Baxton v. United States

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:21-cv-420-FDW

(3:17-cr-134-FDW-DSC-5)

JAMES BAXTON, )

)

Petitioner, )

)

vs. ) ORDER

)

UNITED STATES OF AMERICA, )

)

Respondent. )

___________________________________ )

THIS MATTER is before the Court on Petitioner’s pro se Motion to Vacate, Set Aside or

Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1), and First Amended Motion to Vacate,

(Doc. No. 4). Also pending is a Motion to Recuse, (Doc. No. 8), and the Government’s Motion to

Dismiss Petitioner’s Motion to Recuse, (Doc. No. 10).

I. BACKGROUND1

Petitioner and 82 co-Defendants were charged in a 72-count Superseding Bill of Indictment

in a RICO conspiracy involving the United Blood Nation (“UBN”) gang. All of the defendants

named in the Indictment are members or associates of the UBN. (Id.). Petitioner was charged in

Count One with RICO conspiracy in violation of 18 U.S.C. § 1962(d). (3:17-cr-134 (“CR”) Doc.

No. 1241). The Indictment charged that the Petitioner engaged with his co-Defendants and others

to conspire to violate 18 U.S.C. § 1962(c) by conducting and participating, directly and indirectly,

in the conduct of the affairs of the UBN enterprise through a pattern of racketeering activity as

defined in Title 18, United States Code, Sections 1959(b)(1) and 1961(1), including: multiple acts

1 This section is not exhaustive. Additional information is included in the Discussion section as relevant to the various

claims.

involving murder in violation of North Carolina Gen. Stat. §§ 14-17, 14-2.4, 14-2.5, and 14-5.2;

and South Carolina Code of Laws §§16-3-10, 16-3-29, § 16-1-40; and robbery, in violation of

North Carolina Gen. Stat. §§ 14-87, 14.87.1 14-2.4, 14-2.5, and 14-5.2; and South Carolina Code

of Laws §§ 16-3-19 and 16-11-330; multiple acts indictable under 18 U.S.C. §§ 1028, 1343, 1344,

and 1951; and multiple offenses involving narcotics trafficking in violation of 21 U.S.C. §§

841(a)(1), 843, and 846. (Id.). The overt acts pertaining to Petitioner include: engaging in

correspondences discussing gang business (OA-6, OA-146, OA-160); receiving gang dues (OA-

7, OA-8, OA-9, OA-11, OA-12, OA-13, OA-16, OA-22, OA-24, OA-30, OA-136); conducting

gang meetings and discussing gang business (OA-124, OA-132, OA-158, OA-159); and

threatening an individual to dissuade them from cooperating with law enforcement (OA-328).

(Id.).

The day before jury selection in the joint trial of Petitioner and co-Defendants Cynthia

Gilmore and Pedro Gutierrez, co-Defendant Gilmore moved for the Court’s recusal pursuant to 28

U.S.C. § 455. Gilmore argued that the Court’s “impartiality might reasonably be questioned”

because the Court had recused himself in a prior UBN case, United States v. Cureton, 3:14-cr-229-

MOC-1, in which a photograph of the Court was found in Mr. Cureton’s cell. (CR Doc. No. 1499).

Gilmore argued that denying recusal in the instant case would be inconsistent with the recusal in

the Cureton case, and because the Court had found that an anonymous jury was warranted in

Petitioner’s case due to the nature and dangerousness of UBN, as demonstrated by the Cureton

case. (Id.). The Court disagreed, noting that, in Cureton this Court determined that recusal was

warranted in the interests of justice to avoid questions of impartiality or accusations of personal

bias, and to ensure a fair trial for the defendant, because Mr. Cureton’s specific conduct resulted

in a credible threat to the Court, and that threat had received significant media coverage. (CR Doc.

No. 1606). By contrast, in the instant criminal case, there was no credible threat against the Court;

nothing else would have any impact on the Court’s ability to adjudicate this case; and granting a

recusal in this case would set the precedent of encouraging judge-shopping. (Id.).

During a lengthy jury trial, the Government presented evidence that the Petitioner is an

acting Godfather of the Nine Trey Gangster set of UBN and that he was engaged in gang activity,

including collecting dues that came from co-Defendants’ drug proceeds, engaging in gang-related

correspondences, and conducting gang-related meetings while he was incarcerated in the New

York Department of Corrections. See, e.g., (CR Doc. No. 2346 at 50); (CR Doc. No. 2344 at 124-

25, 160); (CR Doc. No. 2349 at 7-8). There was also evidence that Petitioner engaged in drug

activities, i.e., possession of between 20 and 25 grams of heroin (“dog food”) to sell in the New

York Department of Corrections. See, e.g., (CR Doc. No. 2346 at 93). The jury found Petitioner

guilty as charged of RICO conspiracy. (CR Doc. No. 1565).

The Presentence Investigation Report (“PSR”) calculated the base offense level as 30

pursuant to U.S. Sentencing Guidelines § 2D1.1(a)(5) and (c)(5) because “[e]vidence reflects that

during the course of the conspiracy and in addition to the drugs he personally trafficked while

incarcerated, Baxton and other high-ranking leaders of the UBN knew that their subordinates …

trafficked controlled substances including cocaine, cocaine base, heroin, and marijuana in a

combined amount totaling at least 1,600 kilograms worth of marijuana….” (CR Doc. No. 1941 at

¶ 35). Two levels were added because the object of the offense was the distribution of a controlled

substance in a prison, correctional facility, or detention facility pursuant to § 2D1.1(b)(4). (Id. at ¶

36). Four levels were added because Petitioner was an organizer or leader of a criminal activity

that involved five or more participants or was otherwise extensive pursuant to § 3B1.1(a). (Id. at

¶ 38). Two levels were added for obstruction of justice pursuant to § 3C1.1 because the evidence

reflects that, during the pendency of this case and while Petitioner knew this case was pending, he

attempted to influence the proceedings by having witnesses falsify their testimony. (Id. at ¶ 39).

This resulted in a total offense level of 38. (Id. at ¶ 55). Petitioner had 12 criminal history points

and two points were added because Petitioner committed the instant offense while he was under a

criminal justice sentence. (Id. at ¶¶ 65-66). This resulted in a total of 14 criminal history points

and a criminal history category of VI. (Id. at ¶ 67). The advisory imprisonment range was 360

months to life, however, the statutory maximum for the offense is 240 months’ imprisonment, and

accordingly, the guidelines range was 240 months’ imprisonment followed by between one and

three years of supervised release. (Id. at ¶¶ 86, 89).

