Brown v. United States

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:23-cv-104-MOC

(3:20-cr-415-MOC-WCM-1)

CARISSA EUGENIA BROWN, )

)

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 Discharge Detainment” pursuant to 28 U.S.C. § 2255 [Doc. 1], and “Motion to Substitute Judge

for Good Cause” [Doc. 2].

I. BACKGROUND

Petitioner was charged by Bill of Information with committing a wire fraud scheme to

defraud debtors in violation of 18 U.S.C. § 1343 (Count One), and money laundering in violation

of 18 U.S.C. § 1957 (Count Two). [3:20-cr-415 (“CR”) Doc. 1]. She entered a signed Plea

Agreement [CR Doc. 4] and Factual Basis [CR Doc. 5] on December 7, 2020. On December 11,

2020, a Rule 11 hearing came before a magistrate judge who accepted the plea as knowing and

voluntary. [CR Doc. 8]. Petitioner was released on bond pending sentencing. [CR Doc. 10].

Petitioner went through several attorneys and is now representing herself with standby

counsel. [CR Docs. 29, 37]. Petitioner did not appear for sentencing on August 25, 2022 and the

Court issued a bench warrant. [CR Doc. 53]. On September 12, 2022, a magistrate judge revoked

Petitioner’s pretrial release and ordered her detained pending further proceedings. [CR Doc. 58].

Petitioner appealed the revocation and detention Order to the Fourth Circuit Court of Appeals,

which dismissed for lack of jurisdiction on November 16, 2022. [CR Doc. 71].

Petitioner has filed Motions seeking to withdraw her guilty plea which were denied

following an evidentiary hearing on December 13, 2022. See United States v. Brown, 2022 WL

17652883 (W.D.N.C. Dec. 13, 2022); [CR Docs. 47, 70]. A sentencing hearing scheduled for

December 19, 2022, was continued because Petitioner had filed a § 1983 civil rights lawsuit in

which she named as Defendants various executive branch officials, and various judicial branch

officials including the undersigned, Case No. 3:22-cv-617-KDB-DCK. [CR Doc. 86].

Petitioner filed the instant § 2255 Motion to Vacate on February 19, 2023. It appears that

she is attempting to challenge the Order revoking pretrial release and detaining her pending the

sentencing hearing. As relief, she seeks: discharge on her own recognizance; $50,000 in attorneys’

fees and costs; and any other relief the Court deems just and proper. The Petitioner has also moved

for the undersigned’s removal from the instant case pursuant to 28 U.S.C. §§ 144 and 455.

The undersigned stayed this case sua sponte pending the issuance of a Judgment in Case

No. 3:22-cv-617-KDB. [Doc. 3]. That case was dismissed on May 19, 2023 and the Petitioner

has filed a Notice of intent to proceed with the instant case. [Doc. 4; 3:22-cv-617, Doc. 46]. The

stay will, therefore, be lifted.

II. STANDARD OF REVIEW

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. After examining the record in this matter, the Court finds that the motion to vacate

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. DISCUSSION

As a preliminary matter, the Court will address the Petitioner’s “Motion to Substitute.”

Under 28 U.S.C. § 144, a litigant may seek recusal of a judge if the litigant files a “timely and

sufficient affidavit that the judge before whom the matter is pending has a personal bias or

prejudice either against him or in favor of any adverse party….” 28 U.S.C. § 144. The affidavit

“shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed

not less than ten days before the beginning of the term at which the proceeding is to be heard, or

good cause shall be shown for failure to file it within such time.” Id. Although the judge must

accept as true the facts alleged in an affidavit filed under § 144, the judge is not required to accept

as true conclusory statements, opinions, or speculations. See generally Marty’s Floor Covering

Co. v. GAF Corp., 604 F.2d 266 (4th Cir. 1979).

Under 28 U.S.C. § 455, a judge must disqualify himself in any proceeding in which his

“impartiality may be questioned,” 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. The test for determining partiality is objective. United States v. Cherry, 330 F.3d 658, 665

(4th Cir. 2003). However, “[a] presiding judge is not required to recuse himself simply because of

unsupported or highly tenuous speculation.” Megaro v. McCollum, 66 F.4th 151, 163 (4th Cir.

2023). “[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality

motion.” Liteky v. United States, 510 U.S. 540, 551 (1994).

