DLD-249                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 10-1979
                                     ___________

                           IN RE: DENIS SHUSTERMAN,

                                                                    Petitioner
                      ____________________________________

                     On Petition for Writ of Mandamus from the
          United States District Court for the Eastern District of Pennsylvania
                     (Related to E.D. Pa. Crim. No. 04-cr-00364)
                     ____________________________________

                     Submitted Under Rule 21, Fed. R. App. P.
                                 July 22, 2010
           Before: FUENTES, JORDAN AND HARDIMAN, Circuit Judges

                            (Opinion filed: August 9, 2010)


                                      _________

                                       OPINION
                                      _________

PER CURIAM

      Denis Shusterman seeks a writ of mandamus requiring District Judge Legrome B.

Davis to disqualify himself from presiding over Shusterman’s proceeding under 28

U.S.C. § 2255. We will deny the petition.

                                            I.

      Shusterman was charged with 51 counts of wire fraud and other crimes arising
generally from a scheme to defraud his former employer of some $10.8 million. The case

proceeded to trial, during which “the government presented the testimony of thirty-five

witnesses, submitted hundreds of exhibits, and provided stipulations to the testimony of

over 1,000 other fact witnesses.” United States v. Shusterman, 459 F. Supp. 2d 357, 360

(E.D. Pa. 2006). On the twelfth day of trial, after the Government had closed and

Shusterman was presenting his case, he decided to plead guilty to all 51 counts. The

District Court accepted his plea after conducting a plea colloquy on May 3, 2006.

       As sentencing neared, however, Shusterman filed a motion to withdraw his guilty

plea. Shusterman claimed, among other things, that counsel entered the plea without his

permission and that he accepted it because counsel misrepresented its effect. The District

Court held a two-day evidentiary hearing and denied Shusterman’s motion on September

13, 2006. See Shusterman, 459 F. Supp. 2d at 359. Primarily for the reasons explained in

the District Court’s “thorough and careful opinion,” we affirmed. United States v.

Shusterman, 258 F. App’x 403, 404 (3d Cir. 2007). The District Court ultimately

sentenced Shusterman to 168 month of imprisonment and ordered restitution.

       Thereafter, Shusterman filed a motion challenging his sentence under 28 U.S.C.

§ 2255. Shusterman also filed a motion to disqualify Judge Davis from presiding over his

§ 2255 proceeding. Judge Davis denied that motion on December 17, 2009. Shusterman

appealed, and later filed a motion to certify the order for immediate appeal, which the

District Court denied. That appeal is docketed at C.A. No. 10-1094. Shusterman then



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filed the petition for a writ of mandamus at issue here, seeking Judge Davis’s

disqualification under 28 U.S.C. § 455(a) and (b).1

                                            II.

       We have the authority to issue a writ of mandamus under the All Writs Act, 28

U.S.C. § 1651(a). See In re Kensington Int’l Ltd., 368 F.3d 289, 300 (3d Cir. 2004).

When the petition challenges a judge’s denial of a disqualification motion, we review that

decision for abuse of discretion. See id. at 300-01. We decline to issue a writ of

mandamus in this case because Judge Davis did not abuse his discretion in refusing to

recuse himself from Shusterman’s § 2255 proceeding.

       Shusterman raises four circumstances during trial and his plea withdrawal hearing

that he contends require Judge Davis’s disqualification under 28 U.S.C. §§ 455(a),

455(b)(1), and/or 455(b)(5)(iv). After carefully reviewing the record, we reject these

arguments for the reasons thoroughly and adequately stated by Judge Davis. Only one of

Shusterman’s arguments warrants extended discussion here.2


   1
    A petition for a writ of mandamus, rather than an immediate appeal, is the proper
vehicle for seeking review of a District Judge’s denial of a disqualification motion under
§ 455. See In re Kensington Int’l Ltd., 353 F.3d 211, 219 & n.7 (3d Cir. 2003). Thus, we
are entering an order contemporaneously herewith dismissing Shusterman’s appeal at
C.A. No. 10-1094. Shusterman also has filed a motion to proceed on the original record
under Fed. R. App. P. 30(f). That motion, which we construe as a motion for relief from
the filing requirements of Fed. R. App. P. 21(a)(2)(C), is granted.
   2
     In addition to the argument discussed below, Shusterman argues that Judge Davis
must be disqualified because he: (1) rejected Shusterman’s testimony that counsel entered
a plea without his permission on the basis of a preconceived belief about “what lawyers
do”; (2) made himself a material witness by explaining at the plea withdrawal hearing his