Counsel filed PSR objections arguing inter alia that there was no evidence to support the

1,600 kilograms of marijuana attributed to Petitioner, that the enhancement for obstruction of

justice does not apply, and that the four-point enhancement for an organizer or leader role does not

apply. (CR Doc. Nos. 1802, 2004).

At the sentencing hearing,2 the Court entertained the parties’ arguments and evidence

regarding the PSR calculations and Petitioner’s objections. The Court overruled the objections

and sustained the PSR. The Court sentenced Petitioner to 240 months’ imprisonment, consecutive

to any previously imposed state or federal sentence, followed by three years of supervised release.

(CR Doc. No. 2047); (CR Doc. No. 2119) (Amended Judgment).

On direct appeal, Petitioner and co-Defendants Gutierrez and Gilmore argued in a

consolidated appeal inter alia that: the Court erred by deciding to empanel an anonymous jury,

which deprived them of a fair trial by an impartial jury; the Court abused its discretion by deciding

not to recuse himself from presiding over the criminal case; errors occurred during jury selection;

2 Petitioner was sentenced at the same hearing as co-Defendant Gutierrez.

the evidence was insufficient to support the RICO conspiracy; the Court erred by not issuing a

special verdict form requiring the jury to indicate specific racketeering activities that each

defendant conspired to commit; there was insufficient evidence to support the jury’s civil forfeiture

findings; and the sentence was procedurally and substantively unreasonable. The Fourth Circuit

Court of Appeals affirmed. United States v. Gutierrez, 963 F.3d 320 (4th Cir. 2020). With regards

to the recusal issue, the Fourth Circuit found no abuse of discretion, stating that: “appellants do

not provide any basis for us to find the risk of confusing the public or to question the district court’s

impartiality and mental state, except that he recused himself from an earlier trial of another UBN

member unrelated to the case at bar. But as the judge properly noted, that case is distinguishable

from Appellants’ case because his photo was found in [Cureton’s] cell, and there is no comparable

evidence here.” Id. at 332. The United States Supreme Court denied certiorari on February 22,

2021. Baxton v. United States, 141 S.Ct. 1431 (2021).

Petitioner filed the instant § 2255 Motion to Vacate on August 4, 2021.3 He argues that

counsel was ineffective for:

(a) failing to object to the jury instruction stating that a 21 U.S.C. § 843(b) crime

was a qualifying racketeering predicate; (b) failing to object to instructions allowing

the jury to consider “attempted second-degree murder” as a predicate act; (c) failing

to seek a jury instruction regarding the “interdependence” element of charged

conspiracy; (d) failing to object to jury instruction misstating the elements of the

charged offense, i.e., (i) operation and management and participation conduct

requirement, and (ii) enterprise versus pattern of racketeering activity distinction;

(e) failing to conduct proper investigations and interview favorable witnesses in

order to present exculpatory or mitigating evidence for sentencing purposes; (f)

failing to adequately raise challenge in district court and on appeal the propriety of

the obstruction of justice enhancement; and (g) failing to raise each of the

aforementioned issues on direct appeal.

(Doc. No. 1-1 at 3-4); see (Doc. No. 1-1 at 37) (statement of Montraya Atkinson).

3 Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prison mailbox rule); Rule 3(d), Rules Governing §

2255 Proceedings in the United States District Courts (addressing inmate filings).

He also filed a First Amended Motion to Vacate, in which he argues that: (h) trial counsel

provided constitutionally ineffective assistance when he failed to properly argue for the Court’s

recusal. (Doc. No. 4 at 3). The Government filed a Response arguing that the § 2255 claims should

be denied because Petitioner’ has failed to show deficient performance or prejudice. (Doc. No. 5).

The Petitioner filed a Reply. [Doc. 8]. The matter is now ripe for disposition.

The Petitioner has filed a Motion to Recuse, (Doc. No. 8), in which he reiterates his

argument that the Court should have recused himself from the criminal case, and seeks the Court’s

recusal from the instant § 2255 proceeding. The Government filed a Motion to Dismiss Petitioner’s

Motion to Recuse, (Doc. No. 10), arguing that the Motion is untimely, barred, and meritless.

Petitioner filed a Response (Doc. No. 11), arguing that the Motion should be considered timely

pursuant to laches and disputing the Government’s assertion that the recusal issue has been rejected

by the Fourth Circuit.

II. SECTION 2255 STANDARD OF REVIEW

A federal prisoner claiming that his “sentence was imposed in violation of the Constitution

or the laws of the United States, or that the court was without jurisdiction to impose such sentence,

or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to

collateral attack, may move the court which imposed the sentence to vacate, set aside or correct

the sentence.” 28 U.S.C. § 2255(a).

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to

promptly examine motions to vacate, along with “any attached exhibits and the record of prior

proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims

set forth therein. In many cases, an evidentiary hearing is required to determine whether or not

counsel was ineffective for misadvising a petitioner about a plea offer. See generally United States

v. Witherspoon, 231 F.3d 923, 926–27 (4th Cir. 2000); 28 U.S.C.A. § 2255(b). After examining

the record in this matter, the Court finds that the arguments presented by Petitioner can be resolved

without an evidentiary hearing based on the record and governing case law. See Raines v. United

States, 423 F.2d 526, 529 (4th Cir. 1970).

III. DISCUSSION4

(1) Claims of Ineffective Assistance of Trial Counsel

Petitioner contends that trial counsel was ineffective with regards to: (A) the jury

instructions; (B) sentencing; and (C) seeking the undersigned’s recusal.

The Sixth Amendment to the U.S. Constitution guarantees that, in all criminal

prosecutions, the accused has the right to the assistance of counsel for his defense. See U.S. Const.

Amend. VI. To show ineffective assistance of counsel, Petitioner must first establish deficient

performance by counsel and, second, that the deficient performance prejudiced him. See Strickland

v. Washington, 466 U.S. 668, 687-88 (1984). The deficiency prong turns on whether “counsel’s

representation fell below an objective standard of reasonableness ... under prevailing professional

norms.” Id. at 688. A reviewing court “must apply a ‘strong presumption’ that counsel’s

representation was within the ‘wide range’ of reasonable professional assistance.” Harrington v.

Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689).

