United States District Court, D. Colorado
DELMART E. J. M. VREELAND, II, Applicant,
DAVID ZUPAN and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
matter is before me on the “Motion for Relief from
Judgment and Orders Pursuant to Federal Rules of Civil
Procedure Rule 60(b) and (d), ” Docket No. 102, the
“Motion to Resolve Claim of Hostility and Bias Against
Petitioner by Chief Judge Philip A. Brimmer, ” Docket
No. 100, and the “Motion to Exceed Page Limits on
Motion for Relief from Judgment, ” Docket No. 101,
filed pro se by Applicant.
is a prisoner in the custody of the Colorado Department of
Corrections. He initiated this action by filing an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 challenging the validity of his criminal
conviction in No. 04CR706 in the District Court for Douglas
County, Colorado. On September 29, 2014, pursuant to Court
order, Applicant filed an Amended Application, which asserted
thirty-two claims, of which one had five subparts. The
September 29 Amended Application was the operative pleading
in this action. On December 21, 2015, I determined that (1)
Claims Six through Nine, Eleven through Twenty-Six, subpart
(a) of Twenty-Seven, Twenty-Nine and Thirty are procedurally
barred from federal habeas review; (2) Claims Four,
Thirty-One, and Thirty-Two are not cognizable in a federal
habeas action; and (3) subparts (b)-(e)of Claim Twenty-Seven
and Claim Twenty-Eight are unexhausted. I directed
Respondents to file an answer that fully addressed the merits
of remaining Claims One through Three, Five, and Ten. In an
eighty-six-page order, I found that each remaining claim
lacked merit. Docket No. 75. I therefore denied the
Application, dismissed the action with prejudice, and found
no basis to issue a certified of appealability pursuant to 28
U.S.C. § 2253(c). Id.
filed a Notice of Appeal. Docket No. 77. The United States
Court of Appeals for the Tenth Circuit (1) affirmed this
Court's denial of relief on Applicant's Sixth
Amendment Claim and (2) denied Applicant's certificate of
appealability on his due process and actual innocence claims,
which resulted in the dismissal of the remainder of the
appeal. Vreeland v. Zupan, et al., No. 16-1503 (10th
Cir. Oct. 9, 2018). Applicant petitioned the U.S. Supreme
Court for certiorari review. The petition was denied on April
15, 2019. See Docket No. 91.
I will address Applicant's Motion to Resolve Claim of
Hostility and Bias Against Petitioner by Chief Judge Philip
A. Brimmer, Docket No. 100. Applicant does not request that I
recuse myself from this case in the Motion to Resolve.
Instead, Applicant claims the attorneys who represented him
in this case told him that I was biased and prejudiced
against him. He further claims that his attorneys charged him
“excessive huge fees.” I will deny the Motion to
the extent Applicant is attempting to raise a claim against
his attorneys for any negligence and deception. “The
ineffectiveness or incompetence of counsel during Federal or
State collateral postconviction proceedings shall not be a
ground for relief in a proceeding arising under section
2254.” 28 U.S.C. § 2254(i).
extent that Applicant is alleging that I am biased or
prejudiced in this action, 28 U.S.C. § 144 provides a
procedure whereby a party to a proceeding may request the
judge before whom the matter is pending to recuse himself or
herself based upon personal bias or prejudice either against
the moving party or in favor of any adverse party. Section
144 requires the moving party to submit a timely and
sufficient affidavit of personal bias and prejudice. See
Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997).
“The affidavit must state with required particularity
the identifying facts of time, place, persons, occasion, and
circumstances.” Hinman v. Rogers, 831 F.2d
937, 939 (10th Cir. 1987) (per curiam). Although a court must
accept the facts alleged in the supporting affidavit under
§ 144 as true, the affidavit is construed strictly
against the moving party. See Glass v. Pfeffer, 849
F.2d 1261, 1267 (10th Cir. 1988). The moving party has a
substantial burden “to demonstrate that the judge is
not impartial.” United States v. Burger, 964
F.2d 1065, 1070 (10th Cir. 1992).
