Opinion
CRIMINAL ACTION NO. 92-257.
May 26, 2001
ORDER MEMORANDUM
ORDER
AND NOW, this 8th day of June, 2001, upon consideration of Defendant's Motion for Recusal of Judge (Document No. 273, filed January 28, 1999), for the reasons stated in the attached Memorandum, IT IS ORDERED that Defendant's Motion for Recusal of Judge (Document No. 273) is DENIED and the Affidavit Under 28 U.S.C. § 144 Against Judge Jan E. DuBois is DISMISSED.
MEMORANDUM
I. BACKGROUND
On May 6, 1992, defendant Ifedoo Noble Enigwe ("Enigwe," "defendant" or "petitioner") was indicted on four counts by a Grand Jury in the Eastern District of Pennsylvania for trafficking in heroin. On August 7, 1992, he was convicted by a jury on all four counts and, on August 13, 1992, was sentenced by this Court, inter alia, to 235 months in prison. The conviction and sentence were affirmed by the Third Circuit in an unpublished Memorandum on April 28, 1994.
On August 24, 1994, defendant filed a pro se Motion pursuant to 28 U.S.C. § 2255 seeking to vacate his sentence. After an evidentiary hearing, at which defendant appeared pro se, his Motion was denied by Order dated September 11, 1995. See United States v. Enigwe, Crim. A. No. 92-00257, 1995 WL 549110 (E.D.Pa. Sept. 11, 1995). Defendant's Motion for Reconsideration was denied on March 1, 1996. See United States v. Enigwe, Crim. A. No. 92-00257, 1996 WL 92076 (E.D.Pa. Mar. 1, 1996). On appeal, by Order dated July 23, 1996, the Third Circuit vacated the denial of defendant's § 2255 Motion and remanded the case to this Court for appointment of counsel and further proceedings. On remand, this Court appointed counsel for defendant and conducted a second evidentiary hearing. Thereafter, defendant's § 2255 Motion was again denied; that ruling was subsequently affirmed by the Third Circuit. See United States v. Enigwe, Crim. A. No. 92-00257, 1997 WL 430993 (E.D.Pa. July 16, 1997), aff'd 141 F.3d 1155 (3d Cir. 1998) (No. 97-1632). Defendant's petition to the United States Supreme Court for a writ of certiorari was denied. See United States v. Enigwe, 523 U.S. 1102 (1998) (No. 97-8516).
On January 22, 1998, defendant filed a Letter/Motion to Vacate the "Judgment entered at my sentencing" under Federal Rule of Civil Procedure 60(b)(6) (Document No. 216, filed January 26, 1998). The Court treated this as a second or successive motion under 28 U.S.C. § 2255 and denied the Motion by Order dated February 13, 1998. The Court also denied, by Order dated February 25, 1998, defendant's Reply (Document No. 220, filed February 20, 1998), which was treated, at defendant's request, as a motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e). Next, the Court denied defendant's Motion for Reconsideration of its Orders of February 13 and February 25, 1998. See United States v. Enigwe, Crim. A. No. 92-00257, 1998 WL 150974 (E.D.Pa. Mar. 30, 1998). Then, in July 1998, the Court denied two additional motions filed by Enigwe: defendant's Motion to Compel the United States Marshals to Return the Money Retained on a Writ of Execution, see United States v. Enigwe, Crim. A. No. 92-00257, 17 F. Supp.2d 388 (E.D.Pa. July 8, 1998), and defendant's Motion for Production of the Grand Jury Ministerial Records, see United States v. Enigwe, Crim. A. No. 92-00257, 17 F. Supp.2d 390 (E.D.Pa. July 8, 1998). Defendant then filed a Motion for Reconsideration of the Court's Orders of July 8, 1998 (Document No. 257, filed July 30, 1998); it was denied by Order dated September 2, 1998. See United States v. Enigwe, Crim. A. No. 92-00257 (E.D.Pa. Sept. 2, 1998).
