United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. Judge
MATTER comes before the Court on Alejandro Ramirez
Umaña's Motion to Recuse Trial Judge, filed on
February 22, 2018. (Doc. No. 67). Umaña contends the
undersigned's prior position as the United States
Attorney for the Western District of North Carolina
disqualifies him from adjudicating Umaña's Motion
to Vacate, Set Aside or Correct Sentence pursuant to 28
U.S.C. § 2255.
2006, the FBI's Safe Street's Gang Task Force opened
an investigation of MS-13 activity in the Charlotte area.
Trial Tr. Vol. II-B 220-221, United States v. Rosales
Lopez, 3:08-cr-00134-RJC-4 (W.D. N.C. ), Doc. No. 1074.
In addition to the FBI, the Safe Street's Task Force
included the Charlotte Mecklenburg Police Department
(“CMPD”), the Bureau of Alcohol, Tobacco,
Firearms and Explosives (“ATF”), the Department
of Homeland Security's Immigration and Customs
Enforcement (“ICE”), and the Gastonia, North
Carolina, Police Department. Id. at 220. “In
September of 2006, . . . the United States Attorney's
Office for the Western District of North Carolina first
opened the file under which Umaña and a number of
other individuals were eventually indicted.”
(Gov.'s Resp. to Recusal Mot. 2, Doc. No. 74). The
criminal investigation intensified in 2007, when MS-13 member
Rony Lopez became a confidential informant for the Safe
Streets Task Force. Trial Tr. Vol. II-B, Rosales
Lopez, supra, at 221; see also
North Carolina MS-13 Members Sentenced to Prison for Role
in Racketeering Conspiracy, Dep't. of Justice Press
Release, June 30, 2010 (“The long-term investigation
was initiated by the FBI's North Carolina ‘Safe
Streets' Gang Task Force when a witness came forward with
information about the violent operations of a single MS-13
cell operating out of the Charlotte area.”), available
investigation culminated in a 70-count indictment against
Umaña and 25 co-conspirators on RICO-related and other
charges. Third Superseding Indict., Rosales Lopez,
supra, at Doc. No. 623. Umaña and his
co-conspirators were tried separately in 2010, and
Umaña was found guilty by a jury of nine counts and
acquitted of one; the United States dismissed the remaining
count against him. J., United States v.
Umaña, 3:08-cr-00134-RJC-2 (W.D. N.C. ), Doc. No.
1168. The undersigned presided over Umaña's trial
and sentencing, as well as those of his co-conspirators.
22, 2016, Umaña filed a § 2255 Motion to Vacate.
(Doc. No. 22). He has now filed the instant Motion to Recuse
alleging judicial bias arising from the undersigned's
tenure as United States Attorney which, Umaña
contends, overlapped with “a joint federal and state
investigation . . . developing evidence supporting the
Government's RICO prosecution in this case.”
(Recusal Br. 1, Doc. No. 67-1). The Government has filed a
Response. (Doc. No. 74).
Rules Governing Section 2255 Proceedings in the United States
District Courts specify that the judge who presided over a
petitioner's trial and imposed sentence shall likewise
preside over the petitioner's § 2255 motion. §
2255 Rules, Rule 4(a). Under federal law, however,
“[a]ny justice, judge, or magistrate judge of the
United States shall disqualify himself in any proceeding in
which his impartiality might be reasonably questioned.”
28 U.S.C. § 455(a). Recusal is appropriate under §
455(a) only if “an objective, disinterested, lay
observer fully informed of the facts underlying the grounds
on which recusal was sought would entertain a significant
doubt about the judge's impartiality.” United
States v. Amedeo, 487 F.3d 823, 828 (11th Cir. 2007).
Additionally, any judge “shall also disqualify himself
under the following circumstances: (1) Where he has a
personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the
proceeding; . . . (3) Where he has served in governmental
employment and in such capacity participated as counsel,
adviser or material witness concerning the proceeding or
expressed an opinion concerning the merits of the particular
case in controversy . . . .” 28 U.S.C. § 455(b).
“[d]ue process guarantees ‘an absence of actual
bias' on the part of a judge.” Williams v.
Pennsylvania, 136 S.Ct. 1899, 1905 (2016) (quoting
In re Murchison, 349 U.S. 133, 136 (1955)). The
inquiry is an objective one. “The Court asks not
whether a judge harbors an actual, subjective bias, but
instead whether, as an objective matter, ‘the average
judge in his position is ‘likely' to be neutral, or
whether there is an unconstitutional ‘potential for
bias.'” Williams, 136 S.Ct. at 1905
(quoting Caperton v. A.T. Massey Coal Co., 556 U.S.
868, 881 (2009)).
Umaña's Motion to Recuse is Untimely
is an essential element of a recusal motion.”
United States v. Owens, 902 F.2d 1154, 1155 (4th
Cir. 1990); see also Kolon Indus. Inc. v. E.I. DuPont de
Nemours & Co., 748 F.3d 160, 168 (4th Cir. 2014)
(holding that Owens's timely-filing requirement
applies to recusal motions under 28 U.S.C. § 455(a) and
(b) alike). Umaña was required to raise any basis for
recusal “at the earliest moment after knowledge of the
facts.” Owens, 902 F.2d at 1156 (quoting
Satterfield v. Edenton-Chowan Bd. of Ed., 530 F.2d
567, 574-75 (4th Cir. 1975)).
undersigned served as the United States Attorney for the
Western District of North Carolina from March 15, 2001, until
June 1, 2004, which was a matter of public record when
Umaña and his co-defendants were indicted in 2008.
Umaña asserts that the joint federal and state
investigation of the RICO conspiracy actually began in June
2003, not 2006. As evidence, he cites newspaper articles from
2003 and 2004, documents he received in pretrial discovery,
and testimony from his own trial and that of his
codefendants. (Recusal Br. 2-3 (citing Trial Tr. Vol. I 2-7,
Umaña, supra, at Doc. No. 1340;
Trial Tr. Vol. 1-B, Rosales Lopez, supra,
at Doc. No. 1072)). In short, the facts upon which
Umaña bases his recusal motion have been known or
available to him since before his 2010 trial.
2015, the undersigned appointed post-conviction counsel to
assist Umaña in the preparation of a § 2255
motion to vacate. Appt. of Counsel, Umaña,
supra, at Doc. No. 1621. The instant civil action
was opened on February 2, 2016 (Doc. No. 1), and Umaña
filed his Motion to Vacate on June 22, 2016 (Doc. Nos. 22, 24
(sealed)). The undersigned has ruled on more than a dozen
motions and approved a budget in this action. Nevertheless,
Umaña did not file the instant Motion to Recuse until
February 22, 2018. (Doc. No. 67). By any measure, the recusal
motion is untimely. See e.g., Kolon ...