Hopper v. USA

Filing 62

ORDER denying motions #202 and #203 in criminal case 3:95-cr-119 and advising Petitioner that he must first petition the Court of Appeals for the Fourth Circuit for certification of any successive habeas corpus application. The court declines to issue a certificate of appealability. Signed by District Judge Max O. Cogburn, Jr on 9/6/11. (Pro se litigant served by US Mail.)(gpb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:95cr119
[3:96cv217]
GERALD DAMONE HOPPER,

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Petitioner,
Vs.
UNITED STATES OF AMERICA,
Respondent.
_______________________________

ORDER

THIS MATTER is before the court on petitioner’s Motion to Vacate Order Pursuant
to 28 U.S.C. §455 and §144 to Reinstate Hazel Atlas Motion (#203) and Motion for
Reconsideration or Alter and Amend Order (#202). These motions follow on the heels of
petitioner’s Motion for Reconsideration Pursuant to Hazel-Atlas Glass Co. V. HartfordEmpire Co. (#199) and Motion to Supplement Motion for Reconsideration Pursuant to
Hazel-Atlas Glass Co. V. Hartford Empire Co. (#200), which were denied by Order filed less
than three weeks before petitioner filed the instant motions. In less than two months,
petitioner has filed six motions with court.
In addition to reasserting arguments surrounding prosecutorial misconduct at trial,
petitioner has now made sweeping allegations of judicial misconduct in the handling of his
Section 2255 petitions, arguing:
if Judge Cogburn were to adhere to the decisions of Judge Mullen and Judge
Flanagan, and render a merit determination on Hopper’s fraud upon the court
claim . . . Judge Cogburn would run the risk of placing his colleagues, that he
share personal ties and mutual interest with, in a very precarious, if not
perilous predicament, career wise.
The record will reflect that Judge Cogburn have personal ties and share
mutual interest with the adverse parties. The adverse parties in this matter are
David C. Keesler, Thomas H. Walker and Robert J. Conrad, Jr., all former
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Assistant United States Attorneys (“AUSA”) ....
Motion for Reconsideration (#202), at p. 4 (errors in the original; footnote omitted).
Petitioner goes on to argue that this court’s previous orders, which found his motions to be
successive, were motivated by bias and prejudice.
Taking these contentions as a motion to recuse, 28 U.S.C. § 455, and a motion to have
another judge consider this matter, 28 U.S.C. § 144, the court finds that there is no basis for
either. First, petitioner has failed under Section 144 to come forward with an affidavit
indicating that this court has any personal bias or prejudice against him or in favor of the
government. Second, petitioner has failed to show any basis for disqualification under
Section 455(a) or (b). While it appears that the Assistant United States Attorney (“AUSA”)
who prosecuted this matter on behalf of the United States later became a magistrate judge
of this court, such elevation to the bench is not a listed provision of Section 455(b) requiring
recusal at this point. If, however, this matter were to proceed to a merits determination that
involved review of an affidavit from that former AUSA who is now a judge, the court would
consider reference of this matter to a judge outside the district under Section 455(a). As far
as the undersigned’s own service as an AUSA, such appointment was completed nearly 20
years ago, which was several years before petitioner was convicted in this court. Indeed, at
the time of petitioner’s conviction, the undersigned was serving as a judicial officer in this
district after working for a number of years as a criminal defense attorney.

Under

petitioner’s theory, no judge in this district could consider a collateral attack, including
claims of prosecutorial misconduct, as to convictions obtained during the tenure of our Chief
Judge as United States Attorney for this district. Such would be an absurd result and one for
which the court can find no precedent.

