ALD

- 307 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 4

- 3207

___________ IN RE: KENNETH MITAN , Petitioner

____________________________________ On a Petition for Writ of Mandamus from the United States Di strict Court for the Eastern District of Pennsylvania (Related to E. D. Pa

. C rim . No. 2

- 08

- c r - 00 760

- 001 )

____________________________________ Submitted Pursuant to Rule 21, Fed. R. App. P.

July 24, 2014 Before: RENDELL, FISHER and GREENAWAY, JR. , Circuit Judges

(Opinion filed : September 5, 2014 )

_________ OPINION

_________ PER CURIAM Kenneth Mitan filed this petition for a writ of mandamus seeking an order compelling the District Judge presiding over his motion pursuant to 28 U.S.C. § 2255 to r ecuse himself.
W e will deny the p etition. Mitan was convicted by a jury in 2009 of federal mail and wire fraud , and related offenses . He was sentenced to 262 months in prison and restitution of more than 1.5 million dollars. We affirmed the judgment and sentence. U nited S ta tes v. Mitan , 499 F. App’x 187 , 188 (3d Cir. 2012). In June 2014, Mitan filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. He also filed a motion for the disqualification of the District Judge under 282

U.S.C. §§ 144 and 455, arguing prim arily that : (1) the judge would be unable to fairly assess claims in the § 2255 motion that accus ed the judge of misconduct and former counsel of ineffective assistance ; and (2) the judge is biased due to reviewing phone calls in which Mitan critic ized hi m . A few days after the motion was filed, the District Judge summarily denied it. Mitan then filed the instant petition for a writ of mandamus

. We have jurisdiction under the All Writs Act, 28 U.S.C. § 1651 (a), and may consider Mitan’s arguments that re cusal is warranted under 28 U.S.C

. § 455 via mandamus review. 1
See In re Kensington Int’l Ltd. , 353 F.3d 211, 219 (3d Cir. 2003). We will grant relief only if the District Judge’s decision is tantamount to an abuse of discretion. In re Kensington Int’l Ltd

. , 368 F.3d 289, 301 & n.12 (3d Cir. 2004). “ W hen the need for a writ of mandamus is determined by this court to be ‘clear and indisputable, ’ a district judge’s decision not to recuse himself or herself necessarily also will have been an abuse of discr etion or a clear legal error.” Alexander v. Primerica Holdings , 10 F.3d 155, 163 n.9 (3d Cir. 1993). Mitan contends that recusal i s warranted under 28 U.S.C. § 455(a), (b)(1), and (b)(5) (iv) . Recusal is required under subsection (a) when a judge’s “imp artiality might reasonably be questioned.” 28 U.S.C. § 455(a). The test for such recusal is whether a reasonable person who is aware of all of the facts might reasonably question a judge’s impartiality. In re Kensington Int’l Ltd. , 368 F.3d at 302

. Sec tion 455(b) sets forth specific circumstances for recusal, including : (1) where a judge has personal bias concerning a party or

1 Mitan does not seek review of the District Judge’s refusal to recuse himself pursuant to 28 U.S.C. § 144, which is not availab le via mandamus. See In re Sch. Asbestos Litig. , 977 F.2d 764, 775

- 76 (3d Cir. 1992).3

personal knowledge of disputed evidentiary facts; and (2) where a judge knows he is likely to be a material witness in the proc eeding. 28 U.S.C. § 455(b)(1), (b) (5)(iv). Mitan argues that the District Judge cannot impartially decide the claims in his § 2255 motion that accuse t he judge of committing misconduct during the underlying criminal trial. The first a ccusation is that t he judge improperly held an ex parte hear ing with the prosecution in which Mitan was falsely accused of fabricating evidence. Three pages of transcript confirm that the ex parte hearing occu r r ed , but they do not provide much context for assessing this bas is for recusal. By way of background, Mitan proceeded pro se for a period of time in the District Court, including most of the time he spent in pretrial detention. M itan , 499 F. App’x at 189. As part of an investigation into whether Mitan was obstructin g justice by intimidating witnesses, t he government reviewed his calls , but employed a procedure to screen out privileged communications. Id

. at 189

- 90. Sometime later, the government abandoned the screening procedure

. Id. at 190. Mitan moved to dismis s the indictment when he learned that the government was monitoring all of his calls. Id. Although the District Judge denied the motion because the calls did not reveal defense strategy, he expressed displeasure and serious concerns with the government’s actions. Id. at 191. It appears that the ex parte hearing Mitan now complains of occurred sometime after Mitan moved to dismiss the indictment. The government approached the judge because they planned to follow up on leads regarding evidence fabricati o n , but were aware of the “sensitivities about our ongoing obstruction of justice investigation

. ” The transcript provided by Mitan shows that the hearing was brief and4

that the Distri ct Judge stated that he had nothing to say about the investigation, but w arned the government not to monitor Mitan’s calls from prison.
E x parte co mmunications are strongly disfavored , s ee In re Kensington Int’l, Ltd. , 368 F.3d at 309

- 10 , b ut we do not believe recusal is mandated on that basis here

. T he ex parte hearing in th is case arose from concern about the government’s previous investigative practices

. It appears that Mitan was not present because he was a target of the new avenue of investigation. Moreover, the transcript reveals no basis upon which to question the jud ge’s impartiality: he expressed no opinion about the investigation or Mitan, and he warned the government to be careful of Mitan’s rights. 2 In this context, the brief ex parte hearing appears to have been necessitated by a procedural concern that could n ot be revealed to the defense . It does not appear to have been a n impermissible forum for one

- sided advocacy regarding the merits of the criminal case. See In re Sch

. Asbestos Lit i g . , 977 F. 2d at 789 (noting that ex parte communications are sometimes “t olerated of necessity” ). Therefore, Mitan has failed to show misconduct sufficient to raise a question about the District Judge’s ability to impartially decide the § 2255 claim, or any basis for perceived or actual bias against Mitan arising from the inci dent. 3

2 One problem with ex parte communications is that they often are not recorded, In re Kensington , 368 F.3d at 309, but that is not a concern in this case.

