Opinion
CASES NO. 4:00cr52-RH/WCS, 4:04cv67-RH/WCS.
July 23, 2007
ORDER DENYING § 2255 MOTION
Defendant Richard James Adamson, Jr., was convicted in this court of ten counts arising from threats he made to two federal magistrate judges and an FBI agent. The conviction and sentence were affirmed on appeal. Mr. Adamson now seeks relief under 28 U.S.C. § 2255 on various grounds. The magistrate judge has entered a report and recommendation concluding that relief should be denied. Mr. Adamson has filed objections. I have reviewed de novo the issues raised by the objections. I conclude that the report and recommendation is correct and should be adopted as the opinion of the court, with the following additional discussion.
I
Mr. Adamson pled guilty in Florida state court in 1988 to murdering his grandfather. He was sentenced to 30 years in prison.
In 1993 Mr. Adamson filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Northern District of Florida, Pensacola Division. Mr. Adamson filed the petition in that venue because he was in custody in a state facility there.
In 1995 United States Magistrate Judge Susan M. Novotny entered a report and recommendation concluding the petition should be denied. The district judge in the case (not I) adopted the report and recommendation, and judgment was entered denying the petition.
By July 2000 Mr. Adamson had been transferred to a facility within the geographic territory of the Northern District of Florida, Tallahassee Division. The Federal Bureau of Investigation received information that Mr. Adamson had solicited a fellow inmate, Donnie Alexander, to arrange the murder of Judge Novotny. FBI agent Mark Leon investigated. An attempt to confirm Mr. Adamson's solicitation by having Mr. Alexander wear a wire was unsuccessful. Mr. Adamson learned of the wire.
During the next month — in August 2000 — Mr. Adamson mailed four handwritten letters to Judge Novotny graphically threatening to injure or kill her. Mr. Adamson has stipulated that he wrote the letters.
The first letter included a long assortment of not very thinly veiled threats and referred among other things to the possibility that someone (apparently at Mr. Adamson's behest) would "stick a curling iron up your twat and plug that sucker in." Letter of Aug. 6, 2000 (Gov't Ex. 12A) at 5.
The second letter suggested the first letter had been too vague and said:
I am coming to kill you — personally. I will use whoever and whatever means it takes to get to you. . . .
I have killed before. You know this to be true. If you do not believe I am fucked up enough in the head to kill you, I suggest you reread my habeas corpus petition that you recommended should be denied.
Letter of Aug. 16, 2000 (Gov't Ex. 1A) at 3. Mr. Adamson went on to admit explicitly that he murdered his grandfather.
In the third letter Mr. Adamson — a prison "writ writer" of long standing who asserts he has helped free a number of inmates — said he intended to contact "every convict I have set free, every convict I know, and every freeworlder I know" to obtain recompense for Judge Novotny's actions. Letter of August 17, 2000 (Gov't Ex. 2A) at 1.
Coincidentally, Mr. Adamson learned at about this time that a separate habeas petition he had filed in the Southern District of Florida challenging revocation of gain time had been transferred to the Northern District of Florida, Tallahassee Division, where it was assigned to Magistrate Judge William C. Sherrill. In the fourth August letter, Mr. Adamson wrote Judge Novotny saying he was disappointed the case was not transferred to Pensacola, where Judge Novotny sits, because, Mr. Adamson said, he had been looking forward to "snapping your fucking neck during the evidentiary hearing." Letter of August 19, 2000 (Gov't Ex. 3A) at 1. Mr. Adamson also enclosed a picture of himself, telling Judge Novotny it would curl her hair.
In addition to threats, Mr. Adamson said that he intended to send Judge Novotny a gift. He said she would know the source.
Apparently because of the mailing of the threatening letters, by October 2000 state correctional authorities transferred Mr. Adamson to the Florida State Prison, a less favored facility. On October 26, 2000, Mr. Adamson wrote Judge Novotny another letter, surmising that he was transferred because Judge Novotny had received a package containing a curling iron and butcher knife or ice pick from Boston. Mr. Adamson said he had solicited another inmate — Donnie — to have the package sent.