A Section 455(a) request would, however, be

appropriate if this matter were to proceed to a merits determination that involved
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consideration of testimony or an affidavit from a former AUSA who is now serving as a
judge of this court. The fact that petitioner’s case was prosecuted by a member of the bench
of this court is irrelevant to the threshold AEDPA inquiry.
Setting aside petitioner’s unfounded contentions of bias, the court will now turn to
petitioner’s “Motion for Reconsideration or Alter and Amend Order.” In this court’s previous
Order, it specifically addressed the jurisdictional threshold which petitioner must cross under
the AEDPA before the court can substantively address his argument that the conduct of the
prosecutor at trial amounted to a “fraud upon the court.” In doing so, the court specifically
reviewed petitioner’s earlier petitions. See Section 2255 Petition (#146) herein; Motion to
Vacate (#13) in 3:96cv217. The court found that not only has petitioner raised this issue
before, but that the trial judge, Honorable Thomas A. Wiseman, United States District
Judge, sitting by designation in the Western District of North Carolina, specifically rendered
a decision on such issue in his Order (#28) of January 7, 1999. Hopper v. United States,
3:96cv217 (W.D.N.C. 1999). Judge Wiseman held, as follows:
In this Motion to Vacate or Set Aside this Conviction under 2B U.S.C.
§ 2255, the movant's prolific pro se pleadings have been considered along with
the entire file, as well as this Court's recollection of the trial and the person and
actions of the movant. The grounds of the Motion are wholly without merit
and the same are DENIED, and this case will be DISMISSED. The grounds
will be discussed seriatim.
***
GROUND 2: Movant continues to argue some conspiratorial action on
the part of the Government in regard to a photographic identification. This has
been taken up on Motion to Suppress and again at trial and cannot now be
relitigated.
Id., at Order (#28). It is most clear to this court that petitioner has not only raised the issue
in a previous petition, see id., at Motion to Vacate (#13), at pp. 4, 9, & 11-12, but that it was
specifically addressed and rejected by Judge Wiseman. Id., at Order (#28). That plaintiff
has now re-branded that same contention as a “Hazel-Atlas” motion or asserted that such
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previously rejected Section 2255 contention evidences a “fraud on the court” does nothing
to circumvent the jurisdictional requirements of the AEDPA.
***
Petitioner is, for the third time, advised that if he wants this court to consider the
merits of this particular argument, he must first petition the Court of Appeals for the Fourth
Circuit as his “Hazel-Atlas” motion is patently a successive petition.1 The AEDPA requires
that a “second or successive motion must be certified . . . by a panel of the appropriate court
of appeals . . .” before it can be filed in the district court. Id. “Before a second or successive
application [for habeas corpus] is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court to consider the
application.” 28 U.S.C. § 2244(b)(3)(A).

ORDER
IT IS, THEREFORE, ORDERED petitioner’s Motion to Vacate Order Pursuant to
28 U.S.C. §455 and §144 to Reinstate Hazel Atlas Motion (#203) and Motion for
Reconsideration or Alter and Amend Order (#202) are DENIED.

The Clerk of this Court is instructed to file this Order in petitioner’s civil case file as
well as this criminal action.

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Petitioner is advised that this court has no desire to limit his ability to access the
court. See In re Oliver, 682 F.2d 443, 446 (3d Cir.1982). However, his recent filings are not only
numerous, but border on contemptuous. He is advised that as the frequency and tenor of such
pleadings increase, the likelihood of a court commencing the process for imposing a system of
prefiling review also increases. Cromer v. Kraft Foods North America, Inc., 390 F.3d 812 (4th
Cir. 2004); Vestal v. Clinton, 106 F.3d 553 (4th Cir. 1997). If he believes he has a meritorious
claim, petitioner is encouraged to make application to the Court of Appeals for the Fourth
Circuit for permission to pursue that claim in this court, rather than make additional filings with
this court, which has very clearly found that jurisdiction is lacking under the AEDPA.
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Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, this court declines
to issue a certificate of appealability as petitioner has not made a substantial showing of a
denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Miller -El v. Cockrell, 537 U.S. 322,
336-38 (2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the constitutional claims debatable or
wrong); Slack v. McDaniel, 529 U.S. 473, 484–85 (2000) (in order to satisfy § 2253(c) when
court denies relief on procedural grounds, a petitioner must demonstrate both that the
dispositive procedural ruling is debatable, and that the petition states a debatable claim of the
denial of a constitutional right).

Petitioner is advised that denial of a certificate of

appealability does not prevent him from seeking certification for filing a second or
successive petiton from the Court of Appeals for the Fourth Circuit.

Petitioner is advised that the AEDPA requires that a "second or successive
motion must be certified . . . by a panel of the appropriate court of appeals . . ."
before it can be filed in the district court. Id. "Before a second or successive
application [for habeas corpus] is filed in the district court, the applicant shall
move in the appropriate court of appeals for an order authorizing the district
court to consider the application." 28 U.S.C. § 2244(b)(3)(A).

Signed: September 6, 2011

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