United States District Court, E.D. Michigan, Northern Division
ORDER CONSTRUING AFFIDAVIT AS MOTION FOR
RECONSIDERATION AND DENYING MOTION FOR
L. LUDINGTON United States District Judge
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, 2016. See
ECF No. 20. On September 22, 2015 he was sentenced to 188
months of imprisonment.
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
August 3, 2016 Burlingame filed a motion to compel, seeking
in part 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.
August 25, 2016 the magistrate judge issued an order denying
Burlingame's 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. Because
“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), I reviewed
Burlingame's objection de novo. I ultimately determined
that recusal was unnecessary under 28 U.S.C. § 455.
Specifically, I found that the mere fact that I had presided
over a state criminal matter involving Defendant Burlingame
over a decade ago did not by itself implicate my impartiality
or require my disqualification. See United States v.
Widgery, 778 F.2d 325, 328 (7th Cir. 1985). I further
found that Burlingame had not presented any particularized
facts demonstrating that I would likely testify as a material
witness. See Adrian v. Mesirow Fin. Structured
Settlements, 588 F.Supp.2d 216, 219 (D.P.R. 2008).
October 11, 2016, Burlingame filed an “affidavit”
that again challenges my decision not to recuse myself.
See ECF No. 62. This affidavit will therefore be
construed as a motion for reconsideration. A motion for
reconsideration will be granted if the moving party shows:
“(1) a palpable defect, (2) the defect misled the court
and the parties, and (3) that correcting the defect will
result in a different disposition of the case.”
Michigan Dept. of Treasury v. Michalec, 181
F.Supp.2d 731, 733-34 (E.D. Mich. 2002) (quoting E.D. Mich.
LR 7.1(g)(3)). A “palpable defect” is
“obvious, clear, unmistakable, manifest, or
plain.” Id. at 734 (citing Marketing
Displays, Inc. v. Traffix Devices, Inc., 971 F.Supp.2d
262, 278 (E.D. Mich. 1997)). “Motions for rehearing or
reconsideration which merely present the same issues ruled
upon by the Court, either expressly or by reasonable
implication, shall not be granted.” Id.
(quoting E.D. Mich. 7.1(h)(3)).
request for reconsideration does not point out any palpable
defect in the Court's previous order. Instead, it merely
restates arguments already raised and rejected by this Court.
Thus, for the reasons already stated in the order overruling
Burlingame's objections and denying his request to
recuse, ECF No. 59, Burlingame's motion for
reconsideration will be denied.
it is ORDERED that Defendant Burlingame's
“Affidavit, ” ECF No. 62, is ...