Defendant filed a Second or Successive Petition for Vacation of Conviction Pursuant to § 2255 (Document No. 258, filed July 15, 1998), which was supplemented by defendant's Additional Claims to Petitioner's Second § 2255 Motion Sub Judice (Document No. 261, filed August 26, 1998). The Court denied these motions by Order dated September 28, 1998 and transferred the motions to the Third Circuit pursuant to 28 U.S.C. § 1631. See United States v. Enigwe, Crim. A. No. 92-00257, 1998 WL 670051 (E.D.Pa. Sept. 28, 1998). By summary order dated June 3, 1999, the Third Circuit denied defendant's application to file a second or successive § 2255 motion. Defendant also filed an Application for Bail Pending Resolution of Petitioner's Habeas Corpus Petition Sub Judice (Document No. 260, filed August 14, 1998); it was denied by Order dated September 3, 1998. See United States v. Enigwe, Crim. A. No. 92-00257 (E.D.Pa. Sept. 3, 1998).
While defendant's second or successive § 2255 petition was pending before the Third Circuit, Enigwe filed Defendant's Motion to Modify Sentence Pursuant to 18 U.S.C. § 3582(c)(2) (Document No. 272, filed January 6, 1999) and Defendant's Motion for Recusal of Judge (Document No. 273, filed January 28, 1999). After filing the Motion for Recusal of Judge, defendant filed eleven additional motions as follows: (1) Defendant's Rule 60(b)(6) Motion to Vacate This Court's Decision on Section 2255 Motion Entered Against Petitioner on July 16, 1997 (Document No. 274, filed February 10, 1999); (2) Defendant's Second or Successive Petition for Vacation of Conviction Pursuant to § 2255 (Document No. 278, filed January 20, 2000); (3) Defendant's Supplemental Motion to § 2255 Motion Pending Before This Court (Document No. 279, filed March 23, 2000); (4) Defendant's Motion to Dismiss the Indictment Pursuant to Rule 12(b)(2) Fed.R.Crim.P. (Document No. 282, filed June 30, 2000); (5) Defendant's Addendum to the Motions Sub Judice (Document No. 283, filed July 11, 2000); (6) Defendant's Emergency Motion for Bail (Document No. 285, filed July 31, 2000); (7) Defendant's Pro Se 28 U.S.C. § 2255 Motion to Vacate, Set Aside or Correct Sentence (Document No. 292, filed November 16, 2000); (8) Defendant's Pro Se Motion to Expedite (Document No. 296, filed January 16, 2001); (9) Defendant's Pro Se Motion to Dismiss Without Prejudice (Document No. 297, filed January 16, 2001); (10) Defendant's Pro Se Motion for Bail (Document No. 298, filed February 5, 2001); and (11) Defendant's Pro Se Motion to Expedite Ruling of This Case (Document No. 299, filed April 4, 2001). By Order dated May 31, 2001, the Court granted Defendant's Motion to Dismiss Without Prejudice (Document No. 297, filed January 16, 2001) in which defendant asked that seven (7) of his pending motions be dismissed without prejudice.
By order dated May 26, 2000, the Third Circuit denied Enigwe's application to file a second or successive 28 U.S.C. § 2255 motion.See In re Ifedoo Noble Enigwe, No. 00-1278 (3d Cir. May 26, 2000) (Document No. 281, filed May 30, 2000).
By order dated December 8, 2000, the Third Circuit ordered that this motion, one of defendant's successive petitions under 28 U.S.C. § 2255, be docketed. The District Court docketed the petition effective November 16, 2000, the date that his application to file a second or successive petition was filed in the Third Circuit.See In re Ifedoo Noble Enigwe, No. 00-3558 (3d Cir. Dec. 8, 2000) (Document No. 291, filed December 11, 2000).
In addition to the numerous motions filed in this Court, after filing his motion for recusal, defendant filed two petitions for a writ of mandamus to the Third Circuit, both of which were denied in unpublished opinions. See In re Ifedoo Noble Enigwe, No. 00-2050 (3d Cir. Jan. 10, 2001) (unreported) (writing that mandamus relief is not available to correct a judge's refusal to recuse himself); In re Ifedoo Noble Enigwe, No. 01-1594 (3d Cir. Apr. 27, 2001) (unreported) (denying without prejudice defendant's request for mandamus relief seeking an order directing the district court to rule on his § 2255 motion).
On January 20, 1999, Enigwe filed an action under the Racketeering Influenced Corrupt Organization Act (RICO), 18 U.S.C. § 1964(a), against the undersigned Judge, his law clerks, his courtroom deputy, and his secretary. With his complaint, Enigwe filed an application for leave to proceed in forma pauperis. The RICO action was assigned to the Honorable Norma Shapiro. By order dated April 9, 1999, Judge Shapiro denied the application for leave to proceed in forma pauperis on the ground that Enigwe had sufficient assets to enable him to pay the full $150.00 dollar filing fee. Enigwe's request for reconsideration was denied by Judge Shapiro on May 12, 1999.
