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United States v. Burlingame

United States District Court, E.D. Michigan, Northern Division

October 11, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
FRED ANDREW BURLINGAME, Defendants.

          ORDER OVERRULING OBJECTION AND DENYING REQUEST TO RECUSE

          THOMAS L. LUDINGTON, UNITED STATES DISTRICT JUDGE

         On January 28, 2015 a one-count indictment was issued charging Defendant Fred Andrew Burlingame with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). A first superseding indictment was issued on February 11, 2015, followed by a second superseding indictment on April 8, 2015 that charged Burlingame with one additional count of manufacturing or attempting to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 846, and one additional count of possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d). Burlingame pled guilty to the methamphetamine charge on June 9, 2015. See ECF No. 20. On September 22, 2015 he was sentenced to 188 months of imprisonment.

         I.

         On June 24, 2016 Burlingame filed a pro se motion to vacate his sentence under 28 U.S.C. § 2255. See Mot. to Vacate, ECF No. 35. Burlingame alleges that the government failed to hand over all exculpatory evidence, that the sentencing judge, Judge Ludington, had a conflict of interest in his criminal case, and that his counsel was ineffective. He also alleges that he was sentenced under a provision of the sentencing guidelines rendered unconstitutional by the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (striking down the residual clause of the Armed Career Criminal Act as unconstitutionally vague)

         On July 7, 2016 Defendant Burlingame filed a motion to supplement the record. See ECF No. 37. That motion was denied by the magistrate judge by a text-only order dated July 26, 2016. Burlingame then filed an objection, which was overruled by this Court on August 26, 2016. See ECF No. 51.

         On August 3, 2016 Burlingame filed a motion to compel, seeking to compel the Clerk of Court to assign his petition a civil docket number. See ECF No. 42. As part of that motion he also moved for me to recuse myself from the matter. Burlingame argued that I presided over a state criminal proceeding involving Burlingame in 2005, and that the state conviction now forms a predicate offense for Burlingame's career offender enhancement pursuant to U.S.S.G. § 4B1.1. Burlingame argues that as a result he intends to depose and call me as a witness in the present matter. He also alleges that I have a core conflict of interest because of his involvement with the underlying state court matter. On August 8, 2016 Burlingame filed a second motion to compel requesting his criminal docket sheet. See ECF No. 43.

         On August 25, 2016 the magistrate judge issued an order denying Burlingame's first motion to compel and granting his second motion to compel. See ECF No. 50. As part of that order, she suggested that my recusal would be unnecessary. Burlingame timely objected to that determination. See ECF no. 52.

         II.

         While normally the decision and order of a non-dispositive motion by a magistrate judge will be upheld unless it is clearly erroneous or contrary to law, see 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a), “decisions with respect to disqualification should be made by the judge sitting in the case, and not by another judge.” See United States v. Balistrieri, 779 F.2d 1191, 1202-03 (7th Cir. 1985). For this reason, Burlingame's objection will be reviewed de novo.

         A federal judge is required to disqualify himself “in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Section 455(b) provides that a federal judge should also disqualify himself in 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;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(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;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could ...

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