ROBERT J. TEZAK, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
No. 00-2854
United States Court of Appeals For the Seventh Circuit
ARGUED March 1, 2001--DECIDED JULY 11, 2001
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 7936--Wayne R. Andersen, Judge.
OPINION
HARLINGTON WOOD, JR., Circuit Judge. On October 25, 1993, Robert Tezak pled guilty to charges of arson and obstruction of justice in the District Court for the Northern District of Illinois. Tezak appeals the district court‘s denial of his amended petition for a writ of habeas corpus pursuant to
BACKGROUND
Tezak is a multi-millionaire1 who was a prominent member of the Republican party in Will County2 and has served as a delegate to the Republican National Convention. By age twenty-one, he was a precinct chairman. In 1976, when he was twenty-eight, he was elected to serve as coroner of Will County and was re-elected through 1988. Prior to his election as coroner, he served as deputy coroner for nine years.
On August 6, 1987, a fire occurred at the Galaxy Bowl, a bowling alley in
After a lengthy investigation, a federal grand jury indicted six individuals, one of whom was Tezak, with conspiracy and arson in both fires. In December 1992, Tezak
On September 3, 1993, while Tezak was released on bond, the government moved to have his release revoked on the ground that he had violated certain conditions of his release, primarily that Tezak was alleged to have obstructed justice by intimidating a witness under
and that he had continued to provide her with cocaine up to the present time. In addition, both Leber and Mark Tezak testified that Tezak continued to use drugs after he was indicted.4 The district court revoked Tezak‘s bond on September 3, and, after reviewing the evidence at a hearing to reinstate Tezak‘s bond on September 16, denied reinstatement. In a second motion-to-reinstate-bond hearing on September 29, 1993, the district court again denied reinstatement after the government presented evidence showing that Tezak had purchased twelve guns in July 1993 (while under indictment) and that he lied on the purchase forms indicating that he was not under any indictment or information and then signed a statement swearing his answers were “true and correct.”
On October 22, 1993, a superseding information was issued which included the previous four counts but added a fifth count of obstruction of justice for threatening a potential witness. Tezak signed a plea agreement that same day. On October 25, 1993, in court, Tezak pled guilty to counts one, two, and five pursuant to the plea agreement and admitted complicity in the PIC fire, although the government had agreed to dismiss counts three and four.
After three separate and lengthy sentencing hearings, judgment was entered on August 10, 1994, sentencing Tezak to five years probation on count one, nine years imprisonment on count two, and forty-six months imprisonment on count five, all sentences to run consecutively. He was also ordered to pay $659,106 in fines and $538,697.30 in restitution. A motion to
Before the district court had made a determination on the Rule 35 motion, Tezak was indicted by the State‘s Attorney of Will County on five counts of arson relating to the PIC fire. Tezak‘s attempt to dismiss the state indictment on double jeopardy grounds was denied by the state court, which holding was then upheld by the state appellate court. After a jury trial, Tezak was convicted
on all five counts of arson based solely on the transcript of his plea agreement, which contained the admissions about the PIC fire. Tezak was sentenced to three years state incarceration consecutive to his federal sentence. Tezak appealed the state conviction and sentence on several grounds, one of which was that the conviction violated the double jeopardy clause of the Constitution and
Tezak then filed a sec. 2255 petition on December 3, 1996. Five months after filing the petition, Tezak moved to recuse Judge Andersen, the district court judge, on the alleged ground of personal bias. The district court denied the recusal motion. In his amended petition, Tezak claims that (1) his Sixth Amendment right to effective assistance of counsel was violated because attorney Steven Popuch allowed him to plead guilty and admit facts exposing him to state prosecution, thereby depriving him of the constitutional protection of the double jeopardy clause, (2) his Sixth Amendment right to effective assistance of counsel was violated because attorney Popuch failed to perfect an appeal even though Tezak indicated he wished to appeal, and (3) the district court committed error in denying Tezak‘s motion for recusal. The district court, after allowing discovery and holding an evidentiary hearing, denied Tezak‘s petition.
The first page of Tezak‘s plea agreement states that “this Agreement is limited to the United States Attorney‘s Office for the Northern District of Illinois and cannot bind any other federal, state or local prosecuting, administrative or regulatory authorities except as expressly set forth in this Agreement.” There was no specific exemption on additional prosecution in the agreement. In addition, at Tezak‘s plea colloquy, the judge specifically asked Tezak if he understood that the plea agreement was limited to the U.S. Attorney‘s Office for the Northern District of Illinois and did not bind other federal, state, or local prosecuting, administrative, or regulatory agencies and authorities. Tezak said he understood.
