Posts Tagged ‘criminal contempt’

Same Facts, Judge Wilbur D. Owens Reversed, Judge Donald L. Graham Affirmed

October 30, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham, “Teflon Don”, A Bad Mother&&#!@, Shut Your Mouth!!

Point of This Post

The Eleventh Circuit, U.S. Court of Appeal,  effectively affirmed or upheld U.S. District Judge Donald L. Graham, Southern District of Florida,  on appeal for the exact same set of facts that his colleague, Senior Judge Wilbur D. Owens, Jr., Middle District of  Georgia, was reversed for on appeal. In their individual cases, both Judge Graham and Judge Owens used their inherent power to make a finding of “bad faith”; however, Judge Owens was reversed on appeal for failing to afford the sanctioned party due process while Judge Graham committed the exact same error but was not reversed.  In fact, the Eleventh Circuit has refused to address the validity of the order making the “bad faith” finding in what has to be a Guinness world record number of times.  Incidentally, the Eleventh Circuit has a long history of affirming Judge Graham on appeal while reversing his colleagues for the exact same set of facts. For example, see the following posts:

It is hard not to conclude that Judge Graham is clearly favored over his colleagues  in the Eleventh Circuit.  Incidentally, Judge Owens was sent a fax informing his of post and all his law clerks have received emails regarding this matter.

Senior Judge Wilbur D. Owens, Jr.

Senior Judge Wilbur D. Owens, Jr., District Court for the Middle District of Georgia, Case No. 04-00080-CV-WDO-5 was reversed for using his inherent power to make a bad faith finding without affording a litigant due process.  In Adkins v. Christie, 2007 U.S. App. LEXIS 8322,*;227 Fed. Appx. 804 (11th Cir. 2007), the Eleventh Circuit stated:

[A] federal court possesses the inherent power to impose sanctions. Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S. Ct. 2123, 2132, 115 L. Ed. 2d 27 (1991). However, the court must afford the sanctioned party due process, “both in determining that the requisite bad faith exists and in assessing fees.” In re Mroz, 65 F.3d 1567, 1575 (11th Cir. 1995). Due process mandates that an attorney be given fair notice that his conduct may warrant sanctions and the reasons why. Donaldson v. Clark, 819 F.2d 1551, 1559-60 (11th Cir. 1987). In addition, the attorney must be given a chance to respond to the allegations and justify his or her actions. In re Mroz, 65 F.3d at 1575-76. We find that the requirements of due process were not satisfied in this case.

Similarly, in In Re: Sunshine Jr. Stores, Inc. v. Sunshine-Jr. Stores, Inc.,456 F.3d 1291(11th Cir. 2006), the court held:

Courts must afford a sanctioned party due process, both in determining the bad faith required to invoke the court’s inherent power to impose sanctions and in assessing fees. In re Mroz, 65 F.3d 1567, 1575 (11th Cir. 1995) [*35]  (citing Chambers, 501 U.S. at 49, 111 S. Ct. at 2135). “Due process requires that the [party] be given fair notice that [its] conduct may warrant sanctions and the reasons why.” Id. (citing Donaldson v. Clark, 819 F.2d 1551, 1559-60 (11th Cir. 1987)).

Judge Donald L. Graham

U.S. Dist. Judge Donald L. Graham, who like Senior Judge Wilbur D. Owens, Jr., above,  used his inherent power to make a bad faith finding without affording the litigant due process, but was not reversed on appeal unlike Judge Owens.  As a matter of fact, the Eleventh Circuit has refused to review the order making the finding of bad faith for validity on multiple occasions.

On September 20, 2001, Judge Graham issued a pre-filing injunction against Marcellus Mason sua sponte. (D.E. #878). Courts routinely reject sua sponte issued pre-filing injunctions without batting an eye.  See http://mmason.freeshell.org/RejectSuaSponte.htm.  This order specifically states: “THIS CAUSE came before the Court sua sponte.” (D.E. #878, pg. 3;).  Incidentally, when Judge Graham rendered this order on September 20, 2001, the case was closed and had been noticed for appeal and assigned Eleventh Circuit Case No. 01-13664 since June 25, 2001.  See Notice of Appeal, (D.E. #795).

In this same sua sponte issued pre-filing injunction Judge Graham makes a so-called “finding of bad faith“. “It has become clear to the Court that Mason is proceeding in bad faith.. Such activity is in bad faith and will not be permitted by the Court.” (D.E. #878, pg. 5, 6, “Bad Faith” section).

Judge Graham then took this so-called finding of bad-faith and then used it to award attorney’s fees of $200,000 against Marcellus Mason even though neither he nor the Eleventh Circuit ever gave Mason the opportunity to oppose the order.  A Report and Recommendation, “R&R”, was issued and stated:

Judge Graham’s order of September 20, 2001, also makes a specific finding of bad faith . Judge Graham stated, “It has become clear to the Court that Mason is proceeding in bad faith.


See “R&R”,
(D.E. #882, pgs. 3).

Judge Graham stated that such activity is in bad faith and will not be permitted by the Court. Even though bad faith is not a prerequisite to an award of attorney’s fees to a prevailing defendant, if the plaintiff is found to have brought such a civil rights action or to have continued such an action in bad faith, there will be an even stronger basis for charging him with attorney’s fees incurred by the defense. Here, it is clear that based upon Judge Graham’s previous findings of bad faith,…

See “R&R”, (D.E. #882, pgs. 3).

Judge Graham accepted this R&R.  See (D.E. 891)(“Defendants are awarded the sum of $200,000.00 as reasonable attorney’s fees in this case.”).

Eleventh Circuit Upholds Judge Graham’s Abusive and Unlawful Behavior

In Case No. 01-15754, a Petition for Mandamus, pps. 15-18, was filed on October 1, 2001, or eleven days after the sua sponte issued pre-filing injunction of September 20, 2001 that made a finding of bad faith was rendered. See receipt.  On December 5, 2001, the Eleventh Circuit refused to review the September 20, 2001 order and bad faith finding for validity and in a terse one sentence opinion stated:

The ‘petition for writ of mandamus and petition for writ of prohibition’ is DENIED.

See Order Denying Mandamus.

