Archive for the ‘Eleventh Circuit’ Category

Judicial Conference: Complaint of Misconduct, Judge Donald L. Graham

April 2, 2008

April 1, 2008

214 Atterberry Drive

Sebring, FL 33870

Judicial Conference
Committee on Judicial Conduct and Disability
Attn: Office of General Counsel
Administrative Office of the United States Courts
One Columbus Circle, NE 39
Washington, D.C. 20544 40

Re: Complaint of Misconduct, U.S. Dist. Judge Donald L. Graham

Dear Sir/Madam:

In order to more easily investigate this matter and keep costs down, this letter has been posted to the Internet at: URL, http://mmason.freeshell.org/JudicialConference.doc or http://mmason.freeshell.org/JudicialConference.htm . I am more than willing to supply documentation to prove any allegation raised here. Please feel free to contact me for any assistance in this matter. These are serious charges that if true, casts a pall over the integrity of the Federal Judiciary. Moreover, it is unfair to other judges to have Judge Graham get away with misconduct, while judges like Judge Manuel L. Real are sanctioned. Chief Justice John G. Roberts Jr., in his 2007 Year-End Report on the Federal Judiciary has stated that “[t]he Judiciary cannot tolerate misconduct. The public rightly expects the Judiciary to be fair but firm in policing its own.”

I have submitted multiple complaints of misconduct against Judge Donald L. Graham, S.D. Fla. to the Judicial Council of the Eleventh Circuit and to the Chief Judge, primarily Judge J.L. Edmondson. These complaints have been dismissed wholesale without any investigation at all. It would appear that Judge Edmondson has defined judicial misconduct out of existence. Each complaint filed against Judge Graham can found at: http://mmason.freeshell.org/372c/ . The following complaints were submitted to the Judicial Council: 01-0054, 01-0068, 02-0052. As the statute changed from 28 U.S.C. §372(c) to §351, new complaints were filed 2005. [05-0008,05-0011,05-0012,05-0013,05-0020,05-0021]. These complaints may also be reached by clicking on their number at the homepage, http://mmason.freeshell.org.

Judge Graham’s misconduct has managed to escape appellate review, both by way of mandamus and direct appeal. The Eleventh Circuit, without denying the allegations of misconduct has simply ignored the issues. It is inconceivable that a Court of Appeal would ignore a jurisdictional issue like whether the Judge should have disqualified or not, however the Eleventh Circuit has done just that. Among other places, this fact is documented at : https://mcneilmason.wordpress.com , See post entitled Are Allegations of Misconduct Reviewable on Appeal? .

I have setup a web portal, http://mmason.freeshell.org/methods.htm , which takes the allegations of misconduct and shows the reader how they were disposed of either by lying or simply ignoring the issues. This page has a flowchart with clickable links. It traces the allegations of misconduct through the appellate process and through Section 351 complaints as well. This page was created so the reader could see the overall picture and the level of dishonesty involved.

Given this matter is extraordinary, I would appreciate it if you would you use your authority to conduct an additional investigation or more accurately conduct an initial investigation since the Judicial Council has never conducted an investigation in the first place. In the alternative, I would appreciate if you would return the matter to the judicial council with directions to undertake an investigation. In an opinion publicly available on the Internet, you have stated:

[A] judge’s pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards and thereby causing expense and delay to litigants may be misconduct. However, the characterization of such behavior as misconduct is fraught with dangers to judicial independence. Therefore, a cognizable misconduct complaint based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge’s arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.

http://www.uscourts.gov/library/judicialmisconduct/jcdopinions108.pdf :Pg. 8.

The complaints submitted to the Judicial Council and to the Eleventh Circuit include, but is not limited to, included the following:

