[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-12110 June 30, 2004
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 00-00833-CR-3-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DWAYNE A. BERGER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 30, 2004)
Before ANDERSON, BIRCH and WILSON, Circuit Judges
PER CURIAM:
Dwayne Berger appeals the district court’s failure to appoint counsel for his
post-conviction, post-appeal Federal Rules of Criminal Procedure Rule 33
evidentiary hearing. Berger also alleges, for the first time on appeal, that the
district judge should have recused herself. We AFFIRM the district court's
decision not to appoint counsel and not to recuse.
I. BACKGROUND
In a four-count indictment, Berger was charged with: (1) conspiring to
commit a bank robbery with Marsarah Kelly and Akiba Rakilam, in violation of 18
U.S.C. § 1951; (2) aiding and abetting Kelly’s bank robbery and assault with a
dangerous weapon, in violation of 18 U.S.C. §§ 2113(a), (d) and 2; (3) aiding and
abetting Kelly in using a firearm during a robbery, in violation of 18 U.S.C.
§§ 924(c)(ii) and 2; and (4) aiding and abetting Kelly and Rakilam with making
false statements to a firearm dealer, in violation of 18 U.S.C. §§ 924(a)(1)(A) and
2. Following Berger’s first jury trial, he was acquitted of Count 4, and the district
court declared a mistrial as to Counts 1, 2, and 3.
At the second trial, Kelly testified that Berger was involved in planning and
preparing for the bank robbery. Specifically, Kelly testified that: (1) Rakilam,
Berger, and she discussed how to rob the bank, and it was decided that Berger
would obtain a backpack to retrieve the money, she would commit the robbery, and
the proceeds would be split evenly; (2) because Berger was unable to buy a gun
without a Georgia driver’s license, she purchased two guns, which Rakilam and
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Berger identified for her at a pawn shop; (3) Berger informed her that she needed a
demand note to rob the bank, and all three agreed on the best language for the note;
(4) Berger recommended that she wear a button-down shirt as part of her disguise
because it would be easier to remove and that she change in the MARTA station to
be less noticeable; and (5) Berger agreed with Rakilam that Kelly should not
mention their names if she got caught. Kelly further testified that, immediately
after her arrest, she told law enforcement that nobody else was involved with the
robbery because of what Rakilam and Berger told her. However, according to her
testimony, she decided to tell the truth later in the day after neither Rakilam nor
Berger would talk to her following her arrest. The jury found Berger guilty of the
remaining three counts, and the district court sentenced him to concurrent 45-
month prison terms for Counts 1 and 2, and an 84-month consecutive sentence for
Count 3. On 22 July 2002, we affirmed Berger’s conviction on direct appeal.
In February 2003, Berger, proceeding pro se, filed a Rule 33 motion for a
new trial based on newly discovered evidence, namely, Kelly's post-trial affidavit
recanting her trial testimony inculpating Berger. In the affidavit, Kelly swore that:
(1) “contrary to earlier testimony, . . . Berger did not reach an agreement or come
to an understanding” with her to rob a bank; (2) Berger did not aid or abet her with
the robbery or with carrying a firearm during the bank robbery; and (3) the
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government compelled her to make inculpatory statements in exchange for a
reduced sentence. R2-154 at Aff. The government opposed this motion because
Berger could not satisfy the elements for a new trial; however, the government
noted that an evidentiary hearing was required and requested “that the Court
appoint counsel for both defendant Berger and Ms. Kelly, if appropriate.” R2-155
at 5.
At the evidentiary hearing,1 upon the district court’s inquiry into whether
Berger wanted to make a statement, Berger stated: “No, I was wondering like what
happened with counsel.” Appellant's Br. at A-16. Berger went on to say that,
while his motion did not request counsel, he received something from the district
court that said counsel would be appointed. Id. at A-16 to A-17. The district court
responded that, although it initially considered appointing counsel, it chose not to
because “the issue here is very narrow, and it can be resolved by just taking some
evidence.” Id. at A-17. Berger replied that “that was just something I wanted to
bring up,” but he stated that he still wanted to “go ahead and bring the witness in.”
