Documented Acts of Misconduct by U.S. Dist. Judge Donald L. Graham

Judge Donald L. GrahamJudge Donald L. Graham

JUDICIAL MISCONDUCT DEFINED

Judicial Misconduct has been defined by Jeffrey M. Shaman, DePaul University Law,Steven Lubet, Professor, Northwestern University Law, James J. Alfini President and Dean, South Texas College of Law, U.S. Judge Alex Kozinski, United States Court of Appeals for the Ninth Circuit, in part as:

Judicial action taken without any arguable legal basis —and without giving notice and an opportunity to be heard to the party adversely affected—is far worse than simple error or abuse of discretion; it’s an abuse of judicial power that is “prejudicial to the effective and expeditious administration of the business of the courts.” See 28 U.S.C. § 351(a); Shaman, Lubet & Alfini, supra, § 2.02, at 37 (“Serious legal error is more likely to amount to misconduct than a minor mistake.

See JUDICIAL COUNCIL OF THE NINTH CIRCUIT Opinion .

“[A] judge is guilty of “oppression in office” when that judge intentionally commits acts which he or she knows, or should know, are obviously and seriously wrong under the circumstances and amount to an excessive use of judicial authority.” State v. Colclazier, 2002 OK JUD 1, 106 P.3d 138.

“Where honesty or integrity are at issue, a single action can result in a finding of judicial misconduct.” In re Hill, 152 Vt. 548, 572-75, 568 A.2d 361, 373-75 (1989);

“Canon 3A(5) is violated where there is a pattern of unreasonable delay or where a particular instance is so lacking in legitimate justification that it is willful. See Matter of Long, 244 Kan. 719, 724, 772 P.2d 814, 818 (1989) (Canon 3A(5) violated where delay is “significant, extensive, and unjustified”); Sommerville, 364 S.E.2d at 23 n.3 (sanctions appropriate under Canon 3A(5) where there is a pattern of delay resulting from either willful neglect of, or manifest inability to effectively perform, judicial duties); Matter of Alvino, 100 N.J. 92, 97 n.2, 494 A.2d 1014, 1016 n.2 (1985) (delay can violate Canon 3A(5) if “willful” or “typical of the judge’s work”);” See URL:http://www.libraries.vermont.gov/SUPCT/157/op90-478.txt.


Judges Who Have Endorsed Judge Graham’s Behavior

In a reply to a letter dated July 18, 2001 complaining of Judge Graham’s conduct, Judge Edward Zloch, former Chief Judge, S.D. Fla. has stated

Please be advised that I have no jurisdiction over this matter, am precluded from taking any action whatsoever in this case, and am precluded from offering you any legal advice. The Judge to whom this matter was assigned is one of the very best Judges of this Court and your case is being appropriately handled. I have no authority to review any allegations you make in the documents you submitted.

See Judge Zloch’s Letter dated Aug. 10, 2001.

Chief Judge J.L. Edmondson, Eleventh Circuit, U.S. Court of Appeal, has aggressively defended Judge Graham’s behavior. See Judicial Misconduct Complaint homepage.


Chief Judge Federico A. Moreno Declines to Endorse Judge Graham

Chief Judge Federico A. Moreno was sent a letter on March 25, 2008 and told of the behavior described below and declined to endorse Judge Graham’s behavior or deny any of the allegations listed below. In a letter dated April 4, 2008, Judge Moreno wrote:

I am in receipt of your letter written to me as a Chief Judge of the Southern District of Florida about actions by Judge Donald Graham. In that letter, you also complained about the Chief Circuit Judge J.L. Edmondson. As you can understand one district judge cannot review the actions of another district judge. This rule applies to the Chief Judge of the District as well. It is before the Eleventh Circuit Court of Appeals in Atlanta that any complaint as to a ruling made by a District Judge can be made, I assure you that any decision rendered by Judge Graham was made in good faith upon what he perceived to be the law. Judge Graham has an impeccable reputation. However, if you feel that a judge has erred, the appellate judges in Atlanta are the ones who can decide what to do about it. Thank you for writing.


Was Judge Graham Disciplined In Any Manner ?

The answer is no. Judge Graham was not disciplined in any manner. A host of attempts at remedying the allegations of misconduct were made through appellate review [direct appeal and mandamus], a lawsuit, and a host of Judicial Misconduct and Disability Act Complaints. See Methods. Moreover, in their various decisions, the Judges at the Eleventh Circuit were careful not to even mention the allegations, much less test them for veracity and remedy them. If these allegations are true, then shouldn’t something be done?


