Filed: Mar. 14, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 3-14-2006 Pickard v. USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-2234 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Pickard v. USA" (2006). 2006 Decisions. Paper 1444. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1444 This decision is brought to you for free and open access by the Opinions of the United St
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 3-14-2006 Pickard v. USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-2234 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Pickard v. USA" (2006). 2006 Decisions. Paper 1444. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1444 This decision is brought to you for free and open access by the Opinions of the United Sta..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-14-2006
Pickard v. USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2234
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Pickard v. USA" (2006). 2006 Decisions. Paper 1444.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1444
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2234
RONALD DE ALTIER PICKARD,
Appellant
v.
UNITED STATES OF AMERICA
On Appeal from the District Court of the Virgin Islands
Division of St. Croix
D.C. Civil Action No. 02-cv-00174
(District Judge: Honorable Raymond L. Finch)
Argued December 5, 2005
Before: SCIRICA, Chief Judge, McKEE and NYGAARD, Circuit Judges
(Filed: March 14, 2006)
CHERYL J. STURM, ESQUIRE (ARGUED)
387 Ring Road
Chadds Ford, Pennsylvania 19317
Attorney for Appellant
ST. CLAIR THEODORE, ESQUIRE (ARGUED)
Office of United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
U.S. Virgin Islands 00820
Attorney for Appellee
OPINION OF THE COURT
SCIRICA, Chief Judge.
Petitioner Ronald De Altier Pickard appeals the dismissal of his 28 U.S.C. § 2255
motion to vacate, set aside or correct his sentence. He also appeals the denial of his 28
U.S.C. § 455 recusal motion. We have jurisdiction to review the District Court’s orders
under 28 U.S.C. § 1291 and 28 U.S.C. § 2253. We will affirm.
I.
Because we write for the parties, an abbreviated recitation of the facts will suffice.
After a jury trial, Pickard was convicted and sentenced for violations of 18 U.S.C. § 242
(deprivation of rights under color of law), 18 U.S.C. § 924(c) (use of a firearm during a
crime of violence), 14 V.I.C. § 703(1) (oppression), and 14 V.I.C. § 297(2) (assault in the
third degree). Pickard filed a timely notice of appeal, which we denied. Pickard’s
petition for a writ of certiorari was denied on October 15, 2002.
On November 24, 2002, Pickard filed this motion under 28 U.S.C. § 2255 in the
District Court of the Virgin Islands seeking to set aside his sentence on several grounds,
including alleged ineffective assistance of counsel and Brady violations.1 In an order
written by Judge Raymond Finch and dated April 5, 2004, the District Court denied
1
Pickard asserted several other challenges to his conviction, all of which the District
Court rejected. Because Pickard fails to raise these issues on appeal, we deem them
waived.
2
Pickard’s motion. The court first concluded the prosecution committed no Brady errors at
Pickard’s trial. As a consequence, Pickard’s trial counsel, George Cannon (now a
Magistrate Judge), “provided constitutionally adequate assistance” in deciding not to raise
Brady issues on appeal. The court found “counsel performed with a great deal of
competence, secured the dismissal of numerous counts, and made timely and cogent
objections.”
On June 1, 2004, Pickard moved to vacate the District Court’s April 5, 2004 order
and requested that Judge Finch recuse himself under 28 U.S.C. § 455. Pickard alleged
that in January 2004, the two district judges in the District Court of the Virgin Islands,
Judge Moore and Judge Finch, had selected Cannon to fill one of the district’s two
Magistrate Judge positions. Cannon was sworn in on April 12, 2004.
In an order dated May 4, 2004, Judge Finch denied Pickard’s motion for recusal.
He determined Pickard’s motion was “wholly lacking in merit” and recognized “no basis”
upon which to vacate his April 5, 2004 order denying Pickard’s § 2255 motion.
II.
Our review of the District Court’s denial of Pickard’s recusal motion is for abuse
of discretion. See Blanche Road Corp. v. Bensalem Twp., 57 F.3d 253, 265 (3d Cir.