3 To the e xtent that Mitan implies that the District Judge formed an opinion of him based on the accusation of evidence fabrication, we note that there is no expression of such opinion. Furthermore, Mitan was tried by a jury and was not charged with, or convicted o f, evidence fabrication.5

Mitan also claims that the District Judge committed misconduct by inviting a judge from this Court to attend jury selection. H e concedes, h owever, that he has no proof of this.
R ecusal is not required on the basis of “unsupported, irrational, or highly tenuous speculation.” In re United States , 666 F.2d 690, 694 (1st Cir. 1981). He next asserts that his case was improperly “steered” toward the District Judge because t he judge w ould be biased against white collar criminals due to his prior positi on as a United States Attorney . However, Mitan concedes that he has no evidence of impropriety to support his allegations. Moreover, a judge is not required to recuse himself simply because he previously served as a United States Attorney. See Ed e lstein v. Wilentz , 812 F.2d 128, 131 (3d Cir. 1987). 4 F inally , we fail to see how Mitan’s allegation calls into question the District Judge’s ability to impartially decide the § 2255 motion when the j udge was not responsible for being assigned to Mitan’s ca se. Mitan again raises the District Judge ’s ability to impartially decide the § 2255 motion, this time by arguing that that the judge ’s bias in favor of former counsel makes a fair assessment of ineffective assistance claims impossible

. The first basis for t he alleged bias is that the counsel is a friend and former law clerk of the District Judge

. Mitan does not provide any support for , or detail regarding , the assertion that counsel is the judge’s friend. Nor does
h e cite any legal authority for the propos ition that a judge must recuse when a former law clerk is counsel for a party. Although a law clerk enjoys a unique position and is often privy to a judge’s thoughts, it is not a general rule that a former law clerk may never practice before the

4 Mitan does not contend that the District Judge had any knowledge of the case due to his prior position.6

judge for whom he or she clerked. See Fredonia Broad

. Corp., Inc. v. RCA Corp. , 569 F.2d 251, 256 (5th Cir. 1978). As for the specific comments Mitan highlights from the record to support his allegation of bias, three are only brief remarks about counsel doing a good job that

are not strong enough to amount to a “deep

- seated favoritism . . . that would make fair judgment impossible. ” Liteky v. United States , 510 U.S. 540, 555 (1994)

. T he comments also
appear to be based on counsel’s performance in the case, not an extrajudicial source. Id. at 550

- 51 (explaining the “extrajudicial source” doctrine)

. Furthermore, t he last example cited by Mitan

– “I have only the highest compliments for [defense counsel]”

– is followed by the judge complimenting the prosecution t eam’s efforts, exhibiting balanced praise for the work of counsel for both parties. Mitan attempts to bolster his argument by claiming that the denial of certain motions demonstrates the District Judge’s bias . However, a party’s displeasure with adverse legal rulings does not form a basis for recusal. See Securacom Consulting, Inc. v. Securacom, Inc. , 224 F.3d 273, 278 (3d Cir. 2000). Moreover, Mitan has failed to explain how the denial of the pro se motions filed in the collateral proceedings are in an y way related to his former counsel such that the alleged bias in her favor would come into play. Finally, Mitan alleges that “it is possible” that the District Judge is biased against him because he listened to calls in which Mitan was critical of the judge. This claim is based on the call

- monitoring issue described earlier , and it fails for the following reasons. First, Mitan has not explained what critical remarks he made in the calls reviewed by the District Judge, nor has he identified comments or actions by the District Judge that would suggest bias (or the appearance thereof) as a result of reviewing the calls. Second, the source of the alleged bias is7

not extra

- judicial : the District Judge reviewed recordings of five calls, which were identifi ed by Mitan as prejudicial to mounting his defense , in the course of adjudicating Mitan’s motion to dismiss the indictment. Mitan , 499 F. App’x at 191. Even if the Di s trict Judge formed an opinion about Mitan from the calls, it would not automatically be a basis for disqualification because the opinion was “ properly and necessarily acquired ” in the course of the prior proceedings. Litekey , 510 U.S. at 5 5 1. The only way an opinion acquired from the proceedings could constitute a basis for recusal is if i t evinced a “deep

- seated antagonism” against Mitan, id. at 555, which has not been demonstrated in this case. For these reasons, w e conclude that the District Judge did not abuse his discretion in denying the motion to disqualify and that Mitan has not sh own a clear an indisputabl e right to a writ of mandamus. 5 W e will therefore deny the mandamus petition.

5 Mitan generally asserts that recusal is warranted under 28 U.S.C. § 455(b)(5)(iv) without identifying how the District Jud ge would be a material witness in the § 2255 proceedings. He has therefore failed to show a clear and indisputable right to relief on this basis.