Petitioner-Appellant Frank LoCascio appeals from the judgment of the United States District Court for the Eastern District of New York (I. Leo Glasser,
Judge),
denying his amended motion to vacate, set aside or correct his life sentence pursuant to 28 U.S.C. § 2255. The amended motion raised an ineffective assistance of counsel claim, based on allegations that LoCascio’s attorney at the criminal trial, Anthony Cardinale, altered his defense strategy after receiving a death threat from LoCas-cio’s co-defendant, John Gotti. We previously remanded the case for an evidentiary hearing so that the District Court could ascertain “the existence of both the alleged conflict created by the death threat and any resultant lapse in representation reflected by the alleged change in Cardi-nale’s conduct of LoCascio’s defense.”
Lo-Cascio v. United States,
In accordance with our instructions, the District Court conducted an evidentiary hearing, at which Cardinale was the sole witness. Based on Cardinale’s testimony, and applying the legal standards set forth in our remand order, the District Court
*495
denied LoCascio’s § 2255 motion. After careful review of the record and due consideration of Petitioner’s arguments, we affirm on the basis of the District Court’s finding that any failure to individuate Lo-Cascio was the result of the joint defense strategy between LoCascio and Gotti, not Gotti’s alleged death threat against Cardinale.
LoCascio v. United States,
Following remand, just three days before the evidentiary hearing was scheduled to begin, LoCascio filed a motion to recuse or disqualify Judge Glasser pursuant to 28 U.S.C. §§ 144 and 455. The supporting affidavits, filed by LoCascio and his habeas counsel, pointed to the following as evidence of Judge Glasser’s alleged personal bias and prejudice: (1) the fact that Judge Glasser held Cardinale in summary contempt during the criminal trial; (2) Judge Glasser’s repeated denial of LoCascio’s pre-trial, trial, and post-conviction motions, and in particular, his denial of LoCascio’s motion to amend the § 2255 petition on the ground that the ineffective assistance of counsel claim was “meritless”; and (3) Judge Glasser’s comment to an interviewer that he was not intimidated during the criminal trial. Judge Glasser denied the motion, which LoCascio now challenges on appeal.
Recusal motions are committed to the sound discretion of the district court, and this Court will reverse a decision denying such a motion only for abuse of discretion.
United States v. Arena,
LoCascio contends that Judge Glasser’s comment to an interviewer following the criminal trial manifests his “dismissive attitude about the threat of bombs planted in his ehambers[, which] would certainly lead any objective observer to question his ability to disassociate his own personal feelings from those that frightened Anthony Cardinale.” LoCascio’s argument is based on the following exchange:
[Interviewer:] Did ... you feel intimidated during the trial?
Judge Glasser: No.
We see nothing in Judge Glasser’s one-word response that might indicate a “dismissive attitude” about bomb threats, or raise any doubt in the mind of a reasonable person as to his ability to decide the present case fairly.
See United States v. Bayless,
In his brief to this Court, LoCascio cites another remark as constituting grounds for recusal, specifically, Judge Glasser’s comment during a January 2003 scheduling hearing that he may institute disbarment proceedings against Cardinale. LoCascio did not raise this argument in his recusal motion to the District Court. Although we are not required to consider issues raised for the first time on appeal, we do so here to dispel any insinuation of bias or partiality on the part of Judge Glasser.
See Greene v. United States,
Second, although LoCascio now contends that Judge Glasser’s “threat” against Cardinale is indisputable proof of the lingering “friction between these two formidable forces,” the record shows that LoCascio did not seek Judge Glasser’s recusal at any reasonable time following the January 2003 hearing. As we have made clear, “recusal motions are to be made ‘at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim.’ ”
Gil Enters., Inc. v. Delvy,
In his final argument, LoCascio asserts that Judge Glasser should have referred the recusal motion to a different judge instead of deciding it himself. However, as LoCascio acknowledges in his brief, the mere filing of an affidavit of prejudice does not require referral.
See Apple,
For the foregoing reasons, the judgment of the District Court is Affirmed.
Notes
. After concluding that LoCascio had failed to demonstrate a basis for relief based on the alleged actual conflict of interest, in accordance with the remand from this Court, the District Court stated that "[o]bedience to the teachings of
Strickland v. Washington,
.
See, e.g., United States v. Locascio,
. We excerpt the relevant portion of the transcript below:
*497 The Court: ... It's a very discrete issue raised by this motion, the issue, permission or what you want to call it to amend the pleading and to conduct some hearing in open court. That’s what it's about. I don't know why it should take 90 days to respond to a motion to amend the complaint whether I grant it. I granted [the government's] request for 90 days but when I got [the] letter [from Mr. White, petitioner's counsel], I was compelled to ask myself does the government need 90 days? You don’t have to review the entire transcript of this trial to respond to this motion.
Mr. Bourtin [Assistant U.S. Attorney]: Not the entire transcript, but certainly some significant portions of it.
The Court: That would be something that you may want to do should a hearing be held, should Mr. White’s motion for a hearing be granted. You may want an opportunity to examine the transcript about the cross-examination by Mr. Cardinale for purposes of ascer-taming whether there's any merit to the motion and for the purpose of preparing cross-examination. Reading the testimony doesn't take three months to review. There's also a rather interesting issue, I think, Mr. LoCascio is represented by two lawyers at trial, the second one being a very experienced and able lawyer, John Mitchell which may have some bearing upon Mr. LoCascio's — Mr. Cardi-nale — well, I suppose he's well aware of the fact should he testily to what it is he says he's testifying, there may be some proceeding which would be instituted by me to have him disbarred at the very least but I don't think we need three months to do that.
Mr. Bourtin: We'll respond by whatever date your Honor deems appropriate.
The Court: You have the transcripts. You have the record of that trial. It would seem to me 45 days is more than enough, give you an opportunity to read that cross-examination. ...
