* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60678

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MACK ARTHUR BOWENS

Defendant-Appellant

Appeal from the United States District Court 

for the Northern District of Mississippi

Case No. 2:00-CR-94-2

Before JOLLY, CLEMENT and HAYNES, Circuit Judges.

PER CURIAM:*

Appellant Mack Arthur Bowens was convicted of various cocaine offenses

and sentenced to forty years in prison with five years of supervised release. On

direct appeal of his conviction and sentence, the United States Supreme Court

vacated the judgment and remanded to this courtfor consideration of sentencing

issues under United States v. Booker, 543 U.S. 220 (2005). This court then

remanded to the district court for further proceedings. 

United States Court of Appeals

Fifth Circuit

F I L E D

September 8, 2008

Charles R. Fulbruge III

Clerk
No. 07-60678

1 Presumably, this reference is to a petition for habeas relief under 28 U.S.C. §2255.

2

Upon remand, the district court imposed the same sentence and

supervised release term by amended judgment dated April 23, 2007. No direct

appeal of the district court’s judgment has been taken, and the time for such

appeal has passed. Fed. R. App. P. 4(b). On July 2, 2007, Appellant moved to

recuse the trial judge, Judge Pepper. Appellant’s requested relief was that

Judge Pepper recuse himself “from presiding or making a determination to [sic]

Bowens’ soon to be file[d] 2255 Motion.”1 That motion was denied on August 15,

2007. This appeal was then taken from that order. Because we conclude that

the district judge lacked jurisdiction to pass upon the merits of the recusal

motion, we similarly lack jurisdiction to decide its merits. As a result, the

district court order must be vacated, and this appeal dismissed. 

At the time Appellant filed the recusal motion, no matters were pending

before Judge Pepper. As to the trial, sentencing and criminal judgment, the

motion to recuse is untimely because it is too late. As to the contemplated

section 2255 motion, the motion to recuse is untimely because it is too early.

Either way, the trial court lacked jurisdiction to hear the motion. Both recusal

statutes require a “proceeding” pending before the judge sought to be recused.

28 U.S.C. §§ 144, 455. The term “proceeding” implies “the judge’s participation

in decisions affecting the substantive rights of the litigants to an actual case or

controversy.” United States v. Sciarra, 851 F.2d 621, 635 (3d Cir. 1988). No

proceeding was pending before Judge Pepper at the time of this motion. See

United States v. Day, 215 F. App’x 975 (11th Cir. 2007)(holding that the district

judge lacked power to hear a motion to recuse filed after judgment but before a

habeas petition was filed).

Because the district court lacked jurisdiction to decide the merits of the

motion to recuse, we lack jurisdiction to review the merits, if any. The
No. 07-60678

3

appropriate disposition ofthis appeal,then, is to vacate the district court’s order

and dismiss the appeal. Scruggs v. Lowman, 392 F.3d 124, 129 (5th Cir. 2004);

United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). We express no opinion

aboutthe merits of such a motion should a subsequent proceeding involving this

Appellant and this judge arise, but we caution counsel to recall his ethical

obligations not to file or perpetuate frivolous motions.

Accordingly, the district court’s order denying the motion to recuse is

VACATED for want of jurisdiction, and this appeal is DISMISSED.