(A) Jury Instructions

Petitioner argues that counsel was ineffective with regards to the jury instructions by failing

to: (a) object to an instruction that erroneously stated that a 21 U.S.C. § 843(b) crime is a qualifying

racketeering predicate; (b) object to an instruction that erroneously allowed the jury to consider

North Carolina attempted second-degree murder, a non-existent offense, as a predicate act; (c)

4 Petitioner’s claims have been liberally construed, restated, and renumbered. Any arguments or claims not specifically

addressed in this Order have been considered and rejected.

request an instruction regarding the “interdependence” element of conspiracy; (d) object to an

instruction misstating the operation, management, and participation conduct requirement element

of RICO conspiracy; and (e) object to an instruction that failed to explain the distinction between

an enterprise and a pattern of racketeering activity.

A district court has an obligation to give instructions to the jury that “fairly state[ ] the

controlling law.” United States v. Cobb, 905 F.2d 784, 789 (4th Cir.1990). “As a general

proposition, a defendant is entitled to an instruction as to any recognized defense for which there

exists evidence sufficient for a reasonable jury to find in his favor.” Mathews v. United States, 485

U.S. 58, 63 (1988). To demonstrate prejudice in the context of a jury instruction error, the court

examines whether the petitioner has demonstrated a reasonable probability of a different outcome

with a proper jury instruction. United States v. Rangel, 781 F.3d 736, 743-44 (4th Cir. 2015).

(a) First, Petitioner complains that counsel should have objected when the Court instructed

the jury that a violation of § 843(b) is a type of “racketeering activity” under RICO, because the

“use of communications facilties” is not listed as a predicate offense under the RICO statute. (Doc.

No. 1-1 at 5-7). Petitioner argues that the instruction was prejudicial because it allowed the jury to

return a guilty verdict for RICO conspiracy based on a legally invalid theory and, as the general

verdict does not specify the racketeering activity it found, the Government was essentially relieved

of its burden of proof.

The RICO conspiracy statute provides that “[i]t shall be unlawful for any person to conspire

to violate any of the provisions of subsection (a), (b), or (c) of [Section 1962].” 18 U.S.C. §

1962(d). The elements of § 1962(c) are: (1) the conduct (2) of an enterprise (3) through a pattern

of racketeering activity. Salinas v. United States, 522 U.S. 52, 62 (1997). There is no requirement

of some overt act or specific act in the RICO statute, unlike the general conspiracy provision

applicable to federal crimes. Id. at 63. A “pattern of racketeering activity” is defined as at least two

acts of “racketeering activity….” Id. at 62. “Racketeering activity” includes “any offense

involving … the felonious manufacture, importation, receiving, concealment, buying, selling, or

otherwise dealing in a controlled substance or listed chemical (as defined in section 102 of the

Controlled Substances Act), punishable under any law of the United States….” 18 U.S.C. §

1961(1)(D) (emphasis added).

The Court instructed the jury that, to find Petitioner guilty of RICO conspiracy, it must find

that he agreed to violate, and knowingly and willfully agreed that he, or some other member of the

conspiracy, would commit at least two acts of racketeering of the types of racketeering activity set

forth in the indictment (CR Doc. No. 2349 at 167-68), and that the verdict must be unanimous as

to which type or types of predicate racketeering activity Petitioner agreed would be committed (id.

at 182). The Court then set forth the 12 types of racketeering activity alleged in the Indictment,

including the “use of communications facilities in order to facilitate a controlled substance offense

under Title 21, United States Code, Section 843(b).” (Id. at 191).

A violation of § 843(b) qualifies as an offense involved in dealing a controlled substance

which is punishable under any law of the United States pursuant to § 1961(1)(D). See United

States v. Tinsley, 800 F.2d 448, 450 (4th Cir. 1986) (affirming RICO convictions based in part on

the predicate offense of telephone facilitation in violation of § 843(b)); see also United States v.

Allen, 909 F.3d 671 (4th Cir. 2018) (finding that a § 843(b) offense is a controlled substance offense

for purposes of the career offender guideline). The instruction regarding § 843(b) was not

erroneous and counsel cannot be deemed ineffective for failing to object.

(b) Second, the Petitioner argues that counsel failed to object when the Court instructed

the jury that “attempted second-degree murder” is a predicate act for purposes of RICO conspiracy,

whereas no such offense exists under North Carolina law.5 (Doc. No. 1 at 4); (Doc. 1-1 at 7-8).

With regards to prejudice, Petitioner argues that “it is fair to assume that the second degree murder

language is what the jury retained and took to the deliberation chamber,” rather than the language

about “specific intent,” because “second degree murder” is more familiar than “specific intent,”

and that “prejudice is clear.” (Doc. No. 9 at 11).

The Court instructed the jury that the Indictment charges the following racketeering

activity that was or was intended to be committed as part of the RICO conspiracy: “acts involving

murder, chargeable under Sections 14-17, 14-2.4, 14-2.5, and 14-5.2 of the North Carolina General

Statutes. Acts involving murder include all inchoate forms of that offense, including conspiracy

to commit murder and attempted murder, as well as first degree and second degree substantive

murder and … accessory before the fact to murder.” (CR Doc. No. 2349 at 182). The Court then

further instructed the jury:

Second degree murder under North Carolina law is the killing of another

person with … either the intent to kill or the intent to inflict such serious bodily

harm that death would be the likely result. Second degree murder does not require

premeditation or deliberation.

Attempted murder under North Carolina law is a substantial step, beyond

mere preparation, toward the commission of murder in the second degree. In order

to prove attempt, the Government must show that the assailant had the apparent

ability at that time to commit the crime of murder and the intent to commit murder.

(Id. at 183).

Assuming arguendo that the foregoing was erroneous or confusing, the Plaintiff is not

entitled to relief because he has failed to demonstrate prejudice. The jury was instructed on 12

types of racketeering activity that was, or was intended to be, committed as part of the RICO

5 See State v. Coble, 351 N.C. 448, 451, 527 S.E.2d 45, 48 (2000) (“Because specific intent to kill is not an element

of second-degree murder, the crime of attempted second-degree murder is a logical impossibility under North Carolina

law.”).

conspiracy. (CR Doc. 2349 at 182-91). The jury only had to unanimously find two types of

racketeering activity that Petitioner agreed would be committed, and the evidence that the

Government presented in this regard was overwhelming. Therefore, even if the second-degree

murder instruction was erroneous or confusing, there is no reasonable probability that the outcome

of trial would have been different. See United States v. Borromeo, 954 F.2d 245, 248 (4th Cir.