On November 7, 2000, a grand jury indicted Mr. Adamson on eight counts arising from the four August letters. Each letter resulted in two counts — one for threatening a judge in violation of 18 U.S.C. § 115, and one for mailing a threatening communication in violation of 18 U.S.C. § 876. The indictment was returned in the Northern District of Florida, Tallahassee Division, because Mr. Adamson was in custody and mailed the letters from a facility within that division. Pursuant to the court's random assignment system, the case was assigned to me.
Deputy marshals picked up Mr. Adamson at Florida State Prison and took him to Tallahassee for his initial appearance on the federal charges. Magistrate Judge Sherrill conducted the initial appearance on November 29, 2000. (Document 4.) Mr. Adamson was detained at the Federal Detention Center in Tallahassee, where he solicited a fellow inmate to kill Mr. Leon, the FBI agent whose July 2000 investigation triggered the entire episode (and who was mentioned repeatedly in the August 2000 letters to Judge Novotny).
Mr. Adamson was sent to the Federal Correctional Institution in Petersburg, Virginia, for a psychiatric examination. While there, he told the examiner he intended to "knock out" his court appointed attorney. The examiner reported the threat to the attorney, who moved for leave to withdraw. The motion was granted, and a new attorney was appointed.
On April 3, 2001, a grand jury returned a superseding indictment that retained the original eight counts arising from the August 2000 letters and added a count nine charging Mr. Adamson's with soliciting the use of force against Mr. Leon in violation of 18 U.S.C. § 1114.
On April 5, 2001, Mr. Adamson wrote a letter to Judge Sherrill, who had entered a report and recommendation concluding that Mr. Adamson's habeas petition challenging the state revocation of gain time should be denied. The letter said, "I know you denied my habeas corpus as a favor to that whore Novotny. I am not going to appeal. What I am going to do is whip your candy ass, that is if you are man enough to pull off your dress and face me like a man. . . ." Tr. Jan. 3, 2002 (document 154) at 12. Mr. Adamson admits he wrote the letter. Id. at 13.
In accordance with the conclusions of the Petersburg examination, Mr. Adamson was found competent to proceed. On June 13, 2001, Mr. Adamson filed a motion for removal of his court-appointed attorney (his second), for appointment of a new attorney (his third), and for leave to act as his own co-counsel. Mr. Adamson asserted the second attorney (who was representing Mr. Adamson only in this criminal case, not in the habeas case challenging the revocation of state gain time) had failed to file a motion for a certificate of appealability in the habeas case. That was, of course, the same habeas case in which Mr. Adamson had told Judge Sherrill he was not going to appeal. Mr. Adamson's motion for removal of the attorney was originally denied, but the attorney then moved for leave to withdraw, saying he accepted the appointment in what he knew would be a difficult case but "did not agree to endure and engage in a strategy match with a client who is intent on attacking his state court conviction by setting up his lawyer and threatening counsel with law suits and bar complaints." (Document 39 at 2.) The attorney was granted leave to withdraw and, in due course, a third attorney was appointed for Mr. Adamson. Mr. Adamson withdrew his request to act as his own attorney.
On July 10, 2001, a grand jury returned a second superseding indictment, retaining the earlier counts and adding a count ten charging Mr. Adamson with mailing a threat to Judge Sherrill in violation of 18 U.S.C. § 876.
On January 3, 2002, Mr. Adamson entered a guilty plea to count ten and asked for a bench trial on the remaining counts. A hearing was conducted on the reasons for Mr. Adamson's request for a bench trial. The colloquy is set forth at some length in the report and recommendation and is not repeated here. Of note, Mr. Adamson and his attorney emphasized that they wanted a bench trial for strategic reasons, and Mr. Adamson said he wanted me to conduct the bench trial, even though he was charged with threatening my "constituents and co-workers and such." Tr. Jan. 3, 2002 (document 154) at 23. Mr. Adamson said he had no concern about my ability to be impartial, and he added: "I knew about you long before I came here. You have a good reputation in the state for being impartial." Id. In short, Mr. Adamson was steadfast — he wanted a bench trial with me presiding. I announced on the record my finding that Mr. Adamson had knowingly, voluntarily, and intelligently waived his right to trial by jury.
