ALI v. UNITED STATES OF AMERICA

Filing 4

OPINION filed. Signed by Judge Noel L. Hillman on 10/27/2015. (drw)n.m.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Petitioner,
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v.
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UNITED STATES OF AMERICA,
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Respondent.
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TYREN ALI,

Civ. No. 14-7723 (NLH)
OPINION

APPEARANCES:
Tyren Ali, #63465-050
FCI McDowell
P.O. Box 1009
Welch, WV 24801
Petitioner, pro se

HILLMAN, District Judge
This matter is presently before the Court upon a Motion for
Recusal (ECF No. 2) filed by Petitioner Tyren Ali, an inmate
confined at Federal Correctional Facility McDowell in Welch,
West Virginia.

For the reasons set forth below, the motion will

be DENIED.
I.

BACKGROUND

In December 2011, Petitioner plead guilty to conspiring to
distribute crack cocaine, in violation of 21 U.S.C. §§ 841 and
846.

In a hearing held on June 25, 2012, this Court sentenced

Petitioner to 204 months’ imprisonment, followed by five years
of supervised release.

Petitioner appealed and the appellate

court affirmed the sentence. See United States v. Ali, 537 F.
App'x 117 (3d Cir.) cert. denied, 134 S. Ct. 806, 187 L. Ed. 2d
610 (2013).
Petitioner then filed the instant motion to vacate, set
aside, or correct the sentence pursuant to 28 U.S.C. § 2255.
(ECF No. 1).

He also filed a Motion for Recusal (ECF No. 2),

which the Court now addresses.
In his Motion for Recusal, Petitioner states that, during
the sentencing hearing, the Court had Petitioner removed from
the courtroom and while it participated in an ex parte
communication.

Petitioner refers to Ground Two of his Petition

in support of his motion.

Petitioner further asserts that “a

reasonable person knowing all the circumstances would [conclude
that there exists] impartiality or antagonism on the part of the
sentencing Court.” (Mot. 2, ECF No. 2).

Petitioner cites to In

re Kensington Int'l Ltd., 368 F.3d 289 (3d Cir. 2004) in support
of his motion.
II.

ANALYSIS

A determination regarding recusal is within the sound
discretion of the trial court judge. United States v. Wilensky,
757 F.2d 594, 599–600 (3d Cir. 1985).

The two principal

statutes which address judicial recusal are 28 U.S.C. §§ 144 and
455.

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Under 28 U.S.C. § 144, recusal must occur “[w]henever 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.” 28 U.S.C. § 144.
However, a “substantial burden is imposed on the party filing an
affidavit of prejudice to demonstrate that the judge is not
impartial.” Frolow v. Wilson Sporting Goods Co., No. 05–04813,
2011 WL 1337513, at *2 (D.N.J. Apr. 7, 2011) (citation omitted);
see also Kilkeary v. United States, No. 12-2781, 2015 WL
3798061, at *4 (D.N.J. June 18, 2015).
Alternatively, § 455(a) provides, in pertinent part, that
“[a]ny justice, judge, or magistrate of the United States shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.” 28 U.S.C. § 455(a).

“The test

for recusal under § 455(a) is whether a reasonable person, with
knowledge of all the facts, would conclude that the judge's
impartiality might reasonably be questioned.” Allen v. Parkland
Sch. Dist., 230 F. App'x 189, 193 (3d Cir. 2007) (citing In re
Kensington, 353 F.3d at 220).
In the instant motion, Petitioner states that recusal is
warranted because a reasonable person would conclude that the
Court’s impartiality might reasonably be questioned.
seeks recusal under § 455(a).

Thus, he

The only rationale Petitioner
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offers in support of recusal is his assertion that the Court
participated in an ex parte communication during his sentencing
hearing.

However, Ground Two of his Petition, to which

Petitioner refers in his Motion, clarifies that Petitioner
relies on the fact that the “Court consult[ed] with the
Probation Officer for some ‘final language’ before pronouncement
of [the] sentence.” (Pet. 6, ECF No. 1).
Given these circumstances — as alleged in Petitioner’s
Motion and in his Petition — there is absolutely no basis to
conclude that the impartiality of the Court could be questioned.
A reasonable person — with knowledge that the Court consulted
with another judicial employee, the Probation Officer, to refine
the language of the sentencing order — would not conclude that
the Court’s impartiality might reasonably be questioned. See
Allen, 230 F. App'x at 193; In re Kensington, 353 F.3d at 220.
Petitioner's reason for questioning the Court's impartiality are
without merit and recusal under § 455(a) is not warranted.
Likewise, Petitioner does not provide any basis to conclude
that the Court had a personal bias or prejudice against
Petitioner or in favor of any adverse party; thus, recusal under
§ 144 is not warranted. See 28 U.S.C. § 144.

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III. CONCLUSION
For the foregoing reasons, Petitioner’s Motion for Recusal
(ECF No. 2) is DENIED.
An appropriate Order follows.

__s/ Noel L. Hillman______
NOEL L. HILLMAN
United States District Judge
Dated: October 27, 2015
At Camden, New Jersey

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