United States v. Hobgood

          OPINION AND ORDER

          TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE

         Currently 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 DENIED.

         I. BACKGROUND

         On 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, ^[1] 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.

         On May 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).

         Mr. 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.

         II. MOTION TO DISQUALIFY

         Mr. 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 undersigned.

         28 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. 1998).

         Mr. 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)).

         A 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.

         The 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 Vacate.

         III. MOTION TO SET ASIDE, CORRECT, OR VACATE UNDER 28 U.S.C. 2255

         Mr. Hobgood asks this Court to vacate his criminal convictions for cyberstalking and criminal contempt under 28 U.S.C. § 2255. That statute authorizes^w[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, ...