Such transparent pandering to the decision maker proves little about the real reason Mr. Adamson made the decision he did — but the comment does make clear that Mr. Adamson thought about the fact that the magistrate judges and I were "co-workers" and nonetheless chose to have a bench trial with me presiding.
After a bench trial, I found Mr. Adamson guilty, for reasons set forth on the record (and quoted at some length in the report and recommendation). It seems unlikely that any district judge — from this district or anywhere else — would have reached a different conclusion.
II
Mr. Adamson made no assertion that I should have disqualified myself until after he was convicted. Dissatisfied with the outcome, he asserted I should not have presided over the case. I addressed this assertion in a detailed order entered July 3, 2002. (Document 161.) A copy is attached to this order. For the reasons set forth there, disqualification was not required.
III
In his objections to the report and recommendation now before the court, Mr. Adamson acknowledges:
The trial judge did adequately advise Mr. Adamson of his right to a jury trial and the dangers inherent in being tried by a judge when the charges involve another judge. Mr. Adamson was aware of Judge Hinkle's existence through his work as a paralegal before he ever consented to a bench trial, and he had no qualms, at the time of waiver, about the judge's ability to remain impartial.
Objections (document 293) at 25 (emphasis in original). Mr. Adamson asserts, however, that he did not know that Judges Sherrill and Novotny worked on cases assigned to me.
The assertion is plainly incorrect and would make no difference anyway. First, Judge Sherrill conducted the initial appearance on the original indictment in this very case. Mr. Adamson thus well know that Judge Sherrill worked on cases assigned to me; he did so in this case.
The initial appearance occurred before Mr. Adamson threatened Judge Sherrill. That threat came later, and the charge based on that threat was added by superseding indictment. Judge Sherrill participated no further after that charge was added.
More importantly, any assertion by Mr. Adamson that he decided to waive a jury trial and proceed with a bench trial before me based on anything his third appointed attorney did or did not do is demonstrably false. Mr. Adamson had filed a written request for a jury trial pro se, long before this latest attorney was appointed. On the facts of the case, Mr. Adamson's chance of avoiding conviction was surely a long shot. He chose a bench trial, and he made clear he wanted to have the bench trial before me, perhaps in the belief that this was his best chance to prevail (that is what he said in the hearing when he waived his right to a jury trial) and perhaps in the belief that he could always cry foul later. Indeed, much of Mr. Adamson's conduct of this proceeding has been a thinly veiled effort to game the system. The many cases making clear that any assertion that a judge should disqualify himself or herself must be made promptly recognize the potential for abuse inherent in any other approach. Mr. Adamson has shown neither ineffective assistance of counsel nor prejudice.
IV
For these reasons and those set forth in the report and recommendation, which is adopted as the further opinion of the court,
IT IS ORDERED:
Defendant's second amended motion for relief under 28 U.S.C. § 2255 (document 258) is DENIED WITH PREJUDICE. The clerk shall enter judgment and close the file.
SO ORDERED.
ORDER DENYING DEFENDANT'S POST-SENTENCING REQUEST FOR DISQUALIFICATION
Defendant has been convicted and sentenced. After sentencing, defendant asserted, for the first time, that I should have disqualified myself. This order explains why I have not done so.The original indictment charged defendant in counts one through eight with threatening to assault or murder United States Magistrate Judge Susan M. Novotny. A first superseding indictment added count nine, which charged defendant with soliciting the murder of Federal Bureau of Investigation Special Agent Mark Leon. A second superseding indictment added count ten, which charged defendant with threatening United States Magistrate Judge William C. Sherrill.
