United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTIONS TO RECUSE
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
reject a defendant's motion to recuse because, having
reviewed the defendant's reasons for my recusal, I find
that they neither have record support nor present a
sufficient basis to conclude that an objective, reasonable
member of the public, fully informed of all the relevant
facts, would fairly question my impartiality.
August 9, 2016, a federal grand jury indicted Donald Cain on
one count of stalking, an alleged violation of 18 U.S.C.
§ 2261A(2)(B), and two counts of transmitting
threatening communications in interstate commerce, alleged
violations of 18 U.S.C. § 875(c). Indictment
(ECF No. 56). On January 9, 2018, Mr. Cain pleaded guilty to
the stalking count, Min. Entry (ECF No. 153), and on
July 20, 2018, the Court sentenced him to sixty months of
incarceration, three years of supervised release, no fine,
and a $100 special assessment. J. (ECF No. 197). On
July 27, 2018, Mr. Cain appealed his sentence to the Court of
Appeals for the First Circuit, and on July 1, 2019, the First
Circuit affirmed the Court's sentence. Notice of
Appeal (ECF No. 199); United States v. Cain,
779 Fed.Appx. 6, 11 (1st Cir. 2019).
September 30, 2019, Mr. Cain filed a motion to disqualify me
as a judge from continuing to preside over his criminal case
and specifically from ruling on a federal habeas corpus
petition that he had filed in the United States District
Court in Texas and that was being transferred to the District
of Maine. Mot. Pursuant to 28 USC § 455 to
Disqualify USDJ John A. Woodcock and USMJ John Nivison in
Above Case and Pending § USC 2255 Transferred from USDC
Fort Worth, Texas (ECF No. 216) (Def.'s Sept.
Mot.). On October 15, 2019, Mr. Cain filed a second
motion, asking to remove me from the case and asking that
“no strike” be applied against his § 2255
petition. Mot. to Remove Judge Woodcock from Case and
Mot. that No Strike Be Applied re 2255 (ECF No. 223)
(Def.'s Oct. Mot.). On November 22, 2019, the
Government responded to both motions. Gov't's
Resp. in Opp'n to Def.'s Mot. to Disqualify Judge
Woodcock and Magistrate Judge Nivison (ECF No. 232)
(Gov't's Opp'n Sept. Mot.);
Gov't's Resp. in Opp'n to Def.'s Mot. to
Remove Judge Woodcock from Case and Mot. that No Strike Be
Applied re: § 2255 (ECF No. 233)
(Gov't's Opp'n Oct. Mot.). On December
16, 2019, Mr. Cain filed a sixteen-page reply regarding his
September motion. Resp. to Mot. to Disqualify Judge John
A. Woodcock and Magistrate Judge John Nivison (ECF No.
234) (Def.'s Reply Sept. Mot.).
December 20, 2019, Mr. Cain filed an affidavit of Steven M.
Blanchette of Oakland, Kennebec County, state of Maine.
Aff. (ECF No. 235). In his affidavit, Mr. Blanchette
states that “before the trial Mr. Cain[']s lawyer
Hunter asked Judge Woodcock to court-appoint him at which the
judge said ‘he was not going to waste tax payer dollars
because Mr. Cain makes good money and he should have gotten
more, take it as a lesson learned and suck it up.'”
Id. at 1. Mr. Blanchette states that he believes
that “Mr. Cain was coerced by his lawyer to take a plea
being Mr. Cain wasn't paying him anymore money and Mr.
Cain wanted to go to trial.” Id. He avers that
Mr. Cain's lawyer “also stated that if he
didn't take a plea the courts would hold Mr. Cain in
lockup until the trial was finished.” Id.
Finally, Mr. Blanchette adds that during the sentencing
hearing, I “called Mr. Cain a terrorist and ignored the
recommendation of the prosecutor and sentenced Mr. Cain to
the full extent.” Id. at 1-2.
THE PARTIES' POSITIONS
Donald Cain's Motions
Donald Cain's September 2019 Motion
Cain's September motion briefly alleges that I violated
Canons 2 and 3 of the Code of Conduct for United States
Judges by failing to act in a manner that promoted public
confidence in the integrity and impartiality of the judiciary
and failing to perform the duties of my office fairly,
impartially, and diligently. Def.'s Sept. Mot.
at 1. To this motion, Mr. Cain attached a two-and-a-half-page
letter dated September 26, 2019. Id., Attach. 1,
To Steve Blanchette, Amber Cain, Kris Cain, and April
Kumer (Def.'s Sept. Letter). In the letter,
Mr. Cain states that he filed a judicial complaint against me
with the First Circuit Court of Appeals. Def.'s Sept.
