                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES CO URT O F APPEALS
                                                                  October 24, 2007
                                                     Elisabeth A. Shumaker
                               TENTH CIRCUIT             Clerk of Court



 U N ITED STA TES O F A M ER ICA,

                 Plaintiff-Appellee,                     No. 07-3136
          v.                                              (D . of Kan.)
 G W Y N DELL B . D EC LER CK ,                  (D.C. Nos. 02-CR-40072-RDR
                                                    and 07-CV-4028-RDR)
                 Defendant-Appellant.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **


      Gwyndell DeClerck is a federal prisoner serving a sentence of ten years and

five months for violating the Hobbs A ct (18 U.S.C. § 1951) and brandishing a

weapon during and in relation to a crime of violence (18 U.S.C. § 924(c)(1)(A)).

W e affirmed his convictions on direct appeal in United States v. DeClerck, 135 F.

App’x 167 (10th Cir. 2005). Proceeding pro se 1 , he now seeks a certificate of

      *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
           Because DeClerck is proceeding pro se, we review his pleadings and
                                                                      (continued...)
appealability (COA) to challenge the district court’s denial of his motion to

vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The district

court denied all six of DeClerck’s claims and dismissed his motion. The district

court also denied DeClerck’s subsequent request for a COA. W e agree that

DeClerck is not entitled to relief under § 2255 and therefore DENY his request

for a C OA . 2

                                  I. Background

       In 2002, DeClerck and a co-defendant were indicted on four counts relating

to a robbery at a H ampton Inn in Lawrence, Kansas. DeClerck pleaded guilty to

tw o charges and the district court sentenced him to 125 months imprisonment.

The district court entered a final amended judgment on April 22, 2004. DeClerck

appealed to this court, which affirmed the judgment on June 8, 2005. The

Supreme Court denied DeClerck’s petition for certioriari on February 21, 2006.

       DeClerck filed his § 2255 motion with the district court on February 22,

2007. The district court concluded that all of DeClerck’s arguments lacked merit




       1
        (...continued)
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
       2
         DeClerck has filed a motion to proceed in form a pauperis (ifp). The
district court previously granted DeClerck’s request to proceed ifp in his criminal
case, a ruling it did not revisit for his § 2255 motion. DeClerck’s m otion to this
court, therefore, is unnecessary. See Fed. R. App. P. 24(a)(3).

                                         -2-
and denied the motion. DeClerck seeks a COA from this court on grounds that

the district court judge was biased and should have recused.

                              II. Standard of Review

      To obtain a COA, a petitioner must make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); M iller-El v. Cockrell,

537 U.S. 322, 327 (2003). This standard is satisfied by demonstrating that

“reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473,

484 (2000) (quotation marks omitted). The denial of a motion to recuse is

reviewed for abuse of discretion. See Higganbotham v. Okla. ex rel. Okla.

Transp. Comm’n, 328 F.3d 638, 645 (10th Cir. 2003).

                                  III. Discussion

      In his appeal to this court, DeClerck purports to make three claims, which

in fact boil down to one. DeClerck alleges his Due Process rights were violated

because he was denied the benefit of having a detached and neutral judge evaluate

his § 2255 motion.

                         A. DeClerck’s D ue Process Claim

      DeClerck has failed to make a “substantial showing of the denial of a

constitutional right.” W e reach this conclusion for two reasons. First, DeClerck

is procedurally barred from raising an issue on a motion to vacate that was raised

                                         -3-
and decided on direct appeal. Second, even if his argument were not barred, no

reasonable jurists could conclude “the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” See Slack, 529 U.S. at 484.

       DeClerck’s claim is procedurally barred, since it was already heard and

decided on direct appeal. “A n issue disposed of on direct appeal will generally

not be reconsidered on a collateral attack by a motion pursuant to 28 U.S.C.

§ 2255. However, a motion under Section 2255 may be proper when there has

been an intervening change in the law of a circuit.” United States v. Nolan, 571

F.2d 528, 530 (10th Cir. 1978) (internal citations omitted); see also United States

v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989). DeClerck points to no change in

Tenth Circuit law and we find none. Nevertheless, DeClerck asserts here, as on

direct appeal, that the district court judge acted with “bias and prejudice” against

him at trial. He claims the judge made certain rulings and statements to

encourage him to plead guilty. Since these issues have already been decided, they

are procedurally barred.