In the plea agreement, Tezak stated, “I knew that the bowling alley was a financial failure, and that my partnership in the operation of the bowling alley was unprofitable. . . . I decided to burn down the bowling alley because I believed that I could collect approximately one million dollars on the fire insurance policy on the property.” Tezak admitted that he asked one of his co-conspirators to arrange the arson and another to give the keys to the building to the arsonist and to have the building set on fire. Tezak also admitted complicity in the PIC building fire, stating that he was the actual owner of the building, although he had arranged for a friend to act as the owner of record in order to rent the building to the PIC, yet retain the appearance of nonpartisan involvement. Tezak stated that he was approached by John Bays, another prominent member of the Republican party in Joliet and a good friend of Tezak. Bays was the focus of a grand jury investigation and asked Tezak to destroy subpoenaed records which were
Tezak also admitted that while on pretrial release in August 1993 he told his son that he knew his ex-daughter-in-law Leber was cooperating with the government. Tezak directed his son to tell Leber that he would have “her brains [ ] blown out . . . and . . . cause her family to be killed.” Tezak‘s son admitted that he conveyed that same message to Leber. In his pre-sentencing submission statement to the probation office, Tezak maintained that he “had no intention of actually harming Nikki or her family. Again, I have never harmed anyone in my life.” The last statement, “I have never harmed anyone in my life,” was a constant refrain made by Tezak.
The plea agreement stated that “the government shall be free to recommend whatever sentence it deems appropriate, including but not limited to recommending that defendant be sentenced to consecutive maximum periods of incarceration on each count totaling 20 years imprisonment, [and] that the court depart upward from the guideline range in imposing sentence on Count Five . . . .”
The agreement also stated that the district court would consider “the nature, scope and extent of defendant‘s conduct regarding the charges against him, and related matters, including all matters in aggravation and mitigation relevant to the issue of sentencing,” indicating that the PIC fire could be used as an aggravating factor in order to impose a longer sentence.
Tezak initially retained Daniel Webb, George Lombardi, and Susan Mahoney from Winston & Strawn in Chicago to represent him in the criminal proceedings. However, in addition to the Winston & Strawn attorneys, in October 1993, Tezak hired Steven Popuch to assist with the plea agreement.6 In fact, Popuch was the only attorney to sign the plea agreement. At approximately the same time, Tezak also retained the legal services of Marcia Shein, an attorney from Atlanta, Georgia, who is a special consultant on sentencing issues. Tezak continued to be represented by all three groups of attorneys on various issues from the plea agreement to post-sentencing proceedings.
According to Popuch‘s testimony, Tezak was dissatisfied with the plea discussions and hoped that Popuch would be able to negotiate a more favorable plea agreement with the government, or, in the alternative, to represent Tezak at trial. Tezak believed Popuch‘s history with the prosecutor, given that Popuch and the prosecutor knew each other and were social acquaintances, would be helpful. Popuch noted that “what Tezak wanted to do was have no consequences at all. He realized that was no longer possible. Now, he wanted the best consequences that he could get.” Popuch stated that although the government
occurred prior to the guidelines going into effect and therefore allowed for a wider range of sentencing options by the judge and required less time served prior to parole eligibility. Popuch testified that he “remember[s] going over just about every [sentencing] option time and time and time again” with Tezak. In an October 15, 1993 memorandum to Winston & Strawn‘s client file, Webb notes that Tezak “wants Popuch to get a guarantee from Polales that if Tezak talks about the PIC fire, he will get the Galaxy Bowl/ Obstruction of Justice deal. . . . Tezak wants to be assured that no matter what he says about PIC, he will get the Galaxy Bowl/Obstruction of Justice deal.”