1992) (on direct appeal, finding that, even if the RICO conspiracy jury instruction regarding the

enterprise’s nexus with interstate commerce was narrowly construed as erroneous, it was harmless

in light of the evidence); United States v. Ali, 991 F.3d 561, 575 (4th Cir.), cert. denied, 142 S.Ct.

486 (2021) (on plain error review, finding that the defendant could not establish that the outcome

of trial would have been different absent an improper jury instruction on the § 924(c) “crime of

violence” element in light of the overwhelming weight of the evidence the government presented

at trial); United States v. Myers, 280 F.3d 407 (4th Cir. 2002) (failure to instruct the jury that it had

to unanimously agree on the four drug transactions supported a § 924(c) offense did not constitute

plain error because defendant failed to show that the failure to give the instruction resulted in his

conviction in light of the overwhelming evidence).6 Accordingly, counsel cannot be deemed

ineffective for failing to object.

(c) Petitioner contends that counsel should have objected when the Court failed to instruct

the jury on the “interdependence” element of drug conspiracy pursuant to §§ 841 and 846.

Petitioner argues that the omitted instruction prejudiced him because there was no evidence to

indicate overall agreement between Petitioner and the alleged co-conspirators to perform drug

6 These cases are cited because they are instructive; the Court does not mean to suggest that the plain error and

ineffective assistance of counsel standards are interchangeable. See Rangel, 781 F.3d at 745–46 (noting the

similarities between plain error and ineffective assistance of counsel inquiries); United States v. Carthorne, 878 F.3d

458, 465–66 (4th Cir. 2017) (recognizing that the prejudice showings for plain error and ineffective assistance of

counsel are not identical).

dealing as part of UBN’s success, and no evidence suggested that the activity was necessary to

sustaining the charged conspiracy, i.e., that UBN could have moved forward without dependence

on drug activity and vice versa. (Doc. No. 1-1 at 8-10).

To prove conspiracy to possess with intent to distribute a controlled substance, the

Government must establish that: (1) an agreement to possess with intent to distribute existed

between two or more persons; (2) the defendant knew of the conspiracy; and (3) the defendant

knowingly and voluntarily became a part of this conspiracy. See United States v. Burgos, 94 F.3d

849, 857 (4th Cir. 1996) (en banc) (citing United States v. Collazo, 732 F.2d 1200, 1205 (4th Cir.

1984)).

The Court instructed the jury that the offense of conspiracy to possess with intent to

distribute a controlled substance in violation of § 846 requires the Government to prove beyond a

reasonable doubt:

First, that two or more persons willfully formed an unlawful agreement that

was in existence at the time alleged in the indictment; second, that some point

during the existence or life of the conspiracy the individual knowingly and willfully

joined the conspiracy; and third, that the object or purpose of the conspiracy was to

violate the Controlled Substances Act by way of distributing and possessing with

the intent to distribute a controlled substance; and fourth, the individual knew that

the substance involved in the conspiracy was a controlled substance….

(CR Doc. No. 2349 at 190-91).

The foregoing instruction adequately conveyed all the elements of conspiracy to possess

with intent to distribute controlled substances in violation of §§ 841 and 846. See Burgos, 94 F.3d

at 857. The Petitioner’s argument that the Court was required to include “interdependence” as a

separate element is rejected. The Fourth Circuit has issued opinions articulating conspiracy with

and without a separate interdependence element. Compare Id. (omitting a separate

“interdependence” element); with United States v. Stewart, 256 F.3d 231, 250 (4th Cir. 2001)

(identifying the elements of drug conspiracy as: “(1) an agreement with another person to violate

the law, (2) knowledge of the essential objectives of the conspiracy, (3) knowing and voluntary

involvement, and (4) interdependence among the alleged conspirators”). “Interdependence is

established when the activities of the alleged co-conspirators in one aspect of the charged scheme

are necessary or advantageous to the success of the activities of co-conspirators in another aspect

of the charged scheme, or to the success of the venture as a whole.” Stewart, 256 F.3d at 250.

Petitioner has failed to explain why it was erroneous for the Court to adhere more closely to the

elements as articulated by Burgos rather than Stewart. Further, Petitioner could not have been

prejudiced because interdependence was implied from the charge as a whole. (CR Doc. No. 2349

at 168, 170-71) (defining “conspiracy” as a “combination or agreement … to join together to

attempt to accomplish some unlawful purpose;” describing conspiracy as “a kind of

‘partnership’”); see Mascioli v. United States, 2009 WL 1328105 (N.D. W. Va. May 12, 2009)

(conspiracy instruction omitting interdependence as a separate element was not erroneous because

the Fourth Circuit has clearly upheld instructions with and without interdependence as a separate

element, and the concept of interdependence was implied in every element of the court’s charge).

The Court’s instruction implicitly conveyed the concept of interdependence and the instructions

that were provided correctly and fully stated the law.

The Petitioner’s arguments that the Court should have further instructed the jury that it

must find that Petitioner participated in a drug trafficking conspiracy, and that Petitioner must have

had an agreement with the co-conspirators to engage in drug dealing as part of UBN, are meritless.

The Petitioner was charged only with RICO conspiracy. Conspiracy to possess with intent to

distribute a controlled substance served as a predicate act for the RICO conspiracy and not as a

separate charge. As such, the Government was not required to prove that Petitioner participated in

a drug trafficking conspiracy or that he conspired to do so. See Salinas, 522 U.S. at 63 (a RICO

conspiracy may “exist even if a conspirator does not agree to commit or facilitate each and every

part of the substantive offense.”); United States v. Cornell, 780 F.3d 616, 624 (4th Cir. 2015) (“to

secure a conviction for RICO conspiracy, the government is not required to allege or prove the

actual completion of a single racketeering act by the defendant or any other member of the

conspiracy”). Further, the Petitioner’s suggestion that the drug trafficking conspiracy could only

be a RICO conspiracy predicate if drug dealing was necessary to UBN’s success, misstates the

elements of RICO conspiracy. The jury was correctly instructed regarding the elements of RICO

conspiracy, including enterprise, nexus, and pattern of racketeering activity. See Section (a), supra;

Section (d), infra; (CR Doc. No. 2349 at 167-82). Accordingly, counsel did not perform deficiently

by failing to object, and Petitioner cannot demonstrate prejudice.

(d) Next, Petitioner argues that counsel should have objected when the Court failed to

provide adequate instruction on the operation, management, and participation conduct requirement

of the charged offense, and for failing to require the Court to make a specific finding on that

conduct requirement.