Mason then sought to have the order of September 20, 2001 that made the “bad faith” finding reviewed for validity in the pending direct appeal, Case No.  01-13364.  However, in a really despicable and dishonest act, the Eleventh Circuit struck Mason’s brief for arguing against the validity of the order of September 20, 2001 because the Eleventh Circuit claimed the order was beyond the scope of appeal.  Notwithstanding this fact, the Eleventh Circuit then turned around and used this order to affirm Judge Graham in the very same appeal, Case No. 01-13664.   See “Putrid Dishonesty:Beyond the Scope of Appeal ” for proof of this pernicious and blatantly dishonest act.  The story gets even more incredulous because Mason subsequently made a multiplicity of attempts to get the September 20, 2001 order reviewed for validity; however, the Eleventh Circuit used ingenuity and trickery that would make the shister lawyer proud in order to avoid reviewing this order for validity.  See Eleventh Circuit, U.S. Court of Appeals, Sets Guiness World Record For Refusing to Review Sua Sponte Issued Pre-Filing Injunction.

Judge Graham then escalated the matter by using this clearly void sua sponte issued pre-filing injunction to form the basis of a criminal contempt complaint. See
Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life.

JUDICIAL MISCONDUCT COMPLAINTS FILED AGAINST U.S. JUDGE DONALD L. GRAHAM

Judge Graham has engaged in reckless, lawless, and vindictive behavior, which includes, but is not limited to the following:

  • Lying and intentionally misrepresenting law.  See Core Allegations.
  • Refusing to rule on a motion for a preliminary injunction that
    had been pending for more than 17 months.  See Core Allegations.
  • Allowing scores of motions and filings to languish without being
    decided.  See Languishing Motions.
  • Usurping legal authority. Allowing a Magistrate to issue an injunction prohibiting direct communication with the Highlands County Government.  Additionally, prohibiting  Marcellus Mason from making public records request under Florida Law directly to Highlands County.  See Usurp,
    Usurp2
    , and Usurp3.
  • Violating clearly established law and the authority of the U.S. Supreme Court by issuing pre-filing injunctions without notice and opportunity to be heard.  See Pre-filing Injunction.
  • Abuse of the criminal contempt procedure.  Judge Graham took a clearly invalid sua sponte issued pre-filing injunction and made it the basis of a criminal contempt complaint and conviction.  See Framed.
  • Lying and intentionally misrepresenting material facts. See Intentionally Misstating Facts.
  • Ignoring the U.S. Supreme Court denying access to the courts by refusing to state any reason for denying IFP applications.  See IFP Denials.
  • Awarding attorneys’ fees of $200,000 against an indigent plaintiff in total
    disregard of the law and the United States Supreme Court.  Massive Attorney’s Fees Award.

Judge Graham has a host of judicial misconduct filed against him. Chief Judge J.L. Edmondson’s has dismissed most of these complaints by simply defining judicial misconduct out of existence. State court judges have been removed for less reasons than the conduct committed by Judge Graham. Read the following complaints and Judge Edmondson’s reply and form your own judgment. The following complaints have been lodged against Teflon Don, or U.S. District Judge Donald L. Graham.

Pending Judicial Misconduct Complaints

Complaint Status

Judicial Conference
pending

Reconsideration
pending

June 25, 2008
pending

July 9, 2008
pending

July 15, 2008
pending

It has been said that the Committee on Judicial Conduct and Disability,
has become quite serious in investigating federal judges for misconduct. According to law.com,Binding National Rules Adopted for Handling Judicial Misconduct Complaints, in March of this year, the Judicial Conference adopted the first-ever binding nationwide procedures for handling complaints of judicial misconduct. U.S. Dist. Judge Donald L. Graham has escaped discipline for his abusive and possible criminal behavior.  As a result of this, Mason submitted complaints to both the Judicial Conference and Chief Judge J.L. Edmondson, Eleventh Circuit, US Court of Appeal again.  These complaints are governed by 28 U.S.C. §§ 351-364, “The Judicial Improvements Act of 2002” formerly “The Judicial Misconduct and Disability Act“. Previously, Chief Judge J.L. Edmondson, had been misconstruing the statute and summarily dismissing complaints of misconduct by simply regurgitating the statutory language at 28 U.S.C. § 352 which allows him dismiss complaints that are “directly related to the merits of a decision or procedural ruling“.  Judge Edmondson is alone in his view that legal error and judicial misconduct are mutually exclusive.  For more discussion on “legal error” and judicial misconduct, see article
Chief Circuit Judge J.L. Edmondson Uses Perfect Scam of Negative Definition To Defeat Complaints of Misconduct Under the Judicial Misconduct and Disability Act
.

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Eleventh Circuit Disregards Well Established Law, Own Binding Precedent, And The U.S. Supreme Court: Achieving Desired Outcome By Ignoring Timely Filed Notices of Appeal

September 9, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham, “Teflon Don”, A Bad Mother&&#!@, Shut Your Mouth!!

Table of Contents

Introduction

Point of This Post

Judicial Independence

Form of Notice Of Appeal

Disregarded Notices Of Appeal

Supreme Court On Time For Filing Notice of Appeal

Eleventh Circuit On Time For Filing Notice of Appeal

Other U.S. Circuit Court of Appeals On The Time For Filing Notice of Appeal

Order Closing the Case

Introduction

This entire blog or website, mcneilmason.wordpress.com, is dedicated to illustrating the extreme measures that judges at the Eleventh Circuit, U.S. Court of Appeal have deployed to keep from disciplining U.S. District Judge Donald L. Graham, “Teflon Don”, for abusive behavior and misconduct. Judge Graham has a history of insolence with respect the United States Supreme Court and binding precedent. See this site, “Is U.S. Dist. Judge Donald L. Graham Willfully Defying The United States Supreme Court?“. This post will reference Mason v. Heartland Library Cooperative, Highlands County Board of County Commissioners, Case No. 01-13664-A,  (11th Cir. 2002), an unpublished decision.  Mason v. Heartland Library Cooperative involves a level of judicial dishonesty that is odious and virtually impossible to overstate as this appeal has been aptly called “the appeal from hell”.  See Eleventh Circuit Case No. 01-13664: The Appeal From Hell The Eleventh Circuit is clearly unconstrained either by the law or the facts in its inexorable march to the land of desired outcomes. However, this post will limit itself to the narrow discussion of how the Eleventh Circuit simply took away the right to appeal a pre-filing injunction by asserting that notices of appeals were untimely. On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his motion and without notice to the litigant Marcellus M.Mason.  See Docket Entry Number 878, (D.E. # 878) .  Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. While not the subject of this post, but the sua sponte issued pre-fling injunction is remarkable  and incredible for the following reasons:

Point of This Post

This post will only address the narrow legal point that the time to file a notice of appeal does not begin to run until a separate judgment is entered pursuant to Rule 58, Federal Rules of Civil Procedure.  Specifically, this post will document how the Eleventh Circuit disregarded well established law, its own binding precedent, and the United States Supreme Court in order to keep from reviewing a sua sponte issued pre-filing injunction rendered by U.S. Dist. Judge Donald L. Graham on September 20, 2001.  The Eleventh Circuit simply ignored several timely filed notices of appeal that attacked the sua sponte issued pre-filing injunction.  Stated alternatively, the Eleventh Circuit just took away the legal right to appeal the sua sponte issued pre-filing injunction rendered on September 20, 2001.  The final judgment as required under Rule 58 was rendered on September 13, 2002. Prior to this date, September 13, 2002, the Eleventh Circuit disregarded several notices of appeal.

Judicial Independence

The American Bar Association, “ABA”, has created “talking points” on Judicial Independence. The ABA believes that Federal Judges should be left alone and be allowed to discipline themselves without “interference” from the Congress.

Benefits of Judicial Independence

It assures all Americans that cases will be decided on their merits. All litigants know that their case will be decided according to the law and the facts, not the vagaries of shifting political currents or the clamor of partisan politicians. Decisions are based on what is right and just, not what is popular at the moment.

ABA Talking Points: Independence of the Judiciary: Judicial Independence

Contrary to the ABA’s talking points, as this post documents, judges or appeals courts can simply deny an appeal without even bothering to address the merits of the appeal.  A court like the Eleventh Circuit can simply say a notice of appeal was untimely and disregard the right to appeal.   When this happens, a litigant is virtually without a remedy because the Supreme Court only hears about 1 per cent of the cases that are filed seeking review.

Form of Notice Of Appeal

Firstly, it is necessary to point out that according to the United States Supreme Court, a timely filed brief, formal or informal, or in this case a petition for mandamus may satisfy the notice of appeal requirement. There is no requirement that the brief or filing specifically state “notice of appeal”. “Rule 3(c) governs the content of notices of appeal: notices ‘shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken.Smith v. Barry, 502 U. S. 244 (1992). Courts will liberally construe the requirements of Rule 3. Thus, when papers are ‘technically at variance with the letter of [Rule 3], a court may nonetheless find that the litigant has complied with the rule if the litigant’s action is the functional equivalent of what the rule requires.Id at ¶11. [T]he notice afforded by a document, not the litigant’s motivation in filing it, determines the document’s sufficiency as a notice of appeal. If a document filed within the time specified by Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal.” Id at ¶13. Consequently, a petition for mandamus that meets that meets the requirements stated above is sufficient to satisfy the notice of appeal requirement.

The Eleventh Circuit has stated: “[P]recedent permits us to treat the petition for the writ of mandamus as a direct appeal”. In Re Bethesda Memorial Hospital Inc., 123 F.3d 1407, 1408 (11thCir. 1997).

Rule 4. Appeal as of Right—When Taken

In a civil case, a litigant normally has 30 days to tile an appeal from an order or judgment.

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules 4 (a)(1)(B), 4 (a)(4), and 4 (c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.

See Rule 4, Fed.R.App.P.

Pertinent Facts

This post will only list the facts that are necessary to determine when the time for filing a notice of appeal begins to run.  More detailed background information can be found at mmason.freeshell.org, generally, and at http://mmason.freeshell.org/CaseSummary.htm.  This case was an employment discrimination case and was docketed under Case No. 99-14027-CV-Graham.  The Case was dismissed on June 20, 2001, Docket Entry No. 791, by Judge Graham for constitutionally protected out of court communications between the Plaintiff, Marcellus Mason, and the Defendant, Highlands County Board of County Commissioners.   A Notice of Appeal was filed on June 25, 2001.  ( Docket Entry #795).  District Case No. 99-14027-CV-Graham was subsequently assigned Eleventh Circuit Case No.  01-13664.

Post Closing Order(s)

On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his motion and without notice to the litigant Marcellus M. Mason.  See Docket Entry Number 878, (D.E. # 878) .  Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. Consequently, when Judge Graham rendered this sua sponte issued pre-filing on September 20, 2001, the matter was on appeal already.

Final Judgment

Final Judgment was rendered almost one year after the sua sponte issued pre-filing injunction of September 20, 2001.   The Defendants specifically requested a “final judgment” on February 25, 2002.  See Docket Entry No. 897Final Judgment was rendered on September 13, 2002. See Docket Entry No.  911.  The order expressly stated:

THIS CAUSE came before the Court upon Defendant’s

Motion for Entry of Final Judgment (D.E. 897)…FINAL JUDGMENT ORDER AND ADJUDGED that Defendant’s Motion is GRANTED. Final Judgment is entered in favor of Defendant and costs, in the amount of $200,00 are awarded to Defendant in accordance with this Court’s January 25, 2002.

Disregarded Notices Of Appeal

Prior to Final Judgment being rendered on September 13, 2002, the Eleventh Circuit disregarded several notices of appeal that included the following:

  • Firstly, an appeal was pending, Case No. 01-13664 [a direct appeal], when Judge Graham rendered the sua sponte issue pre-filing injunction on September 20, 2001.  A Notice of Appeal was filed on June 25, 2001.  ( Docket Entry 795).  On or about October 2, 2001, Mason filed a petition for mandamus challenging the validity of the sua sponte issued pre-filing injunction. See Receipt.  This petition for mandamus was subsequently assigned Case No. 01-15754.  The briefs in the direct appeal, Case No. 01-13664, had not been filed yet and the first brief was not filed until February 4, 2002.  See Eleventh Circuit’s Docket.  Consequently, the Eleventh Circuit could have and indeed should have construed the petition for mandamus as a notice of appeal and simply allowed the parties to argue this issue in the pending appeal.  However, on December 5, 2001, the Eleventh Circuit denied the petition for mandamus without requiring the appellees to respond.   The ” petition for writ of mandamus and petition for writ of prohibition” is DENIED.” See Opinion.
  • Case No. 02-11476.  On May 01,2002, or four months before Final Judgment was rendered on September 13, 2002, the Eleventh Circuit denied a petition for mandamus that should have been treated as a notice of appeal and stated in pertinent part:  “Mason also requests that this Court vacate the district court’s order enjoining Mason from to Mason’s former employment without first receiving permission from the district court. Although Mason has not filed a notice of appeal from the district court’s order requiring him to receive the permission of the district court from filing any additional pleadings or from filing any new lawsuits related to his former employment or subsequent interactions with the defendants, Mason may raise this issue on appeal…Accordingly, Mason’s IFP motion is DENIED because his mandamus petition is frivolous.”  See Order dated May 1, 2002.
  • Case No. 02-14646.  On October 07,2002, or 24 days after final   Final Judgment was rendered on September 13, 2002, the Eleventh Circuit dismissed a notice of appeal that had been filed on June 24, 2002, or almost three months before Final Judgment was rendered on September 13, 2002. The Eleventh Circuit stated: This appeal is DISMISSED, sua sponte, for lack of jurisdiction. Appellant Marcellus Mason’s notice of appeal, filed on June 24,2002, is untimely from the district court’s order enjoining him from filing additional pleadings, entered on September 21,2001. See Fed.R.App.P, 4(a)(l)(A) & 26(a)(3).

Supreme Court On Time For Filing Notice of Appeal

“Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a).” Bankers Trust Company v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978). The sole purpose of the separate-document requirement, which was added to Rule 58 in 1963, was to clarify when the time for appeal under 28 U.S.C. § 2107 begins to run. According to the Advisory Committee that drafted the 1963 amendment:”Hitherto some difficulty has arisen, chiefly where the court has written an opinion or memorandum containing some apparently directive or dispositive words, e. g., ‘the plaintiff’s motion [for summary judgment] is granted,’ see United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 229, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). Clerks on occasion have viewed these opinions or memoranda as being in themselves a sufficient basis for entering judgment in the civil docket as provided by Rule 79(a). However, where the opinion or memorandum has not contained all the elements of a judgment, or where the judge has later signed a formal judgment, it has become a matter of doubt whether the purported entry of a judgment was effective, starting the time running for post-verdict motions and for the purpose of appeal. . . .

“The amended rule eliminates these uncertainties by requiring that there be a judgment set out on a separate document—distinct from any opinion or memorandum—which provides the basis for the entry of judgment.” 28 U.S.C.App., p. 7824. The separate-document requirement was thus intended to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final judgment of the district court only to have the appellate court announce later that an earlier document or entry had been the judgment and dismiss the appeal as untimely. The 1963 amendment to Rule 58 made clear that a party need not file a notice of appeal until a separate judgment has been filed and entered. Id at ¶7.

See also United States v. Indrelunas, 411 U.S. 216 (1973).

Eleventh Circuit On Time For Filing Notice of Appeal

“'[C]ases from both the Supreme Court and the circuit courts of appeal make it clear that the time to file a notice of appeal does not begin to run until a separate judgment is entered pursuant to Rule 58.’”  Big Top Koolers, Inc. v. Circus-Man Snacks, Inc.,528 F.3d 839; 2008 U.S. App. LEXIS 11087; (11th Cir. 2008)(quoting Reynolds v. Golden Corral Corp., 213 F.3d 1344,1346 (11th Cir. 2000)). “But, Rule 58 provides an alternative means of determining when the final judgment is deemed entered: “[J]udgment is entered at the following times: . . . (2) if a separate document is required, when the judgment is entered in the civil docket under Rule 79(a) and the earlier of these events occurs: (A) it is set out in a separate document; or (B) 150 days have run from the entry in the civil docket.” Fed. R. Civ.P. 58(c) (emphasis added).” Id.

Other U.S. Circuit Court of Appeals On The Time For Filing Notice of Appeal

Tenth Circuit

“Federal Rule of Civil Procedure 58 sets forth how a judgment or order is to be entered. Under Rule 58(a)(1) ordinarily a “judgment [or] amended judgment must be set forth on a separate document.” (Federal Rule of Civil Procedure 54(a) defines judgment as “any order from which an appeal lies.”) But there are exceptions to the separate-document requirement; a separate document is not required for orders disposing of motions under Rules 50(b), 52(b), 54, 59, and 60. See Fed. R. Civ. P. 58(a)(1)(A), (B), (C), (D), (E). Entry is straightforward when a separate document is not required; in that circumstance, the order is “entered” when it is “entered in the civil docket under Rule 79(a).” Id. Rule 58(b)(1). But if a separate document is required, the judgment is entered only “when it is entered in the civil docket under Rule 79(a) and when the earlier of these events occurs: (A) when it is set forth on a separate document, or (B)”when 150 days have run from entry in the civil docket under Rule 79(a).” Id. Rule 58(b)(2). Medical Supply Chain, Inc. v. Neoforma, Inc., 508 F.3d 572 (10th Cir. 2007).

Fifth Circuit

What is significant about this case, Baker, infra, is that the district court entered an order and expressly wrote on the order that “‘This is a final judgment.‘” However, the court, Fifth Circuit, opined that this description did not meet Rule 58’s requirement for a separate document.  Baker, infra, at ¶12.

“‘[T]he 1963 amendment to Rule 58 made clear that a party need not file a notice of appeal until a separate judgment has been filed and entered.’ Rule 58 is thus a safety valve preserving a litigant’s right to appeal in the absence of a separate document judgment.” Baker v.Mercedes Benz Of North America, 114 F.3d 57 (5th Cir. 1997). “If a separate document judgment is not entered, however, the time for filing an appeal does not begin to accrue until a judgment complying with the Rule 58 dictates has been entered. The rule is to be ‘ ‘interpreted to prevent the loss of the right of appeal, not to facilitate loss.”” Id. at ¶10. “If a separate document judgment is not entered, however, the time for filing an appeal does not begin to accrue until a judgment complying with the Rule 58 dictates has been entered. The rule is to be ‘ ‘interpreted to prevent the loss of the right of appeal, not to facilitate loss.””  Id. at ¶11.