      Even if the claims were not barred, nothing in the record indicates the bias

and prejudice asserted by DeClerck. A district judge has the discretion to run a

trial in a manner that is fair and efficient to both sides. See Fed. R. Crim. P.

57(b) (“A judge may regulate practice in any manner consistent with federal law ,

these rules, and the local rules of the district.”). Cf. United States v. Busby, 16 F.

                                          -4-
App’x 817, 826 (10th Cir. 2001) (“The Sixth Amendment right to counsel is not

an absolute right and may not be insisted upon in a manner which will obstruct

orderly judicial procedure or interfere with a court’s exercise of it’s [sic] inherent

power to control procedure in the courtroom.”). After disagreements with more

than one court-appointed attorney, DeClerck represented himself. As w e noted in

DeClerck’s direct appeal, “The district court bent over backwards to

accommodate M r. DeClerck . . . . The court allowed him to make dozens of

baseless arguments and scheduled several hearings to assuage M r. DeClerck’s

concerns.” DeClerck, 135 F. App’x at 170. Although the district court referred

to DeClerck as “guilty” in open court, this w as not until after DeClerck and his

co-defendant had pleaded guilty and admitted to the factual basis of the charges

against them.

      To the extent DeClerck challenges the constitutionality of allowing the

district court judge to rule upon his claim that the judge was biased, DeClerck

still fails to sufficiently allege “the denial of a constitutional right.” See United

States v. Bellam y, 411 F.3d 1182, 1186 (10th Cir. 2005). Judicial

disqualifications proceed under either 28 U.S.C. § 144 or § 455. Section 144

requires the party seeking recusal to file a timely and sufficient affidavit alleging

personal bias or prejudice on the part of the judge before whom the matter is

pending. It is undisputed that was not done in this case.




                                           -5-
      Section 455(a), on the other hand, is broader and requires a judge to

disqualify himself “in any proceeding in which his impartiality might reasonably

be questioned.” 28 U.S.C. § 455(a). This court has held, “A judge has a

continuing duty to recuse under § 455(a) if sufficient factual grounds exist to

cause a reasonable, objective person, knowing all the relevant facts, to question

the judge’s impartiality.” United States v. Pearson, 203 F.3d 1243, 1277 (10th

Cir. 2000). W hen reviewing a charge of bias lodged against a district court judge,

the Supreme Court has counseled,

      [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 m otion
      unless they display a deep-seated favoritism or antagonism that would
      m ake fair judgment impossible. Thus, judicial remarks during the
      course of a trial that are critical or disapproving of, or even hostile to,
      counsel, the parties, or their cases, ordinarily do not support a bias or
      partiality challenge.

Liteky v. United States, 510 U.S. 540, 555 (1994).

      For DeClerck to prevail in his appeal, he must make a substantial showing

of bias rising to the level of a constitutional violation. This was not done. See

Edmond v. Athlete’s Foot Group, 15 F. App’x 738, 740 (10th Cir. 2001)

(“W ithout more, the fact that a judge presided in a previous criminal matter

involving a party is not a valid ground for recusal [in a subsequent civil

matter].”); see also Green v. Dorrell, 969 F.2d 915, 919 (10th Cir. 1992)

(“[A]dverse rulings against a litigant cannot in themselves form the appropriate



                                          -6-
grounds for disqualification.”); Hinm an v. Rogers, 831 F.2d 937, 939 (10th Cir.

1987) (“A judge should not recuse himself on unsupported, irrational, or highly

tenuous speculation.”). DeClerck fails to allege with any particularity conduct

that w ould lead a reasonable jurist to question the district judge’s neutrality. He

musters only speculative or inconsequential allegations to support his claim.

