USA v. Williams

Filing 243

Order on Motion to Disqualify Judge

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
DARREN D. WILLIAMS,
Defendant.

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3:00-CR-00108 (JKS)

OPINION AND ORDER
[Re: Motion at Docket 237]

I. MATTER ADDRESSED
At docket 238, Darren D. Williams, currently appearing pro se, filed a motion
entitled “Motion to Grant Relief From Judgment and Order Pursuant to F.R.Civ.P., Rule
60(b)(1) (3)–(4) and 5" seeking relief from the denial of his motion for relief under 28
U.S.C. § 2255 entered by Hon. James K. Singleton, Jr. Concurrently with his
Rule 60(b) motion, Williams filed a “Motion for Disqualification” at docket 237 seeking to
disqualify Judge Singleton under 28 U.S.C. § 455 from hearing his Rule 60(b) motion.1/
Williams attached an affidavit to the motion and incorporated by reference a Complaint
of Judicial Misconduct filed against Judge Singleton, also executed under penalty of
perjury.2/ In an order at docket 242 Judge Singleton denied the motion to the extent that
it was based on § 455(a). Although Williams did not explicitly raise 28 U.S.C. § 144 in

1/

“Any justice, judge, or magistrate judge of the United States shall disqualify himself in
any proceeding in which his impartiality might reasonably be questioned.“ 28 U.S.C. § 455(a)
2/

Williams did not attach a copy of the Complaint of Judicial Misconduct referred to in
the motion. However, pursuant to standard procedure, this court was provided a copy of the
complaint, upon its presentation to the Ninth Circuit on December 21, 2005. The court has
examined and considered the allegations in the complaint.

his motion, Judge Singleton nevertheless referred the motion to the undersigned to
consider the possibility that it might have merit under § 144.3/

II. BACKGROUND
The background of this case is well known to the parties and extensively set forth
in the order denying Williams’ 28 U.S.C. § 2255 motion.4/ It will not be repeated here
except as necessary to facilitate understanding of this order by others who may read it.
When the indictment was filed, this case was assigned to Judge Singleton and
referred to Magistrate Judge John D. Roberts for pretrial matters under 28 U.S.C.
§ 636(b)(1). After first pleading not guilty, Williams, acting through retained counsel
Allen N. Dayan, proposed to change his plea to guilty. Responsibility for considering the
proposed change of plea was assigned to Senior Judge James M. Fitzgerald. On May
31, 2001, Williams entered a plea of guilty before Senior Judge Fitzgerald.5/ Further
proceedings in the case were conducted by Judge Singleton, including the imposition of
sentence.6/
On August 9, 2001, Williams sought to discharge Dayan as his retained counsel
and to obtain appointed CJA counsel. The matter was referred to Magistrate Judge
Roberts, who found Williams eligible for appointed counsel and directed the Federal
Public Defender to appoint counsel.7/ T. Burke Wonnell was appointed as counsel and
appeared on behalf of Williams on August 29, 2001.8/ Subsequently, in April 2002
Williams sought to replace Wonnell as counsel on the grounds he suspected Wonnell

3/

See Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988) (holding
that only after determining the legal sufficiency of a § 144 affidavit is a judge obligated to
reassign the motion for decision on the merits to another judge).
4/

Docket 230. The current Rule 60(b) motion seeks relief from that order and the
judgment entered in accordance therewith on the same date at docket 231.
5/

Docket 101 (transcript).

6/

After several continuances, Williams was finally sentenced on June 12, 2002.

7/

Docket 107.

8/

Docket 109.

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was working with the prosecution. After appointing another counsel to assist Williams in
connection with that request,9/ Judge Singleton denied it.10/
On May 14, 2002, Wonnel filed a motion to withdraw Williams’ guilty plea,11/
which motion was denied by Judge Singleton.12/ Judge Singleton thereafter sentenced
Williams to 135 months in prison.13/ Wonnell timely filed an appeal on behalf of
Williams.14/ During the pendency of the appeal, the Court of Appeals granted Williams’
motion for the substitution of counsel, and Hugh W. Fleischer was appointed in place of
Wonnell.15/ The Court of Appeals denied a motion for relief of Fleischer as counsel and
appointment of a non-CJA counsel.16/ While the appeal was pending, Williams filed a
§ 2255 motion,17/ which Judge Singleton dismissed without prejudice because of the
pending appeal.18/ Williams then dismissed his appeal.19/
After dismissing his appeal, Williams renewed his § 2255 motion,20/ which was
referred to Magistrate Judge Roberts for an evidentiary hearing.21/ Although he
originally appeared pro se, counsel was appointed to assist Williams with respect to his
§ 2255 motion.22/ After holding an evidentiary hearing on the issue of ineffective

9/

Dockets 118, 120.

