Balkany v. United States of America

Filing 2

MEMORANDUM OPINION AND ORDER: On August 11, 2017, defendant Milton Balkanys three year term of supervised release ended. On November 8, he filed a petition for a writ of error coram nobis, and a motion to recuse this Court under 28 U.S.C. § 144 and § 455......Balkany has failed to offer an explanation for why the relief he seeks here could not have been sought on direct appeal or through his § 2255 petition, and therefore cannot succeed in demonstrating that sound reasons exist f or failing to raise these grounds earlier. It is therefore unnecessary to address whether Balkany has met the other requirements to succeed on a petition for writ of error coram nobis. Accordingly, it is herebyORDERED that the November 8, 2017 moti on for recusal and petition for writ of error coram nobis are denied. IT IS FURTHER ORDERED that the petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowsk i, 135 F.3d 235, 241 (2d Cir. 1998); Rodriquez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990). Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court is directed to close the civil case, docket number 17cv8977. (Signed by Judge Denise L. Cote on 11/29/2017) Copy Mailed to Milton Balkany by Chambers(gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
MILTON BALKANY,
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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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17cv8977 (DLC)
10cr441 (DLC)
MEMORANDUM OPINION
AND ORDER

DENISE COTE, District Judge:
On August 11, 2017, defendant Milton Balkany’s three year
term of supervised release ended.

On November 8, he filed a

petition for a writ of error coram nobis, and a motion to recuse
this Court under 28 U.S.C. § 144 and § 455.

For the following

reasons, the motion to recuse and the petition for writ of error
coram nobis are denied.
On May 20, 2010, Balkany was indicted for extortion and
three related crimes.

He was convicted by a jury on each count

on November 10, and sentenced on February 18, 2011, principally
to 48 months’ imprisonment.

His conviction was affirmed by

summary order on March 19, 2012.
F. App’x 49 (2d. Cir. 2012).

United States v. Balkany, 468

On December 6, 2012, Balkany filed

a habeas corpus petition under 28 U.S.C. § 2255.

The petition

was denied on March 27, 2013 in a decision that also declined to
issue a certificate of appealability.

Balkany v. United States,

No. 12cv8884 (DLC), 2013 WL 1234950 (S.D.N.Y. Mar. 27, 2013).
On February 11, 2014, the Court of Appeals denied a motion for a
certificate of appealability and dismissed the appeal.
Pursuant to 28 U.S.C. § 455(a), a judge must recuse herself
“in any proceeding in which [her] partiality might reasonably be
questioned.”

28 U.S.C. § 455(a); Cox v. Onondaga Cty. Sheriff’s

Dep’t, 760 F.3d 139, 150 (2d Cir. 2014).

Under 28 U.S.C. § 144

and § 455(b)(1), a judge must recuse herself whenever she has a
“personal bias or prejudice” concerning a party.

Merely “filing

[] an affidavit of prejudice does not require referral” to
another judge, and “a judge has an affirmative duty to inquire
into the legal sufficiency of such an affidavit and not to
disqualify [her]self unnecessarily, particularly where the
request for disqualification was not made at the threshold of
the litigation and the judge has acquired a valuable background
of experience.”

LoCascio v. United States, 473 F.3d 493, 498

(2d Cir. 2007) (citation omitted).

To be disqualifying, “the

alleged bias and prejudice must stem from an extrajudicial
source and result in an opinion on the merits on some basis
other than what the judge has learned from [her] participation
in the case.”

S.E.C. v. Razmilovic, 738 F.3d 14, 29 (2d Cir.

2013) (emphasis in original) (citation omitted); see also Liteky
v. United States, 510 U.S. 540, 555 (1994).

“Recusal is not

warranted where the only challenged conduct consists of judicial

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rulings, routine trial administration efforts, and ordinary
admonishments to counsel and to witnesses, where the conduct
occurs during judicial proceedings, and where the judge neither
(1) relies upon knowledge acquired outside such proceedings nor
(2) displays deep-seated and unequivocal antagonism that would
render fair judgment impossible.”

Razmilovic, 738 F.3d at 29-30

(citation omitted).
Balkany’s affidavit is legally insufficient, and the motion
to recuse is denied.

The challenged conduct consists entirely

of judicial rulings, routine trial administration efforts, and
ordinary admonishments to counsel and witnesses, all occurring
during judicial proceedings.

There is no allegation in the

affidavit or petition that there was any reliance on knowledge
acquired outside the proceedings.

Nor does any of the

challenged conduct, fairly viewed, display “deep-seated and
unequivocal antagonism” in any manner towards any person or any
set of religious beliefs.

Notably, Balkany has been represented

by at least three different lawyers over the course of his
trial, direct appeal, and § 2255 petition, and none made a
motion to recuse or raised judicial bias as a ground for relief.
Referral to another judge is therefore unwarranted, and the
application is denied.
Turning to the merits of the petition, a writ of error
coram nobis is an extraordinary remedy.

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To obtain such relief a

petitioner “‘must demonstrate that 1) there are circumstances
compelling such action to achieve justice, 2) sound reasons
exist for failure to seek appropriate earlier relief, and 3) the
petitioner continues to suffer legal consequences from his
conviction that may be remedied by the granting of the writ.’”
Kovacs v. United States, 744 F.3d 44, 49 (2d Cir. 2014) (quoting
Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996)).
The instant petition presents seven independent grounds for
relief, and argues as well that the cumulative effect of these
grounds entitles Balkany to a reversal of his conviction.
Balkany has failed to show that sound reasons exist for his
failure to seek appropriate relief on these issues either
through his direct appeal or a timely filed petition under 28
U.S.C. § 2255.
Six of the issues Balkany raises in his current petition
could have been raised on direct appeal.

They are his arguments

regarding the adequacy of the jury charge on the issue of
reasonable doubt; the trial judge’s bolstering of a witness; the
trial judge’s bias as exposed by her conduct of the trial; a
flawed and incomplete jury verdict; a confusing jury verdict
form; and the deprivation of his right to testify in his own
defense.

The seventh issue -– defense counsel’s failure to

offer the defense of entrapment by estoppel and/or to subject
the prosecution’s case to meaningful adversarial testing --

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attacks the competence of his retained counsel at trial and
could have been the subject of his petition under § 2255.
Because each of the individual issues could have been raised at
an earlier time, the cumulative error claim on the basis of
these issues could also have been raised earlier.
Balkany has failed to offer an explanation for why the
relief he seeks here could not have been sought on direct appeal
or through his § 2255 petition, and therefore cannot succeed in
demonstrating that sound reasons exist for failing to raise
these grounds earlier.

It is therefore unnecessary to address

whether Balkany has met the other requirements to succeed on a
petition for writ of error coram nobis.

Accordingly, it is

hereby
ORDERED that the November 8, 2017 motion for recusal and
petition for writ of error coram nobis are denied.
IT IS FURTHER ORDERED that the petitioner has not made a
substantial showing of a denial of a federal right and appellate
review is, therefore, not warranted.

Tankleff v. Senkowski, 135

F.3d 235, 241 (2d Cir. 1998); Rodriquez v. Scully, 905 F.2d 24,
24 (2d Cir. 1990).

Pursuant to 28 U.S.C. § 1915(a)(3), any

appeal from this Order would not be taken in good faith.
Coppedge v. United States, 369 U.S. 438, 445 (1962).

The Clerk

of Court is directed to close the civil case, docket number

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17cv8977.
Dated:

New York, New York
November 29, 2017

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Copies mailed to:
Milton Balkany
5402 15th Avenue
Brooklyn, NY 11219

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