Order Closing the Case

On June 20, 2001, Judge Graham rendered an order closing the case which stated:

THIS CAUSE came before the Court upon Defendants’ Motion and Second Motion for Sanctions in the Form of Dismissal of Plaintiff’s Action (D.E. #511 and D.E. #646). THE MATTER was referred to the Honorable United States Magistrate Judge Frank J. Lynch. A report recommending that the Court grant Defendants’ Motion for Sanctions in the Form of Dismissal of Plaintiffs Actions (D.E. #511 and D.E. #646), dated May 31, 2001, has been submitted. Plaintiff filed his objections on June 12, 2001. The Court has conducted a de novo review of the file and is otherwise fully advised in the premises. Accordingly, it is ORDERED AND ADJUDGED that United States Magistrate Judge Lynch’s Report of May 31, 2001, is hereby RATIFIED, AFFIRMED and APPROVED in its entirety. Therefore it is, ORDERED AND ADJUDGED that Defendants’ Motion and Second Motion for Sanctions in the Form of Dismissal of Plaintiff’s Action is GRANTED. It is further, ORDERED AND ADJUDGED that Plaintiff’s remaining claims are DISMISSED with prejudice. It is further, ORDERED AND ADJUDGED that this case is CLOSED and all pending motions are DENIED as MOOT. DONE AND ORDERED in Chambers at Miami, Florida, this 20th day of June, 2001.

See Docket Entry No. 791.

Chief Judge J.L. Edmondson: Contempt Abuse Is Not Judicial Misconduct

July 11, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamHe’s a bad motherf^%##, Shut your mouth!
Judge Donald L. Graham, “Teflon Don”

This entire blog or website, mcneilmason.wordpress.com, is dedicated to illustrating the extreme measures that judges at the Eleventh Circuit, U.S. Court of Appeal have deployed to keep from disciplining U.S. District Judge Donald L. Graham, “Teflon Don”, for abusive behavior and misconduct. Judge Graham has a history of insolence with respect the United States Supreme Court and binding precedent. See this site, “Is U.S. Dist. Judge Donald L. Graham Willfully Defying The United States Supreme Court?“. Chief Judge J.L. Edmondson uses the perfect scam to defeat claims of judicial misconduct under the Judicial Misconduct and Disability Act, 28 U.S.C. § 351, et.seq. The perfect scam is a “negative definition” of judicial misconduct. A negative definition is a “definition which states what a thing is NOT rather than what it is.” http://academic.csuohio.edu/polen/LC9_Help/2/25negative.htm. This post will advance the argument that Judge Edmondson is not troubled by the fact that a clearly void sua sponte issued pre-filing injunction is to terrorize a man and his family by making it the subject of criminal contempt complaint and conviction.

Judicial Independence

This post is a part of the overall scheme to land a knockout blow to the American Bar Association’s koolaid of “Judicial Independence”. The ABA’s emphasis is on “Judicial Independence” and it resists “interference” from outsiders-Congress of the United States, Layman review boards. The ABA has said: “There are checks on the judiciary and channels to correct improper decisions. The appeal process affords litigants the opportunity to challenge a judicial ruling. About Us – ABA Standing Committee on Judicial Independence. This is the idealistic and theoretical basis for “Judicial Independence”; however, the reality or actual practice does not equal the ideals. Suppose for a moment that such a system does not work. Federal Judges will take extreme measures to avoid disciplining a colleague federal judge. See Eleventh Circuit Case No. 01-13664: The Appeal From Hell for even more dishonest jurisprudence. Moreover, the Eleventh Circuit will do anything to achieve the desired outcome. Two posts at this site, mcneilmason.wordpress.com, document how the Eleventh Circuit will do anything to achieve the desired outcome as the Eleventh took two different and inconsistent positions with respect to the jurisdiction of the lower court or Judge Graham during the appeal of this very appeal. See Eleventh Circuit: Notice of Appeal Does Not Divest District Judge of Jurisdiction of Matters Involved In the Appeal! and Putrid Dishonesty:Beyond the Scope of Appeal.

The Clearly Void Sua Sponte Issued Pre-filing Injunction

On September 20, 2001, District Court Case No. 99-14027-CV-Graham/Lynch, Judge Graham rendered a pre-filing injunction against the Plaintiff Marcellus M. Mason sua sponte or own his motion. See Docket Entry NO. 878, (D.E. #878, pg. 3). Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. Additionally, this sua sponte issued pre-filing injunction is invalid because it also makes a “finding of bad faith“. At pages 5,6, this sua sponte issued pre-filing injunction asserts:

It has become clear to the Court that Mason is proceeding in bad faith. Indeed, he has admitted as much in his own pleadings and correspondence…Such activity is in bad faith and will not be permitted by the Court.

This pre-filing injunction, being expressly issued sua sponte, was rendered without notice and an opportunity to be heard. It is well established that a pre-filing injunction may not issue absent due process or notice and opportunity to respond. See Case Law On Pre-Filing Injunctions, below. In this sua sponte issued pre-filing injunction, Judge Graham recognizes that the right of access to the courts is constitutionally protected: “This screening requirement best balances the interest in constitutionally mandated access to the federal courts…” See pg. 7.

Void Order Forms the Basis of Criminal Contempt Complaint and Conviction

Judge Graham took his clearly void sua sponte issued pre-filing injunction and submitted it to the U.S. Attorney for the Southern District of Florida, Marcos Daniel Jimenez, for prosecution. AUSA Robert Waters, with the full consent of his boss, US Attorney Marcos Daniel Jimenez, who signed the information, went ahead with a criminal contempt conviction and prosecution that they knew or should have known was based upon a clearly void order.

Beginning on or about September 20, 2001, and continuing to on or about November 1, 2002, in Highlands County, Dade county, and elsewhere, in the Southern District of Florida, the defendant, MARCELLUS M. MASON, Jr., did willfully and knowingly disobey and resist a lawful order of a Court of the United States, that is, the order issued by the Honorable Donald L. Graham, United States District Judge, on September 20, 2001, in the Southern District of Florida, in the case of Marcellus M . Mason v. Highlands County Board of County Commissioners, et al., Case Numbers:…by repeatedly filing pleadings, motions, memoranda, and directly contacting other litigants in the above cited cases, after specifically being enjoined from and ordered not to file any such pleadings or contact other litigants by Court Order dated September 20, 2001, in violation of Title 18, United States Code, Section 401(3).

See Information, Case No. 02-14020, Docket No. 6. 18 U.S.C. § 401(3) states: (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command. 18 U.S.C. § 401(3) expressly calls for a “valid order”, which does not and cannot include a void order.

Judge Edmondson Disagrees With Everybody!

