Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge

Judge Donald L. GrahamJudge Donald L. Graham

Foreword

There’s an old Negro spiritual called “May the Work I’ve Done Speak for Me”. In this same spirit, this author allows the work of the Eleventh Circuit, U.S. Court of Appeal and Judge Graham’s cohorts to speak for them. Unlike, Judge Graham, the Eleventh Circuit and his enablers apparent zeal and affinity for dishonesty, mis-characterization, omission, their work will not be characterized or mis-characterized it will be produced in full and publicly available for the reading public to make their own assessments. The record fully supports the idea that the Eleventh Circuit and its Judges and staff attorneys will take extreme even lawless measures to protect Judge Graham. This post is part of an overall pattern and practice of using extreme measures and lawlessness to conceal the misconduct of Judge Graham. See Documented Allegations of Misconduct.

Point of This Post

U.S. District Judge Donald L. Graham [President George H.W. Bush 1992 nominee] was affirmed or upheld on appeal for the exact same set of facts that his colleague, Judge Daniel T. K. Hurley, at S.D. Fla.[President Bill Clinton 1993 nominee]  was reversed on appeal. In their individual cases, both Judge Graham and Judge Hurley denied in forma pauperis, “IFP”, motions or applications without stating a reason for the denials. Incidentally, Judge Graham has a history of arbitrary denials having done it 18 times to Mason without stating a reason. See Graham’s Arbitrary IFP Denials. The Eleventh Circuit used a published opinion to reverse Judge Hurley while it chose an unpublished opinion to affirm Judge Graham. Wonder How Judge Hurley feels? And yes he knows because the author made a telephone call to Judge Hurley’s chambers and sent both faxes, emails, and US mail to Judge Hurley’s chambers. Other colleagues have met a similar fate. See “Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal, Eleventh Circuit Uses Unpublished Opinion and Omission(Deception) To Invoke Res Judicata . This author owes a Federal Public Defender an apology who advised him in a trumped up criminal contempt trial: “Those people don’t give a damn about the law-Judge Graham is their golden boy. Get your godamn toothbrush cause they are going to put your ass in jail.” See Framed Web Page. This was the best legal advice this author has ever had.

A US Circuit Judge On the Potential Dangers of Unpublished Opinions

“If, for example, a precedent is cited, and the other side then offers a distinction, and the judges on the panel cannot think of a good answer to the distinction, but nevertheless, for some extraneous reason, wish to reject it, they can easily do so through the device of an abbreviated, unpublished opinion, and no one will ever be the wiser. (I don’t say that judges are actually doing this–only that the temptation exists.) Or if, after hearing argument, a judge in conference thinks that a certain decision should be reached, but also believes that the decision is hard to justify under the law, he or she can achieve the result, assuming agreement by the other members of the panel, by deciding the case in an unpublished opinion and sweeping the difficulties under the rug. Again, I’m not saying that this has ever occurred in any particular case, but a system that encourages this sort of behavior, or is at least open to it, has to be subject to question in any world in which judges are human beings.” 1 J. App. Prac. & Process 219 (1999). UNPUBLISHED OPINIONS: A COMMENT, Richard S. Arnold, Copyright © 1999 University of Arkansas – Little Rock School of Law ; Richard S. Arnold

Definition of In Forma Pauperis

http://legal-dictionary.thefreedictionary.com/in+forma+pauperis

IN FORMA PAUPERIS. In the character or form of a pauper. In England, in some cases, when a poor person cannot afford to pay the costs of a suit as it proceeds, he is exempted from such payment, having obtained leave to sue in forma pauperis.

Consequences of the Eleventh Circuit’s Decision

  • Judge Graham won’t have a reversal in his record in the event of a Senate confirmation hearing while his colleagues will.
  • Judge Graham does not cite any facts or law to support his decision.
  • Judge Graham’s decision defies and overrules the United States Supreme Court and Congress with impunity.
  • Unpublished decisions are used to undermine the rule of law and to achieve the desired objective.

IFP

Marcellus Mason and Evelyn Martinez filled out the same form, or Affidavit, swearing to the following:

“in the above-entitled proceeding; that in support of my request to proceed without prepayment of fees or costs under 28 §USC. 1915 I declare that I am unable to pay the costs of these proceedings and that I am entitled to the relief sought in the complaint/petition/motion.”

See APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES AND AFFIDAVIT, form AO 240 (Rev. 9/96) (Reverse), Docket No. 2, Mason and Docket Entry No. 1, Case No. 02-80933, Martinez .

U.S. Supreme Court On In Forma Pauperis

The federal in forma pauperis 28 U.S.C. §1915, allows an indigent litigant to commence a civil or criminal action in federal court without paying the administrative costs of proceeding with the lawsuit. The statute protects against abuses of this privilege by allowing a district court to dismiss the case “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.Denton v. Hernandez, 504 U.S. 25, 27…1915(d) authorizes federal courts to dismiss a claim filed in forma pauperis “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.Neitzke v. Williams,490 U.S. 319, 324 (1989).