Presently before the Court is defendant's recusal motion. For the following reasons, defendant's Motion for Recusal of Judge (Document No. 273, filed January 28, 1999) is denied.
II. DISCUSSION
Defendant moves for disqualification under 28 U.S.C. § 144, which provides as follows:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The statute further provides, in pertinent part, that "[t]he affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. . . ." 28 U.S.C. § 144. Because petitioner's affidavit was not timely filed and is insufficient as a matter of law, petitioner's motion is denied.
As an initial matter, the Court notes that "[i]t is the duty of the judge against whom a section 144 affidavit is filed to pass upon the legal sufficiency of the facts alleged." United States v. Townsend, 478 F.2d 1072, 1073 (3d Cir. 1973); see also Bumpus v. Uniroyal Tire Co., 385 F. Supp. 711, 712 (E.D.Pa. 1974) ("Such a motion is properly addressed to and ruled upon by the Judge himself.") (citing United States v. Bell, 351 F.2d 868 (4th Cir. 1965)). The mere filing of an affidavit, however, does not automatically disqualify a judge. See Townsend, 478 F.2d at 1073. "Disqualification results only from the filing of a timely and sufficient affidavit." Id. The Court will address each of these issues in turn.
A. Timeliness
As observed in Smith v. Danyo, the requirement that an affidavit be filed no less than 10 days before the beginning of the term at which a proceeding is to be heard "is no longer pertinent because terms of court have been abolished." Smith v. Danyo, 441 F. Supp. 171, 175 (M.D.Pa. 1977). Despite this, 28 U.S.C. § 144 "still requires that an affidavit for recusal be filed timely." Id. See Bumpus v. Uniroyal Tires Co., 385 F. Supp. 711 (E.D.Pa. 1974) (rejecting affidavit as untimely filed where facts that gave rise to the allegations contained in the affidavit occurred between two weeks and two months prior to the filing of the motion).
The requirement that an affidavit and motion for recusal be timely filed is not a mere formality. As explained by the Third Circuit, "[t]he judicial process can hardly tolerate the practice of a litigant with knowledge of circumstances suggesting possible bias or prejudice holding back, while calling upon the court for hopefully favorable rulings, and then seeking recusal when they are not forthcoming." Smith v. Danyo, 585 F.2d 83, 86 (3d Cir. 1978). Accordingly, "when the circumstances giving rise to the charge of bias occur or are discovered after the case has commenced, timeliness should be measured not in some absolute and arbitrary manner from the date of discovery, but with respect to the future stages of the case." Id.
In this case, the grounds for recusal stated in petitioner's affidavit are based on incidents that allegedly occurred at a hearing held on June 3, 1997, or in connection with that hearing. All of the facts alleged thus occurred approximately eighteen months before petitioner filed his motion for recusal and supporting affidavit on January 28, 1999. As set forth supra, defendant filed numerous motions, including a second or successive § 2255 motion, in between the time he learned of the alleged bias in this case and the time he filed his motion for recusal. Furthermore, no explanation for any delay in the filing of the motion to recuse has been offered by petitioner. The Court thus concludes that petitioner has not acted with "the requisite diligence required by 28 U.S.C. § 144," Smith, 441 F. Supp. at 175, and that his actions resemble those of a "litigant with knowledge of circumstances suggesting possible bias or prejudice holding back, while calling upon the court for hopefully favorable rulings, and then seeking recusal when they are not forthcoming." Smith, 585 F.2d at 86. As a consequence, petitioner's motion for recusal is denied on the ground that it was not timely filed. However, even assuming arguendo that petitioner's motion was timely filed, the Court nevertheless determines that petitioner's affidavit fails to set forth facts sufficient to meet the requirements of 28 U.S.C. § 144.
B. Sufficiency
In evaluating a motion brought under § 144, the "test is whether, assuming the truth of the facts alleged, a reasonable person would conclude that a personal as distinguished from a judicial bias exists."Mims v. Shapp, 541 F.2d 415, 417 (3d Cir. 1976). "Neither the truth of the allegations nor the good faith of the pleader may be questioned, regardless of the judge's personal knowledge to the contrary." Id. (citing Berger v. United States, 255 U.S. 22 (1921)).