CORE ALLEGATIONS OF MISCONDUCT AND ABUSE OF POWER BY JUDGE DONALD L. GRAHAM

The following is an abbreviated list of the allegations of misconduct leveled at Judge Graham, a more complete list, with updates and new complaints, is set forth at:  http://mmason.freeshell.org/CoreAllegations.htm.

  • 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. “[I]t is hereby ORDERED AND ADJUDGED that Defendants’ Motion for Preliminary Injunction is GRANTED…Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.” See Docket Entry No. 201. Additionally, Judge Graham prohibited Mason from requesting public records directly from Highlands County. See Docket Entry No. 201. Among other things, these orders are blatant violations of the First Amendment. For legal authority, see Overruling the First Amendment.
  • Judge Graham and his Magistrate usurped legal authority by allowing a Magistrate to issue an injunction that prohibited a litigant from requesting Public Records under Florida law directly from a Florida Governmental agency, Highlands County Board of County Commissioners. “ORDERED AND ADJUDGED that Defendants’ Renewed Motion for Preliminary Injunction is GRANTED… Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.” See Docket Entry No. 246.
  • Judge Graham lied and intentionally misrepresented the law. Judge Graham told Mason that the law precluded him from asserting claims of intentional discrimination under 42 U.S.C. §1981 against a state actor, Highlands County Board of County Commissioners. See Docket Entries Nos. 435 and 466. At the very same time, Judge Graham was allowing a plaintiff in another case Fa Nina St. Germain v. Highlands County, Case No. 00-14094] to assert claims under 42 U.S.C. §1981 against the very same state actor, Highlands County Board of County Commissioners. See Summary Judgment, Case No. 00-14094. It might be noted that Ms. St. Germain was represented by counsel, Peter Helwig, Lakeland, FL and Mason was not represented by counsel. Judge Graham does not dispute that he intentionally lied. On December 16, 2004, Docket Entry No. 932, Judge Graham was presented with a letter or request to file a motion stating that he, Judge Graham, had lied, Judge Graham denied the right to file the motion without denying the allegation that he had lied. See Docket Entry No. 931. Even more incredible, the Eleventh Circuit told two lies on two separate occasions in order to cover for Judge Graham’s lie. See Lie# 1 and Lie# 2.
  • Judge Graham outright lied or stated misleading facts in order to justify rendering a clearly void sua sponte issued pre-filing injunction, or vexatious litigant injunction of September 20, 2001, (DE 878). In order to justify a pre-filing injunction or vexatious litigant injunction, a judge has to prove that the legal process has been abused by the litigant filing an extreme amount of frivolous lawsuits. “Absent extraordinary circumstances, such as a demonstrated history of frivolous and vexatious litigation, or a failure to comply with sanctions imposed for such conduct, a court has no power to prevent a party from filing pleadings, motions or appeals authorized by the Federal Rules of Civil Procedure.” Richardson Greenshields Securities, Inc v. Lau, 825 F.2d 647, 652 (2nd Cir. 1987). See Case Law Memo. Consequently, in order to meet the legal requirements, Judge Graham lied about the amount of lawsuits filed. At pages 1, 2, and 3 of Judge Graham’s sua sponte issued pre-filing injunction, he attempts to list eleven lawsuits that he claims were filed by Mason in the S.D.Fla. Mr. Graham states, “Marcellus M. Mason (Mason”) has filed eleven (11)cases and/or counterclaims in this District…” For the purpose of justifying the injunction, Mr. Graham counted the following lawsuits as being “filed”: (1) Case No. 00-14202, (2)Case No. 00-14201, (3) Case No. 00-14116, (4) Case No. 01-14074, (5) 01-14078. In each of these cases Mason filed petitions to file the lawsuit without payment of filing fees due to financial hardship, in forma pauperis, “IFP”. According to Mr. Graham’s own definition of “filing”, “A complaint is not considered filed until the filing fee is paid.” See (DE -10) Case No. 00-14201. See also (DE -10) Case No. 00-14202. No filing fee was paid in either of the above cases because Graham arbitrarily denied Mason the benefit of the in forma pauperis statutes. Using Graham’s own definition there were only 11 minus 5 or 6 lawsuits “filed.” Case No. 00-14240 which Graham also counts was actually filed by Highlands County, not Mason. Now Graham has only 5 lawsuits filed. Case No. 01-14230 was filed in state court and removed to the S.D. Fla. by Highlands County after Graham crafted the injunction where they knew the case would be assigned to Graham. See Notice of Removal, URL: http://geocities.com/mcneilmason/secret/01-14230/NoticeOfRemoval.pdf. Graham now has only four lawsuits that Mason filed, not the 11 he concocted. See Litigation Summary, URL:http://mmason.freeshell.org/LitigationSummary.doc . The four remaining lawsuits Case Numbers 99-14042, 99-14257, 99-14314 were consolidated with Case number 99-14027.
