United States v. Douglas

1

UNITED STATES OF AMERICA, Plaintiff-Respondent, v. AVERS DOUGLAS, Defendant-Petitioner.

No. 2:16-cr-20038-SLD-EIL

United States District Court, C.D. Illinois, Urbana Division

April 28, 2023

ORDER

SARA DARROW CHIEF UNITED STATES DISTRICT JUDGE

Before the Court are Defendant-Petitioner Avers Douglas's pro se Motion Under 28 U.S.C. § 2255 to Vacate Set Aside, or Correct Sentence by a Person in Federal Custody (“Pro Se 2255 Motion”), ECF No. 43, motion to proceed in forma pauperis, ECF No. 45, counseled Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 (“Counseled 2255 Motion”), ECF No. 47, and counseled motion for a status conference, ECF No. 51. For the reasons that follow, the Counseled 2255 Motion is DENIED, and the remaining motions are MOOT.

BACKGROUND

On May 5, 2016, a grand jury indicted Douglas on one count of possessing a firearm after having previously been convicted of a crime punishable by more than one year of imprisonment in violation of 18 U.S.C. § 922(g)(1) (in other words being a felon in possession of a firearm). Indictment 1, ECF No. 1. Assistant Federal Public Defender Elisabeth Pollock was appointed to represent him. May 19, 2016 Min. Entry. Douglas pleaded guilty to the charge against him without a plea agreement. See July 21, 2016 Min. Entry (noting that Douglas entered a plea of guilty before United States Magistrate Judge Eric I. Long); Order Approving Magistrate Judge Recommendation, ECF No. 18 (accepting plea and adjudging Douglas guilty).

The United States Probation Office (“USPO”) prepared a presentence investigation report (“PSR”) in advance of sentencing. PSR, ECF No. 23. USPO listed Douglas's base offense level as 24 because he committed the offense after sustaining at least two felony convictions for either a crime of violence or controlled substance offense, id. ¶ 18, and assessed a four-level increase because the firearm he possessed had an obliterated serial number, id. ¶ 19. After reductions for acceptance of responsibility, id. ¶¶ 25-26, USPO listed Douglas's total offense level as 25 id. ¶ 27. With a criminal history category of VI, id. ¶ 55, his Sentencing Guidelines range for imprisonment would have been 110 to 137 months id. ¶ 116. Because his statutory maximum term of imprisonment was ten years, id. ¶ 115, however, the Guidelines range became 110 to 120 months, id. ¶ 116. Douglas did not object to the PSR.

On December 5, 2016, United States District Judge Colin Bruce, who was then presiding over the case, sentenced Douglas to 110 months of imprisonment and a three-year term of supervised release. Dec. 5, 2016 Min Entry; Judgment 1-3, ECF No. 26.

Douglas filed an appeal, Not. Appeal, ECF No. 30, but later voluntarily dismissed it, Mandate 3, ECF No. 39 (noting that the appeal was dismissed pursuant to Federal Rule of Appellate Procedure 42(b) and Seventh Circuit Rule 51(f), which provide for voluntary dismissal by a criminal defendant).

In June 2020, Douglas filed the Pro Se 2255 Motion, in which he argued that Judge Bruce violated 28 U.S.C. § 455 by failing to recuse from his case and that Judge Bruce presiding over his case violated his due process rights. Pro Se 2255 Mot. 4-5.^[1] These claims are based on ex parte communications between Judge Bruce and the United States Attorney's Office for the Central District of Illinois (“USAO”) that came to light in 2018. See United States v. Atwood, 941 F.3d 883, 884-85 (7th Cir. 2019) (providing a brief explanation of the discovery and disclosure of the communications). Judge Bruce recused himself from hearing Douglas's motion, and the case was reassigned to this Court. June 19, 2020 Text Order of Recusal.

The Court appointed counsel to represent Douglas with respect to the Pro Se 2255 Motion. June 22, 2020 Text Order. On September 29, 2020, counsel filed the Counseled 2255 Motion, mooting the Pro Se 2255 Motion. See Counseled 2255 Mot. 1.^[2] The Counseled 2255 Motion raises the following claims: that Judge Bruce was actually biased against Douglas and presiding over Douglas's case violated Douglas's due process rights, id. at 12; that Judge Bruce should have recused himself under 28 U.S.C. § 455(a) based on an appearance of bias, id. at 12-13; and that the Federal Public Defender's office (“FPD”) provided Douglas with ineffective assistance of counsel by failing to include claims based on Judge Bruce's ex parte communications in his appeal and by failing to obtain agreements with the Government to toll the time for him to bring his claims, id. at 23-24.

