Howard v. United States of America

Filing 33

MEMORNADUM & ORDER: The Pro Se Petitioner's motions 29 for recusal and 28 for reconsideration, to reopen case and for appoint of counsel are all DENIED. As Howard has not made a substantial showing of a denial of his constitutional rights, a certificate of appealability will not issue. See 28 U.S.C. § 2253. A copy of this decision was mailed by regular mail to the pro se petitioner from chambers. Ordered by Judge Frederic Block on 1/7/2015. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ABDUL RAHIM HOWARD,
Petitioner,
-against-

MEMORANDUM AND ORDER
11-CV-05208 (FB)

UNITED STATES OF AMERICA,
Respondent.
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Appearances:
For the Petitioner:
ABDUL RAHIM HOWARD, Pro Se
No. 72346-053
Metropolitan Detention Center
P.O. Box 329002
Brooklyn, NY 11232

For the Respondent:
JOHN DAVID BURETTA, ESQ.
Assistant District Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201

BLOCK, Senior District Judge:
On October 21, 2011, Petitioner Abdul Rahim Howard (“Howard”) filed a
second motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. The
Court denied the petition on August 16, 2012 and denied a subsequent motion for
reconsideration on November 25, 2013. Howard now moves to vacate the Court’s
August 12, 2012 and November 25, 2013 orders pursuant to FED. R. CIV. P. 60(b)(4)
and 60(b)(6). Howard also moves the Court to recuse itself pursuant to 28 U.S.C. §
455(a).1 For the reasons that follow, his motions are denied.
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In his recusal motion, Howard also cites to 28 U.S.C. § 144. Under § 144, a party must
file an affidavit stating reasons why the Court has a “personal bias or prejudice either against
him or in favor of an adverse party.” Howard has not done so. As such, § 144 is inapplicable.

I.
A jury convicted Howard of the following offenses: (1) conspiracy to possess
and distribute at least 50 grams of cocaine base and one kilogram of heroin; (2) use of
drug related premises to distribute and store cocaine base and heroin; and (3)
distribution and possession of cocaine base and heroin within 1,000 feet of a
playground. He was sentenced to 240 months’ imprisonment. His conviction was
affirmed on appeal. See United States v. Ramos, 314 F. App’x 344 (2d Cir. 2008), cert.
denied, 130 S. Ct. 1045 (2009).
Howard first moved for habeas relief on June 11, 2010. The Court denied that
petition and a subsequent motion for reconsideration. On October 11, 2011, Howard
filed another habeas petition (“2011 petition”). The Court transferred Howard’s 2011
petition to the Second Circuit as a successive petition. The Second Circuit found the
2011 petition was not successive and remanded it to the Court for “whatever further
action the district court finds appropriate.” Dkt. No. 3 (Order of USCA) at 2.
On August 16, 2012, the Court denied Howard’s 2011 petition. Howard filed
numerous reconsideration motions which the Court denied in orders dated December
13, 2012, November 25, 2013 and December 13, 2013.2

2

The November 25, 2013 order addressed three claims raised in connection with his
2011 petition which were omitted from the August 16, 2012 order.
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II.
A.

Reconsideration
Howard argues that the Court’s August 12, 2012 and November 25, 2013 orders

are void under Rule 60(b)(4) because he was denied due process. See City of New York
v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 138 (2d Cir. 2011) (“A judgment is void
under Rule 60(b)(4) . . . if the court that rendered it . . . acted in a manner inconsistent
with due process of law.”) (internal citations and quotations omitted).
Howard contends that he was denied due process when the Court did not hold an
evidentiary hearing for three ineffective assistance of counsel claims.3 This argument
is unavailing. A petitioner must state a “plausible claim” to obtain an evidentiary
hearing on an ineffective assistance of counsel claim. Puglisi v. United States, 586 F.3d
209, 213 (2d Cir. 2009). As explained in the Court’s August 12, 2012 and November
25, 2013 orders, the record conclusively showed that these claims were not plausible.
Therefore, an evidentiary hearing was unnecessary.
Howard also maintains that he was denied due process when the Court rejected
his 2011 petition without requiring a response from the government and an affidavit
from his attorney. The Court was not required to direct a government response to