  • Lying and intentionally misrepresenting the law. See Documented Lie. Judge Graham told Marcellus Mason that he could not state a claim against a state actor, Highlands County Board of County Commissioners, under 42 U.S.C. §1981 while he was simultaneously allowing a represented Plaintiff in another case to state a claim under 42 U.S.C. §1981 against the very same state actor, Highlands County Board of County Commissioners.
  • Involved in possible criminal behavior by issuing a void sua sponte pre-filing injunction or vexatious litigant injunction which ultimately formed the basis of a criminal contempt complaint and conviction. See Framing An Innocent Person. Sua Sponte means on the Judges own motion and without notice and opportunity to respond prior to the issuance of the injunction. The law and Constitution requires such notice. In Weaver v. Sch. Bd., 2006 U.S. App. LEXIS 8128 (unpublished) (11th Cir. 2006), the Court held that a litigant was entitled to “notice and an opportunity to be heard” before a restriction was imposed on the litigant’s ability to challenge an injunction. “Generally, a judgment is void under Rule 60 (b) (4) “if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if acted in a manner inconsistent with due process of law. (emphasis added)” E.g.,Burke v. Smith, 252 F.3d 1260 (11th Cir. 2001). A void judgment is from its inception a legal nullity. U.S. v. Boch Oldsmobile 909 F.2d 657, 661 (1st Cir. 1990). It is incredible that the Eleventh Circuit has managed to avoid reviewing this sua sponte issued pre-filing injunction by all kinds of dishonest tricks. See http://mmason.freeshell.org/SuaSponte.htm# AppellateHistory.
  • Judge Graham refused to rule on a motion for a preliminary injunction that had been pending for about 19 months. A motion for preliminary injunction was submitted on November 24, 1999, and Judge Graham never ruled on the motion despite repeated requests. See Docket and Entry #39. The case was closed on June 20, 2001. Even more incredible, the Eleventh Circuit, after 17 months stated that I didn’t have a right to have my motion decided. See http://mmason.freeshell.org/junklaw/NoRightToHaveMotionDecided.html or https://mcneilmason.wordpress.com/ , click on You Don’t have A Right to Have Your Motions Decided.
  • Judge Graham used the contempt process and AUSA Robert Waters to force Marcellus Mason to drop an embarrassing lawsuit against Judge Graham. Marcellus Mason has offered to take a polygraph test under penalty of perjury and challenges Judge Graham to do the same. This offer to take a polygraph test has been sent by both letters and email to the U.S. Department of Justice and the FBI. Additionally, Federal Public Defender, Leon Watts was a witness to the conversation. Incidentally, Mason declined to drop the lawsuit. Either Mason has committed a crime or Judge Graham has committed a crime! Both Mason and Judge Graham should be offered polygraph tests!
  • Judge Graham used a void sua sponte issued pre-filing injunction to award attorney’s fees of $200,000 against an indigent Plaintiff whom Judge Graham knew was unemployed. See Docket Entry No. 882 and 891. Judge Graham eschewed and rejected the law and the U.S. Supreme Court which states that attorney’s fees may only be awarded against a Plaintiff if the lawsuit is found to be totally without merit. Judge Graham made no such finding because he could not due to the fact that he failed to evaluate pending summary judgment motions which set forth substantial facts supporting the lawsuit. Christiansburg Garment Co. v. EEOC ,434 U.S. 412, 422 (1978)(“a plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.”).
  • Judge Graham falsely completed a Civil Justice Reform Act, CJRA, report in order to conceal the fact that he had failed to rule on the preliminary injunction motion mentioned above. See False CJRA Report. Motions pending for more than six months must be included in the CJRA report. When told of this fact in a Judicial Misconduct and Disability Act complaint, Judge J.L. Edmondson, Eleventh Circuit, U.S. Court of Appeals, simply attacked Marcellus Mason. See Section 351 Complaint No. 05-008.
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction in clear violation of law and 28 U.S.C. § 636 (b)(1)(A) which clearly states: Notwithstanding any provision of law to the contrary-(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court except a motion for injunction relief,…” Judge Graham has repeatedly refusing to cite legal authority for such an order. On direct appeal, Case No. 01-13664-A, the Eleventh simply refused to review this injunction for validity while it was quite willing to discuss the Plaintiff’s violation of the same. See http://mmason.freeshell.org/01-13664/OrderAffirmingTrialCourt/Opinion-OCR.htm#opinion .
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction to prohibit lawful and protected out of court communication between a citizen and his government. See Docket Entry No. 201. On direct appeal, Case No. 01-13664-A, the Eleventh simply refused to review this injunction for validity while it was quite willing to discuss the Plaintiff’s violation of the same. See http://mmason.freeshell.org/01-13664/OrderAffirmingTrialCourt/Opinion-OCR.htm#opinion .
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction placing restrictions on how public records are accessed under the Florida Public Records Act that the Florida Supreme Court has stated is not lawful. See Docket Entry No. 246. Judge Graham has refused to state where a federal judge gets the legal authority to administer public records under the Florida Public Records Act. On direct appeal, Case No. 01-13664-A, the Eleventh simply refused to review this injunction for validity while it was quite willing to discuss the Plaintiff’s violation of the same. See http://mmason.freeshell.org/01-13664/OrderAffirmingTrialCourt/Opinion-OCR.htm#opinion .
  • Allowing scores of significant pre-trial motions to go undecided for months without taking any action. See Languishing Motions. This page list more than 30 filings, including summary judgment motions, that Judge Graham refused to act on.
  • Judge Graham denied in forma pauperis petitions or petition to waive filing fees on at least ten separate for no reason. See History of Arbitrary IFP Denials. In spite of the statutes and the U.S. Supreme Court’s edict that an in forma pauperis application can only be denied if the allegation of poverty is untrue or the action is frivolous. See Denton v. Hernandez, 504 U.S. 25 (1992).