While liability for a substantive RICO offense under § 1962(c) requires an individual to

have participated in the operation or management of an enterprise, Reves v. Ernst & Young, 507

U.S. 170 (1993), RICO conspiracy under § 1962(d) contains no such requirement, United States

v. Mouzone, 687 F.3d 207, 217-18 (4th Cir. 2012) (Ҥ 1962(d) liability does not require that a

defendant have a role in directing an enterprise”).

The Court correctly instructed the jury on the elements of RICO conspiracy. See Section

(a), supra. The Court then further instructed the jury as follows:

Each defendant must have agreed that a conspirator would conduct or

participate in the conduct of the affairs of the enterprise. A defendant may be

convicted of a RICO conspiracy offense even if he or she did not personally

participate in the operation or management of the enterprise when the evidence

establishes that the defendant knowingly agreed to facilitate a scheme which, if

completed, would constitute a RICO substantive violation involving at least one

conspirator who would participate in the operation or management of the

enterprise. Such proof of operation and management may include evidence

that the defendant agreed that a conspirator would intentionally perform acts,

functions or duties which are necessary to, or helpful in, the operation of the

enterprise, or that a conspirator had some part in directing the enterprise’s

affairs. Rather, an enterprise is operating not just by upper management, but also

by lower-rung participants in the enterprise, who are in the direction of upper

management or carry out upper management’s orders. An enterprise also might be

operated or managed by one who exerts control over the enterprise.

(CR Doc. No. 2349 at 178-79) (emphasis added).

Petitioner argues that the foregoing “helpful[ness]” language was insufficient because the

Court did not require a specific finding on the operation or management of the enterprise; and did

not inform the jury that the simple acts of giving directives and performing tasks necessary or

helpful to UBN were insufficient. (Doc. No. 1 at 13). The jury was not required to make a specific

finding on this point. He argues that the foregoing prejudiced him because the jury was not fully

informed of the governing law, the erroneous instruction could have reasonably affected the

verdict, and the evidence of conspiracy was not so overwhelming as to deem the error harmless.

(Doc. No. 1-1 at 10-12)

The Court’s instruction correctly conveyed the law; therefore, counsel was not ineffective

for failing to object, and Petitioner has failed to demonstrate prejudice.

(e) Finally, Petitioner argues that counsel should have objected to the instruction misstating

the RICO elements distinction between an enterprise and a pattern of racketeering activity.

The existence of an “enterprise” is distinct from a “pattern of racketeering activity,” the

first being a group of persons associated together for a common purpose of engaging in a course

of conduct, and the latter being a series of criminal acts as defined by statute. United States v.

Turkette, 452 U.S. 576, 583 (1981). The proof of one does not necessarily establish proof of the

other. Boyle v. United States, 556 U.S. 938, 947 (2009). However, “the evidence used to prove

the pattern of racketeering activity and the evidence establishing an enterprise ‘may in particular

cases coalesce.’” Id. (quoting Turkette, 452 U.S. at 583).

The Court correctly instructed the jury that the Government must prove “that an enterprise

existed,” and defined an “enterprise” as including “any individual, partnership, association, or

other legal entity, and any union or group of individuals associated in fact although not a legal

entity” and it also defined an “association-in-fact enterprise.” (CR Doc. No. 2349 at 171-72). It

further instructed that, “[a]lthough the existence of an enterprise is a distinct element that must be

proven by the Government, … [c]ommon sense dictates that the existence of an association-in-fact

enterprise is oftentimes more readily proven by what it does rather than by an abstract analysis of

its structure. Therefore, you may consider proof of racketeering acts to determine whether the

evidence establishes the existence of the charged enterprise, and, further, you may infer the

existence of the enterprise from evidence of the pattern of racketeering activity.” (Id. at 173). The

Court instructed that “[t]he Government must prove beyond a reasonable doubt that the defendant

agreed that a conspirator would engage in a pattern of racketeering activity” and set forth the

elements for establishing a pattern of racketeering activity. (Id. at 179).

The foregoing clearly informed the jury that an “enterprise” and “pattern of racketeering

activity” are distinct, must both be proven beyond a reasonable doubt, and may be established by

overlapping evidence. These instructions were correct and did relieve the Government of its

burden of proof. Accordingly, counsel was not ineffective for failing to object and Petitioner is

unable to establish prejudice.

(B) Sentencing

Petitioner contends that counsel was ineffective with regards to sentencing by failing to:

(a) adequately challenge the Government’s evidence of drug quantity, or investigate and present

exculpatory or mitigating evidence on that point; and (b) adequately challenge the obstruction of

justice enhancement.

When applying the Strickland prejudice test in the context of sentencing, “any amount of

actual jail time has Sixth Amendment significance.” Glover v. United States, 531 U.S. 198, 203

(4th Cir. 2001).

(a) First, Petitioner argues with regards to drug amount that counsel failed to object to

and impeach the Government’s evidence as unreliable and inconsistent, or investigate and present

exculpatory and mitigating evidence on Petitioner’s behalf. He specifically argues that counsel

should have interviewed co-Defendant Montraya Atkinson and called him to testify that he “never

admitted to anyone in law enforcement that he sold drugs as part of UBN for any reason.” (Doc.

No. 1 at 13); see (Doc. No. 1-1 at 37). He further argues that counsel should have objected when

the Court failed to make a “reliability factual determination” about the testimony of special agent

Maria Joycs. (Doc. 1 at 13).

This claim is conclusively refuted by the record insofar as counsel did object to the drug

quantity determination and the accuracy of the drug quantities that were reasonably foreseeable to

Petitioner. (CR Doc. No. 1802). On direct appeal, the Fourth Circuit found that “the district court

separately determined the applicable offenses as … drug trafficking in an amount totaling at least

1,600 kilograms resulting in a base offense level of 30” for Petitioner, and rejected the argument

that this finding was erroneous because it lacked sufficient evidence to find Petitioner committed

the underlying offenses. Gutierrez, 963 F.3d at 341. It found that “the Government presented ample

evidence during the jury trial and the sentencing hearings that Appellants engaged in the attributed

underlying racketeering activities” including that Petitioner engaged in smuggling contraband in

the prisons. Id. There is no reason for the Court to revisit the issue in the instant proceeding under

the guise of ineffective assistance of counsel. See Boeckenhaupt v. United States, 537 F.2d 1182,

1183 (4th Cir.1976) (holding criminal defendant cannot “recast, under the guise of collateral attack,

questions fully considered by this court [on direct appeal]”).