Defendant pled guilty to count ten (the threat against Judge Sherrill) and waived his right to trial by jury on the remaining counts. I addressed defendant personally in open court concerning that waiver. During the dialogue, defendant specifically stated in glowing terms his belief in my fairness and impartiality, based, he said, on my reputation within the Federal Detention Center; defendant was a pro se law clerk who had handled many matters for many other prisoners. Defendant explicitly stated his desire that I try the remaining nine counts in a bench trial. I did nothing to encourage defendant's decision. I did, however, accept the waiver of jury trial. I conducted a full and fair bench trial.
I found defendant guilty on counts one through nine. In due course I sentenced defendant on all ten counts.
As part of one of many post-sentencing filings, defendant now has suggested I should have disqualified myself. Defendant's assertion is that Judge Sherrill is my "personal magistrate," which, he says, he did not know previously.
Judge Sherrill is a United States Magistrate Judge in this district. He works on cases on which I am the assigned United States District Judge; he also works on cases assigned to the three other active and two senior United States District Judges in this district. Judge Novotny also was a United States Magistrate Judge in this district at the time of the trial in this matter; she has more recently retired. Judge Novotny, like Judge Sherrill, worked on cases assigned to me and to this district's other active and senior district judges. The district's other full-time Magistrate Judge, and one of the district's two part-time Magistrate Judges, also work on cases on which I am the assigned district judge.
I did not disqualify myself on the basis that the threats at issue were directed to Judge Novotny (in eight of the nine counts that went to trial) or to Judge Sherrill (in the count to which defendant pled guilty). Neither Judge Novotny nor Judge Sherrill was actually assaulted, nor was either in danger at any time. My conclusion was that I could (and I believe I did) handle this case precisely as I would have done had the alleged victim been any Magistrate Judge from any district in the nation. For that matter, I believed I could (and I believe I did) handle this case precisely as I would have done had the alleged victim been any other person in any other governmental or non-governmental position. I had (and I have) no "personal bias or prejudice concerning a party," 28 U.S.C. § 455(b)(1), or concerning any issue or any aspect of the case.
I also concluded (and I still conclude) that my impartiality under these circumstances could not "reasonably be questioned." 28 U.S.C. § 455(a). The goal of § 455 "is to foster the appearance of impartiality." United States v. Young, 39 F.3d 1561, 1569 (11th Cir. 1994) (quoting Potashnick v. Port City Constr. Co., 609 F.2d 1101 (5th Cir. 1980)) (emphasis in original). The Eleventh Circuit "consistently has held that failure to recuse constitutes reversible error only where the conflict of interest is readily apparent and the risk of impartiality is substantial." Young, 39 F.3d at 1570. The analysis is an objective one, asking whether "a reasonable observer would assume that [the judge] had extra-judicial knowledge of th[e] case or otherwise question [the judge's] impartiality." Wu v. Thomas, 996 F.2d 271, 275 (11th Cir. 1993). Thus, the appearance of partiality requires disqualification "even though no actual partiality exists because the judge does not recall the facts, because the judge actually has no interest in the case or because the judge is pure in heart and incorruptible." Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860, 108 S. Ct. 2194, 100 L. Ed. 2d 855 (1988) (quoting Health Servs. Acquisition Corp. v. Liliegerg, 796 F.2d 796, 802 (5th Cir. 1986)).
It would perhaps be better if threats against federal judges were tried before someone other than a federal judge. But such threats are federal crimes, and trials charging such crimes must, almost by definition and certainly under Article III of the United States Constitution, be tried before federal judges. An objective observer with reasonable knowledge of court proceedings would not reasonably question the impartiality of a judge just because the charge is threatening another judge, even from the same district.
In the case at bar the defendant specifically opted for a bench trial before this district judge. Defendant did not want a jury trial, nor a bench trial before someone else. Given defendant's voluntary choice in this respect, no reasonable observer would question the judge's impartiality.