Id. Berger then indicated that he thought counsel would be appointed because the
government in its response brief to his motion for a new trial requested that the
district court appoint counsel for both him and Kelly if appropriate. Id. at A-18.
1
The record does not contain a copy of the transcript of the Rule 33 evidentiary hearing;
however, a copy is attached to Berger’s Brief at pages A-15 to A-29.
4
The district court responded that it had considered counsel, but “it just did not
seem necessary.” Id.
On direct examination conducted by Berger at the evidentiary hearing, Kelly
testified that: (1) she gave truthful testimony at Berger’s trial, (2) she would use
her Fifth Amendment right and not answer whether the affidavit that she submitted
was true, (3) she submitted the affidavit because she was confused and alone,
(4) she felt pressured by Berger to submit the affidavit, and (5) Berger asked her to
help him. The district court then denied Berger's motion for a new trial because
Kelly recanted the affidavit, which meant that there was “no newly discovered
evidence that would warrant a new trial.” Id. at A-28. The district court added
that, although there was not a large quantity of evidence offered against Berger,
there was nothing to indicate that the testimony offered at trial was false.
Berger timely appealed the district court's denial of his post-conviction,
post-appeal Rule 33 motion for a new trial on the ground that he should have been
appointed counsel. He also argues for the first time on appeal that the district
judge erred by not recusing herself. We address each claim in turn.
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II. DISCUSSION
A. Right to Counsel
We review a district court’s decision not to appoint counsel for an abuse of
discretion. Van Poyck v. Singletary, 11 F.3d 146, 148 (11th Cir. 1994) (per
curiam).
Under 18 U.S.C. § 3006A, an indigent defendant is entitled to have
counseled representation when, inter alia, the Sixth Amendment requires or when
the defendant “faces loss of liberty in a case, and Federal law requires the
appointment of counsel.” 18 U.S.C. § 3006A(a)(1)(H)-(I). We have not addressed
the specific question of whether a defendant has a Sixth Amendment right to
counsel during a post-conviction, post-appeal Rule 33 motion. However, we have
noted that defendants have a Sixth Amendment right to counsel on direct appeal,
but not when they collaterally attack their sentences. Hill v. Jones, 81 F.3d 1015,
1024 (11th Cir. 1996). A post-conviction, pre-appeal Rule 33 motion is considered
part of a defendant's direct appeal, and the Sixth Amendment right to counsel
attaches. See, e.g., Kitchen v. United States, 227 F.3d 1014, 1019 (7th Cir. 2000)
(“[I]t is wide of the mark to label a pre-appeal motion for a new trial as a 'collateral
attack.'”). However, a post-conviction, post-appeal Rule 33 motion is considered a
collateral challenge to which the Sixth Amendment right to counsel does not
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attach. See Mayo v. Cockrell, 287 F.3d 336, 339 (5th Cir. 2002) (“Several federal
courts of appeals have held that there is no constitutional right to counsel for
post-appeal motions for new trial.”), cert. denied, 537 U.S. 975, 123 S. Ct. 443
(2002); Trenkler v. United States, 268 F.3d 16, 20 (1st Cir. 2001) (noting post-
conviction, post-appeal Rule 33 motions are collateral and that a criminal
defendant has no Sixth Amendment right to an attorney in such a proceeding);
Johnson v. United States, 246 F.3d 655, 658 (6th Cir. 2001) (“[A] delayed Rule 33
motion is a collateral challenge separate from the direct appeal.”). Absent a Sixth
Amendment right to counsel, at least two of our sister circuits have concluded that
the decision of whether to appoint counsel for a defendant in a post-conviction,
post-appeal Rule 33 motion is left to the discretion of the district court. See
Trenkler, 268 F.3d at 20 (“After final conviction the appointment of counsel must
rest in the discretion of the court.”) (citation omitted); United States v. Birrell, 482
F.2d 890, 892 (2d Cir. 1973) (per curiam) (“Whether to make such an appointment
rested in the discretion of the district judge.”). We agree with our sister circuits
and conclude that the decision of whether Berger should have received appointed
counsel was left to the discretion of the district court.