The Government filed its response on February 1, 2021. Resp., ECF No. 50. It argues that Douglas cannot show that Judge Bruce was actually biased against him, that his “nonconstitutional appearance of bias claim is not a proper basis for relief in a § 2255 proceeding,” that he procedurally defaulted his appearance of bias claim, that the appearance of bias claim is untimely, and the ineffective assistance of counsel claims do not warrant relief. Id. at 23-24.

No reply was filed, though Douglas later filed a motion for a status conference.

DISCUSSION

I. Legal Standard

A prisoner in federal custody may move the court that imposed his sentence to vacate, set aside, or correct it. 28 U.S.C. § 2255(a). “[R]elief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Accordingly, such relief “is available only when the ‘sentence was imposed in violation of the Constitution or laws of the United States,' the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack.” Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C. § 2255(a)).

II. Analysis

A. Due Process and § 455(a) Claims

Both the due process and § 455(a) claims are based on ex parte communications between Judge Bruce and the USAO that became public in August 2018, nearly two years after Douglas was sentenced. These communications have been detailed and summarized elsewhere. See Shannon v. United States, 39 F.4th 868, 876, 883 (7th Cir. 2022) (citing In re Complaints Against District Judge Colin S. Bruce, Nos. 07-18-90053 & 07-18-90067 (7th Cir. Jud. Council May 14, 2019), http://www.ca7.uscourts.gov/judicial-conduct/judicial-conduct_2018/07_18-90053_and_07-18-90067.pdf). Douglas argues that these communications demonstrate that Judge Bruce was actually biased against him, violating his due process rights, and, alternatively, that they demonstrate an appearance of bias that required Judge Bruce to recuse himself under 28 U.S.C. § 455(a). See Counseled 2255 Mot. 12-13.

1. Due Process

“Due process requires ‘a fair trial in a fair tribunal, before a judge with no actual bias against the defendant or interest in the outcome of his particular case.'” Shannon, 39 F.4th at 883 (quoting Bracy v. Gramley, 520 U.S. 899, 904-05 (1997)). A due process claim can be proved by evidence of the judge's actual bias or by showing that “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Id. (quoting Rippo v. Baker, 580 U.S. 285, 287 (2017)).

The Seventh Circuit has decided a few cases involving due process bias claims based on Judge Bruce's ex parte communications which are instructive here. In United States v. Williams, 949 F.3d 1056, 1061-63 (7th Cir. 2020), the court held that Judge Bruce presiding over a defendant's trial did not violate the defendant's due process rights where the defendant relied primarily on the ex parte communications but the communications did not concern the defendant's case. It noted that the Special Committee appointed by the Judicial Council of the Seventh Circuit to review complaints against Judge Bruce related to the communications “found no evidence and received no allegation that Judge Bruce's conduct or ex parte communications impacted any of his rulings or advantaged either party.” Id. at 1061-62 (quotation marks omitted). Moreover, the court noted that though the communications exposed a preexisting relationship with members of the USAO, such a relationship “alone does not create a due process violation.” Id. at 1062. It found that the defendant had “presented no evidence to rebut th[e] presumption” that “judges rise above . . . potential biasing influences.” Id. (quotation marks omitted). Douglas relies on the same communications that were relied on in Williams and considered by the Special Committee, and he points to no emails that concern his case specifically or any evidence showing that the communications impacted his case. See Counseled 2255 Mot. 4-15.

In Shannon, the Seventh Circuit found that Judge Bruce's participation in a defendant's sentencing hearing, as opposed to only his trial, may warrant a different result under the due process clause because judges have considerable discretion at sentencing. Shannon 39 F.4th at 884-86. In that case, Judge Bruce made comments at sentencing that the court concluded could have been interpreted as a warning that if the defendant appealed, he would impose a harsher sentence. Id. at 886-87. Though it ultimately declined to rule on whether there was a due process violation, the Seventh Circuit appeared to be troubled by the combination of the ex parte communications and the comments. See id. at 884 (declining to resolve the constitutional issue and instead remanding for resentencing under the court's supervisory authority). Douglas points to no similar comment at sentencing that would lend itself to a finding that Judge Bruce was biased against him. Instead, he is relying on...