Petitioner’s arguments that counsel should have further investigated and presented

evidence regarding the matter are meritless. The evidence demonstrated that: Petitioner admitted

to a cellmate in 2017 that, during the course of the conspiracy, he trafficked heroin and marijuana

inside the New York State Department of Corrections; he stated in a recorded conversation in 2015

that he had 20 to 25 grams of heroin at the time and he was selling inside the New York Department

of corrections and expressed interest in developing a heroin distribution enterprise in the southern

United States; he engaged in conversations about promoting to the position of “high” in North

Carolina co-Defendant Atkinson, who pleaded guilty to RICO conspiracy and sold approximately

eight kilos of cocaine; and Petitioner stated in a recorded phone conversation that he knew his

UBN subordinates, such as Atkinson, would traffic controlled substances to fund UBN. See (CR

Doc. No. 2353 at 45-59); (CR Doc. No. 1941 at ¶¶ 24-26). Atkinson’s statement purports to be

“sworn,” however, it is not signed by Atkinson under penalty of perjury, nor is it signed by an

individual authorized to place Atkinson under oath. (Doc. 1-1 at 37). Moreover, the Petitioner’s

argument that counsel should have impeached the reliability of the Government’s evidence, or

called as a witness the co-Defendant whose drug dealing was attributed to Petitioner, fails because

there is no reasonable probability that such would affected Petitioner’s sentence in light of the

foregoing, including his own recorded statements. (Doc. No. 1-1 at 37). The Court heard evidence

that mirrored the information contained in Atkinson’s statement, i.e., that Petitioner was

incarcerated at the time the drug deals took place, and the drug dealing was Atkinson’s livelihood

rather than a UBN activity. (CR Doc. No. 2353 at 30-32). However, the Court nevertheless found

that more than five kilos of drugs were reasonably foreseeable by the Petitioner. Had counsel

presented cumulative evidence on those points, such would not have changed the Court’s

conclusion with regards to the drug amount, especially in light of the fact that the drug amount that

the Government established at the sentencing hearing was a very conservative estimate. Nor would

an objection that the Court make a “reliability factual determination” have been successful; the

Court considered the PSR, evidence presented at trial and at the sentencing hearing, and the

arguments of counsel. The Court considered all of the foregoing, including the evidence’s

reliability, and made a determination at sentencing by the preponderance of the evidence. No

further findings were required and an objection by counsel on this point would not have changed

the sentencing outcome whatsoever. Petitioner’s argument that counsel should have pointed out

inconsistent evidence from a prior hearing is also unavailing. The Court was well aware of the

prior proceedings and all of the evidence presented in the case. The burden of proving the drug

amount was on the Government by the preponderance of the evidence, which it easily

accomplished. No further argument on this point would have changed the Court’s determination

regarding the drug amount that was known to or reasonably foreseeable by Petitioner.

(b) Second, Petitioner argues that counsel was ineffective with regards to the

obstruction of justice enhancement by failing to object that the Court did not make a factual

determination of “willfulness” element, and “to the government tendering [Petitioner’s] alleged

conduct as falling under § 1503 – a statutory framework wholly unrelated to the § 3C1.1

enhancement factors….” (Doc. No. 1 at 14).

Section 3C1.1 applies if: “(1) the defendant willfully obstructed or impeded, or attempted

to obstruct or impeded, the administration of justice with respect to the investigation, prosecution,

or sentencing of the instant offense of conviction and (2) the obstructive conduct related to (A) the

defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense….”

U.S.S.G. § 3C1.1 (2018). Obstructive conduct that occurs prior to the start of the investigation of

the offense may be covered by this guideline “if the conduct was purposefully calculated, and

likely, to thwart the investigation or prosecution of the offense of conviction.” U.S.S.G. § 3C1.1,

app. note 1. Examples of covered conduct include: “threatening, intimidating, or otherwise

unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do

so….” U.S.S.G. § 3C1.1, app. note 4(A).

Counsel objected to the obstruction of justice enhancement, the Court overruled the

objection, and the Fourth Circuit affirmed on direct appeal, finding that “the sentencing court did

not commit any procedural error, such as, ‘failing to properly calculate the applicable Sentencing

Guidelines range….” Gutierrez, 963 F.3d at 343 (internal quotations omitted). The Fourth Circuit

further noted that “[t]he district court considered each Appellant’s criminal and personal history,

criminal conduct, objections to certain sentencing enhancements, and the evidence presented

during the trial and the sentencing hearings. After careful consideration, it overruled most

objections to the enhancements, articulated its findings as to Appellants’ relevant criminal conduct

and supporting reasons, and determined a sentence for each Appellant.” Id. There is no reason for

the Court to revisit the Fourth Circuit’s conclusions in the instant proceeding. See Boeckenhaupt,

537 F.2d at 1183.

Further, the Petitioner’s present challenges to the obstruction enhancement are meritless.

The Petitioner argues that counsel should have objected that the Court did not make a finding about

the willfulness of Petitioner’s obstruction. Counsel argued, inter alia, that the Petitioner did not

intent to threaten anyone and that his allegedly obstructive actions could have been interpreted

innocently but instead were misconstrued as something negative. (CR Doc. No. 1802); (CR Doc.

No. 2353 at 85-86). The Court considered the evidence and counsel’s arguments, i.e., that

Petitioner did not threaten anyone and that his statements had been misinterpreted, and overruled

the objection. (CR Doc. No. 2353 at 84-86). The Court found that there was “overwhelming

evidence that UBN retaliates against cooperating people” and that the obstruction incidents

attributable to Petitioner “should be considered in the context of all the trial evidence…,” and

construed the Petitioner’s behavior consistently with the Probation Office’s interpretation of those

acts. (Id. at 87-88). Thus the Court did consider the willfulness of Petitioner’s actions and sustained

the PSR.

Petitioner’s suggestion that the Government improperly held him to the standard of an

obstruction of justice statute “wholly unrelated to the § 3C1.1 enhancement factors” is also

unavailing. (Doc. No. 1 at 14). This argument is too vague to support relief insofar as the Petitioner

fails to identify the portion of the record to which he refers. See generally United States v. Dyess,

730 F.3d 354 (4th Cir. 2013) (vague and conclusory allegations contained in a § 2255 petition may

be disposed of without further investigation by the district court). In any event, referring to an

obstruction statute when considering the obstruction enhancement is not improper. The U.S.