Here, the Petitioner claims that: a conflict of interest exists because the instant case

“originate[s]” from the underlying criminal case, 3:20-cr-415; the undersigned “can not be

impartial because he is bias and prejudice as a result of being a DEFENDANT in the counterclaim

suit … related case #3:22-CV-617;” Petitioner believes that the undersigned was assigned to the

instant case “to prevent the corruption [in the criminal case] from being exposed” and to deny her

a fair § 2255 proceeding; the Court allowed the criminal case to be initiated in violation of the law;

the undersigned “yelled” at her in open court in the criminal case; the Petitioner has filed a judicial

misconduct complaint; and no hearing has yet been scheduled,1 in violation of due process. [Id.

at 2; Doc. 2-1 at 1] (errors uncorrected).

Petitioner has failed to set forth any cognizable basis for the Court’s removal from this

action. The Plaintiff’s Motion relies on vague and unsubstantiated claims of prejudice and bias.

The Court’s prior judicial rulings in the criminal case, any contentiousness in those proceedings,

and the Plaintiff’s conclusory claims of animus and a desire to deprive her of due process, provide

no basis for relief. See Liteky, 510 U.S. at 551; United States v. Cherry, 330 F.3d 658, 665 (4th

Cir. 2003) (“a presiding judge is not ... required to recuse himself simply because of ‘unsupported,

irrational or highly tenuous speculation’ ”) (quoting United States v. DeTemple, 162 F.3d 279, 287

(4th Cir. 1998)). Nor will the Plaintiff be allowed to force the Court’s removal from the instant

action by filing a judicial conduct complaint, or by naming the undersigned as a defendant in a

civil case. See United States v. Owens, 902 F.2d 1154, 1156 (4th Cir. 1990) (“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). In short,

1 This appears to refer to both the instant § 2255 proceeding and the criminal sentencing hearing.

the Plaintiff’s displeasure with the Courts assignment to this case fails to provide any basis for

relief under §§ 144 or 455, and the Plaintiff’s Motion is denied.

Insofar as the Petitioner seeks § 2255 relief, the petition is premature. The language of §

2255 clearly states that the motion is available for a “prisoner” who is “in custody” and “under

sentence.” 28 U.S.C. § 2255(a); see, e.g., Gonzalez v. Thaler, 565 U.S. 134, 149 (2012) (discussing

the finality of a judgment for purposes of § 2255); Clay v. United States, 537 U.S. 522, 532 (2003)

(same). “Thus, where a federal prisoner has not yet been sentenced, a district court lacks

jurisdiction over a motion brought under § 2255.” Austin v. United States, No. 3:05-CR-213, 2008

WL 922344, at *1 (W.D.N.C. Mar. 31, 2008) (citing Stantini v. United States, 140 F.3d 424, 427

(2d Cir. 1998)). Petitioner has not yet been sentenced and, accordingly, there is no judgment that

the Petitioner may challenge pursuant to § 2255. Accordingly, the instant § 2255 Motion to Vacate

is dismissed without prejudice as premature.2

Moreover, to the extent that the Petitioner seeks to challenge her pretrial detention,3 or to

be awarded money damages,4 she may not do so in a § 2255 action. See generally 28 U.S.C. §

2255(b).

IV. CONCLUSION

For the foregoing reasons, the stay is lifted, the “Motion to Substitute” is denied, and the

instant § 2255 Motion to Vacate is dismissed without prejudice as premature.

2 Should the Petitioner choose to file a § 2255 petition after her judgment becomes final, she must comply with all

applicable timeliness and procedural requirements. She is strongly urged to use a § 2255 form (which will be provided)

and to describe her claims in a short and plain manner. The Court makes no determinations about the potential merit

or procedural viability of a future § 2255 action.

3 See generally Shine v. U.S. Marshell, 2023 WL 2959882 (W.D.N.C. March 27, 2023) (discussing 18 U.S.C. § 3145

and 28 U.S.C. § 2241).

4 See generally 42 U.S.C. § 1983; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971).

IT IS, THEREFORE, ORDERED that:

1. The Order staying this case [Doc. 3] is LIFTED.

2. Petitioner’s § 2255 Motion to Vacate [Doc. 1] is DISMISSED without prejudice

as premature.

3. Petitioner’s “Motion to Substitute Judge for Good Cause” [Doc. 2] is 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 respectfully instructed to mail the Petitioner a blank § 2255 form and

a copy of this Order, and close this case.

Signed: July 31, 2023

i )

pr-ervrnca

Max O. Cogburn i yg

United States District Judge Toa gt