    17-3995
    Balkany v. United States of America


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 4th day of October, two thousand eighteen.

    PRESENT:
                JOHN M. WALKER, JR.,
                PIERRE N. LEVAL,
                PETER W. HALL,
                      Circuit Judges.
    _____________________________________

    Milton Balkany, AKA Yehoshua Balkany,

                                Petitioner-Appellant,

                       v.                                                          17-3995

    United States of America,

                                Respondent-Appellee.

    _____________________________________

    FOR PLAINTIFF-APPELLANT:                            Milton Balkany, pro se, Brooklyn, NY.

    FOR DEFENDANT-APPELLEE:                             Mollie Bracewell, Karl Metzner, Assistant United
                                                        States Attorneys, for Geoffrey S. Berman, United
                                                        States Attorney for the Southern District of New
                                                        York, New York, NY.
       Appeal from an order of the United States District Court for the Southern District of New

York (Cote, J.).


       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED.

       Appellant Milton Balkany, proceeding pro se, appeals the district court’s denial of his

petition for a writ of error coram nobis and motion for recusal. We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal.

       We review de novo the issue of whether a district court applied the proper coram nobis

standard but review the district court’s “ultimate decision to deny the writ for abuse of discretion.”

See United States v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000).              Coram nobis “is an

extraordinary remedy available only in rare cases” and is “typically available only when habeas

relief is unwarranted because the petitioner is no longer in custody.” Kovacs v. United States,

744 F.3d 44, 49, 54 (2d Cir. 2014) (internal quotation marks and citation omitted); see also Fleming

v. United States, 146 F.3d 88, 89–90 (2d Cir. 1998) (per curiam) (describing coram nobis petitions

as “a remedy of last resort for petitioners who are no longer in custody pursuant to a criminal

conviction”). To obtain a writ of coram nobis, the petitioner “must demonstrate that 1) there are

circumstances compelling such action to achieve justice, 2) sound reasons exist for failure to seek

appropriate earlier relief, and 3) the petitioner continues to suffer legal consequences from his

conviction that may be remedied by granting of the writ.” Kovacs, 744 F.3d at 49 (internal

quotation marks and citation omitted). When reviewing a coram nobis petition, a court presumes

that the prior proceedings were correct unless the petitioner can show otherwise. See Mandanici,

205 F.3d at 524.




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       The district court applied the proper legal standard when assessing Balkany’s coram nobis

petition. See, e.g., Kovacks, 744 F.3d at 49; Mandanici, 205 F.3d at 524. In applying that

standard, the district court did not abuse its discretion in concluding that Balkany failed to provide

sound reasons for his delay in seeking earlier relief. See Frank v. United States, No. 98-2409,

1999 WL 88944, at *2 (2d Cir. Feb. 18, 1999) (unpublished opinion) (describing coram nobis

petitioner’s “threshold requirement of asserting sound reasons for her failure to seek appropriate

earlier relief”); see also Mandanici, 205 F.3d at 524. We have explained that when assessing

whether coram nobis relief is unavailable because of delay, “[t]he critical inquiry . . . is whether

the petitioner is able to show justifiable reasons for the delay.” Foont v. United States, 93 F.3d

76, 80 (2d Cir. 1996).

       Here, the district court properly noted that six of the issues Balkany raised in his 2017

coram nobis petition could have been raised either on direct appeal (decided in 2012) or in his

§ 2255 motion (decided in 2013). The issues all related to Balkany’s 2010 trial proceedings and

he was presumably aware of these issues at the time or could have become aware of them as soon

as the trial record became available. See id.; see also Frank, 1999 WL 88944, at *2 (denying

coram nobis petition for failure to seek earlier relief when petitioner “knew, or should have known,

the asserted grounds for vacatur of her conviction several years before she actually sought relief”).

Notably, Balkany did not explain why he waited over six years to bring these claims or why he

could not have brought them in earlier proceedings. Foont, 93 F.3d at 80. The district court

correctly noted that the seventh issue—Balkany’s trial counsel’s failure to argue entrapment by

estoppel—could have been raised in his § 2255 motion, and Balkany again failed to provide the

district court with any reason for his failure do so. Because Balkany could have raised each

individual error earlier, he could have raised his cumulative claims of error earlier as well. “If


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the district court decides that there was not sufficient justification for the petitioner’s failure to

seek [coram nobis] relief at an earlier time, the writ is unavailable.” Id. (internal quotations

marks, brackets, and citation omitted). Balkany’s coram nobis petition was properly denied.