As a rule, only allegations of personal bias and prejudice will suffice and the bias or prejudice must stem from an extrajudicial source. See United States v. Grinnell Corp., 384 U.S. 563, 583 (1966) ("The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.") (citingBerger v. United States, 255 U.S. 22, 31 (1921)); United States v. Vespe, 868 F.2d 1328, 1340 (3d Cir. 1989) ("Only bias which is personal or extrajudicial in nature is disqualifying."); Lambert v. Blackwell, 2001 WL 410639, at *2 n. 3 (E.D.Pa. Apr. 20, 2001) (observing that the alleged prejudice must stem from an extrajudicial source to require disqualification under § 144) (citing Liteky v. United States, 510 U.S. 540, 544 (1994)).
Additionally, the affidavit on which a motion for recusal is based must state particularized facts and reasons showing why recusal is required.See Townsend, 478 F.2d at 1074 ("Facts including time, place, persons, and circumstances must be set forth."). As such, "[c]onclusory statements and opinions . . . need not be credited." Vespe, 868 F.2d at 1340 (citing United States v. Haldeman, 559 F.2d 31, 134 (D.C. Cir. 1976) (en banc)); see also Bumpus, 385 F. Supp. at 715 ("Subjective conclusions or opinions that bias or the appearance of impropriety may exist are insufficient to require a Judge's disqualification."). In addition, "[p]rior rulings of the Court cannot provide such a factual basis [so as to require recusal]." Id. at 713.
In this case, petitioner states in his affidavit that the Court is personally biased against petitioner and in favor of the government. In support of this general proposition, petitioner states that improper ex parte communication between the Court and counsel for defendant occurred in 1997. In his affidavit, defendant states that Christopher Warren, former counsel to Enigwe, told defendant that he "spoke with the Judge who is willing to consider a lenient sentence under nine years so that this case will stop bouncing back and forth from him to the court of appeals." Pet.'s Aff. ¶ 4. Petitioner also points to the transcript of a hearing that occurred on June 3, 1997, as providing further evidence of this conversation and the resulting prejudice or bias. Enigwe claims that when the issue of whether any ex parte communications had occurred was raised, the Court became defensive and agitated and stated that "I am not going to let you set Mr. Warren up for another ineffective assistance of counsel claim." Pet.'s Aff. ¶ 5. Petitioner also avers that the Court cautioned Mr. Warren against speaking about the alleged ex parte communication with petitioner, id. ¶ 6, and made an effort to conceal that ex parte communication had occurred. Id. ¶¶ 6, 8.
In support of this allegation, Enigwe points to the following statement made by the Court at the June 3, 1997 hearing: "Mr. Warren, you've learned." Hearing Tr. at 34 (June 3, 1997). Defendant postulates in his affidavit what this statement meant was: "You've learned [that you should not have spoken to the Petitioner about our conversation]." Pet.'s Aff. ¶ 6. As noted supra, conclusory statements and opinions are insufficient so as to warrant recusal under 28 U.S.C. § 144. Defendant's opinion as to what the Court meant by the statement "Mr. Warren, you've learned." need not be credited.
In addition, defendant points to a number of unfavorable rulings and comments made by the Court as evidence of personal bias. In his affidavit, petitioner relies on the following allegations: (1) prior to ruling on petitioner's § 2255 motion, at the June 3, 1997 hearing, the Court stated: "if there is a vacating [of Enigwe's sentence] — that's a big if . . . ." (Pet's Aff. ¶ 7), without having seen and reviewed the evidence at the hearing; (2) the Court denied petitioner's § 2255 motion so that the Court's ex parte communication with Mr. Warren would not be investigated by the government (Pet.'s Aff. ¶ 9); (3) the denial of one of petitioner's motions was without any factual support other than the Judge stating that "`[t]he court has had much experience with defendant and has heard his consistent assertions of his innocence." (Pet.'s Aff. ¶ 10); (4) the Court's ruling with respect to petitioner's claim that he was denied due process was incorrect; see United States v. Enigwe, 17 F. Supp.2d 388 (E.D.Pa. 1998) (Pet.'s Aff. ¶ 11); (5) the Court concealed from the Third Circuit an affidavit that petitioner claims demonstrates his actual innocence (Pet.'s Aff. ¶ 12); and (6) the Court has an actual conflict of interest with defendant arising out of a RICO suit that Enigwe filed against the Court and the Court's employees (Pet.'s Aff. ¶ 13).
