United States v. Cedrick Diggs , 714 F. App'x 460 ( 2018 )

Case: 17-10308 Document: 00514386158 Page: 1 Date Filed: 03/14/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-10308
United States Court of Appeals
Fifth Circuit
FILED
March 14, 2018
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
CEDRICK DIGGS,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CV-513
Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
Cedrick Diggs, federal prisoner # 27072-177, stands convicted of three
counts of conspiracy to obstruct interstate commerce by robbery and three
counts of using and carrying a firearm during a crime of violence. In the
underlying matter, the district court denied, as an unauthorized successive 28
U.S.C. § 2255 motion, Diggs’s motion filed pursuant to Federal Rule of
Criminal Procedure 35 and denied his motion for recusal of the district court
judge. Diggs seeks a COA solely from the denial of his recusal motion and asks
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-10308 Document: 00514386158 Page: 2 Date Filed: 03/14/2018
No. 17-10308
that the matter be remanded to the district court for consideration by a
different district court judge.
Because Diggs appeals the denial of his recusal motion, a COA is not
required. See Trevino v. Johnson, 168 F.3d 173, 176-78 (5th Cir. 1999).
Accordingly, his motion for a COA is DENIED AS UNNECESSARY.
In his motion for recusal, Diggs argued that, based upon disciplinary
matters and complaints of impartiality involving the district court judge, which
had nothing to do with Diggs’s case, the judge could not be impartial and
unbiased in the matter because Diggs is an African American. Diggs’s
conclusory argument for recusal failed to show that the judge displayed an
antagonism against African Americans that would have made a fair judgment
impossible. See 28 U.S.C. §§ 144, 455(a) & (b)(1); Liteky v. United States, 510
U.S. 540, 555-56 (1994). Accordingly, the district court did not abuse its
discretion in denying the motion for recusal. See United States v. Scroggins,
485 F.3d 824, 829 (5th Cir. 2007).
The denial of Diggs’s motion for recusal is AFFIRMED. Diggs’s motion
to proceed in forma pauperis on appeal is DENIED as moot. Diggs is WARNED
that future repetitive and frivolous filings may result in the imposition of
sanctions, including dismissal, monetary sanctions, and restrictions on his
ability to file pleadings in this court or any court subject to this court’s
jurisdiction.
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