Judge Edmondson appears to be alone in his belief that “legal error” and contempt abuse does not constitute judicial misconduct. Judge Edmondson’s apparent view is that a judge’s “legal rulings” are sacrosanct. Judge Edmondson disagrees with the New York State Commission on Judicial Conduct who has stated: “Legal error and judicial misconduct are not mutually exclusive.” In Matter of Feinberg, 5 NY3d 206 (2005). In California contempt abuse is considered “Willful Misconduct”. Wenger v. Commission on Judicial Performance , 29 Cal.3d 615 (Cal. 1981). Contempt based upon an invalid underlying order is willful misconduct. University of New Mexico, Institute of Public Law, Judicial Education Center. Judge Edmondson disagrees with his colleague, U.S. Circuit Judge Alex Kozinski, United States Court of Appeals for the Ninth Circuit, (quoting Jeffrey M. Shaman, DePaul University Law, Steven Lubet, Professor, Northwestern University Law, and James J. Alfini President and Dean, South Texas College of Law), has stated:

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 Opinion online at: http://www.ca9.uscourts.gov/coa/newopinions.nsf/ F822E1DE5540855A8825708B0081F154/$file/0389037o.pdf?openelement . Judge Edmondson disagrees with the Supreme Court Of Louisiana who found a judge guilty of judicial misconduct due to contempt abuse and who also stated that judicial misconduct could be found where “legal error was egregious, made in bad faith, or made as part of a pattern or practice of legal error.” In Re: Judge Martha Sassone, No. 07-O-0651, Supreme Court Of Louisiana. The Michigan Judicial Tenure Commission has sanctioned judges for “Misuse of Judicial Authority” due to Improper consideration of contempt proceedings and for the  “Failure to Follow the Law”. Judge Edmondson disagrees with the Florida Supreme Court who opined:

[C]onduct unbecoming a member of the judiciary may be shown by evidence of an accumulation of small and ostensibly innocuous incidents which, when considered together, emerge as a pattern of hostile conduct unbecoming a member of the judiciary.

Inquiry Concerning A Judge, NO. 97-376, Re: Steven P. Shea, Florida Supreme Court, March 23, 2003. Judge Edmondson disagrees with his own Judicial Conference, Committee on Judicial Conduct and Disability who has 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

Judicial Misconduct Complaints of Contempt Abuse

Chief Judge J.L. Edmondson, Circuit Judge, does not consider knowingly convicting a man of crime that does not exist or a concocted crime, to be  misconduct under the Judicial Misconduct and Disability Act. Stated alternatively, Judge Edmondson does not consider framing an innocent person to be covered under the Act. This post will not characterize Judge Edmondson’s words, this author deplores the reader to read them and make your own judgment. In Case No. 05-0011, Judge Edmondson was specifically told of Judge Graham’s insolence

See Complaint of Judicial Misconduct, Case No. 05-0011, Complaint No. 02-0059, and Order Dismissing Complaint No. 02-0059.

Mr. Marcellus M. Mason, Jr. filed this complaint against U.S. District Judge Donald L. Graham pursuant to Title 28 U.S.C. § 372(c) and Addendum III to the Rules of the Judicial Council of the Eleventh Circuit.

In this complaint, Mr. Mason makes the unsubstantiated claim that Judge Graham is attempting to intimidate him by directing the United States Attorney’s Office for the Southern District of Florida to proceed with previously instituted contempt proceedings regarding his having violated Judge Graham’s order barring him from filing anything without the permission of the court.

Mr. Mason then makes numerous allegations concerning actions by Judge Graham which have previously been determined by the chief judge.

The allegations of this complaint are “directly related to the merits of a decision or procedural ruling”and ” successive”. Therefore, pursuant to 28 U.S.C. § 372(c)(3)(A) and Addendum III Rule(s) 4(a)(2) and 18 (c), this complaint is DISMISSED.

See Complaint of Judicial Misconduct, Case No. 02-0059.

The U.S. Supreme Court,”SCOTUS”, On the Importance of Due Process

“Courts as well as citizens are not free ‘to ignore all the procedures of the law….’. The ‘constitutional freedom’ of which the Court speaks can be won only if judges honor the Constitution.” Walker v. City Of Birmingham, 388 U.S. 307, 338 (1967)(Mr. Justice Douglas, dissenting). “Due process is perhaps the most majestic concept in our whole, constitutional system.” Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 174 (1951) (Justice Frankfurter, concurring). It is ingrained in our national traditions, and is designed to maintain them. In a variety of situations, the Court has enforced this requirement by checking attempts of executives, legislatures, and lower courts to disregard the deep-rooted demands of fair play enshrined in the Constitution.” id. 161. “Fairness of procedure is “due process in the primary sense.” Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673, 281 U. S. 681.

In a long line of cases, the United States Supreme Court has held that impingements of constitutional rights are, without variation, subject to the strictures of “due process” or notice and opportunity to be heard prior to their enactments. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950); Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951); Goldberg v. Kelly, 397 U.S. 254 (1970), Fuentes v. Shevin, 407 U.S. 67 (1972); Owen v. City Of Independence, 445 U.S. 622 (1980); Carey v.Piphus, 435 U.S. 247, 259 (1978); Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

Right of Access To Courts is Constitutionally Protected

The right of access to the Courts is clear according to the U.S. Supreme Court. Bounds v. Smith, 430 U.S. 817 (1977);M.L.B. v. S.L.J., 519 U.S. 102 (1996). The Supreme court has stated the right of access to the courts also protected by the First Amendment. BE&K Construction CO. v. National Labor Relations Board et al. 536 U.S. 516 (2001)(“the right to petition extends to all departments of the Government,” and that “[t]he right of access to the courts is … but one aspect of the right of petition.“). California Motor Transp. Co. v. Trucking Unlimited, 404 U. S. 508, 510 (1972)(“The right of access to the courts is indeed but one aspect of the right of petition.“). See Tennessee v. Lane, 541 U.S. 509 (2004)(recognizing “the fundamental right of access to the courts”); Procunier v. Martinez, 416 U.S. 396 (1974)(“The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to hallenge unlawful convictions and to seek redress for violations of their constitutional rights.“).