This matter is not untimely because you have stated:

Moreover, there cannot be public confidence in a self-regulatory misconduct procedure that, after the discovery of new evidence or a failure to investigate properly or completely serious allegations of misconduct, allows misconduct to go unremedied in the name of preserving the “finality” of an earlier, perhaps misfired, proceeding. Pgs.8,9.

The Eleventh Circuit has affirmed Judge Donald L. Graham on appeal using unpublished opinions while reversing and excoriating other federal judges at the Southern District of Florida and in the Circuit for the exact same set of facts. The links provided here and below will demonstrate that U.S. District Judge Ursula Ungaro-Benages, S.D. Fla., mmason.freeshell.org/WorldThrust.htm , U.S. District Judge John Antoon II, M.D. Fla., http://mmason.freeshell.org/collins.htm, U.S. District Judge Daniel T. K. Hurley, mmason.freeshell.org/martinez.htm ,S.D. Fla., U.S. District Judge Marvin H. Shoob, N. D. of Georgia, mmason.freeshell.org/pleming.htm, all were reversed and excoriated on appeal while Judge Graham was affirmed for the exact same set of facts.

Judge Graham’s record has been widely distributed via email campaigns and a mailing list that was composed of over 150,000 recipients on a least two occasions. Selected people have received information about Judge Graham on a daily basis. I have multiple websites which depicts Judge Graham’s record. Hundreds of letters and faxes have been sent out to attorneys and judges at all levels. All of my websites have been indexed by all the major Internet Search Engines like Google, Yahoo, MSN, ask.com, and others. Try searching by using “Judge Donald L. Graham.” It is going to be impossible to discipline other judges given Judge Graham’s record. This will build resentment in the judiciary because it shows favoritism and that Judge Graham is above the law.

Judge Graham has never been asked to deny any of the above listed allegations. You need only ask Judge Graham to deny these allegations.

Sincerely,

Marcellus M. Mason, Jr.

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You Don’t have A Right to Have Your Motions Decided

March 29, 2008

This article is part of a series and an expose on just how far the Eleventh Circuit, U.S. Court of Appeals will go to conceal the judicial misconduct and miscreant behavior of U.S. Dist. Judge Donald L. Graham. The decisions documented here by the Eleventh Circuit are characterized by extreme dishonesty and are no more than “junk law” that it would not think of publishing. This type of jurisprudence simply cannot be accepted in a free society like the United States of America.


Judge Donald L. GrahamJudge Donald L. Graham

Does a litigant have a right to his or her motion decided?

According to the Eleventh Circuit, U.S. Court of Appeals and Judge Ed Carnes , a litigant does not have the right to have his motion decided. On April 26, 2001, Judge Ed Carnes opined:

His mandamus petition, however, is frivolous because he has failed to establish that he is entitled to mandamus relief to compel the district court to rule on his motion for preliminary injunction.

See Judge Carnes Opinion.


Factual Background

On November 24, 1999, Case No. 99-14027-CIV-Graham/Lynch, Judge Donald L. Graham was presented with a motion for a preliminary injunction. See Docket Entry No. 39. The case was ultimately closed on June 20, 2001 and Judge Graham NEVER decided the motion one way or the other. On or about March 8, 2001, Marcellus Mason filed a petition for mandamus, in forma pauperis or without paying court filing fees due to indigence, with the Eleventh Circuit to force Judge Graham to rule on the pending motion for a preliminary injunction. On April 26, 2001, Judge Ed Carnes, 17 months after the motion was submitted, as fully stated above, ruled that Mason does not have the right to have his motion decided.

The Law and the Right to Have Motions Decided

A Court confronted by a motion authorized by the Rules must decide the motion within a reasonable time…the right of a movant to have a motion decided is so clear that it will be enforced under proper circumstances by mandamus.US East Telecommunications v. US West Inf. Sys., 15 F.3d 261 (2nd Cir. 1994).

Published Decision Reaches a Different Result

Compare the above and Judge Graham to Judge Duross Fitzpatrick, now deceased, in Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (C.A.11 (Ga.), 1997), a published decision, where the Eleventh Circuit stated : “Failure to consider and rule on significant pretrial motions before issuing dispositive orders can be an abuse of discretion.” Wonder how Judge Duross Fitzpatrick would have felt about this disparity?


