United States District Court, D. New Jersey
AVRAM L. GOTTLIEB, Petitioner,
STEVEN JOHNSON, Respondent.
MEMORANDUM & ORDER
L. Wolfson, United States District Judge.
matter having been opened to the Court by Petitioner Avram L.
Gottlieb's (“Petitioner”) filing of a
Petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 (ECF No. 1), a submission entitled “Motion
to Recuse the Attorney General of New Jersey”, and a
“Certification in Support of Motion to Recuse the
Attorney General of New Jersey.” (ECF Nos. 1-2, 1-3.)
Petitioner subsequently filed a “Motion to Produce and
Request for Oral Argument on Petitioner's Motion to
Recuse” and a “Motion to Produce the Petitioner
and Compel the State's Response” (ECF Nos. 4, 6,
which are related to his recusal motion). It appearing that:
the “Motion to Recuse” and related filings (ECF
Nos. 1-2, 1-3, 4, 6), Petitioner and Marquis Kennon seek the
recusal of the New Jersey Attorney General's Office from
the instant matter and in Civil Action Number 16-756, which
is a habeas petition brought by Mr. Kennon that is currently
pending before the Honorable Brian R. Martinotti, U.S.D.J.
The motion and certification are signed by both Petitioner
and Mr. Kennon. (ECF Nos. 1-2, Motion to Recuse at 2; ECF No.
1-3 Certification in Support of Motion to Recuse at 34.)
Petitioner and Mr. Kennon contend that recusal of the New
Jersey Attorney General's Office is necessary due to
“the arrest and conviction of Somerset County New
Jersey Prosecutor Nicholas Bissell by federal authorities,
for some 35 counts of racketeering.” According to
Petitioner and Mr. Kennon, “Bissell was responsible for
the entire pre-indictment investigation” of their
underlying criminal cases and “for clearing” the
person(s) the defense claimed were responsible for criminal
actions for which Petitioner and Mr. Kennon were convicted.
(ECF No. 1-2, Motion to Recuse at 2.) It appears that
Petitioner and Mr. Kennon also seek to have Somerset County
Prosecutors F. Peter DeMarco and Matthew Murphy disqualified
for their involvement in the pretrial investigation and
prosecution of Petitioner's and Mr. Kennon's criminal
cases. The certification in support of the recusal motion
provides alleged instances of misconduct by Bissell and other
members of the Somerset County Prosecutor's Office during
the investigation, grand jury, pretrial, trial, and
post-trial proceedings in Petitioner's and Mr.
Kennon's criminal cases. (See generally ECF No.
1-3.) The Court notes that these alleged instances of
misconduct also appear to form the factual basis for one or
more of Petitioner's claims for habeas relief.
Court will deny with prejudice the motion to recuse with
respect to Mr. Kennon, as this Court may not issue orders or
grant relief in a civil action assigned to another district
Court will also deny without prejudice Petitioner's
motion to recuse the New Jersey Attorney General's Office
and the related motions at this time. (ECF Nos. 1-2, 4, 6).
Because recusal is generally limited to judicial officers,
see 28 U.S.C. § 455(a) (judges should recuse
themselves “in any proceeding in which [their]
impartiality might reasonably be questioned”), the
Court construes Petitioner's motion as seeking
disqualification of the New Jersey Attorney General's
Office and/or the Somerset County Prosecutor's Office.
Local Civil Rule 103.1 provides that the Rules of
Professional Conduct (“RPC”) of the American Bar
Association, as revised by the New Jersey Supreme Court,
governs the conduct of members of the bar admitted to
practice in the District of New Jersey. L. Civ. R. 103.1(a).
“Disqualification of counsel is a harsh remedy which
must be used sparingly.” Cavallaro v. Jamco Prop.