      In essence, DeClerck’s appeal challenges the constitutionality of the system

announced in 28 U.S.C. § 2255 itself. He complains that the judge who presided

over his criminal trial and sentenced him to 10 years in prison also heard his

§ 2255 motion. Yet this is required by law. See 28 U.S.C. § 2255, ¶1 (“A

prisoner in custody under sentence of a court established by Act of Congress . . .

may move the court which imposed the sentence to vacate, set aside or correct the

sentence.” (emphasis added)). Cf. United States v. Hayman, 342 U.S. 205,

220–21 (1952) (“The very purpose of Section 2255 is to hold any required hearing

in the sentencing court because of the inconvenience of transporting court

officials and other necessary witnesses to the district of confinement.”). The

benefits to judicial efficiency which flow from this system are obvious. The

judge who sentenced the movant is in the best position to adjudicate the merits of

a subsequent motion to vacate since he or she knows the facts and relevant law of

the case intimately. Any potential bias can be removed by the district court’s

application of § 455 and this court’s review thereof.




                                          -7-
           Accordingly, we hold the district court did not abuse its discretion in

refusing to recuse from DeClerck’s case. Since we conclude no jurists of reason

would find it debatable whether the district court correctly denied D eClerck’s

motion under § 2255, we deny DeClerck’s application for a COA and dismiss his

appeal.

                      B. Section 2255’s One-Year Limitations Period

           Although we dispose of DeClerck’s COA on the grounds discussed above,

we also note that his motion to the district court was untimely. Section 2255

imposes a one-year statute of limitations for federal prisoners to bring their

motion. “The limitation period shall run from . . . the date on which the judgment

of conviction becomes final.” 28 U.S.C. § 2255, ¶6(1). A judgment of conviction

becomes final when the Supreme Court “affirms a conviction on the merits on

direct review or denies a petition for a writ of certiorari, or when the time for

filing a certiorari petition expires.” Clay v. United States, 537 U.S. 522, 527

(2003). Here, the Supreme Court denied DeClerck’s certiorari petition on

February 21, 2006. DeClerck v. United States, 546 U.S. 1199 (2006) (mem.).

DeClerck filed his § 2255 motion on February 22, 2007— one year and one day

later. 3


           3
        There is no indication that DeClerck took advantage of the prison mailbox
rule, which would compel us to deem his motion filed when mailed, instead of
when received by the district court. He has not shown that he utilized the
prison’s legal mail system, nor has he submitted a declaration in compliance with
                                                                     (continued...)

                                              -8-
      The Supreme Court has held that federal district courts “are permitted, but

not obliged, to consider, sua sponte, the timeliness of a state prisoner’s habeas

petition.” Day v. M cDonough, 547 U.S. 198, 209 (2006). Nothing in the

language or purpose of the habeas provisions gives us reason to doubt that district

courts are also “permitted, but not obliged” to review, sua sponte, a federal

prisoner’s § 2255 motion to determine whether it has been timely filed. Our

Tenth Circuit case law is clear that a court may raise a procedural bar in the

habeas corpus context on its own motion. See, e.g., Hardiman v. Reynolds, 971

F.2d 500 (10th Cir. 1992); Hines v. United States, 971 F.2d 506 (10th Cir. 1992). 4

Given our disposition of this case on the merits, however, we find no need to

reach the statute of limitations issue.




      3
       (...continued)
28 U.S.C. § 1746 or a notarized statement setting forth the requisite facts. See
Price v. Philpot, 420 F.3d 1158, 1165–67 & nn.6–8 (10th Cir. 2005).
      4
        W e have maintained that a court of appeals should raise a procedural bar
sua sponte if it promotes “the interests of judicial efficiency, conservation of
scarce judicial resources, and orderly and prompt administration of justice.” E.g.,
Hines, 971 F.2d at 509; accord Granberry v. Greer, 481 U.S. 129, 134 (1987)
(holding that a federal court of appeals may consider a belated non-exhaustion
defense in a § 2254 habeas action, based on considerations of comity and judicial
efficiency). The Supreme Court noted a circuit split on this issue, but declined to
resolve it at that time. See Trest v. Cain, 522 U.S. 87, 90 (1997).

                                          -9-
                               IV. Conclusion

      For the reasons set forth above, we DENY DeClerck’s petition for a COA

and DISM ISS this appeal. W e also DISM ISS A S M OOT his motion to proceed in

form a pauperis.

                                    Entered for the Court


                                    Timothy M . Tymkovich
                                    Circuit Judge




                                     -10-