Links to Other Dishonest Tactics Used By the Eleventh Circuit

A Web Portal On Judge Donald L. Graham and the Eleventh Circuit, U.S. Court of Appeals


Will the Judges In the Eleventh Circuit Lie to Protect Judge Graham?

March 28, 2008

Will the Eleventh Circuit, U.S. Court of Appeal lie to protect Judge Donald L. Graham? The answer is a resounding yes.

Judge Donald L. GrahamJudge Donald L. Graham


Lying About Appellate Review Of Judge Graham’s Disqualification The lie told by the Eleventh Circuit is really quite simple. As set forth below in Case No. 01-13664, the Eleventh Circuit declined to review the issue of whether Judge Graham should have disqualified or not due to alleged misconduct in their decision of October 16, 2002. However, sometime in early 2005, Marcellus Mason subsequently filed a petition for mandamus seeking appellate review as to whether or not Judge Graham should have disqualified due to alleged misconduct. On March 16, 2005, Case No. 05-10623, pg. 2, the Eleventh Circuit promptly lied by explicitly suggesting that they had reviewed this matter. This is dishonesty of the highest magnitude. Case No. 01-13664
In an unpublished opinion, [Case No. 01-13664] the Eleventh Circuit, Judges Stanley F. Birch, Jr., Susan H. Black, and Stanley Marcus have expressly stated that allegations of judicial misconduct are not reviewable on appeal. Theses allegations were not tested for veracity they were simply ignored. Specifically, in the opinion rendered on October 16, 2002, Judges Stanley F. Birch, Jr., Susan H. Black, and Stanley Marcus asserted:

“Mason also raises issues that relate to non-sanction matters, e.g., .. the denial of his motions to disqualify the district court and magistrate judges…”

See Opinion, page 10. This is the sum total of appellate review as to whether Judge Donald L. Graham should have been disqualified due to misconduct. There is absolutely no discussion as to whether the allegations of misconduct are true or not.

Eleventh Circuit Case No. 05-10623

On March 16, 2005, Case No. 05-10623, pg. 2, the Eleventh Circuit and Judge Rosemary Barkett asserted the following:

In this case, Mason is not entitled to the recusal of Judge Graham because final judgment has been entered in his employment discrimination case, and he raised Judge Graham’s denial of his recusal motion on appeal.

This is a classical example of how a half- truth can be a lie because it is misleading. Mason did raise the issue of Judge Graham’s failure to disqualify (Case No. 01-13664), however, as fully set forth and documented above, the Eleventh Circuit refused to review this issue or to test the veracity of the allegations of misconduct and abuse by Judge Graham which Mason had asserted in his brief.


Are Allegations of Misconduct Reviewable on Appeal?

March 27, 2008

Judge Donald L. Graham
judgegraham.jpg

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

The Meaningless Appeal

Marcellus Mason filed appellate briefs with the Eleventh Circuit, U.S. Court of Appeals, in two separate cases, 01-13364 and 01-15754, accusing U.S. Dist. Judge Donald L. Graham of the following misconduct and mismanagement:

  • Lying and intentionally misrepresenting the law.
  • Refusing to rule on a motion for a preliminary injunction that had been pending for about 19 months.
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction in clear violation of law and 28 U.S.C. § 636 (b)(1)(A) which clearly states:
    Notwithstanding any provision of law to the contrary-(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court except a motion for injunction relief,…”
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction to prohibit lawful and protected out of court communication between a citizen and his government.
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction placing restrictions on how public records are accessed under the Florida Public Records Act that the State of Florida does not allow. Judge Graham has refused to state where a federal judge gets the legal authority to administer public records under the Florida Public Records Act.
  • Allowing scores of significant pre-trial motions to go undecided for months without taking any action.
  • Involved in possible criminal behavior by issuing a void sua sponte pre-filing injunction or vexatious litigant injunction which ultimately formed the basis of a criminal contempt complaint and conviction. See Framing An Innocent Person.

In an unpublished opinion, [Case No. 01-13664] the Eleventh Circuit, Judges Stanley F. Birch, Jr., Susan H. Black, and Stanley Marcus have expressly stated that allegations of judicial misconduct are not reviewable on appeal. Theses allegations were not tested for veracity they were simply ignored. Specifically, in the opinion rendered on October 16, 2002, Judges Stanley F. Birch, Jr., Susan H. Black, and Stanley Marcus asserted:

“Mason also raises issues that relate to non-sanction matters, e.g., .. the denial of his motions to disqualify the district court and magistrate judges…”

See Opinion, page 10. This is the sum total of appellate review as to whether Judge Donald L. Graham should have been disqualified due to misconduct. There is absolutely no discussion as to whether the allegations of misconduct are true or not.