Popuch also stated that he could not specifically remember if he ever discussed the consequences of pleading guilty to the PIC arson because he believed that no further action was going to be taken, although he did state that it would have been reasonable for him to have discussed it with Tezak. However, Popuch testified that he definitely remembers discussing with Tezak the possibility of a separate non-federal prosecution at both the state or local level based on Tezak‘s admissions in the plea agreement. He distinctly remembers telling Tezak that “local prosecutors still had the option of bringing a case against him,” and that Tezak could be prosecuted for both the Galaxy Bowl fire and the PIC fire. In a memorandum written by Lombardi dated October 22, 1993 from the Winston & Strawn client file, Lombardi noted that he had “reviewed the plea agreement with Popuch and have told him that we think he did a good job. I asked him a number of times if he explained to [Tezak] the consequences of the various provisions and he said that he had. Polales would not agree to limit in any way [Tezak]‘s possible future exposure for the crimes that he discloses while cooperating with the government . . . .” Popuch told Tezak that there can be parallel state and federal prosecutions and that he “routinely tell[s] federal clients and state clients who have possible federal charges that one does not necessarily exclude the other, that double jeopardy does not pertain.” Popuch stated that he discussed the potential for Tezak being prosecuted by state authorities in connection with the Galaxy Bowl arson as well as the PIC arson,
although Popuch also told Tezak that he believed “it was highly unlikely.” Popuch also testified that as a criminal attorney who had at least twenty-two years experience, he made a tactical decision not to negotiate a resolution of potential state charges because “actual dual prosecutions are so rare, that you do not want to remind somebody that it is a possibility and awaken a sleeping tiger,” particularly “knowing that they can prosecute a high-profile defendant.” At the sec. 2255 hearing, Gary Shapiro, First Assistant U.S. Attorney, whose responsibilities included reviewing more than 500 plea agreements each year for approximately seven years, testified that out of all the pleas he had reviewed, in only one instance of multiple murders did the state ever pursue prosecution from a defendant‘s admission to uncharged, relevant conduct. He also stated
As to the appeal, Popuch stated that he discussed filing a notice of appeal with Tezak.
Immediately after the sentencing, [Tezak] was sitting in one of the jurors’ seats. I was standing there talking to him. He was in shackles at the time. Marcia Shein was there and, I believe, George Lombardi. . . . And it was the unanimous feeling of all three of the attorneys that were present that no appeal would be viable and that he would do much better to do as the Judge had suggested even prior to sentencing, which [wa]s to pay the restitution and file a Rule 35 [motion to reduce sentence].7
Popuch stated that he discussed the appeal again with Tezak in the week following the judgment and Tezak again agreed not to file one.8 Popuch testified under oath at the sec. 2255 hearing that Tezak “absolutely [did] not” contact him to file an appeal in the two weeks after judgment was entered, nor did he have any communication with James Casey, Popuch‘s associate,9 as to Tezak wanting to file an appeal.
In Shein‘s deposition testimony, she recalled a discussion with Tezak, Webb, and Popuch in the courtroom after sentencing on July 29, with all parties
agreeing that Tezak should pursue restitution and a Rule 35 reduction of sentence motion, stating that “[an] appeal would not be viable” and “would be frivolous.” She stated that Tezak agreed with them about not filing an appeal. She explained that she also thought an appeal would be useless because of the
Shein also stated that Judge Andersen had repeatedly emphasized how serious Tezak‘s offenses were and how important restitution would be. She noted, however,
Three hundred thousand dollars has been paid toward restitution. . . . Mr. Tezak in no uncertain terms instructed me to pay restitution period, [although] in order for Mr. Tezak to have made the restitution which he did, it was necessary to file Chapter 11 because one of his large secured creditors was out and tried to impound and enforce judgements . . . . All of the claims would have undergone extreme difficulty in being, in my opinion, confirmed and approved of in a proof of claim trial in the Bankruptcy Court.
However, at the July 29, 1994 sentencing hearing, Cook testified the checks issued for restitution were actually conditional endorsements which basically rendered the checks “valueless.” The judge stated, “My impression then [at the previous hearing] and my impression now is that those checks were physically issued to try to
make me believe that it was done, that restitution was paid. And it turned out that it hasn‘t been paid.”11
In responding to the production of a copy of a handwritten letter addressed to Popuch and signed by Tezak, dated August 4, 1994, which directs Popuch to file a notice of appeal, Popuch stated that he never received any such letter and that it was “clearly manufactured” after the fact. Popuch also noted that had Tezak instructed him to file a notice of appeal, even though it was against Popuch‘s advice, he would have been obligated to do so and that it was a simple matter to file the one-page notice.