Sentencing Guidelines application notes specifically state that “other conduct prohibited by

obstruction of justice provisions under Title 18, United States Code (e.g., 18 U.S.C. §§ 1510,

1511)” are examples of the types of conduct to which the obstruction enhancement applies.

U.S.S.G. § 1C1.1, App. Note 4(l) (2016). Petitioner has failed to identify any meritorious grounds

for challenging the obstruction of justice enhancement that reasonable counsel would have raised;

counsel, accordingly, cannot be deemed ineffective.7

Petitioner has failed to identify any area in which counsel provided unreasonable assistance

with regards to sentencing, or demonstrated that such had a reasonable probability of affecting his

sentence. For all the foregoing reasons, the Petitioner’s claims that counsel was ineffective with

regards to sentencing are denied.

(C) Recusal

Petitioner argues that counsel should have sought the undersigned’s recusal separately from

Defendant Gilmore. He argues that recusal was warranted because the Court had previously

recused himself from the Cureton case, and it was inconsistent for the Court to conclude that the

instant case was sufficiently connected to the present case to warrant an anonymous jury based on

the threats in the Cureton case but not sufficiently connected to warrant recusal. (Doc. No. 4 at 4-

5). Petitioner asserts that he is “much differently situated” from Defendant Gilmore because he is

“a godfather of the entire UBN organization,” and thus was “liable for virtually any and every

crime committed by any and every member of the UBN organization” such that the Court “was

actually a material witness to a criminal act allegedly committed under the flag of the very

enterprise that he had expressly stated constituted one seamless criminal conspiracy and which the

current defendants were alleged to be members of” and was required to recuse himself pursuant to

28 U.S.C. § 455(b)(2).8 (Doc. No. 4 at 5-6, 11). He argues that the undersigned should be required

7 Even if Petitioner were successful on the obstruction of justice objection, this would not have affected his advisory

guideline range because an offense level of 36 and criminal history category of VI is punishable by 324 to 405 months’

imprisonment, which still exceeds the offense’s 20-year statutory maximum. Nor would any change in the advisory

guideline range have changed the Court’s sentencing determination in consideration of all the sentencing factors and

the circumstances of the case.

8 Petitioner erroneously cites “18 U.S.C. § 455.”

to remove himself, in perpetuity, “from those UBN cases in which one of the alleged Godfathers

is a defendant.” (Doc. No. 4 at 10).

A federal judge must disqualify himself “in any proceeding in which his impartiality might

reasonably be questioned” 28 U.S.C. § 455(a); “[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); or “[w]here in private practice he served as a lawyer in the

matter in controversy, or a lawyer with whom he previously practiced law served during such

association as a lawyer concerning the matter, or the judge or such lawyer has been a material

witness concerning it…” 28 U.S.C. § 455(b)(2). A judge who presides at a trial is not recusable

just because he becomes “exceedingly ill disposed towards the defendant” upon completion of the

evidence because the judge’s “knowledge and the opinion it produced were properly and acquired

in the course of the proceedings….” Liteky v. United States, 510 U.S. 540, 551 (1994). “Also not

subject to deprecatory characterizations of ‘bias’ or ‘prejudice’ are opinions held by judges as a

result of what they learned in earlier proceedings.” Id. “[J]udicial rulings alone almost never

constitute a valid basis for a bias or partiality motion.” Id.; Glenn v. Wells Fargo Bank, N.A., 710

F. App’x 574 (4th Cir. 2017). Further, § 455 carries an “extrajudicial source” limitation, under

which bias or prejudice must, as a general matter, stem from “a source outside the judicial

proceeding at hand” in order to disqualify a judge. Belue v. Leventhal, 640 F.3d 567, 572-73 (4th

Cir. 2011) (quoting Liteky, 510 U.S. at 545, 551, 554). That is, “opinions formed by the judge on

the basis of facts introduced or events occurring in the course of the current proceedings, or of

prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a

deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky, 510

U.S. at 555 (emphasis added).

The Fourth Circuit has already resolved this issue on direct appeal, finding that the Court

did not err in denying recusal in the instant criminal case. Gutierrez, 963 F.3d at 331-32. That

finding applied to “Appellants,” i.e., Petitioner, Gilmore, and Gutierrez; Petitioner’s attempt to

except himself from the Fourth Circuit’s ruling is rejected. The more specific issues that Petitioner

asserts that counsel should have raised at trial are also unavailing because they do not warrant

recusal. The mere fact that Petitioner was a “godfather” of UBN is irrelevant to the question of

recusal, and his attempt to substitute the conspiracy standard for the recusal standard is rejected.

The fact that a photograph was found in Cureton’s cell in a prior UBN case did not make the Court

a “witness” in the instant separate criminal case, nor did it result in bias or extrajudicial knowledge

of a disputed evidentiary fact in Petitioner’s criminal case. See 28 U.S.C. § 455(b)(1)-(2); see

Liteky, 510 U.S. at 555. Further, requiring the Court’s recusal in perpetuity for any case involving

a UBN “godfather” would result in the type of judge shopping that the courts seek to avoid.

Petitioner’s recusal claim was previously rejected by the Fourth Circuit, and no meritorious basis

for recusal appears in the record. Accordingly, counsel was not ineffective for failing to seek

recusal separately from co-Defendant Gilmore or to argue the specific grounds for recusal that

Petitioner presently asserts. Accordingly, this claim will be denied.

(2) Claims of Ineffective Assistance of Appellate Counsel

Petitioner contends that appellate counsel was ineffective for failing to raise the issues set

forth in Section (1), supra, on direct appeal.

The right to the effective assistance of counsel extends to direct appeal. Bell v. Jarvis, 236

F.3d 149, 164 (4th Cir. 2000) (en banc). In order to establish a claim that appellate counsel was

ineffective for failing to pursue a claim on direct appeal, a petitioner must normally demonstrate

both deficient performance and prejudice, meaning that there is a reasonable probability that but

for counsel’s unprofessional errors, the result of the proceeding would have been different. Id.