The decided cases support this conclusion. While there appear to be no decisions precisely on point, it is at least clear that there is no per se rule requiring disqualification whenever the presiding judge, fellow judges, or members of their staffs are threatened. Thus, for example, in United States v. Mattison, 946 F.2d 896, 1991 WL 213760 (6th Cir. 1991) (unpublished), a defendant mailed a pro se pleading to the Middle District of Tennessee threatening to kill any judge who violated his rights. He was charged with sending a threatening communication. He argued that the district judge should have recused himself because all the judges of the Middle District of Tennessee were targets of the mailing. The Sixth Circuit disagreed, noting (1) that this would disqualify every judge in the district, (2) that there was no evidence indicating the judge formed an opinion based on extrajudicial sources, and (3) that there was no evidence of "judicial bias or hostility in the record." Mattison, at *2.
The same three factors are present in the case at bar. Here, as in Mattison, disqualification is not required. See also United States v. Hairston, 2002 WL 1269963 (4th Cir. 2002) (unpublished) (holding defendant's death threat against presiding judge not sufficient to warrant recusal where judge did not take threat seriously: "While a defendant's alleged death threat against a judge may, in some cases, sufficiently raise the specter of partiality to warrant the judge's recusal, recusal is not automatically required simply because the trial judge becomes aware of the threats."); Nichols v. Alley, 71 F.3d 347 (10th Cir. 1995) (stating that among matters "not ordinarily sufficient to require § 455(a) recusal" are "threats or other attempts to intimidate the judge"); Cf. United States v. Gordon, 974 F.2d 1110 (9th Cir. 1992) (upholding denial of disqualification in trial of defendant accused of making death threat against President Reagan, even though President Reagan appointed the judge and was a potential witness), overruled on other grounds, United States v. Hanna, ___ F.3d ___, 2002 WL 1339151, at *7 (9th Cir. June 20, 2002).
In any event, defendant's assertion that I should have disqualified myself in this case comes too late. A motion for disqualification "must be filed within a reasonable time after the grounds for the motion are ascertained." Summers v. Singletary, 119 F.3d 917, 921 (11th Cir. 1997). As the court added there: "Certainly, where the facts are known before a legal proceeding is held, waiting to file such a motion until the court has ruled against a party is untimely." Id.; see also United States v. York, 888 F.2d 1050, 1056 (5th Cir. 1989) ("[B]efore his trial began, York was aware generally of the circumstances upon which he bases his motion for disqualification. York allowed the court to conduct a full trial, all the while knowing that he might seek to invalidate it. Therefore, we find his motion for a new trial untimely."); United States v. Yonkers Bd. of Educ., 946 F.2d 180, 183 (2d Cir. 1991) ("A motion to disqualify must be made `at the earliest possible moment' after obtaining information of possible bias.") (quoting Apple v. Jewish Hosp. Med. Ctr., 829 F.2d 326, 333 (2d Cir. 1987)); Miller v. Tony Susan Alamo Found., 924 F.2d 143, 146-47 (8th Cir. 1991) (affirming denial of motion to recuse filed two days before trial because motions under § 455 are untimely unless filed at "the earliest possible time");Preston v. United States, 923 F.2d 731, 733 (9th Cir. 1991) ("[R]ecusal motions should be filed with reasonable promptness after the ground for such a motion is ascertained.").
As an explanation of his failure to raise the issue earlier, defendant has asserted (see document 153) that he did not realize until after trial that Judge Sherrill was my "personal magistrate." Judge Sherrill could be labeled my "personal magistrate" only on the basis that he works on cases assigned to me; he also works on cases assigned to other district judges. Defendant well knew from the outset that Judge Sherrill worked on cases on which I was the assigned district judge. Indeed, that is how defendant came into contact with Judge Sherrill, whom he later threatened; Judge Sherrill conducted the first appearance and arraignment in this matter. In short, defendant knew all along that this case involved an alleged threat to a magistrate judge in this district, and when the indictment was superseded to add a count charging a threat against Judge Sherrill, defendant well knew that Judge Sherrill worked on cases assigned to me. Defendant did not seek disqualification but instead opted for a bench trial specifically before me, raising an issue of disqualification only when he lost.
In sum, disqualification was not required, and in any event defendant's request for disqualification came too late.
For these reasons,
IT IS ORDERED:
Defendant's request for disqualification (document 153) is DENIED.
SO ORDERED.