United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
Defendant William J. Gallion has moved the Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Record No. 1406] In accordance with local practice, the matter was referred to a United States Magistrate Judge for review and issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
On April 7, 2014, United States Magistrate Judge J. Gregory Wehrman issued his report which recommended that Gallion's motion to vacate be denied. [Record No. 1419] Thereafter, Gallion - through Attorney H. Louis Sirkin - filed objections to the report. [Record No. 1422] Then, on April 23, 2014 (through Attorney Michael Dowling) Gallion moved to recuse the undersigned and to transfer the matter to the United States District Court for the Western District of Kentucky. [Record No. 1427] Having fully considered the record of this proceeding, including the portions of the Report and Recommendation to which Gallion objects, the Court agrees with the magistrate judge's analysis and conclusions. In addition, the Court finds Gallion's motion to recuse to be wholly without merit. Gallion's motions will be denied and his objections will be overruled.
In upholding Gallion's conviction, the Sixth Circuit briefly summarized the relevant facts as follows:
Shirley Cunningham, Jr., and William Gallion were two of three Kentucky lawyers who represented several hundred Kentucky clients in a mass-tort action against the manufacturer of the defective drug "fen-phen." They settled the case for $200 million, which entitled them under their retainer agreements to approximately $22 million each in attorney fees. But rather than limit themselves to what they had contractually earned, Cunningham and Gallion concocted a fraudulent scheme to take from their clients almost twice that amount. The scheme did not work out as planned: Cunningham and Gallion were caught, subsequently disbarred from practicing law in Kentucky, and indicted on one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 1343 and 1349.
After a mistrial, a superseding indictment was issued that again charged Cunningham and Gallion with one count of conspiracy to commit wire fraud, but added eight counts that specifically detailed the wire communications that were part of the scheme. The two men were convicted on all counts at their second trial.
United States v. Cunningham, 679 F.3d 355, 363 (6th Cir. 2012).
On August 18, 2009, the Court entered Judgment against Gallion, sentencing him to a total of three-hundred months imprisonment, three years of supervised release, and ordering restitution. [Record No. 955] The Sixth Circuit affirmed Gallion's convictions and sentence, United States v. Cunningham, 679 F.3d 355 (6th Cir. 2012), and the Supreme Court denied Gallion's petition for certiorari. See Gallion v. United States, 133 S.Ct. 772 (2012). Exactly one year later, Gallion filed his habeas petition pursuant to 28 U.S.C. § 2255.
Gallion's § 2255 petition consists of two overarching claims, with each having several components. First, he argues that his trial counsel, O. Hale Almand, Jr., rendered ineffective assistance of counsel because Almand: (i) suffered from severe health conditions that prevented him from performing at a constitutionally effective level; (ii) did not seek a continuance to retain an expert witness and did not hire Kenneth Feinberg as an expert witness; (iii) permitted Gallion to testify in his own defense; (iv) failed to demand that the jury determine the amount of loss and the defendant's role in the offense; and (v) failed to seek the Kentucky Bar Association's ("KBA") disciplinary files. Gallion alleges that he was denied a fair trial because the Government should have disclosed investigatory materials from the KBA, and because of the undersigned's supposed bias against him. He alleges that the Court engaged in improper ex parte communications. For these reasons, Gallion contends that his constitutional rights were violated, and that he should be afforded relief from his conviction and sentence. Magistrate Judge Wehrman rejected each of Gallion's arguments, recommending that the requested relief be denied. [Record No. 1419]
The Court reviews de novo those portions of the Report and Recommendation to which Gallion objects. See 28 U.S.C. § 636(b)(1)(C). Having examined the record and having made a de novo determination on all of the issues presented by Gallion, the Court agrees with the magistrate judge's recommendations. Additionally, Gallion has not shown that a Certificate of Appealability should issue.
[A] prisoner in custody... may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. In seeking such relief, a prisoner may claim that the sentence was imposed in violation of the Constitution or federal law, that the court lacked jurisdiction to impose the sentence, that the sentence imposed was in excess of the maximum authorized by law, or that the sentence is otherwise subject to collateral attack. Id. "To prevail on a § 2255 motion alleging a constitutional error, the movant must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citations omitted). Additionally, "[t]o prevail on a § 2255 motion alleging non-constitutional error, the petitioner must establish a fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process.'" Id. (citations omitted).
The Court first turns to Gallion's motion to recuse the undersigned which was filed after Magistrate Judge Wehrman's report and recommendation, on April 23, 2014. [Record No. 1427] The motion raises a melange of issues, and it is likewise meritless for a variety of reasons. First, the motion is untimely. Gallion argues matters that were not presented in his § 2255 petition, apparently seeking to either supplement his petition or file an entirely new habeas petition by couching it in terms of a motion to recuse and transfer. However, this motion was presented outside of the time allowed for habeas petitions. See 28 U.S.C. 2255(f) (applying a one-year period of limitation to motions brought under this section). Perhaps more importantly, at least a portion of the motion presents claims that were not argued on direct appeal and are thus procedurally barred. See United States v. Frady, 456 U.S. 152, 168 (1982) (If a § 2255 petitioner could have raised a claim at trial or on direct appeal but did not, § 2255 relief on that claim is deemed procedurally defaulted).
Despite these deficiencies, the Court will briefly address Gallion's lengthy arguments regarding the alleged bias of the undersigned. Judicial disqualification is required under 28 U.S.C. § 455(a) "in any proceeding in which [the Court's] impartiality might reasonably be questioned." Section 455(b)(1) further requires disqualification "[w]here [the judge] has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." The standard for judicial disqualification is set forth in Liteky v. United States, 510 U.S. 540 (1994):
First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. In and of themselves ( i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required... when no ...