The Court notes that the Third Circuit, it is unreported Order dated May 26, 2000, wrote:
Enigwe's application to file a second or successive 28 U.S.C. § 2255 motion is denied. Enigwe submits an affidavit by Sunny Afuekelu indicating that he is responsible for the crimes for which Enigwe has been found guilty. The affidavit submitted by Sunny Afuekelu who appears to be a Nigerian national who is no longer in this country and subject to this country's laws — is not suffieicent when viewed in light of the evidence submitted at trial . . . .In re Ifedoo Noble Enigwe, No. 00-1278 (3d Cir. May 26, 2000) (unreported) (Document No. 281, filed May 30, 2000).
The RICO suit, filed on January 20, 1999, was dismissed on April 9, 1999.
In reviewing a motion for recusal under § 144, the Court is mindful of the rule that the allegations contained in an affidavit in support of such a motion must be accepted as true. The Court is, however, firmly of the conviction that petitioner's affidavit is insufficient as a matter of law. As an initial matter, there are no statements in the affidavit in support of disqualification based on personal, or extrajudicial, bias. All of the facts and allegations set forth in petitioner's affidavit relate to proceedings involving Enigwe and information the Court has learned in the course of its participation in this case. See United States v. Grinnell Corp., 384 U.S. 563, 583 (1966) ("The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.").
Moreover, Enigwe's affidavit is insufficient in that it does not contain particularized facts. See Townsend, 478 F.2d at 1074. The affidavit contains a number of theories as to what occurred based on circumstantial inferences, but opinions, theories and conclusory allegations are insufficient to require recusal. See Vespe, 868 F.2d at 1340 (citing United States v. Haldeman, 559 F.2d 31, 134 (D.C. Cir. 1976) (en banc)); Bumpus, 385 F. Supp. at 715.
With respect to the ex parte communication issue, petitioner relies onUnited States v. Furst, 886 F.2d 558 (3d Cir. 1989), a case in which the Third Circuit found that allegations of ex parte communications with defense counsel were sufficient to require recusal. Furst, however, is distinguishable from this case on its facts. In Furst, there was no question as to the accuracy of the underlying facts on which the affidavit of recusal was based — the district judge in Furst acknowledged that he had two ex parte communications with defendant Furst's attorney. In contrast, in this case, Enigwe's assertion that the Court had ex parte communications with his attorney is based on hearsay statements, opinions, inference and conclusory assertions — not particularized facts.
Similarly, Enigwe's statement that the Court concealed evidence from the Third Circuit is based entirely on inference. In addition, petitioner's other allegations — the Court's "big if" comment, allegations regarding the Court's motives and bases for prior rulings, and the existence of a conflict of interest arising out of an alleged RICO suit — do not form a proper basis for recusal under 28 U.S.C. § 144. All of these allegations clearly stem from the Court's participation in the case or are based on the Court's prior rulings; they are therefore improper grounds for recusal under 28 U.S.C. § 144. See Bumpus, 385 F. Supp. at 713 ("Prior rulings of the Court cannot provide such a factual basis [so as to require recusal]."). For all of these reasons, the Court concludes that, upon consideration of the facts alleged in petitioner's affidavit, a reasonable person would not conclude that a personal bias exists. See Mims v. Shapp, 541 F.2d 415 (3d Cir. 1976).
III. CONCLUSION
For the foregoing reasons, Defendant's Motion for Recusal of Judge is denied and the affidavit under 28 U.S.C. § 144 is dismissed.
The decision of the Court denying defendant's Motion for Recusal of Judge is not based on what is set forth in the Addendum.
The Court recognizes that it is unnecessary to explain any of the statements made in the Enigwe affidavit and motion. Nevertheless, this opinion would be incomplete without an explanation of what appears to be at the root of the affidavit and motion — an alleged ex parte communication between the Court and Enigwe's attorney appointed in connection with his second § 2255 motion, Christopher Warren. The short answer to these allegations is that there was no ex parte communication.
