CLD-422                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 13-3418
                                       ___________

                             IN RE: DENNIS BURNETT,
                                                Petitioner
                       ____________________________________

                       On a Petition for Writ of Mandamus from the
            United States District Court for the Eastern District of Pennsylvania
                        (Related to Crim. No. 2-08-cr-00201-003)
                       ____________________________________

                      Submitted Pursuant to Rule 21, Fed. R. App. P.
                                  September 12, 2013
              Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges

                             (Opinion filed: October 9, 2013)
                                        _________

                                        OPINION
                                        _________

PER CURIAM

       Pro se petitioner Dennis Burnett has filed a petition for a writ of mandamus

requesting that we compel Judge Pratter, the District Judge presiding over his 28 U.S.C. §

2255 motion, to recuse herself. For the reasons set forth below, we will deny Burnett’s

petition.

       On July 14, 2009, Burnett pleaded guilty in the District Court to two counts of

robbery, one count of conspiracy to commit robbery, and one count of using or carrying a

firearm during and in relation to a violent crime. Judge Pratter presided over Burnett’s
plea colloquy and accepted his guilty plea. Three months later, however, Burnett filed a

motion to withdraw the guilty plea, contending that, due to his grandfather’s recent death,

he had been in a state of emotional distress at the time of the plea. Judge Pratter denied

that motion, and ultimately sentenced Burnett, in accordance with the plea agreement, to

25 years’ imprisonment. Burnett then appealed to this Court, claiming that Judge Pratter

had erred in denying his motion to withdraw his guilty plea. We affirmed the District

Court’s judgment. See United States v. Burnett, 452 F. App’x 81 (3d Cir. 2011).

       Burnett has since filed a motion under 28 U.S.C. § 2255 in the District Court. His

claims again concern his guilty plea: this time, he alleges that Judge Pratter improperly

participated in plea negotiations and failed to enforce all of the plea agreement’s terms.

This motion remains pending. Burnett also filed a motion to recuse Judge Pratter

pursuant to 28 U.S.C. § 455(a). Judge Pratter denied Burnett’s recusal motion, and he

then filed the instant mandamus petition.

       Mandamus is the proper means for the Court to review a district judge’s denial of

a motion to self-disqualify pursuant to § 455(a). Alexander v. Primerica Holdings, Inc.,

10 F.3d 155, 163 (3d Cir. 1993). We will review the District Court’s denial of the recusal

motion for abuse of discretion. In re Kensington Int’l, Ltd., 368 F.3d 289, 300-01 (3d

Cir. 2004).

       “Any justice, judge, or magistrate judge of the United States shall disqualify

himself in any proceeding in which his impartiality might reasonably be questioned.” 28

U.S.C. § 455(a). Section 455(a) requires an objective inquiry; that is, “whether a

reasonable person, with knowledge of all the facts, would conclude that the judge’s

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impartiality might reasonably be questioned.” Kensington, 368 F.3d at 301.

Significantly, “opinions 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.” Liteky v. United States, 510 U.S. 540, 555 (1994).

       Here, Burnett contends that Judge Pratter should have recused herself for three

related reasons. First, he argues that because she presided over his criminal case, her

ability to rule impartially on his § 2255 motion — which will challenge her previous

rulings — could reasonably be questioned. This theory, however, is irreconcilable with

Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District

Courts, which specifically provides for a § 2255 motion to be assigned “to the judge who

conducted the trial and imposed sentence.” While Rule 4 does not preclude a prisoner

from seeking the recusal of the trial judge, see Rule 4 advisory committee’s note (1976)

(noting that a litigant may “file an affidavit alleging bias in order to disqualify the trial

judge”), Judge Pratter is not required to recuse herself from ruling on Burnett’s § 2255

motion merely because she presided over his criminal case.1




1
  Burnett relies on Halliday v. United States, 380 F.2d 270, 272-74 (1st Cir. 1967), where
the First Circuit concluded that a sentencing judge should not normally conduct the
hearing on a § 2255 motion challenging the validity of that judge’s prior determination
that a guilty plea was voluntary. The reasoning of Halliday, however, has never been
adopted by this Court, and was specifically rejected by Rule 4. See Rule 4 advisory
committee’s note (1976) (discussing, and declining to adopt, rule of Halliday); see also
United States v. Pungitore, 15 F. Supp. 2d 705, 714 n.3 (E.D. Pa. 1998) (Van Antwerpen,
J.) (noting that Rule 4 “expressly adopt[s] a view that is contrary to Halliday”).
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       Second, Burnett argues that Judge Pratter, by virtue of her involvement in his case,

has improperly prejudged his § 2255 motion. Again, we disagree. As the Supreme Court

has stressed, “opinions held by judges as a result of what they learned in earlier

proceedings” cannot be “subject to deprecatory characterization as ‘bias’ or ‘prejudice,’”

because “[i]t has long been regarded as 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.”

Liteky, 510 U.S. at 551. Indeed, one of the reasons that § 2255 motions are assigned to

the trial judge is to take advantage of the judge’s previous exposure to the factual and

legal issues in the case. See Rule 4 advisory committee’s note (1976) (“Because the trial

judge is thoroughly familiar with the case, there is obvious administrative advantage in

giving him the first opportunity to decide whether there are grounds for granting the

[§ 2255] motion.”); see also Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977). Thus, the

fact that Judge Pratter’s role as the judge in Burnett’s criminal matter may have caused

her to develop some opinions as to the merits of Burnett’s § 2255 claims does not require

her recusal. See generally In re Mann, 229 F.3d 657, 658-59 (7th Cir. 2000).

       Finally, Burnett argues that, during his plea colloquy, Judge Pratter made certain

statements that were favorable to the plea agreement, and thus revealed her bias in favor

of the agreement. By way of example, at one point, Judge Pratter noted that the parties’

agreed sentence was significantly shorter than the potential maximum sentence. These

statements, however, were consistent with Judge Pratter’s obligations imposed by Rule

11(c) of the Federal Rules of Criminal Procedure. See generally United States v.

Crowell, 60 F.3d 199, 204 (5th Cir. 1995) (“the district court is expected to take an active

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role in evaluating a plea agreement, once it is disclosed”). Thus, Judge Pratter’s

statements were permissible “assessments relevant to the case,” United States v.

Ciavarella, 716 F.3d 705, 719 (3d Cir. 2013), and did not reveal the sort of “deep-seated

favoritism or antagonism” necessary to show bias, Liteky, 510 U.S. at 555.

       Accordingly, we will deny Burnett’s mandamus petition.




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