1995). Under § 455, a judge is required to recuse himself if his impartiality “might
reasonably be questioned.” 28 U.S.C. § 455. Section 455 “mandates an objective rather
than a subjective inquiry,” so that an “appearance of partiality” alone suffices to require
3
recusal.2 United States v. Antar, 53 F.3d 568, 574–76 (3d Cir. 1995); see United States v.
Bertoli,
40 F.3d 1384, 1412 (3d Cir. 1994). Under this standard, a judge must disqualify
himself if “an objective observer reasonably might question the judge’s impartiality.”
Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n,
107 F.3d 1026, 1042 (3d Cir. 1997).
In this case, there is no evidence that Judge Finch had a personal or special interest
in Magistrate Judge Cannon’s appointment that would raise questions about his partiality.
Magistrate Judge Cannon was one of five candidates recommended to Judges Finch and
Moore by a Merit Selection Committee consisting of attorneys and community members.
The Merit Selection Committee was charged with the task of reviewing the applications
for Magistrate Judge and narrowing and recommending candidates. Judge Moore and
Judge Finch chose between the five recommended applicants. Pickard has presented no
evidence that Judge Finch had a particular interest in protecting Cannon’s reputation. His
assertions of bias are speculative. Under these circumstances, Judge Finch did not abuse
his discretion by denying Pickard’s § 455 motion.
2
The government argues an appearance of partiality alone does not trigger a judge’s
duty to recuse. But the government mistakenly relies on due process cases to support this
proposition. See Johnson v. Carroll, 369 F.3d 253, 258–63 (3d Cir. 2004). Section 455
imposes a broader duty to recuse than does the Due Process Clause. See
id. (declining to
borrow the “appearance of partiality” standard from the § 455 context in a due process
challenge to a trial judge’s decision not to recuse).
4
III.
Pickard also directly challenges the District Court’s April 5, 2004 order denying
his § 2255 motion. In his motion, Pickard contended the government committed Brady
errors by suppressing testimonial and documentary evidence, including the personnel
records of Detective Laurie Hodge and Special Agent Roberto Enriquez and a statement
made by Anna Jacobs to the Bureau of Internal Affairs.3 Additionally, Pickard asserted
his trial counsel was ineffective for failing to introduce exculpatory evidence and for
neglecting to raise the above-mentioned Brady issues on direct review.
The District Court dismissed Pickard’s § 2255 motion, holding the prosecution
committed no Brady errors at trial and Pickard’s trial counsel was not ineffective. We
exercise “plenary review over the legal conclusions which prompted the District Court to
summarily dismiss [Pickard’s] petition.” United States v. Thomas, 221 F.3d 430, 434 (3d
Cir. 2000).
A. Brady Claims
In Brady v. Maryland, the Supreme Court held due process requires the
prosecution to disclose evidence “material to either guilt or to punishment.” 373 U.S. 83,
87 (1963). The prosecution’s duty under Brady arises whether or not the defendant
3
Pickard also asserted the prosecution committed Brady error by failing to disclose a
statement he made to Officer Joshua Williams. Because Pickard fails to raise the alleged
suppression of this evidence on appeal, we deem the issue waived. But, were we to reach
the issue, we would hold the prosecution need not have disclosed Pickard’s statement,
which presumably he would have used to bolster his own testimony, because it was
inadmissible hearsay. See Fed. R. Evid. 801(d)(2), 804(b)(3).
5
requests the evidence. United States v. Agures, 427 U.S. 97, 107–11 (1976). To prevail
on a Brady claim, the defendant must prove the evidence was (1) suppressed, (2)
favorable, and (3) material to the defense. Riley v. Taylor,
277 F.3d 261, 301 (3d Cir.
2001). Evidence is material if its suppression “undermines confidence in the outcome of
the trial.” United States v. Bagly,
473 U.S. 667, 678 (1985). “Evidence that may be used
to impeach may qualify as Brady material.”
Riley, 277 F.3d at 301.