The allegations arise out of a hearing that the Court scheduled on June 3, 1997 for the purpose of receiving evidence with respect to Enigwe's second § 2255 motion. At that hearing, the Court addressed a letter, dated April 14, 1997, that Enigwe sent to his attorney, a copy of which was sent to the Court. A copy of the April 14, 1997 letter is appended to this Memorandum. The April 14, 1997 letter was addressed at length at the hearing because of Enigwe's statement in the letter that he "waived all my other issues because you [Warren] told me, in the presence of a witness, that you [Warren] will try to get me under nine years." Letter from Enigwe to Warren, dated April 14, 1997 (emphasis in original). The Court decided to give Enigwe an opportunity to present evidence related to all such issues in order to avoid a problem if the Court decided to deny the second § 2255 motion or, in the event of a resentencing; the Court imposed a sentence in excess of nine years.
In his affidavit under 28 U.S.C. § 144, Enigwe states that the Court had "an ex parte communication with court-appointed lawyer Christopher Warren" and Christopher Warren told Enigwe that the Court "is willing to consider a lenient sentence under nine years so that his case will stop bouncing back and forth from him to the court of appeals." Pet.'s Aff. ¶¶ 3 4. Those statements are diametrically opposed to a statement Enigwe made in the April 14, 1997 letter. In the letter, as stated above, Enigwe said: "Before I continue, I would like to remind you that I waived all my other issues because you told me in the presence of a witness that you will try to get me under nine years." Letter from Enigwe to Warren, dated April 14, 1997 (emphasis in original); see Hearing Tr. at 6 (June 3, 1997). He said absolutely nothing in the letter or at the June 3, 1997 hearing about any ex parte communication.
In paragraph 5 of the affidavit, Enigwe states that, when "this issue [of ex parte communication with Warren by the Court] was brought up by this Petitioner[,]" Judge DuBois stated: "I am not going to let you set Mr. Warren up for another ineffective assistance of counsel claim." Pet.'s Aff. ¶ 5; see Hearing Tr. at 12 (June 3, 1997). The very next part of in the transcript reads: "If you have anything to present to me, you're going to present it now. If you need more time, you'll be back. But, we're going to stop this — this trip, if you will, from this court to the Court of Appeals and back again. You have a right to appeal anything I do. But, I also intend to do what I can to avoid making any error." Hearing Tr. at 12 (June 3, 1997). The statement with respect to the ineffective assistance of counsel claim was related to the Court's concern that, if the Court denied the motion or resentenced Enigwe to a term of incarceration of more than nine years, Enigwe would claim that his waiver of his right to assert the "other issues" was invalid. The Court was simply attempting to eliminate any alleged promise as a basis for giving up those claims. That was made clear later in the hearing when the Court stated:
I want you to assume that you might not get a sentence of nine years. You might not get any reduced sentence at all. I might deny your petition. Assume that and tell me what you want to do regarding all of these other issues. If you wish to go forward with them, we'll give you an opportunity to do that. If you're prepared to go forward now, we'll do it now. If you need more time, we'll give you more time. You tell me what you want to do. But, you're going to do it now.
Hearing Tr. at 30 (June 3, 1997).
To make certain that Enigwe understood what the Court intended, the Court repeated what is set forth supra at page 30 of the hearing transcript. In response, Enigwe stated the following:
Well, Your Honor, knowing everything you've said now and knowing that with the denial of the motion that I still have 235 months, I'm still going to waive all those claims and I'm still going to shake Mr. Warren's hand as a good lawyer. And, I'm doing that knowingly, voluntarily and intelligently today.
Hearing Tr. at 31 (June 3, 1997).
The above-quoted parts of the hearing transcript leave no doubt about the basis for the statement made by the Court regarding an ineffective assistance of counsel claim. The statement was made in connection with what Enigwe said in the April 14, 1997 letter to the effect that Enigwe waived all of his other claims because of the alleged promise by Warren. The Court wanted to make certain that Enigwe's waiver of any such claims was not linked to anything Warren might have said about a nine year sentence.
The only other statement in the affidavit that warrants comment is the statement that the Court refused to allow Warren to get on the witness stand and be questioned by government counsel. The explanation for that is a simple one. Warren took the position at the hearing that what he said in his response to Enigwe's April 14, 1997 letter was privileged and that, notwithstanding the fact that a copy of the April 14, 1997 letter was sent to the Court, the privilege was not waived. See Hearing Tr. at 33 (June 3, 1997). Under those circumstances, the Court concluded that allowing Warren to testify would lead to questioning about matters subject to the attorney/client privilege, which was not necessary to any relevant issue before the Court.