However, contradicting Popuch‘s statements is the deposition testimony of Casey,12 the associate who assisted in Tezak‘s defense. Casey testified that he was “basically a conduit between Mr. Tezak and Mr. Popuch,” and that he met four or five nights every week with Tezak after the July 29, 1994 sentencing hearing. He stated, “On more than one occasion, Mr. Tezak made abundantly clear to me that he wanted his notice of appeal filed, notwithstanding the fact that there was a plea agreement in this particular case,” and that Casey advised Popuch of this “not just once but on several occasions.” Casey also stated that one day after the ten-day deadline for filing the notice of appeal expired, he recalled Popuch realizing that he had “dropped the ball.”
There was also a memorandum dated September 9, 1994 from the Winston & Strawn client file written by Mahoney, which stated that Casey told her he planned to file a notice of appeal. She stated that Casey had told Tezak there was no appealable issue and that Casey
ANALYSIS
A. Standard of Review
We review the denial of a sec. 2255 petition for clear error on factual matters and de novo on questions of law. Mason v. United States, 211 F.3d 1065, 1068 (7th Cir. 2000).
B. Ineffective Assistance of Counsel
In order to make a claim for ineffective assistance of counsel, defendant must establish that counsel‘s performance was deficient and that this “deficient performance” caused prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). This analysis applies to guilty plea challenges based upon ineffective assistance of counsel claims. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985). The district court correctly concluded that Tezak did not establish either factor.
1. Plea Agreement
Tezak claims ineffective assistance of counsel because his lawyer allowed him to plead guilty and admit facts exposing him to state prosecution, thus depriving him of the constitutional protection of the double jeopardy clause. “A voluntary and intelligent plea of guilty made by an accused person who has been advised by competent counsel, may not be collaterally attacked.” Mabry v. Johnson, 467 U.S. 504, 508 (1984).
Moreover, in the context of a guilty plea, a defendant is not entitled to sec. 2255 relief unless he can show that, but for the deficient advice of counsel, he would have insisted on going to trial. Hill, 474 U.S. at 59; Gargano v. United States, 852 F.2d 886, 891 (7th Cir. 1988). Tezak had three attorneys working on the plea agreement with him prior to his hiring a fourth criminal defense specialist (not to mention a fifth attorney specializing in sentencing issues). By dropping the PIC charges, Tezak not only reduced his sentence by a possible fifteen years,13 but he limited his exposure under the guidelines. The record makes it clear that the prosecutor would not drop the sentencing guideline charges unless Tezak agreed to a truthful admission of facts about the PIC arson. The October 15, 1993 Winston & Strawn memorandum indicates that Tezak wanted the plea agreement and was not considering any other alternative. He brought in Popuch specifically to close the plea agreement deal. There was no reasonable probability that Tezak would have insisted on going to trial.
The plea agreement clearly states that it was limited to the United States Attorney‘s Office for the Northern District of Illinois and that there was no exemption from additional prosecution at either federal, state, or local levels. At Tezak‘s plea colloquy, Judge Andersen specifically asked Tezak if he understood that the plea agreement was limited to the United States Attorney‘s Office for the Northern District of Illinois and that there was no exemption from additional prosecution at any other federal, state, or local levels. Tezak answered that he fully understood that provision. He also stated that he “voluntarily underst[oo]d and accepted each and every term of [the plea agreement].”
Judge: [I]n this case obviously Mr. Tezak is represented by four eminent attorneys. And I know that you have discussed with your lawyers the wisdom of multiple representation so that you could understand everything that has taken place. Do you feel comfortable with your representation now?
Tezak: Yes, sir.
Judge: And it‘s your desire to have Mr. Webb and his colleagues as well as Mr. Popuch represent you, correct?
Tezak: Yes, sir.
Judge: And you feel you have good, competent legal advice and feel comfortable with the advice you have gotten.
Tezak: Yes, sir.
In addition, Popuch‘s testimony, corroborated by the Winston & Strawn memoranda of October 15 and 22 indicated that Popuch had discussed the possibility of additional prosecution with Tezak. The record shows that Tezak‘s plea agreement was made voluntarily and intelligently, with knowledge of possible further prosecution.