On appeal, Pickard challenges the prosecution’s failure to produce the records of
Detective Hodge and Agent Enriquez. But Pickard does not explain the value of these
records to his defense. Pickard’s Brady claim is based on pure speculation of the
materiality of this purported evidence. Id. at 301–02.
Pickard also asserts the prosecutor failed to disclose a statement made by Anna
Jacobs to the Bureau of Internal Affairs shortly after the incident leading to Pickard’s
arrest. Pickard contends Anna Jacobs’s statement was relevant to impeach the testimony
of the victim and prosecution witness, Christopher Jacobs. According to Pickard,
Christopher Jacobs, a minor, testified at trial that he was the victim of abuse on the part of
Pickard and another officer, Reynaldo Philbert. However, Pickard contends Anna Jacobs,
Christopher Jacobs’s sister, told the police in her statement to the Bureau that Pickard and
a different officer, Dean Bates, participated in the abuse. We have examined Anna
Jacobs’s statement. Her statement simply states that a man with a gun participated in
Christopher Jacobs’s abuse along with Pickard.
6
There was no Brady error because the evidence was neither “favorable” to Pickard
nor “material” to his defense. Christopher Jacobs testified Pickard was present at the
scene and acted abusively towards him. Pickard does not contend Anna Jacobs’s
statement conflicts with Christopher Jacobs’s testimony on this point. The lack of this
evidence does not “produce a reasonable probability that the result of the proceeding
would have been different,” and there was no Brady error. See United States v. Pelullo,
14 F.3d 881, 886–87 (3d Cir. 1994) (quotation omitted). The District Court properly
dismissed Pickard’s claims of Brady error.
B. Ineffective Assistance of Counsel
Pickard alleged his trial counsel was ineffective for failing to introduce evidence to
impeach Christopher Jacobs, including Anna Jacobs’s statement to the Bureau.
Additionally, Pickard asserted his counsel should have raised the above-cited Brady
issues on direct appeal. The District Court found Pickard’s trial attorney provided
constitutionally effective assistance. On appeal, Pickard does not challenge the merits of
this holding. Instead, he takes issue with the District Court’s treatment of his ineffective
assistance of counsel claim, asserting a hearing should have been held to resolve disputes
of fact.4
4
Pickard also contends, in dismissing his § 2255 motion without a hearing, the District
Court incorrectly weighed evidence, determined credibility, and relied on the
government’s unsworn statements in reaching its decision. But Pickard fails to set forth
or explain the instances in which the District Court is alleged to have committed these
errors. Moreover, our own review of the District Court’s April 5, 2004 order provides no
(continued...)
7
Generally, a district court must order an evidentiary hearing in a federal habeas
case if a prisoner’s § 2255 allegations raise an issue of material fact. United States v.
Biberfeld, 957 F.2d 98, 102 (3d Cir. 1992). But, if there is “no legally cognizable claim
or the factual matters raised by the motion may be susceptible of resolution through the
district judge’s review of the motion and records in the case,” the motion may be decided
without a hearing. United States v. Costanzo,
625 F.2d 465, 470 (3d Cir. 1980). If a
hearing is not held, the district judge must accept the movant’s allegations as true “unless
they are clearly frivolous on the basis of the existing record.” Gov’t of Virgin Islands v.
Bradshaw,
726 F.2d 115, 117 (3d Cir. 1984).
The District Court correctly dismissed Pickard’s § 2255 motion without a hearing.
As we explained, Pickard’s allegations, if accepted as true, did not provide a legally
cognizable basis upon which to state a Brady claim. Even if there was evidence that
Christopher Jacobs testified incorrectly regarding the identity of the other officer at the
scene, this would not constitute a Brady error. Pickard’s counsel was not ineffective for
failing to assert such an error on direct review. Furthermore, considering the minimal
value of this evidence, if any, Pickard’s counsel did not provide “deficient” assistance by
failing to present it at trial. These matters were properly decided by the District Court
without a hearing.
IV.
4
(...continued)
indication of error.
8
We will affirm the District Court’s orders entered April 7, 2004 and June 4, 2004.
9