Here, the district court, in its exercise of discretion, properly considered the
complexity of the issue presented in Berger's motion as a factor relevant to his
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need for counsel.2 The issue presented in Berger’s Rule 33 motion was
narrow—whether Kelly’s post-trial affidavit undermined her trial testimony. To
decide Berger's motion, therefore, the district court needed to hear testimony only
from Kelly. Accordingly, the district court acted reasonably within its discretion in
denying Berger appointed counsel in his post-conviction, post-appeal Rule 33
motion.
B. Recusal
Berger argues that the district judge was biased against him because she
refused to appoint him counsel at the Rule 33 evidentiary hearing but appointed an
attorney for Kelly.
Ordinarily, we review a judge's decision not to recuse him or herself for an
abuse of discretion. United States v. Bailey, 175 F.3d 966, 968 (11th Cir. 1999)
(per curiam). However, because Berger failed to seek recusal of the district judge
in the proceedings below, we review his recusal request for plain error. Hamm v.
Members of Bd. of Regents of State of Fla., 708 F.2d 647, 651 (11th Cir. 1983).
2
See generally Kitchen, 227 F.3d at 1018 (holding that counsel should have been
appointed in the pre-appeal Rule 33 motion at issue because “[I]n a Rule 33 proceeding, a
defendant 'must face an adversary proceeding that—like a trial—is governed by intricate rules
that to a layperson would be hopelessly forbidding. An unrepresented defendant . . . is unable to
protect the vital interests at stake.”) (citation omitted).
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Plain error is error that is plain and that affects a defendant's substantial
rights. United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). No plain
error occurred in this case.
Two statutes govern recusal—28 U.S.C. §§ 144 and 455. Hamm, 708 F.2d
at 651. Under § 144, a party must file “a timely and sufficient affidavit”
complaining of a trial judge’s personal bias. This statute is inapplicable to this
case because Berger did not file an affidavit. Section 455(a) instructs a federal
judge to disqualify herself if her “impartiality might reasonably be questioned,”
and § 455(b) requires disqualification under specific circumstances, none of which
apply in this appeal.
In deciding whether a district judge should recuse herself under § 455(a), we
determine whether “an objective, disinterested, lay observer fully informed of the
facts underlying the grounds on which recusal was sought would entertain a
significant doubt about the judge’s impartiality.” United States v. Patti, 337 F.3d
1317, 1321 (11th Cir. 2003) (citation omitted), cert. denied, __ U.S. __, 124 S. Ct.
1146 (2004). To disqualify a judge under § 455(a), the bias “must stem from
extrajudicial sources, unless the judge’s acts demonstrate such pervasive bias and
prejudice that it unfairly prejudices one of the parties.” Bailey, 175 F.3d at 968
(internal quotation marks omitted). “[A]dverse rulings alone do not provide a
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party with a basis for holding that the court’s impartiality is in doubt.” Byrne v.
Nezhat, 261 F.3d 1075, 1103 (11th Cir. 2001).
We conclude that no plain error occurred as a result of the district judge
failing to recuse herself. Berger’s recusal argument has no merit under § 455(a)
because Berger’s only evidence of bias is the district court’s adverse ruling
denying him counsel, which is insufficient to form a basis for recusal.
III. CONCLUSION
Berger alleged that the district court erred by refusing to appoint counsel in
his post-conviction, post-appeal Rule 33 motion for a new trial and by failing to
recuse herself. Berger had no federal right to the assistance of counsel in his Rule
33 motion. Thus, whether he should receive appointed counsel was left to the
discretion of the district court. In this case, the district court did not abuse its
discretion by considering the complexity of Berger's appeal and then refusing to
grant appointed counsel. As for his recusal claim, we find that Berger failed to
allege sufficient facts to support this claim. Accordingly, the judgment of the
district court is AFFIRMED.
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