As to ineffective assistance of counsel, Tezak has not established that attorney Popuch‘s performance was objectively unreasonable nor that he would not have entered a guilty plea absent counsel‘s
alleged errors. The fact that Popuch‘s strategy of not contacting state prosecutors to seek an agreement on the PIC arson does not amount to unreasonable performance. See United States v. Arvanitis, 902 F.2d 489, 494 (7th Cir. 1990) (“An inaccurate prediction, standing alone, does not constitute ineffective assistance.“) (internal quotations and citation omitted). In addition, Shapiro‘s testimony at the sec. 2255 hearing indicated that Popuch‘s prediction that the state does not usually prosecute admissions of uncharged conduct was a reasonable conclusion. See Lane v. Singletary, 44 F.3d 943, 944 (11th Cir. 1995) (holding that it is not ineffective assistance of counsel to fail to advise defendant of possible subsequent prosecution arising from a plea agreement when counsel had reason to believe no subsequent prosecution would ensue). Popuch‘s performance was not deficient as required under Strickland. Nor did Tezak establish prejudice due to the fact that he would have insisted on going to trial, as discussed above. See Hill, 474 U.S. at 59. Tezak does not suggest that he is not guilty; he simply maintains that he should have had the opportunity to strike a better bargain with the government. This is not sufficient to establish prejudice. See Gargano, 852 F.2d at 891. Therefore, he has failed to satisfy either prong of the Strickland test on this issue.
2. Double Jeopardy
Tezak was not charged with the PIC arson but his admissions of fact were used as relevant conduct in order to enhance his sentence. The double jeopardy clause provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”
The double jeopardy clause does not bar
dual prosecutions in state and federal courts, even where the offenses are identical. See Heath v. Alabama, 474 U.S. 82, 92 (1978); United States v. Jordan, 870 F.2d 1310, 1312 (7th Cir. 1989). In addition, the Court specifically held that consideration of uncharged relevant conduct in determining a defendant‘s sentence under the federal sentencing guidelines does not constitute punishment for that conduct and double jeopardy does not bar a subsequent prosecution for that conduct. Witte v. United States, 515 U.S. 389, 403-04 (1995). There can be no double jeopardy violation with the subsequent state court prosecution based on the admission of facts about the PIC arson which was offered as an aggravating factor.
Finally, no double jeopardy violation occurred in federal court because Tezak pled guilty and was sentenced before he was indicted, tried, convicted, and sentenced in state court. A sec. 2255 petition is not the proper procedure for attacking the state conviction and sentence, which Tezak asserts was the double jeopardy offense and conviction. Tezak attempted to dismiss the state charges on double jeopardy grounds and failed. He also appealed his state conviction on double jeopardy grounds pursuant to
(c) A prosecution is barred if the defendant was formerly prosecuted in a District Court of the United States . . . if such prosecution:
(1) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution . . . .
In an unpublished opinion, the Illinois Appellate Court rejected Tezak‘s argument that
one of the four requirements under
Tezak also seems to be arguing that Popuch should have discussed the fact that state prosecution would have been barred by
C. Notice of Appeal
Tezak claims that he instructed Popuch to file an appeal. In addition to his own affidavit, he offered the affidavits of Cook (his bankruptcy lawyer) and his personal attorney in Arizona (who was not involved in the federal criminal proceedings), in support of this assertion. The district
Tezak to his attorneys and numerous memoranda concerning Tezak‘s directives and complaints to all of his attorneys, there had been no complaint noted from Tezak, vocal or written, that his attorneys had failed to file an appeal until the filing of the sec. 2255 petition nearly two-and-a-half years later. The court also noted that Tezak never, at any time in his appearances before and during the Rule 35 motion, made a complaint about the failure of his attorneys to file a notice of appeal. The court discounted the letter from Tezak dated August 4, 1994 to Popuch, a copy of which was produced by Tezak, but never found in Popuch‘s files, particularly in light of the fact that even after Tezak allegedly sent this letter to Popuch, he continued to retain and be represented by Popuch. As for the Mahoney memorandum of September 9, the court noted that this discussion preceded Casey‘s filing on September 15, 1994, a motion to extend the time for filing a notice of appeal out of time, which the court denied due to untimeliness and for failure to state reasons of excusable neglect. Judge Andersen stated that the reasonable conclusion was that Tezak had decided to forego the appeal in order to pursue the Rule 35 motion, which, in fact, ensued. The district court found that Tezak had failed to credibly show that he asked Popuch to appeal the sentence or that Popuch refused to do so.
We accord the district court‘s credibility findings exceptional deference, United States v. White, 270 F.3d 656, 661 (7th Cir. 2001), and those findings “can virtually never be clear error.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985) (citations omitted). As is clear from the record, Judge Andersen considered all of the conflicting evidence at length and in detail, and was in a far superior position to assess credibility. See United States v. House, 110 F.3d 1281, 1285-86 (7th Cir. 1997).