10/

Docket 121.

11/

Docket 122.

12/

Docket 127.

13/

Dockets 131, 133.

14/

Docket 135.

15/

Dockets 146, 147.

16/

Docket 150.

17/

Docket 151.

18/

Docket 152.

19/

Docket 154.

20/

Docket 155.

21/

Docket 156.

22/

Dockets 179, 180.

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assistance of counsel,23/ Magistrate Judge Roberts recommended that the § 2255
motion be denied.24/ Judge Singleton remanded the matter to Magistrate Judge Roberts
for additional findings on 12 specified issues.25/ After holding a supplemental evidentiary
hearing,26/ Magistrate Judge Roberts made additional findings and again recommended
that the § 2255 motion be denied.27/ Judge Singleton, after reviewing the
recommendation, re-examining the record, and exercising his independent judgment,
adopted the recommendation of Magistrate Judge Roberts, denied Williams § 2255
motion, and denied a certificate of appealability.28/ Williams requested a certificate of
appealability from the Court of Appeals for the Ninth Circuit, which was denied.29/
Williams sought further review of his § 2255 motion by the Supreme Court, which
denied his motion to file an out of time petition for habeas corpus.30/

III. ISSUES RAISED
Williams bases his motion on six grounds, which he claims establish prejudice or
bias requiring recusal of Judge Singleton as follows:31/
1. The lack of notice to Williams of the motion of his co-defendant to
dismiss and its subsequent grant by Judge Singleton, followed by the
transfer of the case to Judge Fitzgerald for the taking of the plea was a
“scheme” to mislead Judge Fitzgerald and confuse Williams concerning

23/

Dockets 186, 187 (transcript).

24/

Docket 203.

25/

Docket 206.

26/

Dockets 216, 217 (transcript).

27/

Docket 225.

28/

Docket 230.

29/

Docket 236.

30/

546 U.S. ___ (Mem), 126 S.Ct. 476 (Mem) (2005).

31/

The facts for 1 through 5 are from the Complaint of Judicial Misconduct and Disability
and 6 from the affidavit appended to the motion to disqualify.

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the fact that since the charges against Williams’ co-defendant had been
dismissed he could not be guilty of a conspiracy.
2. The denial of his motion to compel the withdrawal of Wonnell as his
attorney.
3. The appointment of Fleischer, who had represented Williams’ codefendant in this case,32/ in place of Wonnell as his attorney during the
appeal.
4. Hearing Williams’ § 2255 motion instead of assigning it to Judge
Fitzgerald in violation of Rule 4(a) of the Rules Governing Section 2255
Proceedings for the United States District Court.
5. The ruling on his § 2255 motion disregarded the law and constituted an
abuse of discretion.
6. Judge Singleton may be called as a witness to testify as to disputed
facts to be presented in a subsequent proceeding.33/

IV. APPLICABLE STATUTE AND STANDARD OF REVIEW
This matter has been referred to the undersigned for consideration of the
possible application of 28 U.S.C. § 144 to the pending motion. That statute says:
Whenever 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.
The affidavit shall state the facts and the reasons for the belief that bias or
prejudice exists, and 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. A party may file
only one such affidavit in any case. It shall be accompanied by a
certificate of counsel of record stating that it is made in good faith.

32/

Fleischer had been appointed to and did represent Williams’ co-defendant in this
case. Docket 52.
33/

The fact of which Judge Singleton is alleged to have personal knowledge is the
dismissal of Williams’ co-defendant prior to the time Williams entered his guilty plea.

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With respect to the standard of review to be applied by this court under § 144,
the Ninth Circuit has stated:34/
The substantive standard for recusal under 28 U.S.C. § 144 and 28 U.S.C.
§ 455 is the same: Whether a reasonable person with knowledge of all the
facts would conclude that the judge's impartiality might reasonably be
questioned. Ordinarily, the alleged bias must stem from an extrajudicial
source. Judicial rulings alone almost never constitute valid basis for a
bias or partiality motion. Opinions formed by the judge on the basis of
facts introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible.