  • Judge Graham has been involved in possible criminal behavior by issuing a void sua sponte pre-filing 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). Equally egregious, the Eleventh Circuit, has used all manner of tactics to avoid reviewing this clearly invalid sua sponte issued pre-filing injunction. See Sua Sponte page.
  • Judge Graham refused to rule on a motion for a preliminary injunction by Marcellus Mason that had been pending for more than 19 months. The motion was submitted on November 24, 1999 (Docket Entry No. 39) and was never ruled on by Judge Graham. It was made moot on June 20, 2001 when Judge Graham dismissed the case because of alleged out of court communications by Mason with the Highlands County Government. As late as April 2001, or 17 months after Mason filed the motion, the Eleventh Circuit said a mandamus petition was frivolous, because Mason had no right to have his motion decided. SeeNo Right To have Motion Decided
  • Judge Graham allowed scores of other important motions to simply linger without addressing them. Some of these filings languished for as long as eight months. See Languishing Motions.
  • Judge Graham used the criminal contempt process to force the withdrawal of a lawsuit. Robert Waters, AUSA, in a three way conversation, stated that Judge Graham would drop the impending contempt charge if Marcellus Mason would drop his lawsuit against Judge Graham, however, Marcellus Mason declined. Marcellus Mason has complained to the FBI and the U.S. Department of Justice and offered to take a polygraph under the penalties of perjury.
  • 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 Davis who was originally assigned the case prior to retirement allowing Mason to proceed in forma pauperis. Judge Graham used the sua sponte issued pre-filing injunction to award $200.000 against Mason, a man Judge Graham knew didn’t have the money because he was proceeding in forma pauperis. The award was based upon a void sua sponte issued pre-filing injunction. See Docket Entry #882. Judge Graham had pending summary judgment motions that he could have used to determine whether the lawsuit had merit or not but he refused to do so.
  • Judge Graham has repeatedly improperly denied access to the courts by arbitrarily denying in forma pauperis, “IFP”, petitions. In forma pauperis, or “IFP” allow indigents to file lawsuits by waiving filing fees. Judge Graham denied 18 IFP petitions for no stated reason. Judge Graham absolutely refused to cite any reason for his denials. See IFP denial history. As a consequence, Judge Graham has necessarily arrogated his authority by denying appellate review of his lawless decisions.
  • Judge Graham attempted to circumvent the appellate process by using intimidation.Mr. Mason advised by the court that he is to no longer file pleadings in this case because it is closed.” See D.E. 934. On January 9, 2005, Judge Graham issued an order that he termed a “Notice of Hearing” in a civil case, 99-14027 to be held on January 14, 2005. See D.E. 933. This hearing on a civil motion required U.S. Probation and Lynn Waxman, appellate attorney, in a criminal case to be present. This hearing was held under the guise of deciding Mason’s pending one page request to file a Rule 60(b)(4), Fed.R. Civ. P. motion. At this hearing, Judge Graham kept saying the case is closed. Judge Graham decided something that day but he refused to put in writing because he knew Mason would attack his ruling, so he a court report hand write a threatening letter. See D.E. 934. Judge Graham knows full well that “[e]ven after a judgment has become final and even after an appeal has been lost, Civil Rule 60(b) gives losing parties additional, narrow grounds for vacating the judgment” GenCorp, Inc. v. Olin Corporation, 477 F.3d 368;2007 U.S. App. LEXIS 3102 (6th Cir., 2007).
  • Judge Graham falsely completed a Civil Justice Reform Act Report, “CJRA” to conceal the fact that he had a motion for a preliminary injunction pending for more than 17 months. As a matter of fact, Chief Judge J.L. Edmondson, rather than investigate the matter simply chose to attack Marcellus Mason by stating the following:
  • In this complaint, the single (unsupported) allegation that has not already been determined in previous complaints filed by Mr. Mason against Judge Graham is that Judge Graham intentionally falsified his March 31, 2001, Civil Justice Reform Act Report in an attempt to conceal the fact that he had not ruled on one of Mr. Mason’s motions for over 15 months. Not withstanding the fact that the motion in question was pending for more than six months, and the fact that the March 31, 2001 report is incorrect, Mr. Mason has not presented any information, evidence or documentation to support his claim to suggest that the omission of this motion on this CJRA report was an intentional attempt by Judge Graham to conceal his failure to rule on the motion .

    See Judicial Misconduct Complaint No. 05-008 and Order.

More allegations of judicial misconduct is set forth at http://mmason.freeshell.org/CoreAllegations.htm.


CONCEALING MISCONDUCT

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.

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