Effective assistance of appellate counsel “does not require the presentation of all issues on appeal

that may have merit.” Smith v. Murray, 477 U.S. 527, 536 (4th Cir. 2014) (“winnowing out weaker

arguments on appeal and focusing on those more likely to prevail … is the hallmark of effective

appellate advocacy.”) (internal quotations marks and citations omitted). However, appellate

counsel may render deficient performance by failing to raise “issues [that] are clearly stronger than

those presented.” United States v. Mason, 774 F.3d 824, 828-29 (4th Cir. 2014). “The ineffective

assistance inquiry therefore requires a court to compare the strength of an issue not raised on direct

appeal … with the strength of the arguments that were raised.” United States v. Allmendinger, 894

F.3d 121, 126 (4th Cir. 2018). To show prejudice, a petitioner must show a “reasonable probability

... he would have prevailed on his appeal” but for his counsel’s unreasonable failure to raise an

issue. Smith v. Robbins, 528 U.S. 259, 285–86 (2000); see also United States v. Mannino, 212

F.3d 835, 845–46 (3d Cir. 2000) (“The test for prejudice under Strickland is not whether petitioners

would likely prevail upon remand, but whether we would have likely reversed and ordered a

remand had the issue been raised on direct appeal.”).

This claim is rejected to the extent that appellate counsel presented the claims that the

Petitioner has raised on direct appeal. The fact that they did not succeed fails to demonstrate that

counsel was ineffective. To the extent that appellate counsel did not raise the claims on direct

appeal, counsel cannot be deemed deficient for choosing not to raise them on direct appeal because

they are meritless. See Section (1), supra. Even if counsel had raised them, there is no reasonable

probability that they would have changed the outcome of the direct appeal had counsel raised them.

Petitioner’s claim of ineffective assistance of appellate counsel will therefore be denied.

(3) Motion to Recuse

The Petitioner has filed a Motion to Recuse in this § 2255 proceeding, arguing that the

Court must recuse itself pursuant to 28 U.S.C. §§ 455(a), (b)(1), and (b)(2)9 because: Petitioner’s

criminal case was directly linked to the Cureton case in which the Court was a “victim/material

witness and thus possessed personal knowledge of disputed facts concerning the proceedings …

acquired from extrajudicial sources” (Doc. No. 8 at 6); and, on January 14, 2022, Petitioner filed

a Complaint of Judicial Misconduct in the Fourth Circuit Court of Appeals against the Court for

refusing to recuse itself in the criminal case (Doc. No. 8-2). The Government has moved to dismiss

the Motion to Recuse and Petitioner has filed a Response. (Doc. Nos. 10, 11).

“Timeliness is an essential element of a recusal motion…” under § 455(a) and (b). Kolon

Indus. Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d 160, 167 (4th Cir. 2014). To be timely, a

recusal motion must be made at the first opportunity after discovery of the facts tending to prove

disqualification.” United States v. Taggart, 983 F.2d 1059 (4th Cir. 1993) (quoting Sine v. Local

No. 992 Int’l Brotherhood of Teamsters, 882 F.2d 913, 915-16 (4th Cir. 1989) (addressing 28

U.S.C. § 144). This timeliness requirement serves to deter “not only delay, but also ‘wait and see’

tactics.” Id.

Petitioner’s present Motion to Recuse raises the same issues that co-Defendant Gilmore

raised during the criminal case in May 2018. (CR Doc. No. 1499). Petitioner filed the instant §

2255 Motion to Vacate on August 4, 2021,10 and it was docketed and assigned to the undersigned

on August 12, 2021. (Doc. No. 1). He did not file his Motion to Recuse in the instant case until

9 A separate recusal statute, 28 U.S.C. § 144, provides parties with one opportunity per case to file an affidavit that

the presiding judge has a personal bias or prejudice regarding a party. If the affidavit is sufficient, accompanied by a

certificate of good faith, and timely filed, another judge will be assigned to the proceeding. The Petitioner does not

seek recusal on this ground.

10 Houston, 487 U.S. at 276.

January 18, 2022 at the earliest -- more than five-and-a-half months after he initiated this action,

and more than two months after the Government filed its Response. (Doc. Nos. 5, 8-1). The record

clearly indicates that Petitioner failed to request recusal at the first opportunity. His laches

argument is rejected. Accordingly, the Motion to Recuse will be denied as time-barred. See

Taggart, 983 F.2d at 1059 (finding a motion to recuse to be untimely where it was not made until

more than two years after the statements that allegedly suggested bias, and after a motion for

sentence reduction was denied); United States v. Owens, 902 F.2d 1154, 1156 (4th Cir. 1990) (§

144 motion to recuse that was based on comments at the time of his plea, and was not filed until

after sentencing, was “[m]anifestly too late”); United States v. Whorley, 550 F.3d 326 (4th Cir.

2008) (affirming denial of recusal motion filed seven months after the grounds for recusal were

disclosed at arraignment, and on the last business day before trial).

Even if the Motion to Recuse were timely filed, it would be denied on the merits. Petitioner

has failed to establish that the Court’s recusal from the criminal case was required for the same

reasons discussed in Section 1(C), supra. Nor will the Petitioner be allowed to force the Court to

recuse itself from the instant § 2255 action by filing a judicial conduct complaint in the Fourth

Circuit. See Owens, 902 F.2d at 1156 (“courts have typically rejected recusal motions based on,

and effectively created by, a litigant’s deliberate act of criticizing the judge or judicial system.”);

see, e.g., Woltz v. United States, 2010 WL 330218 (W.D.N.C. Jan. 20, 2010) (a litigant’s filing of

a complaint of judicial misconduct against a presiding judge does not infer bias or impartiality;

such would result in judge-shopping). Accordingly, the Government’s Motion to Dismiss will be

granted and Petitioner’s Motion to Recuse will be dismissed and denied.

IV. CONCLUSION

For the foregoing reasons, the Motion to Vacate is denied, the Respondent’s Motion to

Dismiss Petitioner’s Motion to Recuse is granted, and Petitioner’s Motion to Recuse is dismissed

and denied.

IT IS, THEREFORE, ORDERED that:

1. The Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc.

No. 1), is DISMISSED with prejudice and DENIED.

2. Respondent’s Motion to Dismiss Petitioner’s Motion to Recuse, (Doc. No. 10), is

GRANTED.

3. Petitioner’s Motion to Recuse, (Doc. No. 8), is DISMISSED and DENIED.

4. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

Section 2254 and Section 2255 Cases, this Court declines to issue a certificate of

appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338

(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 (2000) (when relief is

denied on procedural grounds, a petitioner must establish both that the dispositive

procedural ruling is debatable and that the petition states a debatable claim of the

denial of a constitutional right).

5. The Clerk is instructed to close this case.

Signed: February 16, 2022

Frank D. Whitney □□

United States District Judge ae