Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Akwuba v. United States

June 20, 2007

UCHE AKWUBA, PETITIONER
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Shirley Wohl Kram, U.S.D.J.

OPINION AND ORDER

The petitioner pro se, Uche Akwuba ("Akwuba"), moves this Court under 28 U.S.C. § 2255 to vacate or set aside his conviction and sentence on several counts of conspiracy, wire fraud, and transportation of stolen money. The Court referred this matter to Magistrate Judge Frank Maas, who issued a Report and Recommendation (the "R & R") advising the dismissal of Akwuba's petition. In subsequent submissions to the Court, Akwuba has made several specific objections to the R & R and has requested that the Court recuse itself. For the reasons that follow, the Court denies Akwuba's request for recusal. Moreover, after conducting a de novo review of Akwuba's objections and reviewing the remainder of the R & R for clear error, the Court adopts Judge Maas's findings and dismisses Akwuba's petition.

I. BACKGROUND

As the factual and procedural history of this case is amply set forth in Judge Maas's Report and Recommendation, see R & R 3-12, the Court will only provide a brief summary of that history at the present time. Akwuba was convicted after a jury trial of two counts of conspiracy to commit wire fraud and transport stolen money, nine counts of wire fraud, and one count of interstate transportation of stolen money. On July 28, 1999, the Court sentenced Akwuba to a forty-six month prison term, to be followed by three years of supervised release.

Akwuba timely filed an appeal from his conviction, alleging that the Court: "(1) erred by failing to inquire into [his] claim of conflict of counsel and whether there was an actual conflict; (2) erred by denying [his] motions for severance and a mistrial for prejudice stemming from co-defendant statements; and (3) erred at sentencing by imposing a two-level sentence enhancement for obstruction of justice." United States v. Akwuba, No. 99-1465, 2000 WL 311051, at *1 (2d Cir. Mar. 27, 2000) (unpublished decision). The Second Circuit denied Akwuba's appeal on March 27, 2000, finding that: (1) Akwuba had failed to show that his counsel was actually or potentially conflicted; (2) the allegedly inculpatory extra-judicial statements made by Akwuba's co-defendant were not a "vitally important part" of the Government's case against him, and thus Akwuba was not entitled to severance or a mistrial; and (3) the Court did not err in applying a two-level obstruction of justice enhancement to Akwuba's sentence. Id. at *1-*2.

On April 11, 2001, Akwuba filed his petition for relief under 28 U.S.C. § 2255, which he amended on June 15, 2001. The Court referred Akwuba's petition to Judge Maas on January 14, 2002. The Government filed its opposing papers on April 15, 2002, and Akwuba filed his reply thereto on November 1, 2002. On May 2, 2005, Judge Maas issued the R & R, which denied Akwuba's twenty-three claims for relief. On May 3, 2005, Akwuba submitted a "general objection to all of Judge Maas's findings and recommendations," which was accompanied by three specific objections. The Court granted Akwuba leave to file additional specific objections to the R & R by August 31, 2005. This extension of time was enlarged on several occasions thereafter, and Akwuba finally submitted a list of further specific objections on January 4, 2007. This list of objections was accompanied by Akwuba's request, which was initially presented in a letter to the Court dated September 18, 2006, that the Court recuse itself from consideration of this matter.

II. DISCUSSION

Because Akwuba is proceeding pro se, the Court must grant his pleadings a "liberal construction," reading them "to raise the strongest arguments that they suggest." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (citations and quotation marks omitted). As set forth below, however, Akwuba's arguments do not withstand scrutiny even when liberally construed. With respect to Akwuba's request for recusal, the Court finds that Akwuba has failed to allege any facts from which a reasonable person would infer that the Court's impartiality might be called into question. In regard to Akwuba's specific objections to the R & R, the Court's de novo review of these objections reveals them to be devoid of merit. Moreover, the Court finds that the remainder of the R & R is not clearly erroneous. Therefore, the Court adopts the R & R and dismisses Akwuba's § 2255 petition.

A. Recusal Is Not Appropriate in This Matter

A judge must "disqualify himself in any proceeding in which his impartiality might reasonably be questioned," 28 U.S.C. § 455(a), or "[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." 28 U.S.C. § 455(b)(1). Whether a judge's impartiality "might reasonably be questioned" must be determined from the perspective of a "reasonable person, knowing all the facts." United States v. Bayless, 201 F.3d 116, 126 (2d Cir. 2000) (quoting Diamondstone v. Macaluso, 148 F.3d 113, 120-21 (2d Cir. 1998)). Moreover, "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion" because such rulings "only in the rarest circumstances evidence the degree of favoritism or antagonism required" for recusal. Liteky v. United States, 510 U.S. 540, 555 (1994) (citing United States v. Grinnell Corp., 384 U.S. 563, 583 (1966)).

Here, Akwuba points to three rulings that purportedly give rise to an inference of bias, including (1) the Court's decision declining to direct the Government to pay the costs of a replacement Nigerian passport; (2) the Court's finding that the Government had adequately explained the circumstances of Akwuba's lost passport; and (3) the Court's determination that the extension of time for the filing of Akwuba's objections until December 30, 2006, would be the final extension granted. Contrary to the petitioner's submissions, these rulings do not evince any favoritism or antagonism, let alone the level of hostility required for recusal under Liteky.

In its correspondence with Akwuba, the Government adequately responded to inquiries regarding his lost passport, in addition to providing ample grounds for denying his request that the Government cover the processing fee for a new passport. See Gov't Letter, July 20, 2006. Moreover, the Court set December 30, 2006, as the final deadline for Akwuba's filing of objections to the R & R only after granting no fewer than four extensions of time, for a total delay of nearly twenty months, at Akwuba's request. See 01 Civ. 3057 (SWK), Dkt. Nos. 5, 6, 7, & 8 (postponing deadlines for Akwuba's objections to August 31, 2005, December 14, 2005, July 19, 2006, and December 30, 2006, respectively, at his request). Under these circumstances, the three rulings cited by Akwuba do not raise any doubt as to the Court's impartiality.

Furthermore, Akwuba's naked assertion that the Court's bias was clear at his trial fails, from the perspective of a reasonable person knowledgeable of all of the facts, to call into question the Court's impartiality. Since the Court is just as strongly obligated not to recuse itself when there is no basis to do so as it is to recuse itself when there is such a basis, Akwuba's request for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.