       The district court did not abuse its discretion in denying Balkany’s motion for recusal.

United States v. Carlton, 534 F.3d 97, 100 (2d Cir. 2008). A judge must recuse herself “in any

proceeding in which [her] partiality might reasonably be questioned.” 28 U.S.C. § 455(a); Cox

v. Onondaga Cty. Sheriff’s Dep’t, 760 F.3d 139, 150 (2d Cir. 2014). Further, a judge must recuse

herself if she has “a personal bias or prejudice concerning a party, or personal knowledge of

disputed evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(b)(1). Recusal is not

required merely because the judge deciding the petitioner’s coram nobis petition also presided

over the petitioner’s criminal trial. See United States v. Wolfson, 558 F.2d 59, 64 (2d Cir. 1977)

(denying recusal motion where judge presiding over petitioner’s coram nobis petition also presided

over his two criminal trials which ended in convictions).

       Motions for recusal, however, should be made “at the earliest possible moment after

obtaining knowledge of facts demonstrating the basis for such a claim.” LoCascio v. United

States, 473 F.3d 493, 497 (2d Cir. 2007) (per curiam) (internal quotation marks and citation

omitted). To that end, we have explained that prompt recusal applications (1) afford the district

judge a chance to assess the merits of the application before taking any additional steps that may

be inappropriate; and (2) avoid the risk that a party may withhold moving for recusal as a “fall-

back position” to challenge adverse rulings later on. Id. In assessing whether a recusal motion

is timely, the relevant factors include “whether: (1) the movant has participated in a substantial

manner in trial or pre-trial proceedings; (2) granting the motion would represent a waste of judicial

resources; (3) the motion was made after the entry of judgment; and (4) the movant can


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demonstrate good cause for delay.” Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 334 (2d

Cir. 1987) (internal citations omitted).

       Although the district court did not consider it, timeliness “presents a serious threshold

question.” Id. at 333. Notably, Balkany moved for recusal based solely on the district judge’s

comments during his 2010 trial proceedings.            Applying the timeliness factors, Balkany

participated substantially in his trial proceedings (he was the sole defendant). The district court

judge, who also adjudicated Balkany’s § 2255 motion, presided over the entirety of Balkany’s

proceedings, and her recusal would result in the assignment of a judge unfamiliar with the case at

this late stage. Balkany filed his recusal motion after his judgment of guilt and denial of his §

2255 motion, and he has not demonstrated why he waited several years to move for recusal when

he could have done so either at his 2010 trial or in his 2012 habeas petition. See id. at 334.

Because these factors weigh heavily against a finding that Balkany’s recusal motion satisfied the

“serious threshold question” of timeliness, the district court judge did not abuse her discretion in

denying the motion to recuse. See id. at 333–34.

       Even if Balkany’s recusal motion was timely, the district court judge’s comments did not

warrant recusal. “[O]pinions formed by the judge on the basis of facts introduced or events

occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis

for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that

would make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994).

Balkany challenges the judge’s comment that defense counsel may have misled the jury to believe

that a government witness violated an ethical obligation and that she intended to clarify this issue

with the jury. See Appellant’s Br. at 18. This comment, however, merely reflects the judge’s

decision to instruct the jury regarding testimony and a legal issue concerning a lawyer’s ethical


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obligation, not bias against Balkany. He also challenges the judge’s comment that Balkany “is

an extortionist.” Id. That isolated remark was made outside the presence of the jury during a

colloquy with defense counsel prior to the close of the government’s case when the judge explained

why she declined to permit an entrapment defense. The remark constitutes an opinion “formed

by the judge on the basis of facts introduced” and, by itself, does not reveal a “deep-seated . . .

antagonism” to Balkany. See Liteky, 510 U.S. at 555. Finally, Balkany asserts that the judge’s

comments about his family’s and a friend’s praying in front of the jury and her description of the

friend as a man “with a long grey beard” evidence her bias against the Jewish religion and its

adherents. Appellant’s Br. at 19—20. These comments represent the judge’s observations

regarding conditions in the courtroom that she deemed appropriate to note for the record. They

cannot form a basis for recusal. Liteky, 510 U.S. at 555.

        We have considered all of Balkany’s remaining arguments in support of his coram nobis

petition and motion for recusal and find them to be without merit. Accordingly, we AFFIRM

the order of the district court.

                                             FOR THE COURT:
                                             Catherine O=Hagan Wolfe, Clerk of Court




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