Mosley v. USA

Filing 34

ORDER granting 30 Motion for Reconsideration, and after reconsideration, the courts Order denying petitioners Motion to Recuse is REAFFIRMED and the Motion to Recuse is DENIED ; granting 33 Motion to Stay, and the requirement of filing an Answer or other response to the Petition is SUSPENDED pending resolution of petitioners appeals. Signed by District Judge Max O. Cogburn, Jr on 12/4/2014. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-cv-00399-MOC
ANTONIO MOSLEY,

)
)
)
)
)
)
)
)
)

Petitioner,
Vs.
UNITED STATES OF AMERICA,
Respondent.

ORDER

THIS MATTER is before the court on petitioner’s “Motion to Alter or Amend the
Judgment or Motion for Reconsideration” (#30) and the government’s “Motion to Suspend”
(#33).
I.
As to the petitioner’s Motion to Alter or Amend the Judgment or Motion for
Reconsideration, no judgment has been entered in this civil action, and the court, construing the
motion liberally for the pro se petitioner, deems the request to be a Motion to Reconsider its
Order (#24) denying petitioner’s Motion to Recuse (#23).
As a preliminary matter, petitioner’s Motion to Reconsider has been filed during the
pendency of two appeals filed by petitioner in this matter to the Court of Appeals for the Fourth
Circuit. In the first Notice of Appeal (#26), petitioner seeks review of this court’s Order (#12)
granting respondent an extension of time to Answer or otherwise respond to his petition. In the
second Notice of Appeal, petitioner seeks review of this court’s Order (#24) denying petitioner’s

-1-

Motion to Recuse (#23).

Thus, not only is this matter on appeal, petitioner now seeks

reconsideration of an Order which is already before the Court of Appeals.
Rule 62.1 of the Federal Rules of Civil Procedure governs consideration of motions filed
in the district court during the pendency of an appeal. In particular, Rule 62.1(a) provides, as
follows:
(a) Relief Pending Appeal. If a timely motion is made for relief that the court
lacks authority to grant because of an appeal that has been docketed and is
pending, the court may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the motion if the court of appeals
remands for that purpose or that the motion raises a substantial issue.
Fed.R.Civ.P. 62.1. In addition, a court may consider a listed motions under Rule 4(a)(4) of the
Federal Rules of Appellate Procedure, including motions filed under Rule 60, Federal Rules of
Civil Procedure, for reconsideration during the pendency of an appeal.
The court has reviewed petitioner’s Motion to Reconsider its Order denying petitioner’s
Motion to Recuse. Petitioner presents nothing new in this motion as such request appears to be a
continuation of his unfounded theory that the court was in league with the government at
sentencing. In relevant part, petitioner argues, as follows:
Finally, Petitioner states that as a result of the events at the Janurary 7
2013 Sentencing Hearing and state ‘Judge Max O. Cogburn, Jr.’ is a material
apart of the alleged misconduct against the Government in his § 2255 Motion to
Vacate claim he presiding over. Judge Cogburn, Jr. knew that the Government
“improper [1y] threatened Petitioner but he failed to correct the misconduct and
constitutional violation.
In Judge Max O. Cogburn, Jr. Order [#24] denying relief, this Court
concluded that "Petitioner has, however, failed to set forth any facts that would
lead a reasonably objective person to doubt the impartiality of this Court. 28
U.S.C.§ 455 (a),(b).”
Petitioner respectfully submits , however , that there are numberous
factual and complex legal issues that need to be resloved with the assistance of
-2-

counsel and the benefit of investigation, discovery, an evidentiary hearing on this
matter (i.e.) Motion To Recuse , prior to the final resolution of Petitioner’s motion
to Vacate.
Motion to Reconsider (#30) at 6-7 (errors in the original). Again, petitioner has failed to set
forth any facts – as opposed to conclusory allegations – that would lead a reasonably objective
person to doubt the impartiality of this court. 28 U.S.C. § 455(a), (b). Indeed, petitioner’s
allegation of court collusion with the government is not only unfounded, it is implausible as it
fails to mention or take into consideration that at sentencing, the court granted his motion for a
downward variance over the government’s objection, giving petitioner a sentence that was
substantially below the advisory guidelines.
The court will, therefore, grant the Motion to Reconsider, and after fully considering
petitioner’s original motion and the additional arguments presented in the Motion to Reconsider,
again deny the Motion to Recuse as there is no evidence beyond petitioner’s speculation to
support his rather incredible allegation of collusion. See United States v. DeTemple, 162 F.3d
279, 286 (4th Cir.1998).
II.
As to the respondent’s Motion to Suspend, the government cites a number of cases that,
while still good law, were decided well before Rule 62.1 was implemented.
The court does, however, agree, that it would be a waste of resources to require the
government to Answer or otherwise respond to the petition while petitioner pursues his appellate
claims that he is entitled to default on that petition and that this court was in league with the
government at sentencing. Further, the volume of petitioner’s filings with this court also counsel

-3-

a stay pending appeal so that the parties may focus their efforts on the appeal.1 Petitioner is
advised that this means that not only will the government not be required to respond to his
petition until the appeal is over, the court will not promptly address petitioner’s motions or
letters, as it has attempted to diligently do, until the matter is returned from the circuit court and
any mandate issues.
ORDER
IT IS, THEREFORE, ORDERED that
(1) petitioner’s “Motion to Alter or Amend the Judgment or Motion for Reconsideration”
(#30) is GRANTED, and after reconsideration, the court’s Order denying petitioner’s
Motion to Recuse is REAFFIRMED and the Motion to Recuse is DENIED;
(2) respondent’s “Motion to Suspend” (#33) is GRANTED, and the requirement of filing an
Answer or other response to the Petition is SUSPENDED and this matter is STAYED
pending resolution of petitioner’s appeals.
Signed: December 4, 2014

Petitioner made 37 post-plea filings with this court in the criminal action despite being represented by one
of the most experienced, privately retained criminal defense attorneys in the Charlotte Bar. In this civil action,
between the filing of his Petition and before the respondent has answered, petitioner has made 15 pro se
1
filings.

-4-