United States District Court, W.D. North Carolina, Charlotte Division
GREGORY D. ANDERSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Cogburn Jr., Judge
MATTER is before the Court on Petitioner's
pro se Request for Admission, (Doc. No. 28), Motion
for Recusal, (Doc. No. 29), Rule 60(b) Motion, (Doc. No. 30),
and Amended Rule 60(b) Motion, (Doc. No. 32).
filed a § 2255 Motion to Vacate in the instant case on
April 27, 2017, and an Amended § 2255 Motion to Vacate
on February 21, 2018, alleging ineffective assistance of
counsel, prosecutorial misconduct, and trial court error.
(Doc. Nos. 1, 8). The Court denied and dismissed the petition
as procedurally defaulted, waived by the guilty plea, and
meritless. (Doc. No. 21). The Fourth Circuit dismissed
Petitioner's appeal after independently reviewing the
record. United States v. Anderson, 776 Fed.Appx. 111
(4th Cir. 2019).
filed the instant Motions seeking discovery, the Court's
recusal, and reconsideration. First' Petitioner's
Request for Admission is moot because these proceedings have
already been decided adversely to him. No. live case or
controversy presently exists, so Petitioner's request for
discovery will be denied as moot. See generally United
States v. Hardy, 545 F.3d 280, 284 (4th Cir.
2008); Williams v. United States, 2018 WL 1612203
(W.D. N.C. April 3, 2018).
Petitioner has failed to state an adequate basis for the
Court's recusal and none is supported by the record.
Under 28 U.S.C. § 144, a litigant may seek recusal of a
judge if the litigant files “a timely and sufficient
affidavit that the judge before whom the matter is pending
has a personal bias or prejudice either against him or in
favor of any adverse party.” 28 U.S.C. § 144. The
affidavit must state with particularity “the facts and
the reasons for the belief that bias or prejudice
exists.” Although the judge must accept as true the
facts alleged in an affidavit filed under 28 U.S.C. §
144, the judge is not required to accept as true conclusory
statements, opinions, or speculations. Davis v. United
States, 2002 WL 1009728, at *1 (M.D. N.C. Jan. 8, 2002)
(citing Marty's Floor Covering Co. v. GAF Corp.,
604 F.2d 266 (4th Cir. 1979)). Under 28 U.S.C.
§ 455, a justice, judge, or magistrate judge must
disqualify himself in any proceeding in which his
impartiality might be reasonably questioned. Plaintiff's
conclusory allegations wholly fail to allege facts to support
a showing of bias by the undersigned. Nor do any
circumstances exist that might reasonably call the
Court's impartiality into question. The motion for
recusal is therefore denied.
Petitioner has filed two Rule 60(b) Motions seeking
reconsideration of the denial of § 2255 relief. Rule 60
provides permits a court to correct orders and provide relief
from judgment under the following circumstances:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
60(b) is an “extraordinary remedy” which sets
aside “the sanctity of [a] final judgment.”
Compton v. Alton Steampship Co., Inc., 608 F.2d 96,
102 (4th Cir. 1979) (citation and internal
quotation marks omitted). A movant must first show that he
has moved in a timely fashion, that he has a meritorious
defense to the judgment, that the opposing party would not be
unfairly prejudiced by a set aside, and show exceptional
circumstances. See Aikens v. Ingram, 652 F.3d 496,
501 (4th Cir. 2011); Werner v. Carbo, 731
F.2d 204, 206-07 (4th Cir. 1984) (citing
Compton, 608 F.2d at 102). If a movant satisfies
these three requirements, then he must show that his motion
falls under one of the six grounds set forth in Rule 60(b).
Werner, 731 F.2d at 207. Relief from judgment under
Rule 60(b)(6) should be granted only upon a showing that
relief is “appropriate to accomplish justice” in
“situations involving extraordinary