Tezak is mistaken in his reliance on Castillo v. United States, 34 F.3d 443 (7th Cir. 1994). The defendant in Castillo filed a sec. 2255 petition claiming that he had not made an effective waiver of his right to be represented by a different lawyer from his codefendant. Id. at 443. Castillo‘s
motion was supported by his affidavit. Id. at 444. The judge in Castillo held an impromptu “evidentiary hearing” at a routine status call on the motion, and, classifying the testimony of Castillo‘s probation officer elicited at that “hearing” as an “oral affidavit,” denied Castillo‘s motion. Id. This court overruled that holding, noting that the use of affidavits does not allow a judge “to resolve the dispute by picking one affidavit over another that contradicts it . . . .” Id. at 445 (citations omitted). In the instant case, the judge was familiar with all of the particulars of the case and all of the parties and witnesses involved. Unlike affidavits, depositions were submitted which allowed for direct and cross examination by both parties. Tezak could have deposed additional witnesses or called them to testify at the evidentiary
D. Recusal
Five months after filing his sec. 2255 petition, Tezak filed a motion to recuse Judge Andersen pursuant to
A district court judge‘s decision not to recuse himself is reviewed under an abuse of discretion standard. United States v. Franklin, 197 F.3d 266, 269 (7th Cir. 1999). As to the first assertion, Tezak claims he was the underlying target of an investigation conducted by the Illinois Secretary of State‘s office against Bays in 1985. Bays was the target of the investigation involving the subpoenaed
documents which were destroyed in the PIC arson. Tezak argued that Judge Andersen was a high-ranking official of the Illinois Secretary of State‘s office, and therefore,
[in Tezak‘s] attempt to assist his friend by intervening in the investigation of the Secretary of State‘s office, he made himself the real target of the subsequent investigation. As a result of Mr. Tezak‘s power and influence at the time . . . Judge Andersen, while an official in the Chicago office of the Secretary of State‘s office had to have been aware of [these circumstances] . . . and as a result, had a bias against Tezak before any information was acquired by the judge during the course of the judicial proceedings.
A motion to disqualify a judge pursuant to
Under
Judge Andersen had worked at the Secretary of State‘s office, allegedly during the time of the investigation, and if he had known that when he was offered the possibility of transferring to another judge, he would have chosen to do so.17 There are no specifics as to times, places, persons, or circumstances which show a definite connection between Judge Andersen and the Bays/ Tezak investigation. In addition, Tezak is relying on events which took place more than eight years prior to Tezak‘s appearance before Judge Andersen in 1992. The affidavit contains nothing to show that the supposed bias, if any, persisted over the years to the degree that the judgment of Judge Andersen was still effected in 1993. See Balistrieri, 779 F.2d at 1200-01. Nor does the affidavit present any factual details establishing Judge Andersen‘s involvement in the investigations that eventually led to Tezak‘s arrest. Even if Judge Andersen had been aware of the investigations,
Law enforcement professionals typically take action against a wide variety of persons during their careers, motivated by nothing more than a desire to carry out the duties of their offices. Even a series of actions against a person according to a plan is not enough in itself to show bias or prejudice; such activity
is perfectly compatible with personally disinterested professional motivation.
Id. at 1201. All of Tezak‘s assertions are merely unfounded conclusions. Because Tezak‘s affidavit has not presented any facts establishing a connection between Judge Andersen and the Secretary of State‘s Bays/Tezak investigations,
Tezak also states that certain comments made by the judge during the sentencing hearings indicated prejudice against Tezak, resulting in a lengthier sentence. Actual bias under
hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” United States v. Liteky, 510 U.S. 540, 550-51 (1994) (“The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice“). A judge‘s expressions of “impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges” are not sufficient to demonstrate bias or prejudice. Id. at 555-56. There was no showing of a personal motive or a discriminatory prejudice on the judge‘s part. See Balistrieri, 779 F.2d at 1201. The record offers no evidence of any personal revenge or malice Judge Andersen had against Tezak. See United States v. Ward, 211 F.3d 356, 364 (7th Cir. 2000). In fact, the details of the record show just the opposite; Judge Andersen was extraordinarily fair-minded in his treatment of Tezak throughout all of the proceedings. The comments made during the course of Tezak‘s criminal proceedings are not sufficient to demonstrate bias or prejudice. The proceedings were well handled and we find no abuse of discretion.
CONCLUSION
For the above-stated reasons, we AFFIRM the district court‘s denial of the amended sec. 2255 petition and its denial of the motion to recuse.