Same Facts

Judge Daniel T. K. Hurley

On October 2, 2002, Judge Daniel T. K. Hurley, S.D. Fla., denied an in forma pauperis motion for the following reason:

THIS CAUSE is before the court upon plaintiff’s motion to proceed in forma pauperis. [DE# 1] Having considered the plaintiff’s motion and accompanying affidavit , it is hereby ORDERED AND ADJUDGED as follows:
1. The motion to proceed in forma pauperis is DENIED

See Case No. 02-80933, Docket Entry No. 3. On appeal the case was reported at: Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305 (11th Cir., 2004).

Judge Donald L. Graham

On November 2, 2000, Judge Donald L. Graham, S.D. Fla., denied an in forma pauperis motion for the following reason:

THIS CAUSE came before the Court upon Plaintiff’s Motion to Proceed in forma Pauper’s (D.E. #2). UPON CONSIDERATION of the motion and the pertinent portions of the record, it is ORDERED AND ADJUDGED that Plaintiff’s Motion be, and the same is hereby, DENIED.

See Docket Entry No. 9.

Eleventh Circuit Appeals Achieves Two Very Different Outcomes

Judge Hurley Reversed, Eleventh Cir. Case No. No. 02-16019.

Judge Stanley F. Birch, Jr. [President George H.W. Bush 1990 nominee], Judge Phyllis A. Kravitch [President Jimmy Carter 1979 nominee] , U.S. Dist. Judge Jerome Farris [President Jimmy Carter 1979 nominee]

In reversing Judge Hurley, the Eleventh Circuit held:

“The district court denied Martinez’s motion for leave to proceed IFP without explanation…Further, because the district court’s order contained no explanation as to why Martinez’s motion was denied, it is unclear whether the denial was based on her failure to satisfy the poverty requirement or because her complaint was frivolous. Therefore, we vacate the district court’s order and remand with instructions.” Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305 (11th Cir. 2004). See Opinion at Findlaw, Resource.Org, .

Judge Graham Affirmed or Upheld

Judge Gerald Bard Tjoflat [Presidents Nixon and Ford 1970 and 1975 appointee US Dist Judge and US Circuit Judge], Judge Susan H. Black [President Jimmy Carter 1979 nominee Dist Judge, President George H. W. Bush 1992  appointee], Judge Ed Carnes [President George H. W. Bush 1992 nominee, avid death penalty proponent, staunch conservative]

In affirming Judge Graham [Bush 1992  appointee], the Eleventh Circuit held:

“Marcellus Mason appeals from the district court’s order denying his motion to proceed in forma pauperis. In his initial brief, Mason contends that because the trial court provided no explanation in denying his motion, the district court acted arbitrarily and its decision must be reversed. In his reply brief; Mason argues for the first time that he did not follow the district court’s order to pay the filing fee because he could not afford to pay the filing fee…Further, this Court does not address issues raised for the first time in a reply brief.Upon review of the pleadings, and upon consideration of the briefs of the parties, we find no reversible error.AFFIRMED.” See Eleventh Circuit’s Unpublished Opinion, Case No. 00-16512.

Mason begged the Eleventh Circuit to reconsider.

On October 31, Judge Ed Carnes denied a motion for hearing stating only:

“The petition(s) for rehearing filed by Appellant is DENIED.”

See Order Denying Rehearing.

The Appellant/Plaintff’s Briefs: Initial Brief, Reply Brief.
Appellee/Defendants Answer Brief, on brief Maria N. Sorolis, formerly of Allen,Norton & Blue, Tampa, Fla.

Other Disparities

The Eleventh Circuit has similarly affirmed Judge Graham on appeal while excoriating and reversing other Judges in the Southern District and at the Eleventh Circuit. See “Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal, Eleventh Circuit Uses Unpublished Opinion and Omission(Deception) To Invoke Res Judicata , or Same Facts, Tale of Two Appeals.

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14 Responses to “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge”

  1. U.S. Dist. Judge William P. Dimitrouleas Reversed While Colleague Judge Donald L. Graham Affirmed by Killing The Appeal « Unpublished Junk Law of the Eleventh Circuit, US Court of Appeals Says:

    […] this has happened. Judge Daniel T. K. Hurley met a similar fate. See posting this site, “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida…“, ““Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers […]

  2. Eleventh Circuit Case No. 01-13664: The Appeal From Hell « Nothing Sticks To U.S. District Judge Donald L. Graham Says:

    […] reversed Judge Daniel T.K. Hurley for a similar failure or omission. See this site, post “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida…“. More importantly, given that Mason was initially allowed to proceed IFP, the appeal should […]

  3. Another One Bites the Dust: Same Set of Facts, Judge Graham Affirmed While Colleague Judge Forrester Reversed « Unpublished Junk Law of the Eleventh Circuit, US Court of Appeals Says:

    […] Marvin H. Shoob, and William P. Dimitrouleas, met a similar fates. See posting this site, “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida…“, ““Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers […]

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