Letter at 1. Next, he states that “[h]ad they not
used my Counsel Hunter Tzovarras, to coerce me into a plea, I
would not be here in prison.” Id. He claims
that I should have “dismissed Hunter from case”
when I chose not to court-appoint him. Id. Mr. Cain
points out that I allowed Attorneys Weyrens and Silverstein
to resign as counsel for non-payment. Id. Mr. Cain
then relates his side of his relationship with the victim
that led to the stalking indictment. Id. at 1-3. In
this motion and attachment, his major complaint against me is
that I should have dismissed Attorney Tzovarras as his
defense counsel and failed to do so.
Donald Cain's October 2019 Motion
Cain slightly expands his allegations against me in his
October motion. Def.'s Oct. Mot. The October
motion itself asserts that the federal indictment must be
dismissed because there was an accord and satisfaction filed
by the alleged victim in this case in state court.
Id. at 1. Mr. Cain writes: “This Court deemed
Me, Donald Cain ‘delusional' when I informed the
Court, Judge John A. Woodcock there was an Accord and
Satisfaction, that mysteriously disappeared, but has
resurfaced after the Void Judgment issued in this
motion, Mr. Cain attached a copy of an order from United
States District Judge John McBryde dated September 6, 2019,
concluding that Mr. Cain's motion was in fact a motion
under 28 U.S.C. § 2255, not a motion under 28 U.S.C.
§ 2241, and that, in light of Castro v. United
States, 540 U.S. 375, 377 (2003), Judge McBryde intended
to construe the motion as one under § 2255, that as a
result the motion would be transferred to the United States
District Court for the District of Maine, and that “so
construing the document will cause it to be subject to §
2255's ‘second or successive'
restrictions.” Id., Attach. 1, Order
(Donald Cain v. United States, No. 4:19-cv-660-A
(N.D. Tx. Sept. 6, 2019)). Judge McBryde gave Mr. Cain until
September 24, 2019, to withdraw his filing. Id. at
2. Mr. Cain also attached copies of two docket entries in
this case. Id., Attachs. 2-3.
The Government's Responses
The Government's Response to Donald Cain's September
response to Mr. Cain's September motion, the Government
reviewed both the underlying facts and the applicable law of
28 U.S.C. § 455(a) and argued that neither the facts nor
the law require recusal. Gov't's Opp'n Sept.
Mot. at 1-13. The Government assessed the underlying
facts and contended that the record did not support Mr.
Cain's allegations. Id. at 1-6. The Government
reviewed the applicable legal standards for recusal.
Id. at 7-9. The Government questioned whether Mr.
Cain's motion is timely. Id. at 9-10. Finally,
applying the record facts to the proper legal standard, the
Government maintained that I should deny the motion to
recuse. Id. at 10-13.
The Government's Response to Donald Cain's October
response to Mr. Cain's October motion, the Government did
not address the recusal issue and dealt only with the
question of whether his August 22, 2019, § 2255 motion
should be considered a first § 2255 motion.
Gov't's Opp'n Oct. Mot. At 1-7.
Donald Cain's Reply
December 16, 2019, sixteen-page reply, Mr. Cain became much
more specific in terms of his allegations against me. He
claimed the following:
(1) that I “never let [Mr. Cain's] counsel speak
always yelling at him and telling him to sit down and shut
up, stating that he could have been enjoying his family and
evening instead of reading his meaning my attorney, Hunter
Tzovarras's friv[o]lous motion[s];”
(2) that I made “racist comments either direct
towards [Mr. Cain], or [his] family or [his] current
girlfriend at the time;”
(3) that I made “threats that [Mr. Cain] was going to
pay for hurting that ‘young lady', meaning [his
(4) that I “denied to court appoint Hunter
Tzovarras” and instead stated in court: “I am not
going to use tax payer money to fund Mr. Cain's defense,
you should have got more money up front and let this be a
lesson learned, and suck it up;”
(5) that I “held ex parte meetings with [the victim]
available to attend but not [Mr. Cain]” and although
his lawyer was present on the telephone, the Assistant United
States Attorney (AUSA), the victim, and I were together with
each other in person;
(6) that I made up my mind on his sentence when I stated at
the end of the revocation hearing that “it's just a
matter of time when Mr. Cain starts serving his time May 25,
2018 or June 28, 2018;”
(7) that I imposed a sentence that violated the Eighth
Amendment ban on cruel and unusual punishment;
(8) that I showed favoritism to the AUSA by complimenting
(9) that I was aware of plea negotiations between the AUSA
and Attorney Tzovarras;
(10) that I violated the terms of the plea agreement;
(11) that I should recuse myself because he filed a judicial
misconduct complaint against me with the First Circuit Court
of Appeals; and
(12) that at the sentencing hearing, he “made it clear
that [he] was in no condition to be sentenced that day, [he]
was having tremendous chest pains, [he] was on medication
that caused dizziness and lightheadedness” and that he
“could not compose [him]self to even read [his]
statement, to the court.”