Similarly, a petition for mandamus [Case No. 01-15754] was submitted to the Eleventh Circuit on or about October 2, 2001. This petition accused Judge Graham of misconduct. The Eleventh Circuit, Judges Rosemary Barkett, Jr., Susan H. Black, and Stanley Marcus, simply ignored the allegations of misconduct by stating only the following in a one sentence unpublished “opinion” :

The ” petition for writ of mandamus and petition for writ of prohibition” is DENIED.

mmason.freeshell.org/15754/mandamus_denied.pdf .

mandamus


References
Case No. 01-13664 Appellant’s Brief

Case No. 01-15754 Mandamus Petition

Judge Donald L. Graham and US Attorney R. Alexander Acosta Frame Innocent Man

March 26, 2008

FRAMING AN INNOCENT PERSON AND OTHER CRIMINALITY AND MISCONDUCT

One of the most serious allegations is that Judge Donald L. Graham framed a man with the help of the U.S. Attorney. This is a quick read less than five minutes. See

http://mmason.freeshell.org/framed.htm#quick
. This page documents how U.S. Judge Donald L. Graham used US Attorney R. Alexander Acosta, AUSA Theodore Cooperstein, and AUSA Robert Waters U.S. Judge Donald L. Graham to frame an innocent by concocting a criminal misdemeanor. This story is incredible in that these people took a clearly void sua sponte issued pre-filing injunction or vexatious litigant injunction and made it the basis of criminal contempt complaint. Even more incredible is that the Eleventh Circuit has absolutely refused to review this sua sponte issued pre-filing injunction on multiple occasions. See http://mmason.freeshell.org/framed.htm#appellate_review

The misconduct is really a two part story consisting of Judge Graham’s misconduct and his colleagues efforts to conceal it. One of the problems I have had is not documenting these allegations, but organizing them. I have a massive amount of information on a website. mmason.freeshell.org.

I have a page called Core Allegations of Misconduct at : http://mmason.freeshell.org/CoreAllegations.htm .
This page contains links that document the following:

  • Judge Graham lied and intentionally misrepresented the law.
  • Judge Graham and his Magistrate usurped legal authority by allowing a Magistrate to issue an injunction which is prohibited under 28 U.S.C. 636(b)(1)(a) and ordering Mason not to communicate with his government, Highlands County Board of County Communications.
  • Judge Graham refused to rule on a motion for a preliminary injunction by Marcellus Mason that had been pending for more than 17 months. As a matter of fact, the Eleventh Circuit refused to make Judge Graham ruled on the motion by denying mandamus even after the motion had been pending for about 15 months.
  • Judge Graham allowed scores of other important motions to simply linger without addressing them.
  • Judge Graham abused the criminal contempt procedure by taking a void sua sponte issued pre-filing injunction and making it the basis of a criminal contempt information.
  • Judge Graham used the criminal contempt process to force the withdrawal of a lawsuit.
  • Judge Graham awarded a massive $200,000 in attorney’s fees to Highlands County against an indigent plaintiff, Marcellus Mason, not on the quality of the underlying lawsuit, but based upon Judge Graham’s speculation about Mason’s motive.
  • Judge Graham has repeatedly improperly denied access to the courts by arbitrarily denying in forma pauperis, “IFP”, petitions. As a consequence, Judge Graham has necessarily arrogated his authority by denying appellate review of his lawless decisions.
  • Judge Graham falsely completed a Civil Justice Reform Act Report, “CJRA” in order to conceal the fact the fact that he had a motion for a preliminary injunction pending for more than 17 months.

ELEVENTH CIRCUIT, U.S. COURT OF APPEAL
The Eleventh Circuit has used every trick in the book to avoid scrutinizing the behavior of Judge Graham. It has been unwilling to test these allegations.
The Eleventh Circuit, U.S. Court of Appeal, has refused to test these allegations of misconduct for veracity, much less remedy them. This is really an incredible story of dishonesty. The methods employed by the Eleventh Circuit to circumvent legitimate appellate review are many and seem to be only limited by the Eleventh Circuit’s imagination. See mmason.freeshell.org/methods.htm.

Additionally, the Eleventh Circuit, primarily Chief Judge J.L. Edmondson, has mocked and contorted the Judicial Misconduct Act by refusing to investigate these allegations of misconduct against Judge Graham even though he knows full well that the appellate process has refused to address these allegations of misconduct. See Judicial Misconduct Home Page.