with the judge's decision. The Eleventh Circuit has held
that "adverse rulings alone do not provide a party with a basis for holding that the court's impartiality
is in doubt." Byrne v. Nezhat, 261 F.3d 1075, 1103 (11th Cir. 2001); see also Loranger v. Stierheim,
10 F.3d 776, 780 (11th Cir. 1994) ("Disqualification under section 455(a) is required only when the
alleged bias is personal in nature . . . [t]hus, as a general rule, a judge's rulings in the same case are
not valid grounds for recusal."). Likewise, "unsupported, conclusory, or tenuous allegations" are
insufficient to warrant disqualification. Giles v. Garwood, 853 F.2d 876, 878 (11th Cir. 1988). The
court has scrutinized Petitioner's motion and found only conclusory, inconsistent, and unsupported
allegations. (Docs. #47 & 61). This is not a valid ground for recusal. See Liteky v. United States,
510 US 540, 555 (1994). Petitioner's motions related to judicial recusal are therefore due to be
For reasons already stated, Petitioner's discovery motions, motions for a change of counsel,
and motions for recusal are due to be denied. A separate order will be entered.
DONE and ORDERED this
day of August, 2013.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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