United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge.
matter is before the Court on the Defendant's MOTION TO
DISQUALIFY JUDGE ROBERT E. PAYNE (the "Motion")
(ECF No. 42), which, for the following reasons, will be
Graves ("Graves") is charged in a one-count
indictment with a bank robbery that occurred on May 13, 2015
in Petersburg, Virginia. ECF No. 3. The facts of the bank
robbery are not at issue in the Motion and need not be
the Motion focuses on a hearing held on April 22, 2019 (the
"April 22 hearing"), at which the Court heard
argument on Graves' MOTION FOR NEW COUNSEL (ECF No.
Before the April 22 hearing, in his response to Graves'
MOTION FOR NEW COUNSEL (ECF No. 27), Gill represented that
his communications with Graves had "grow[n] briefer and
more clipped as time passes," and that Graves had
informed Gill that he (Graves) desired new counsel. ECF No.
29. Gill believed that Graves' MOTION FOR NEW COUNSEL
(ECF No. 27) should be granted because of the breakdown in
communications between him and Graves.
April 22 hearing, Graves made four arguments for why his
attorney, Gill, should be replaced: (1) that Gill requested a
"useless and baseless bond hearing"; (2) that Gill was
"wonton [sic] and ineffective" for failing to call
out allegedly perjured statements by the Assistant U.S.
Attorney; (3) that Gill was "incompetent" for not
recalling "important facts or dates pertaining to [his]
case"; and (4) that Gill "admitted" on
three occasions that Graves "needed a new lawyer, and
that he, Gill was not putting forth his best defensive
strategy.' See ECF No. 31-1; Hr'g Tr. at
4-9 (ECF No. 40). Graves asked the Court for "another
professional lawyer with morals that's going to defend my
case in the utmost professional quality defensive strategy
that I and all indigent defendants are entitled to by lawyer
[sic]." Hr'g Tr. at 8.
the April 22 hearing, the Court heard largely from Graves and
Gill. During the hearing and in assessing the arguments made
by Graves, the Court commented, inter alia, that
Graves "thinks he knows a lot about the law and
doesn't, apparently, know much about it," Hr'g
Tr. at 11; that Graves "has a contentious way about
him," id.; that "he's going to treat
whatever lawyer is appointed for him the same way,"
id.; that Graves "has to behave,"
id. at 13; that Graves' was "running his
mouth" in criticizing Gill, id.; and that
Graves' "attitude [is] animating [the]
situation" requiring new counsel. Id. at 14.
Court concluded that the breakdown in communication between
Gill and Graves was "entirely, completely attributable
to Mr. Graves who is, as best I can recall, one of the most
contentious, insulting defendants for whom the Court has
appointed counsel," that he is "wrong about
virtually everything he says," and that he was
"thankless" towards Gill's representation.
Hr'g Tr. at 21. However, after hearing the arguments,
especially Gill's representation that the relationship
was largely broken, the Court granted Graves' MOTION FOR
NEW COUNSEL (ECF No. 27) by an ORDER (ECF No. 32) entered on
April 23, 2019. See Hr'g Tr. at 21-23. The Court
cautioned, however, that it had "every apprehension that
the same bull-headed, contentious, arrogant, and
mean-spirited conduct will be visited [by Graves] upon the
other lawyer, and if it is, there will be no other lawyer
because it is obvious to me that the entire fault here is Mr.
Graves." Id. at 22. Thereafter, Mr. Theodore
Bruns, Esquire ("Bruns"), was appointed as
Graves' counsel on April 23, 2019 (Gill's
representation was terminated that same day).
the Court received a handwritten letter dated April 24, 2019
(i.e. one day after the Court granted Graves'
MOTION FOR NEW COUNSEL) from Graves in which he stated that
"[u]pon further review, thought, and time, I Graves
request and ask for the reinstatement of my former lawyer
Paul Gill so that the case may proceed in a timely
manner." ECF No. 33. Although Gill's representation
had terminated at that point, the Court ORDERED that Gill
file a response in which he was to explain whether he was
willing to be reinstated as Graves' attorney. ECF No. 34.
Gill responded, explaining that, when he (Gill) visited
Graves to discuss Graves' April 24 letter (ECF No. 33),
Graves "advised (paraphrasing somewhat) that whatever
fleeting thoughts he had as represented by what was filed as
ECF No. 33, he unequivocally did NOT want undersigned to
represent him again, and he was mistaken to have sent the
letter in." ECF No. 37 at 1. The Court denied
Graves' request to reinstate Gill. ECF No. 38.
further confuse matters, on May 1, 2019, the Court received
another letter from Graves, dated April 22,
(i.e. the day the Court held the hearing on the
MOTION FOR NEW COUNSEL), in which Graves moved "for the
Removal of federal judge Payne from my upcoming trial,"
due to conduct at the April 22 hearing. ECF No. 35.
Because Bruns had recently been appointed as Graves'
counsel, the Court denied Graves' request in ECF No. 35
(which had been made pro se), and ORDERED Bruns to
review the transcript of the April 22 hearing and determine
whether it was appropriate to re-file a Motion for Removal.
ECF No. 38.
reviewing the April 22 transcript, Graves (through Bruns)
filed the MOTION TO DISQUALIFY JUDGE ROBERT E. PAYNE (ECF No.
42). The Government responded in opposition. ECF No. 43.
Graves did not file a reply brief. The matter is now ripe.
Graves' Motion cites to both 28 U.S.C. § 144 and 28
U.S.C. § 455 for judicial disqualification, he states
that "[f]or the purpose of this motion, Mr. Graves
relies upon the language of 28 U.S.C. 455(a)." ECF No.
42 at 2. Accordingly, the Court only considers this ground in
deciding the Motion.
U.S.C. § 455(a) provides: "Any justice, judge, or
magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned." The test for disqualification
under this statute is an "objective" one, asking
whether "a reasonable outside observer, aware of all the
facts and circumstances of [the] case, would. .
.question" the judge's impartiality. United
States v. DeTemple, 162 F.3d 279, 287 (4th Cir. 1998).
The statute certainly "does not require a judge to
recuse himself because of 'unsupported, ...