In re Rashid

488 F. App'x 541
CourtCourt of Appeals for the Third Circuit
DecidedJune 25, 2012
DocketNo. 12-2172
StatusPublished
Cited by2 cases

This text of 488 F. App'x 541 (In re Rashid) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Rashid, 488 F. App'x 541 (3d Cir. 2012).

Opinion

OPINION

PER CURIAM.

Amin Rashid, proceeding pro se, has filed a petition for writ of mandamus, seeking review of a District Judge’s decision to deny his second request for recusal in his criminal proceedings. For the reasons that follow, we will deny the petition.

Rashid was charged with two counts of mail fraud and one count of aggravated identity theft in the United States District Court for the Eastern District of Pennsylvania, see United States v. Rashid, D.C.Crim. No. 08-cr-00493. Rashid elected to defend himself in the criminal proceedings. In May, 2009, a superseding indictment charged Rashid with ten counts of mail fraud, eight counts of aggravated identity theft, and one count of passing an altered postal money order. The superseding indictment alleged that Rashid defrauded clients of his company, the Center for Constitutional and Criminal Justice, by accepting fees to stop or reverse Sheriffs sales, or to recover proceeds from Sheriffs sales, while in fact performing none of these services.

The District Judge then assigned to Rashid’s case granted his motion for disqualification and his case was reassigned to District Judge Cynthia Rufe, who thereafter ruled against Rashid on a number of his motions. In June, 2010, Rashid filed an affidavit pursuant to 28 U.S.C. § 144, in which he alleged that Judge Rufe was actually biased against him and in favor of the Government. Judge Rufe rejected the affidavit on procedural grounds, and, in the alternative, she denied the recusal re[542]*542quest on the merits. As a threshold matter, Judge Rufe observed that, as of the date of the decision, Rashid had “filed at least forty-five pro se motions, petitions or requests to the court on discovery and other matters .... and at least thirteen separate motions to dismiss the indictment or reconsider orders denying motions to dismiss the indictment....” United States v. Rashid, 2010 WL 2978038, at *1 (3d Cir.2010).

In finding no basis for disqualification on the merits, Judge Rufe noted Rashid’s complaints that she was obstructing him from proving a conspiracy; she appeared annoyed with him; she chastised him for issuing a subpoena to the Magistrate Judge; she refused to allow him to present a witness; and she told him not to write her any more letters. Id. at *4. Judge Rufe also noted Rashid’s complaint that she improperly intervened in the matter of unsealing the search warrant documents by signing the Order to unseal the documents as a Magistrate Judge rather than as a United States District Judge. See id. at *5. Judge Rufe determined that these allegations reflected only Rashid’s disagreements with her rulings during the course of his criminal proceedings. See id. Rashid had not identified any extrajudicial source of bias, and he alleged only purely judicial conduct, in the form of rulings adverse to him, to support his claim of prejudice. See id. at 6. Accordingly, recu-sal was unwarranted.

Rashid then filed his first mandamus petition in this Court, contending that the allegations contained in his section 144 affidavit were not about Judge Rufe’s rulings but her inability to render a fair judgment. We denied that petition, holding that mandamus will not lie to correct a District Judge’s failure to disqualify herself under 28 U.S.C. § 144 for actual bias. In re: Rashid, 400 Fed.Appx. 641 (3d Cir.2010) (appeal from final judgment is adequate means to rectify such failure).

After that, Rashid filed a motion in the proceedings below to disqualify Judge Rufe under 28 U.S.C. § 455, which more broadly authorizes disqualification when a judge’s impartiality may reasonably be questioned. Rashid alleged that the “appearance of bias” on Judge Rufe’s part was shown by her intervention in the motion to unseal the search warrant documents; her having decided six issues adversely to him during a hearing on April 26, 2010; her having accused him in a June 24, 2010 hearing of attempting to intimidate Magistrate Judge Hay and having threatened him with contempt; her having ordered him not to write any more letters to judicial officers; and her hostility toward him in front of his witness who later refused to cooperate in his defense. Judge Rufe denied the section 455 disqualification motion as legally insufficient, relying on her previous decision denying Rashid’s section 144 request for disqualification.

Meanwhile, trial commenced on June 28, 2011. The jury returned a verdict of guilty against Rashid on numerous counts, and Rashid then filed motions for judgment of acquittal, a new trial, and bail, which remain pending.

At issue now, on April 27, 2012, Rashid filed a second petition for writ of mandamus in this Court, seeking the disqualification of Judge Rufe under 28 U.S.C. § 455(a) on the basis of an appearance of bias, and under section 455(b) because she is likely to be a material witness. Rashid alleges that the “appearance of bias” on Judge Rufe’s part is shown by her intervention in the Government’s motion to unseal the search warrant documents; her numerous decisions adverse to him and in favor of the Government (particularly on a matter involving Pennsylvania law); her having accused him of attempting to intim[543]*543idate Magistrate Judge Hay; her having ordered him not to write any more letters to judicial officers; her having forgotten that she previously ordered daily transcripts for him at government expense; and her having forgotten the reason why the judge previously assigned to his case had disqualified herself.

We will deny the petition for writ of mandamus. Our jurisdiction derives from 28 U.S.C. § 1651, which grants us the power to “issue all writs necessary or appropriate in aid of (our) ... jurisdiction and agreeable to the usages and principles of law.” A writ of mandamus is an extreme remedy that is invoked only in extraordinary situations. See Kerr v. United States Dist. Court, 426 U.S. 894, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). To justify the use of this extraordinary remedy, a petitioner must show both a clear and indisputable right to the writ and that he has no other adequate means to obtain the relief desired. See Haines v. Liggett Group Inc., 975 F.2d 81, 89 (3d Cir.1992). In addition, “the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” In re: Pressman-Gutman Co., Inc., 459 F.3d 383, 399 (3d Cir.2006) (internal quotations removed). Mandamus will lie to enforce the broad commands of 28 U.S.C. § 455. In re: School Asbestos Litigation, 977 F.2d at 776 (“Section 144 concerns the interests of the individual litigant. Section 455, in contrast, concerns a wider range of interests [including] not only fairness to the litigants but also the public’s confidence in the judiciary, which may be irreparably harmed if a case is allowed to proceed before a judge who appears to be tainted.”).

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Related

Amin Rashid v.
699 F. App'x 124 (Third Circuit, 2017)

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Bluebook (online)
488 F. App'x 541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-rashid-ca3-2012.