Orders Issued Inconsistent With Due Process Are Void

A judgment is void if the rendering court acted in a manner inconsistent with due process of law. Wright & Miller, Federal Practice and Procedure § 2862. “A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere.” World-Wide Volkswagen Corp. V. Woodson, 444 U.S. 286 (1980). “[T]he constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. Thus, the warrant is a nullity.” Anderson v. Dunn, 19 U.S. 204, 217 (1821). “’No judgment of a court is due process of law, if rendered without jurisdiction in the court, or without notice to the party.” Old Wayne Mut. Life Ass’n v. McDonough, 204 U.S. 8, 15 (1907). 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. E.g., s Burke v. Smith, 252 F.3d 1260 (11th Cir. 2001); U.S. v. Boch Oldsmobile, Inc., 909 F.2d 657, 662 (1st Cir. 1990);Beller & Keller v. Tyler, 120 F.3d 21, 23 (2nd Cir. 1997); Union Switch & Signal v. Local 610, 900 F.2d 608, 612 n.1 (3rd Cir. 1990); Eberhardt v. Integrated Design & Const., Inc. 167 F.3d 861, 867 (4th Cir. 1999); New York Life Ins. Co. v. Brown 84 F.3d 137, 143 (5th Cir. 1996)

Effect of Void Order

“A void judgment is from its inception a legal nullity.” Boch Oldsmobile, at 909 F.2d 657, 661 (1st Cir. 1990). Lops v. Lops, 140 F.3d 927, 941 n. 19(11th Cir. 1998) (“something that is null has no legal or binding force.”); Carter v. Fenner, at 136 F.3d 1000 (5th Cir. 1998)(“[a] void judgement is one which, from its inception, was a complete nullity and without legal effect.”). Anderson v. Dunn, 19 U.S. 204, 217 (1821)(“the constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. Thus, the warrant is a nullity.”);

“The principle stated in this terse language lies at the foundation of all well-ordered systems of jurisprudence. Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.” Windsor v. McVeigh, 93 U.S. 274;23 L.Ed. 914 (1876).

U.S. SUPREME COURT ON FINDING OF BAD FAITH

A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees,..” Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991).

Case Law On Pre-Filing Injunctions

US CIRCUIT COURT OF APPEALS HAVE ROUTINELY REJECTED “SUA SPONTE” PRE-FILING INJUNCTIONS.

A long line of United States appellate courts, including the Eleventh Circuit, have rejected sua sponte issuances of pre-filing injunctions because they are violations of due process. In Weaver v. Leon County Sch. Bd., 2006 U.S. App. LEXIS 8128 (11th Cir. 2006), the Eleventh Circuit held that a litigant was entitled to notice and an opportunity to be heard before a restriction was imposed on his ability to challenge an injunction. U.S. v. Powerstein, 2006 U.S. App. LEXIS 14928,*;185 Fed. Appx. 811 (11th Cir. 2006)(litigant entitled to notice and an opportunity to be heard before the court imposed the injunctive order ). See Sires v. Fair, 107 F.3d 1;1997 U.S. App. LEXIS 2173 (1st Cir. 1997); Cok v. Family Court of Rhode Island , 985 F.2d 32 (C.A.1 (R.I.), 1993) (vacating a pre-fling injunction issued without notice); MLE Realty Assocs. v. Handler, 192 F.3d 259, 1999 U.S. App. LEXIS 23362 (2nd Cir. 1999) ; Lau v. Meddaugh, 229 F.3d 121 (2nd Cir. 2000) ; Holton v. Oral Surg. Sing Sing Corr., 24 Fed. Appx. 37; 2001 U.S. App. LEXIS 25151 (2nd Cir. 2001); Moates v. Barkley, 147 F.3d 207, 208 (C.A.2 (N.Y.), 1998) (district court may not impose a filing injunction on a litigant without providing the litigant with notice and an opportunity to be heard.); Gonzales v. Feiner, 131 Fed. Appx. 373, * 2005 U.S. App. LEXIS 8370, ** (3rd Cir. 2005) ; Wiliams v. Cambridge Integrated Servs. Group , 148 Fed Appx. 87, 2005 U.S. App. LEXIS 18624 (3rd Cir. 2005) ; Brow v. Farrelly, 994 F.2d 1027 (C.A.3 (Virgin Islands), 1992)(vacating a sua sponte issued injunction); It is imperative that the court afford the litigant notice and an opportunity to be heard prior to issuing such an injunction. In Re Head, 2006 U.S. App. LEXIS 8265,*;174 Fed. Appx. 167 (4th Cir. 2006)(vacated a 10 yr. old sua sponte injunction); Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 819 (4th Cir. 2004)(vacating a pre-filing injunction issued without notice); Tucker v. Drew, 1994 U.S. App. LEXIS 11784 (4 th Cir. 1994) ;DOUGLAS BAUM v. BLUE MOON VENTURES, LLC , 2008 U.S. App. LEXIS 91,*;513 F.3d 181;49 Bankr. Ct. Dec. 68 (5th Cir. 2008)(“Notice and a hearing are required if the district court sua sponte imposes a pre-filing injunction or sua sponte modifies an existing injunction to deter vexatious filings.”) ;De Long v. Hennessey, 912 F.2d 1144 (9th Cir.) ; Roscoe v. Hansen, 107 F.3d 880;1997 U.S. App. LEXIS 4996 (10th Cir. 1997); Molski v. Evergreen Dynasty Corp., 2007 U.S. App. LEXIS 20966,*;500 F.3d 1047 (9th Cir. 2007)(litigant must be given notice and a chance to be heard before the [injunctive] order is entered.); Tripati v. Beaman, 878 F.2d 351,354 (C.A.10 (Wyo.), 1989)(vacated and holding that the litigant is entitled to notice and an opportunity to oppose the court’s order before it is instituted.); Procup v. Strickland, 567 F.Supp. 146 (M.D. Fla., 1983)(court issued a show cause order) Procup v. Strickland, 760 F.2d 1107, 1110 (C.A.11 (Fla.), 1985) (held that district court did give adequate notice and opportunity to be heard before issuance of the injunction); Cofield v. Alabama Pub. Serv. Comm., 936 F.2d 512, 514 (11th Cir.1991)(noting that court issued show cause order prior to rendering pre-fling injunction); In re Powell, 851 F.2d 427, 431 (D.C.Cir.1988)(reversing and holding If a pro se litigant is to be deprived of such a vital constitutional right as access to the courts, he should, at least, be provided with an opportunity to oppose the entry of an order restricting him before it is entered.); Martin v. Circuit Court, 627 So.2d 1298 (Fla.App. 4 Dist., 1993)(reversing a pre-filing order and holding that limiting the constitutional right of access to the courts, essential due process safeguards must first be provided); Lawsuits of Carter, In re, 510 S.E.2d 91, 95; 235 Ga.App. 551 (Ga. App., 1998)(reversing a pre-filing injunction because notice or an opportunity not given); Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002) (holding that injunctions “may not be expanded beyond the meaning of its terms absent notice and an opportunity to be heard.”).