Mgmt., 334 N.J.Super. 557, 572 (App.Div. 2000); see
also United States v. Miller, 624 F.2d 1198, 1201 (3d
Cir. 1980) (“Although disqualification ordinarily is
the result of a finding that a disciplinary rule prohibits an
attorney's appearance in a case, disqualification never
is automatic.”); Wyeth v. Abbot Labs., 692
F.Supp.2d 453, 457 (D.N.J. 2010) (noting that, in considering
disqualification, courts should “carefully examine the
totality of the circumstances, taking a balanced approach
that includes evaluating the impact, nature and degree of a
conflict.”). Thus, the movant bears the burden of
proving that disqualification is appropriate in light of the
applicable Rules. Id.
the outset, the New Jersey Attorney General's Office is a
party to this action, i.e., the Respondent, and,
thus, cannot be “recused” or disqualified. To the
extent Petitioner's motion can be construed as seeking to
disqualify the Somerset County Prosecutor's Office from
representing the New Jersey Attorney General's Office in
this matter, Petitioner has failed to meet his burden of
proving that disqualification of the Somerset County
Prosecutor's Office is appropriate based on his
allegations of past misconduct by individual members of that
Office. Furthermore, to extent Petitioner seeks to disqualify
individual members of the Somerset County Prosecutor's
Office from representing Respondent in this action, that
motion is at best premature, as Respondent has not yet been
served with the Petition or referred the matter to the
Somerset County Prosecutor's Office, and attorneys from
the Somerset County Prosecutor's have not yet entered an
appearance on behalf of Respondent. For these reasons,
Petitioner's motions seeking recusal of the New Jersey
Attorney General's Office (ECF Nos. 1-2, 4, 6) are denied
without prejudice at this time.
Because Petitioner has paid the filing fee and declared that
this Petition sets forth all grounds for relief and is his
one, all-inclusive habeas petition (ECF No. 1, Pet. at 97),
the Court has screened the Petition for summary dismissal
pursuant to Rule 4 of the Rules Governing Section 2254 Cases
in the United States District Courts (“Habeas
Rules”), and concluded that it does not “plainly
appear[ ] from the petition and any attached exhibits that
the petitioner is not entitled to relief ….” As
such, the Court will Order Respondent to file an Answer to
the Petition at this time.
on this 29th day of March, 2017, ORDERED that the Motion to
Recuse the Attorney General of New Jersey in Civ. Act. No.
16-756 is denied WITH PREJUDICE as to Marquis Kennon for the
reasons stated in this Memorandum and Order; and it is
that the Motion to Recuse the Attorney General of New Jersey
in this matter and the related motions (ECF Nos. 1-2, 4, 6)
are denied WITHOUT PREJUDICE as to Petitioner for the reasons
stated in this Memorandum and Order; and it is further
that the Clerk of the Court shall serve, pursuant to Rule 4
of the Habeas Rules, a Notice of Electronic Filing of this
Order on the State of New Jersey, Department of Law & Public
Safety, Division of Criminal Justice, Appellate Bureau
(“the Bureau”), in accordance with the Memorandum
of Understanding between this Court and the Bureau; and it is
also in accordance with the Memorandum of Understanding, that
if the Bureau intends to refer the action to a County
Prosecutor's Office, the Bureau will use its best efforts
to upload to CM/ECF a “referral letter”
indicating the name of that office within fourteen (14)
calendar days from the date of the Order to Answer; and it is
that, where the Petition appears to be untimely under the
Antiterrorism and Effective Death Penalty Act of 1996, within
forty-five (45) days of the date this Order is filed,
Respondents may file a Motion to Dismiss the Petition on
timeliness grounds only, provided that the motion: (1)
attaches exhibits that evince all relevant state court filing
dates; (2) contains legal argument discussing pertinent
timeliness law; and (3) demonstrates that an Answer to the
merits of the Petition is unnecessary; and it is further
that, if a Motion to Dismiss is filed, Petitioner shall have
thirty (30) days to file an opposition brief, in which
Petitioner may argue any bases for statutory and/or equitable
tolling, and to which Petitioner may attach any relevant
exhibits; and it is further
that, if Petitioner files an opposition, Respondents shall
have ten (10) days to ...