                                             3
         Under 28 U.S.C. § 455(a), a judge must “disqualify himself in any proceeding in

which his impartiality might reasonably be questioned.” Shusterman argues that Judge

Davis’s impartiality might reasonably be questioned because, during the plea withdrawal

hearing, he referred to Shusterman as “one of the most specially-talented liars that I’ve

ever met in my life.” (N.T., 9/13/06, at 67.) Judge Davis made that comment after

Shusterman’s plea hearing counsel argued that trial counsel entered the plea without

Shusterman’s permission. Judge Davis responded in relevant part:

         Well, that’s an interesting question and I don’t know if, factually, I accept
         that. Right? Because the first thing that I must tell you is that I find your
         client to be one of the most specially-talented liars that I’ve ever met in my
         life. Right? That’s the first thing. He’s genius in his ability to shape events
         to present things in a certain way.

(Id.)3


earlier observation to counsel about the jury’s reaction to a witness’s cross-examination;
and (3) gave short shrift at trial to Shusterman’s concerns about his counsel’s
representation. We already have decided that none of the underlying claims of error
related to these contentions warranted the withdrawal of Shusterman’s guilty plea. For
the reasons explained by Judge Davis and argued by the Government, we also conclude
that none of these reasons disqualifies Judge Davis from presiding over Shusterman’s
§ 2255 proceeding.
   3
    Judge Davis later made the same point in his opinion denying Shusterman’s motion
to withdraw his guilty plea:

         After having the opportunity to observe and evaluate defendant’s credibility
         during his trial testimony and his evidentiary hearing testimony, this Court
         finds that defendant is the most specially talented liar this Court has ever
         encountered. . . . Defendant has a history of lying to his friends, lying to his
         family, and lying under oath.

Shusterman, 459 F. Supp.2d at 361-62.

                                                4
       Shusterman argues that these comments suggest that Judge Davis is incapable of

fairly deciding his § 2255 motion. We disagree. Under the “extrajudicial source”

doctrine, a judge’s opinion formed about a litigant—even if the judge has become

“exceedingly ill disposed” toward that litigant—generally is not a basis for

disqualification when the “knowledge and the opinion it produced were properly and

necessarily acquired in the course of the proceedings[.]” Litekey v. United States, 510

U.S. 540, 550-51 (1994). The same is true of “opinions held by judges as a result of what

they learned in earlier proceedings.” Id. at 551.4 In such cases, judicial opinions “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.” Id. at 555. “Thus,

judicial remarks . . . that are critical or disapproving of, or even hostile to, . . . the parties,

or their cases, ordinarily do not support a bias or partiality challenge.” Id.

       Such is the case here. Judge Davis’s comments reflect nothing more than a

credibility determination necessarily formed on the basis of the evidence before him, and

do not suggest the kind of “deep-seated favoritism or antagonism that would make fair

judgment impossible.” Shusterman likens Judge Davis’s comments to one that the

Supreme Court referenced by way of example—a judge’s comment during a World War



   4
     The Supreme Court noted in this regard that it is “normal and proper for a judge to sit
in the same case upon its remand, and to sit in successive trials involving the same
defendant.” Litekey, 510 U.S. at 551. Similarly, Rule 4(a) of the Rules Governing
Section 2255 Proceedings for the United States District Courts provides for the
assignment of § 2255 motions to the same judge who presided over the criminal trial.

                                                 5
One espionage case that it would be difficult not to be “‘prejudiced against German

Americans’ because their ‘hearts are reeking with disloyalty.’” Id. (citation omitted).

Judge Davis’s comments, however, suggest nothing like that kind of partiality.

       Nor do they suggest that he is otherwise unable to fairly decide Shusterman’s

§ 2255 motion. In Haines v. Liggett Group Inc., 975 F.2d 81, 97 (3d Cir. 1992), we

exercised our supervisory authority to order the reassignment of a case against the

tobacco industry after a judge made the superficially similar comment that “the tobacco

industry may be the king of concealment and disinformation.” In Haines, however, the

judge made that comment during discovery and the ultimate substantive issue was

whether the tobacco defendants had concealed potential health hazards. See id. at 98.

Thus, the judge’s comment arguably suggested that he had formed an opinion about the

ultimate issue in the case. In this case, by contrast, Judge Davis made his comments

merely by way of determining Shusterman’s credibility for purposes of ruling on his

motion to withdraw his guilty plea. They do not suggest that Judge Davis will be unable

to fairly decide Shusterman’s § 2255 motion or already has formed an opinion on the

merits of his claims.

       Accordingly, Shusterman’s petition for a writ of mandamus is denied.




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