            Case: 14-11671   Date Filed: 05/07/2015   Page: 1 of 7


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11671
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 3:07-cr-00136-LC-EMT-1



UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

versus

ANTONIO U. AKEL,
a.k.a. Tony Akel,

                                               Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                               (May 7, 2015)

Before ED CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges.

PER CURIAM:
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      A jury found Antonio Akel guilty of three crimes (conspiracy to distribute

and to possess with intent to distribute various drugs, possession with intent to

distribute various drugs, and possession of a firearm by a convicted felon) and not

guilty of three others (two distribution charges and possession of a firearm in

furtherance of a drug trafficking crime). After his convictions were upheld on

appeal, Akel sought habeas relief under 28 U.S.C. § 2255. His § 2255 motion was

assigned to the same judge who had presided over his criminal trial. See 28 U.S.C.

§ 2255(a). Akel filed a pro se motion for recusal, contending that the judge lacked

impartiality and harbored a personal bias against him. The judge denied the

motion. Akel later filed a motion for reconsideration, which the judge denied after

holding a two-day hearing on the matter. This is Akel’s pro se appeal of the

district court’s denial of his motions for recusal and for reconsideration.

                                          I.

      As a preliminary matter, the government contends that Akel’s appeal is

untimely under Federal Rule of Appellate Procedure 4(b)(1)(A), which governs

appeals in criminal cases. We review de novo whether an appeal should be

dismissed as untimely. See United States v. Glover, 686 F.3d 1203, 1205 (11th

Cir. 2012).

      Akel’s motions for recusal and for reconsideration relate to his § 2255

motion. Motions filed under § 2255 for most purposes are considered civil in


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nature. See Brown v. United States, 748 F.3d 1045, 1065 (11th Cir. 2014). Thus,

Federal Rule of Appellate Procedure 4(a)(1)(B), which governs appeals in civil

cases, applies. See Butcher v. United States, 368 F.3d 1290, 1293 n.1 (11th Cir.

2004). Under that rule, Akel had 60 days to file a notice of appeal from the district

court’s order denying his motion for reconsideration. See Fed. R. App. P.

4(a)(1)(B)(i) (providing that “[t]he notice of appeal may be filed by any party

within 60 days after entry of the judgment or order appealed from if one of the

parties is . . . the United States”). The district court denied Akel’s motion for

reconsideration on February 21, 2014, and Akel filed a notice of appeal 49 days

later, on April 11, 2014.1 His appeal is timely.

                                                  II.

       We review for abuse of discretion the district court’s rulings on Akel’s

motions for recusal and for reconsideration. See Giles v. Garwood, 853 F.2d 876,

878 (11th Cir. 1998) (motion for recusal); Wilchombe v. TeeVee Toons, Inc., 555

F.3d 949, 957 (11th Cir. 2009) (motion for reconsideration). We will address each

in turn.




       1
          Under the “prison mailbox rule,” a pro se prisoner’s court filing is deemed filed on the
date it is delivered to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266, 276,
108 S. Ct. 2379, 2385 (1988); see also Fed. R. App. P. 4(c)(1) (“If an inmate confined in an
institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is
deposited in the institution’s internal mail system on or before the last day for filing.”).

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                                          A.

      Akel filed his motion for recusal under 28 U.S.C. § 455, arguing that two

provisions of § 455 supported his position. The first was § 455(a), which requires

a federal judge to “disqualify himself in any proceeding in which his impartiality

might reasonably be questioned.” Akel argued that the judge could not rule

impartially on his § 2255 motion because he had given “improper and repeated

Allen charges” to the jury at Akel’s trial and had sentenced Akel as an Armed

Career Criminal “despite knowing he couldn’t per the jury verdict.” See generally

Allen v. United States, 164 U.S. 492, 501–02, 17 S. Ct. 154, 157 (1896) (holding

that a trial court may instruct a deadlocked jury to keep deliberating); 18 U.S.C.

§ 924(e). The second provision that Akel relied on was § 455(b)(1), which

requires a federal judge to “disqualify himself . . . [w]here he has a personal bias or

prejudice concerning a party.” According to Akel, the judge’s personal bias

against him was clear from several improper statements that the judge had

allegedly made to the jury outside of Akel’s presence, including “berat[ing] the

jury for finding Akel not guilty on three (3) of the six (6) counts” and calling Akel

“a son of a bitch.” Akel attached an affidavit in which he declared that his trial

attorney had told him that an anonymous juror had told him that the judge had

made those statements.




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      The district judge did not abuse his discretion in denying Akel’s motion for

recusal. Akel’s argument that the judge should have recused because of a lack of

impartiality stems from the judge’s rulings at Akel’s trial and sentence hearing.

Just because those rulings were not in Akel’s favor does not mean that they

establish any bias or prejudice. See Liteky v. United States, 510 U.S. 540, 551,

555, 114 S. Ct. 1147, 1155, 1157 (1994); Hamm v. Members of Bd. of Regents,

708 F.2d 647, 651 (11th Cir. 1983). “[B]ias or prejudice must be personal and

extrajudicial; it must derive from something other than that which the judge

learned by participating in the case.” United States v. Amedeo, 487 F.3d 823, 828

(11th Cir. 2007) (quotation marks omitted). And Akel’s allegations of personal

bias or prejudice depend on double hearsay — that is, Akel’s report about what his

trial attorney said about what an anonymous juror said. “A judge should not recuse

himself based upon unsupported, irrational, or tenuous allegations,” and Akel’s

allegations were exactly that. Giles, 853 F.2d at 878. The district judge was not

required to recuse himself.

                                          B.

      After the district judge denied his motion for recusal, Akel filed a motion for

reconsideration. He made two arguments. First, he argued that the district judge

should have considered his motion for recusal under 28 U.S.C. § 144, another

federal statute that governs recusal, as well as 28 U.S.C. § 455, the statute he had


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cited in his original motion. Second, Akel argued that the district judge had denied

his motion for recusal without considering an important piece of evidence that

supported his claims about the judge’s alleged misbehavior: a letter that Akel’s

trial attorney had written to Akel’s father. Akel had included that letter in his reply

to the government’s response in opposition to his motion, but the district court had

returned the reply as deficient because local rules do not allow parties to file a

reply without first obtaining the court’s permission. The district judge considered

Akel’s arguments, held a two-day evidentiary hearing on the motion for

reconsideration, and denied it.

      The district judge did not abuse his discretion in denying Akel’s motion for

reconsideration. A litigant cannot use a motion for reconsideration to raise “new

arguments that were previously available, but not pressed” or to “present evidence

that could have been raised prior to the entry of judgment.” Wilchombe, 555 F.3d

at 957 (quotation marks omitted). Akel used his motion for reconsideration to do

exactly those things. He raised an argument he could have raised in his original

motion and presented evidence he could have presented before the court denied his

motion. Although the district judge could have denied Akel’s motion for

reconsideration on those grounds alone, the judge instead held a two-day

evidentiary hearing before reaching his decision. There was no abuse of

discretion.


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AFFIRMED. 2




2
    Akel’s motion for leave to file a corrected brief is GRANTED.

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