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Howard alleged that his counsel ineffectively failed to: (1) argue that the Court did not
follow sentencing procedures set forth in 21 U.S.C. § 851; (2) move to dismiss his indictment for
a speedy trial violation; and (3) challenge the sufficiency of the evidence on Count Four of the
Superceding Indictment.
3

Howard’s 2011 petition. See Nelson v. United States, No. 01-CV-3439, 2001 WL
799760, at *1 (E.D.N.Y. July 16, 2001) (“Because the arguments raised in the petition
were plainly . . . without merit . . . [the Court] was not required to . . . direct the
government to respond.”). The Court was also not required to solicit an affidavit from
Howard’s attorney. See Abad v. United States, No. 09-CV-8985, 2014 WL 521541, at
*1 (S.D.N.Y. Feb. 6, 2014) (“Petitioner was not denied due process when the Court
denied his habeas petition without . . . requiring the submission of attorney affidavits
during the habeas proceeding.”); see also Lorenzana v. United States, No. 11-CV-6153,
2013 WL 4400526, at *3 (S.D.N.Y. Aug. 15, 2013) (“[T]he Court is not required to
solicit sworn statements in connection with its evaluation of a habeas motion.”). As
such, Howard has not established grounds for relief under Rule 60(b)(4).
Howard’s motion also fails under Rule 60(b)(6). “Relief under Rule 60(b)(6) is
appropriate only in cases presenting extraordinary circumstances.” Rodriguez v.
Mitchell, 252 F.3d 191, 201 (2d Cir. 2001) (internal citations and quotations omitted).
“Such circumstances will rarely occur in the habeas context.” Gonzales v. Crosby, 545
U.S. 524, 535 (2005). Howard has not shown extraordinary circumstances meriting
relief under Rule 60(b)(6).
B.

Recusal
A judge shall recuse himself “in any proceeding in which his partiality might

reasonably be questioned.” 28 U.S.C. § 455(a). The inquiry is “whether an objective,
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disinterested observer fully informed of the underlying facts, [would] entertain
significant doubt that justice would be done absent recusal.” United States v. Carlton,
534 F.3d 97, 100 (2d Cir. 2008) (internal citations and quotations omitted) (alteration
in original). “Recusal motions are committed to the sound discretion of the district
court.” LoCascio v. United States, 473 F.3d 493, 495 (2d Cir. 2007).
Howard fails to demonstrate a basis for recusal. In his recusal motion, Howard
improperly attempts to relitigate claims the Court previously rejected. See Liteky v.
United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone almost never
constitute a valid basis for a . . . partiality motion.”). Howard also challenges a
statement made by the Court during an evidentiary hearing for his first habeas petition
on March 31, 2011:
I tell you, quite frankly, when I came in here today, I thought this would be
a short, almost pro forma, proceeding giving the defendant his day in court.
As a result of listening to everything, I think it’s a little bit more than that.
Hr’g Tr. (Mar. 31, 2011) at 100. This statement provides a wholly insufficient basis
for recusal. See Liteky, 510 U.S. at 555 (“[O]pinions formed by the judge on the basis
of facts introduced or events occurring in the course of the current proceedings . . . do
not constitute a basis for a . . . partiality motion unless they display a deep-seated
favoritism or antagonism as to make fair judgment impossible.”). To the contrary, the
remark demonstrates that the Court duly considered evidence presented in the hearing.
Accordingly, Howard’s meritless recusal motion is denied.
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III.
For the foregoing reasons, Howard’s motion is denied. As Howard has not made
a substantial showing of a denial of his constitutional rights, a certificate of
appealability will not issue. See 28 U.S.C. § 2253.
SO ORDERED.
/S/ Frederic Block___________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
January 7, 2015

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