United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
before the Court are Defendant James Daniel Hobgood's
Motion to Set Aside, Correct, or Vacate under 28 U.S.C. 2255
(Doc. 66) ("Motion to Vacate"), the
Government's Response (Doc. 69), and Mr. Hobgood's
Reply (Docs. 72, 72-1). Also before the Court is Mr.
Hobgood's Motion to Disqualify (Docs. 67, 67-1). For the
reasons given below, both of Mr. Hobgood's Motions are
October 28, 2015, Mr. Hobgood was indicted on one count of
cyberstalking in violation of 18 U.S.C. § 2261 A(2).
See Doc. 1. Roughly half a year later, Mr. Hobgood
entered a conditional guilty plea that preserved his right to
argue on appeal that this Court had erred in denying his
motion to dismiss the indictment on First Amendment grounds.
See Doc. 27, ¶ 2. On September 12, 2016, this
Court sentenced Mr. Hobgood to 12 months and 1 day of
imprisonment,  3 years of supervised release, a $100.00
special assessment, and $2, 387.91 in restitution.
See Doc. 42. But the Court permitted Mr. Hobgood to
remain out on bond during the pendency of his appeal, given
the "close question" presented by the First
Amendment issues in Mr. Hobgood's previously denied
motion to dismiss. See Doc. 50, p. 3. However, a few
months later the Court revoked Mr. Hobgood's bond and
initiated criminal contempt proceedings against him after
finding he had "egregious[ly] and willful[ly]"
violated his appellate bond conditions, see Doc. 61;
Doc. 63, by contacting his victim over the Internet after his
sentencing, see Doc. 55.
9, 2017, Mr. Hobgood entered a guilty plea to a criminal
information charging him with criminal contempt for willfully
and knowingly disobeying and resisting lawful orders of this
Court by using the Internet and electronic social media to
indirectly contact the victim in this case. See No.
5:17-cr-50024, Docs. 2, 11. On May 19, 2017, this Court
sentenced Mr. Hobgood to 3 months of imprisonment to run
consecutively to his cyberstalking term of imprisonment, 1
year of supervised release to run concurrently to his
cyberstalking term of supervised release, a $10.00 special
assessment, and a $1, 000.00 fine. See No. 5:17-cr-50024,
Doc. 13. Mr. Hobgood never appealed his criminal contempt
conviction or sentence. On August 22, 2017, the Eighth
Circuit affirmed this Court's rulings in Mr.
Hobgood's cyberstalking case. See United States v.
Hobgood, 868 F.3d 744 (8th Cir. 2017).
Hobgood now has two post-conviction motions pending before
this Court. His Motion to Vacate asks this Court to set aside
both of his criminal convictions for cyberstalking and
criminal contempt. And his Motion to Disqualify asks the
undersigned Judge to recuse from considering his Motion to
Vacate. The Government has filed a Response to Mr.
Hobgood's Motion to Vacate, and Mr. Hobgood has filed a
Reply. Both Motions are now ripe for decision. Below, the
Court will first discuss (and deny) Mr. Hobgood's Motion
to Disqualify. Then, the Court will take up Mr. Hobgood's
Motion to Vacate.
MOTION TO DISQUALIFY
Hobgood asks that Magistrate Judge Erin Wiedemann and the
undersigned both recuse from considering his Motion to
Vacate. Mr. Hobgood's request is moot with respect to
Magistrate Judge Wiedemann, because his Motion to Vacate has
not been referred to her. Below, the Court will consider Mr.
Hobgood's arguments for recusal with respect to the
U.S.C. § 455(a) states that "[a]ny justice, judge,
or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned." "A party introducing a
motion to recuse carries a heavy burden of proof; a judge is
presumed to be impartial and the party seeking
disqualification bears the substantial burden of proving
otherwise." Pope v. Fed. Express Corp., 974
F.2d 982, 985 (8th Cir. 1992). The decision whether to recuse
is committed to a district court's "sound
discretion," but "[r]ecusal is required when an
average person knowing all the relevant facts of a case might
reasonably question a judge's impartiality."
Dossett v. First State Bank, 399 F.3d 940, 953 (8th
Cir. 2005). Where a judge finds that the facts do not warrant
recusal, he has an obligation not to recuse. See S.W.
Bell Tel. Co. v. F.C.C., 153 F.3d 520, 523 (8th Cir.
Hobgood's arguments in favor of recusal can generally be
described as falling into three categories. One category of
arguments complains of unfavorable rulings that the
undersigned previously made in Mr. Hobgood's criminal
cases. The Court rejects this set of arguments because
"[a]dverse judicial rulings . . . 'almost never'
constitute a valid basis for recusal; the proper recourse for
a dissatisfied litigant is appeal." See
Dossett, 399 F.3d at 953 (quoting Liteky v. United
States, 510 U.S. 540, 555 (1994)).
second but similar category of arguments complains of
comments the undersigned made at Mr. Hobgood's sentencing
hearings, expressing disapproval for his obstinate criminal
behavior. The Court rejects this second set of arguments for
essentially the same reason it rejects the first: judicial
expression of disapproval for criminal conduct is as inherent
to the task of sentencing as the issuance of adverse rulings
is to the task of adjudication more generally. It is not a
sign of impartiality; it is simply a sign that a judge is
doing his job.
third category of arguments concerns language that Mr.
Hobgood has employed regarding the undersigned. Mr. Hobgood
contends that he has been so fiercely and insultingly
critical of the undersigned that an average onlooker might
reasonably question the undersigned's ability to remain
impartial. The Court disagrees. It is certainly true that Mr.
Hobgood has sometimes used rather vitriolic and insulting
language to express his opinions about the undersigned. But
the undersigned simply does not care at all what Mr. Hobgood
thinks of him. And the Court does not believe an average
onlooker would reasonably believe otherwise if fully apprised
of all relevant facts, given that the undersigned has never
"become 'embroiled in intemperate wrangling'
with" Mr. Hobgood, or otherwise engaged in any way with
Mr. Hobgood about his opinions of the undersigned. See
Isaacson v. Manty, 721 F.3d 533, 539-41 (8th Cir. 2013)
(discussing Mayberry v. Pennsylvania, 400 U.S. 455
(1971) and Ungar v. Sarafite, 376 U.S. 575 (1964)).
Accordingly, the Court will deny Mr. Hobgood's Motion to
Disqualify, and will proceed to consider his Motion to
MOTION TO SET ASIDE, CORRECT, OR VACATE UNDER 28 U.S.C.
Hobgood asks this Court to vacate his criminal convictions
for cyberstalking and criminal contempt under 28 U.S.C.
§ 2255. That statute authorizesw[a] prisoner
in custody under sentence of a federal court to "move
the court which imposed the sentence to vacate, set aside or
correct the sentence" if he believes "the sentence
was imposed in violation of the Constitution or laws of the
United States." See 28 U.S.C. § 2255(a).
Such a motion should be granted "[i]f the court finds
that the judgment was rendered without jurisdiction, or that
the sentence imposed was not authorized by law or otherwise
open to collateral attack, or that there has been such a
denial or infringement of the constitutional rights of the
prisoner as to render the judgment vulnerable to collateral
attack." See Id. at § 2255(b). Although
Mr. Hobgood has finished serving his term of imprisonment, ...