V. DISCUSSION
Williams’ first ground, and the crux of his motion is that Judge Singleton, after
dismissing the charges against Williams’ co-defendant, arranged to have Williams’ guilty
plea to the charge of conspiracy to distribute cocaine taken by Senior Judge Fitzgerald.
Williams argues that the dismissal of the charges against his co-defendant, John L.
Makules, effectively created a conspiracy of one and, therefore, Judge Singleton having
knowledge of Makules’ dismissal could not have accepted Williams’ guilty plea to a
conspiracy charge. So, he cleverly assigned the plea proceeding to Judge Fitzgerald.
The conduct of a proposed change of plea proceeding is routinely assigned from
one judge to another when it promotes efficient use of judicial resources. In this
instance, Judge Singleton was in the midst of an eight-day trial at the time when
Williams was to enter his proposed change of plea.35/ It was certainly appropriate to ask
Senior Judge Fitzgerald to preside over the proposed change of plea so that Judge
Singleton would not be distracted from the on-going trial.

34/

United States v. Hernandez, 109 F.3d 1450, 1453–54 (9th Cir. 1997) (internal
citations and quotation marks omitted).
35/

Judge Singleton was in the third day of an eight-day trial in Case No. A970430 CV,
Chickaloon-Moose Creek Native Ass’n, et al. v. Norton, on the date when Williams appeared to
change his plea.

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More importantly, Williams’ argument rests on a mis-understanding of the law.
Dismissal of the charge against the co-defendant had no bearing on the vitality of the
case against Williams. It is well settled that an accused may be found guilty of
conspiracy if there is sufficient evidence of an unnamed, unindicted coconspirator, and
a conspiracy conviction may stand after the prosecution has dismissed conspiracy
charges against the alleged coconspirator.36/ Here, the record shows Williams entered
a plea of guilty to conspiracy to possess cocaine with the intent to distribute.37/ At the
change of plea hearing, Williams admitted to having an agreement with both his one
time co-defendant (Makules) and with one Sara Lee Williams to carry out the
conspiracy. According to Williams, Sara Lee Williams was the primary courier between
California and Alaska while Makules was the courier within Alaska.38/ Williams’ own
statements under oath were adequate to show a conspiracy to possess cocaine with the
intent to distribute. That is all that was required for his conviction.39/
Three of the remaining five grounds asserted, specifically 2, 4, and 5, may be
disposed of summarily. Each of these actions by Judge Singleton was a ruling on an
issue in the case. As a matter of law, such rulings “almost never” constitute a sufficient
basis for a finding of prejudice or bias.40/ There is nothing about these run-of-the-mill
decisions made by Judge Singleton which transports them into the realm of “almost
neverland.” This conclusion is bolstered by the fact that Williams points to no
extrajudicial source factor that influenced any of the decisions.
The third ground was not an action taken by Judge Singleton. The replacement
of Wonnel by Fleisher was the result of an order by the Court of Appeals. It provides no
basis for recusing Judge Singleton.

36/

See United States v. Sangmeister, 685 F.2d 1124, 1127 (9th Cir. 1982).

37/

21 U.S.C. §841(a); § 846.

38/

Docket 101 (transcript), pp. 33 – 34.

39/

United States v. Barragan, 263 F.3d 919, 922 (9th Cir. 2002) (“To establish a drug
conspiracy, the government must prove: 1) an agreement to accomplish an illegal objective; and
2) the intent to commit the underlying offense.”).
40/

Liteky v. United States, 510 U.S. 540, 554-56 (1994).

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The sixth ground, that Judge Singleton has personal knowledge of a disputed
evidentiary fact and may be called as a witness, might, at first blush, seem to raise a
colorable basis for disqualification; albeit under § 455(b)(1), not § 144 or § 455(a).
Section 455(b)(1) provides for disqualification of a judge: “Where he has * * * personal
knowledge of disputed evidentiary facts concerning the proceedings.” (Emphasis
added.) However, even were the court here concerned with § 455(b)(1), there is no
basis for recusal. The fact of which Judge Singleton is alleged to have personal
knowledge is that the charges against Williams’ co-defendant were dismissed prior to
the time Williams entered his guilty plea. There is no dispute about that fact; it is
indisputably established by the record of proceedings in the case.

VI. CONCLUSION
Williams’ motion at docket 237 to disqualify Judge Singleton is without merit
under 28 U.S.C. § 144. To the extent it relies on that statute, it is DENIED.
Dated at Anchorage, Alaska, this 18th day of January 2006.
/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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