455(a) of Title 28 provides that a judge “shall
disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” The goal
of this provision is to avoid even the appearance of
partiality. See Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 860 (1988). Pursuant to § 455,
a court is not required to accept the factual allegations as
true “and the test is whether a reasonable person,
knowing all the relevant facts, would harbor doubts about the
judge's impartiality.” Glass, 849 F.2d at
1268 (internal quotation marks omitted). The standard is
objective and the inquiry is limited to outward
manifestations and reasonable inferences drawn therefrom.
See United States v. Cooley, 1 F.3d 985, 993 (10th
has not submitted a timely and sufficient affidavit of
personal bias and prejudice. “[B]aseless personal
attacks on or suits against the judge by a party” do
not mandate recusal in a case in which the judge is not a
party. Nichols v. Alley, 71 F.3d 347, 351 (10th Cir.
1995). Furthermore, “judicial rulings alone almost
never constitute a valid basis for a bias or partiality
motion.” Liteky v. United States, 510 U.S.
540, 555 (1994). I find no basis for recusing myself in this
case for the purpose of reviewing Applicant's Motion for
Relief from Final Judgment.
I will address the Motion for Relief from Judgment and Orders
Pursuant to Federal Rules of Civil Procedure Rule 60(b) and
(d) [Docket No. 102]. In the Preliminary Statement section of
the 173-page Motion for Relief from Final Judgment,
see Docket No. 102 at 1-2, Applicant asserts that
the motion is a challenge to the integrity of the habeas
corpus proceedings held in this Court. Applicant further
asserts that he is not attempting to litigate new claims or
relitigate prior claims but is challenging the integrity of
his counsel and Respondents' counsel. Docket No. 102 at
1. Applicant also asserts that the Court's
“decision making process was corrupted” because
Respondents withheld requested evidence. Id.
Finally, Applicant contends that the Tenth Circuit's
decision-making process was also corrupted for the same
reasons and he is entitled to an evidentiary hearing on the
motion. Id. at 2.
construe the Motion for Relief from Judgment liberally
because Applicant is not represented by an attorney. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). For
the reasons discussed below, I will deny the motion.
I must determine whether the motion is a second or successive
habeas corpus application or a true Rule 60(b) motion.
See Spitznas v. Boone, 464 F.3d 1213, 1215 (10th
Cir. 2006). Distinguishing between a true Rule 60(b) motion
and a second or successive habeas application turns on the
“relief sought, not [the] pleading's title.”
United States v. Nelson, 465 F.3d 1145, 1149 (10th
Cir. 2006). A Rule 60(b) motion “is a second or
successive petition if it in substance or effect asserts or
reasserts a federal basis for relief from the
[applicant's] underlying conviction.”
Spitznas, 464 F.3d at 1215. A Rule 60(b) motion is a
true 60(b) motion if it either “challenges only a
procedural ruling of the habeas court which precluded a
merits determination of the habeas application” or
“challenges a defect in the integrity of the federal
habeas proceeding, provided that such a challenge does not
itself lead inextricably to a merits-based attack on the
disposition of a prior habeas petition.” Id.
request for an evidentiary hearing to review additional
evidence, allegedly not presented previously, would
inextricably lead to a merits-based attack on the disposition
of the September 29, 2014 Amended Application and is
successive. Therefore, I do not have jurisdiction to consider
the arguments Applicant raises in the motion.
I construed the motion as a true Rule 60(b) motion, relief
under Rule 60(b) is appropriate only in extraordinary
circumstances. See Massengale v. Oklahoma Bd. of
Examiners in Optometry, 30 F.3d 1325, 1330 (10th Cir.
1994). The sort of extraordinary circumstances sufficient to
justify relief under Rule 60(b) “will rarely occur in
the habeas context.” Gonzalez v. Crosby, 545
U.S. 524, 535 (2005). Furthermore, if the finality of
judgments is to be preserved a strict interpretation of Rule
60(b) is required. Id. Rule 60(b) contains the
requirements that the motion “be made within a
reasonable time” and that open-ended grounds of relief
(excusable neglect, newly discovered evidence, and fraud) are
asserted within a one-year deadline. Gonzalez, 545
U.S. at 535.
Applicant was sent a copy of the December 20, 2016 Order
dismissing the action. See Display Receipt for
Docket No. 75. It is not reasonable that Applicant waited
until now to raise his claims. Upon consideration of the
Motion for Relief from Judgment and the entire file, I find
that Applicant ...