United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 25, 2003
Charles R. Fulbruge III
Clerk
No. 01-40293
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUGO P. ABSALON,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC Nos. B-00-CV-186 &
B-98-CR-506-1
--------------------
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Hugo P. Absalon, federal prisoner # 82491-079, appeals the
denial of his motion to vacate, set aside, or correct sentence.
The only issue before us is whether the district judge should have
disqualified herself from Absalon’s 28 U.S.C. § 2255 proceedings.
Cf. Trevino v. Johnson, 168 F.3d 173, 177 (5th Cir. 1999) (habeas
petitioner did not need COA to appeal denial of motion for
disqualification).
Absalon contends that recusal was mandated under 28 U.S.C.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
§ 455(a), and we review the denial of a motion to disqualify made
pursuant to that section for an abuse of discretion. United States
v. Bremers, 195 F.3d 221, 226 (5th Cir. 1999). Absalon argues that
Judge Tagle’s legal rulings evidence a bias against him. The
record, however, is devoid of evidence that Judge Tagle’s rulings
involved an extrajudicial source and, standing alone, they do not
show “a deep-seated favoritism or antagonism” required to
constitute grounds for disqualification. Liteky v. United States,
510 U.S. 540, 555 (1994).
Absalon’s argument that Judge Tagle knew that false testimony
was presented to his grand jury is conclusional and therefore an
insufficient basis on which to require recusal. See United States
v. Schoenhoff, 919 F.2d 936, 940 (5th Cir. 1990). We additionally
reject the argument that recusal was mandated because Judge Tagle
presided over Absalon’s conviction and sentencing proceedings; we
have refused to create a mandatory recusal rule in cases where the
district judge has made determinations in earlier proceedings on
ultimate issues. United States v. Mizell, 88 F.3d 288, 300 (5th
Cir. 1996). Moreover, any opinions formed by Judge Tagle on the
basis of facts introduced at Absalon’s prior proceedings cannot
constitute a basis for a partiality motion, because they do not
“display a deep-seated favoritism or antagonism that would make a
fair judgment impossible.” See Liteky, 510 U.S. at 555.
Finally, we hold harmless any alleged error on Judge Tagle’s
part in making rulings during the pendency of the motion to
2
disqualify, because recusal was ultimately not mandated. See FED.
R. CIV. P. 61.
AFFIRMED.
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