See Def.'s Reply Sept. Mot. at 1-3, 9.
United States judge is required to recuse “in any
proceeding in which his impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a); United States
v. Reynolds, 646 F.3d 63, 74 (1st Cir. 2011). The First
Circuit has held that the standard for recusal under §
455(a) is “whether an objective, reasonable member of
the public, fully informed of all the relevant facts, would
fairly question the trial judge's impartiality.”
In re United States, 441 F.3d 44, 56-57 (1st Cir.
2006) (internal quotation marks omitted).
under 28 U.S.C. § 455(a) is generally warranted only when
the judge's alleged bias or prejudice can be traced to
“a source outside the judicial proceeding at hand . .
..” Liteky v. United States, 510 U.S. 540,
545, 554-56 (1994); see also In re United States,
441 F.3d at 66-68. The Liteky Court noted that
“judicial rulings alone almost never constitute a valid
basis for a bias or partiality motion . . . . and can only in
the rarest circumstances evidence the degree of favoritism or
antagonism required [for recusal] . . . when no extrajudicial
source is involved.” Liteky, 510 U.S. at 555.
Though it is possible that a judge might develop and display
such “deep-seated and unequivocal antagonism”
toward a party that fair judgment would become
“impossible” and recusal necessary,
Liteky, 510 U.S. at 556, “a judge's
rulings and statements in the course of proceedings before
him or her rarely provide a basis for recusal under §
455(a).” In re United States, 441 F.3d at 67.
the rule about judicial rulings not forming the basis for a
recusal is strong, it is not absolute. The First Circuit
adopted the view that, even if a judge's alleged bias
comes from events at trial, “judicially acquired
information can form the basis of a judge's
disqualification . . ..” United States v.
Chantal, 902 F.2d 1018, 1022 (1st Cir. 1990) (quoting
Panzardi-Alvarez v. United States, 879 F.2d 975,
983-84 (1st Cir. 1989)). In the First Circuit, the standard
for recusal is “whether the charge of lack of
impartiality is grounded on facts that would create a
reasonable doubt concerning the judge's impartiality, not
in the mind of the judge himself or even necessarily in the
mind of the litigant filing the motion under 28 U.S.C. §
455, but rather in the mind of the reasonable
[person].” Id. at 1022 (quoting
Panzardi-Alvarez, 879 F.2d at 983).
same time, the First Circuit has observed that “the
defendant's claim and its implications cannot themselves
alone suffice to require the judge's recusal, lest the
law confer a veto power on the assignment of his trial judge
to any heckling defendant who merely levels a charge that
implicates a judge's defensive or vicariously defensive
reaction.” In re Bulger, 710 F.3d 42, 46-47
(1st Cir. 2013) (Souter, J.). Justice Souter went on to write
for the First Circuit that “[t]he recusal standard must
be more demanding because ‘the disqualification
decision must reflect not only the need to secure
public confidence through proceedings that appear impartial,
but also the need to prevent parties from too easily
obtaining the disqualification of a judge, thereby
potentially manipulating the system for strategic reasons,
perhaps to obtain a judge more to their liking.”
Id. at 47 (quoting In re Allied-Signal,
Inc., 891 F.2d 967, 970 (1st Cir. 1989)). Indeed,
“[t]he trial judge has a duty not to recuse himself or
herself if there is no objective basis for recusal.”
In re United States, 441 F.3d at 67.
Cain's motion is replete with factual inaccuracies.
First, Mr. Cain places quotation marks around statements I
supposedly made in court. Although the transcripts of all the
proceedings are available on the docket, Mr. Cain fails to
cite the transcripts. Instead, he fabricates
quotations. As a review of the actual transcripts
reveals, I said almost none of the things that Mr. Cain
quotes me as saying. See Tr. of Proceedings, Sentencing
Proceedings (ECF No. 210) (Sentencing Tr.);
see also Tr. of Proceedings, Hearing on Mot. to Revoke
Bail and Detention Hearing (ECF No. 208) (Bail and
Detention Hearing Tr.); Tr. of Proceedings, Rule 11
Proceedings (ECF No. 209) (Rule ...