[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 18

- 11693 Non

- Argument Calendar

________________________ D.C. Docket No s . 6:17

- cv - 01498

- JA

- KRS ; 6:14

- cr - 00033

- JA

- KRS

JONATHAN TYLER PRIVE, Petitioner

- Appellant,

versus UNITED STATES OF AMERICA, Respondent

- Appellee.

________________________ Appeal from the United States District Court for the Middle District of Florida

____ ____________________ (April 8, 2019) Before WILLIAM PRYOR , GRANT and ANDERSON , Circuit Judges.
PER CURIAM: Jonathan Prive, a federal prisoner , appeals pro se the sua sponte dismiss al of his motion to vacate his sentence , 28 U.S.C. § 2255 , and the denial of his motion

Case: 18-11693 Date Filed: 04/08/2019 Page: 1 of 42 for recusal

. The district court judge refused to recuse based on his participation in Prive’s prior criminal proceedings , and he dismissed Prive’s postconviction motion for failure to comply with a local rule that impose d page limitations, M.D. Fla. L. R. 3.01(a)

. We affirm the denial of Prive’s motion t o rec us e . B ut because Prive’s time for postconviction review expired while his motion to vacate was pending, we vacate the order that dismissed Prive’s motion to vacate and r emand for further proceedi ngs . We review both the denial of a motion for recusal , United States v. Berger , 375 F. 3d 1223, 1227 (11th Cir. 2004) , and the dismiss al of a complaint based on the i nterpretation of a local rule , Fils v. City of Aventura , 647 F.3d 1272, 1282 (11th Cir. 2011) , for abuse of discretion. “ Discretion means the district court has a range of choice, and that its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.” Betty K Agencies, Ltd. v.
M/V M ONADA , 432 F.3d 1333, 1337 (11th Cir. 2005) (internal quotation marks and citation omitted ). The district judge did not abuse his discretion by den ying Prive’s motion to

recuse. Recusal is warranted only if “an objective, fully informed lay observer would entertain significant doubt about the judge ’ s impartiality.” Christo v. Padgett , 223 F.3d 1324, 1333 (11th Cir. 2000). The district judge presided over

Case: 18-11693 Date Filed: 04/08/2019 Page: 2 of 43 Prive’s guilty plea proceedings , but neither the judge’s adverse rulings , see Berger , 375 F.3d at 1227, nor his familiarity with Prive’s crime require d recusal, see Christo , 223 F.3d at 1334. The district judge also was not required to recus e b ased either on his rejection of the parties’ recommended sentence o r his assessment of Prive’s crime at sente ncing. See Liteky v. United States , 510 U.S. 540, 555 (1994). Prive identifie d no evidence of impartiality or bias that require d the district judge
to recuse.
T he district court abuse d its discretion when it dismissed Prive’s motion to
vacate. Although the district court stated that its dismissal was without prejudice, th at ruling bar red Prive from obtaining review of his sentence because the one

- year period of limitation, 28 U.S.C. § 2255(f), expired while his motion was pending. Prive timely filed his mot ion to vacate on August 16, 2017, less than one year after expiration of the 90

- day period to petition the United States Supreme Court for a writ of certiorari

. S ee Clay v. United States , 537 U.S. 522, 527 (2003). B ut Prive’s federal postconviction motion “ is not an ‘ application for State post

- conviction or other collateral review ’ within the meaning of 28 U.S.C. § 2244(d)(2) ” and “ did not toll the limitation period ,” s ee Duncan v. Walker , 533 U.S. 167, 181

– 82 (2001) , so its dismissal operate d as a dismissal with prejudice, s ee Justice v. United
States , 6 F.3d 1474, 1482 & n.15 (11th Cir. 1993). A dismissal with prejudice is a

Case: 18-11693 Date Filed: 04/08/2019 Page: 3 of 44 drastic sanction , id. , that may be “imposed only when: (1) a party engages in a clear pattern of delay or willf ul contempt (contumacious conduct); and (2) the district court specifically finds that lesser sanctions would not suffice.” Betty K , 432 F.3d at 1338 (internal quotation marks and citation omitted). T he district court made no findings of a pattern of delay or willful contempt, so we must vacate i t s order dismiss ing Prive’ s motion to vacate and remand for further proceedings. We need not address Prive’s argument that t he dismissal of a motion for failure to comply with a local rule of procedure conflicts with the Rules Governing Section 2255 Proceedings and the Federal Rules of Civil Procedure.
We AFFIRM the denial of Prive’s motion for recusal, but we VACATE the dismissal of his motion to vacate and REMAND for further proceedings.

Case: 18-11693 Date Filed: 04/08/2019 Page: 4 of 4