USA v. Left Hand

'71 C'!]
1 1 2022
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
0L5RK"
UNITED STATES OF AMERICA, 1:14-CR-10001-CBK
Plaintiff,
vs. ORDER
WILLIAM LEFT HAND,
Defendant.
Defendant pleaded guilty to abusive sexual contact. He was sentenced on
December 12, 2016, to 24 months imprisonment followed by five years supervised
release.
Defendant was released to supervision on June 15, 2018. His supervised release
was revoked on June 28, 2021, and he was sentenced to nine months irnprisonment
followed by three years supervised release. He appealed his revocation sentence and the
United States Court of Appeals for the Eighth Circuit affirmed. United States v. Left
Hand. No. 21-2507, 2022 WL 1469478 (8th Cir. May 10, 2022).
Defendant was released to supervision a second time on November 26, 2021. His
revocation case is still pending.
Following defendant's arrest on the second revocation petition and his admissions
to some ofthe allegations of that petition, on July 22, 2022, defendant filed a motion
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the original conviction and
sentence as well as the first revocation and sentence. That motion was denied on July 28,
2022.
On July 19, 2022, defendant filed a judicial misconduct complaint against me with
the Judicial Council ofthe Eighth Circuit. He alleged in his complaint that 1 am biased,
have a political agenda, and engaged in misconduct because 1 sentenced him in the
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underlying case and in the first revocation even though he was "proven innocent." I was
notified of that complaint on July 29, 2022. I notified the parties that I did not intend to
recuse based upon the filing ofthe judicial complaint. Nonetheless, I continued the
revocation matter. Defendant's judicial complaint has been resolved. The Judicial
Council concluded that the defendant's allegations lack sufficient evidence.
While the judicial complaint was pending, defendant filed a motion for recusal and
transfer of his case to another judge. The defendant questions this Court's impartiality
based upon the fact that he filed a judicial complaint against me.
Pursuant to 28 U.S.C. § 455(a), a United States District Judge "shall disqualify
himself in any proceeding in which his impartiality might reasonably be questioned."
Judges are presumed to be impartial" and the defendant "bears the substantial burden of
proving otherwise." United States v. Dehghani. 550 F.3d 716, 721 (8th Cir. 2008).
Defendant contends, in part, that I am biased against him based upon the facts of
his case and my previous sentencing decisions in his case. The bias necessary to require
recusal must come from an extra-judicial source - opinions formed by the judge on the
basis offacts learned during the course of prior proceedings do not ordinarily constitute a
basis for a finding of bias. United States v. Martin. 757 F.3d 776, 778 (8th Cir. 2014).
Any previous unfavorable rulings in defendant's case "does not raise an inference of bias
or require the trial judge's recusal." Harris v. State of Mo..960 F.2d 738,740(8th Cir.
1992). "[Jjudicial rulings alone almost never constitute a valid basis for a bias or
partiality motion." Litekv v. United States. 510 U.S. 540, 555, 114 S. Ct. 1147, 1157,
127 L. Ed. 2d 474(1994)("Almost invariably, they are proper grounds for appeal, not for
recusal."). "[Ojpinions formed by the judge on the basis offacts introduced or events
occurring in the course ofthe current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible." Litekv v. United
States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157, 127 L. Ed. 2d 474(1994). No deep-
seated favoritism or antagonism exists in this case.
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Recusal is not required when it appears the defendant is attempting to manipulate
the judicial system by judge shopping. United States v. Beale, 574 F.3d 512, 519-20 (8th
Cir. 2009). Motions to recuse should not "be viewed as an additional arrow in the quiver
of advocates in the face of[anticipated] adverse rulings." In re Kansas Pub. Emplovees
Ret. Svs.. 85 F.3d 1353, 1360(8th Cir. 1996)(auotim TV Communications Network.
Inc. V. ESPN.Inc.. 767 F.Supp. 1077, 1081 (D.Colo.l991)). The Eighth Circuit has
noted that a "judge is not disqualified merely because litigant files complaint alleging
judicial misconduct; if that were the rule, litigants could manipulate system by filing
frivolous complaints in hopes of being assigned judge more sympathetic to their cause."
Proctor V. Bngstrom, 95 Fed.Appx. 192, 194 (8th Cir. 2004), citing In re Mann,229 F.3d
657,658 (7th Cir. 2000).
The timing ofthe judicial complaint raises the appearance that defendant filed the
complaint in an attempt to manipulate the system. I bear no bias or prejudice against this
defendant personally arising out ofthe now closed judicial complaint proceeding.
Accordingly,
IT IS ORDERED that the defendant's motion. Doc. 166, for recusal and transfer
of his case to another judge is denied.
DATED this / ^^ofNovember,2022.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge'
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