Courts have felt that the notice and opportunity to respond was so important that they have reversed district courts even where they thought the pre-filing injunction was otherwise valid. See Oliver, In re, 682 F.2d 443, 446 (C.A.3 (Pa.), 1982); Scott v. Wells Fargo Home Mortgage , 2005 U.S. App. LEXIS 15709,*;143 Fed. Appx. 525(4th Cir. 2005);Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir. 1987).

Chief Circuit Judge J.L. Edmondson Uses Perfect Scam of Negative Definition To Defeat Complaints of Misconduct Under the Judicial Misconduct and Disability Act

June 8, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham, The “Teflon Don

Purpose of this Post

This entire blog or website, mcneilmason.wordpress.com, is dedicated to illustrating the extreme measures that judges at the Eleventh Circuit, U.S. Court of Appeal have deployed to keep from disciplining U.S. District Judge Donald L. Graham, “Teflon Don”, for abusive behavior and misconduct. The overall scheme of all methods (direct appeal, mandamus, lawsuit, misconduct complaints) of disciplining federal judges have been undermined and defeated by Judge Graham’s cohorts at the Eleventh Circuit, see http://mmason.freeshell.org/methods.htm. States with have removed judges from office for the conduct that is listed in this post and elsewhere. This post will examine the perfect scam that Chief Judge J.L. Edmondson has used to defeat claims of judicial misconduct under the Judicial Misconduct and Disability Act, 28 U.S.C. § 351, et.seq. The perfect scam is a “negative definition” of judicial misconduct. A negative definition is a “definition which states what a thing is NOT rather than what it is.” http://academic.csuohio.edu/polen/LC9_Help/2/25negative.htm. Judge Edmondson does not define misconduct he simply disagrees with every act that alleges misconduct in the complaint is judicial misconduct. Consequently, a negative definition is used to define judicial misconduct out of existence. Chief Judge J.L. Edmondson’s definition, or lack thereof, would suggest that federal judges are held to a lower standard than state court judges. Congress does not help as it chosen not to identify specific acts that it considers to be judicial misconduct for it has abrogated this responsibility and left it up to judges like Judge Edmondson to decide. Section 352 states:

(b) Action by Chief Judge Following Review.— After expeditiously reviewing a complaint under subsection (a), the chief judge, by written order stating his or her reasons, may—
(1) dismiss the complaint—
(A) if the chief judge finds the complaint to be—
(i) not in conformity with section 351 (a);
(ii) directly related to the merits of a decision or procedural ruling; or
(iii) frivolous, lacking sufficient evidence to raise an inference that misconduct has occurred, or containing allegations which are incapable of being established through investigation; or

It is a well known fact that Chief Judges summarily dismiss complaints of misconduct at a rate greater than 90 per cent. This is part of the reason why Justice Stephen Breyer was selected by the then Chief Justice Rehnquist to do a study of the problem. At the urging of Congressman James Sensenbrenner, former Chairman, U.S. House Judiciary Committee, in 2004, a committee was formed (The Judicial Conduct and Disability Act Study Committee) by Chief Judge Rehnquist to study the problem of federal judicial discipline. Judge Edmondson is of the apparent belief that legal error and judicial misconduct are mutually exclusive. As a consequence of this narrow view, Judge Graham can put on his robe and do anything he damn well pleases because “legal error” is not judicial misconduct.

Other Tactics Used by Judge Edmondson

The use of the negative definition tactic is fatal enough by itself to demolish almost all complaints of judicial misconduct. However, Judge Edmondson has used at least three other tactics that augment the negative definition tactic. Judge Edmondson has used:

  • Mischaracterization. Judge Edmondson characterizes your allegations of misconduct and abuse in such a manner that they fit easily within the categories for summary dismissal. For an example, see Complaint No. 05-0011.
  • Omission. Judge Edmondson omits specific allegations of misconduct and abuse from his summary dismissals. For example, in complaint No. 01-0054, Judge Edmondson states: “The allegations of the Complaint are “directly related to the merits of a decision or procedural ruling” and/or ‘Action on the complaint is no longer necessary because of intervening events, and therefore moot”. Consequently, pursuant to 28 U.S.C. § 372(c)(3)(A) and (3)(B) and Addendum Three Rule 4 (a)(2), this Complaint is DISMISSED.”
  • Fails to test allegations of misconduct for veracity. Judge Edmondson does not test allegations of misconduct and abuse for veracity.
  • Failure to Investigate. Judge Edmondson does not investigate allegations of misconduct and abuse. Judge Edmondson does not ask the complainant for more information to support a charge, he simply states that the charge lacks factual support.

Specific examples of the above are set forth below in the “Not Judicial Misconduct” heading. When told of these allegations, Judge Graham’s Chief Judge, S.D. Fla., Federico Moreno offered the following tepid “endorsement”:

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.

See Letter dated April 4, 2008.

Judicial Misconduct Complaints

The following complaints have been lodged against Teflon Don.

Not Judicial Misconduct

Judge Edmondson has expressly stated that each of the following documented acts of misconduct are not misconduct under the Act.

  • Lying and Intentionally misrepresenting the law.
  • Refusing to rule on a motion for a preliminary injunction during the entire pendency of the lawsuit from November 1999 to June 20, 2001 or about 19 months.
  • 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.
  • Usurping authority by allowing a Magistrate, Frank Lynch Jr., to issue preliminary injunctions two times.
  • Usurping authority by allowing a Magistrate to dictate to a non-lawyer that he must seek the permission of private attorneys in order to speak with a local government.
  • Usurping authority by allowing a Magistrate to set restrictions on how Florida Public Records are to be accessed.
  • Allowing scores of motions to go undecided for months.
  • Intentionally misstating material facts in order to render a pre-filing injunction.
  • Disrespecting several well-established Supreme Court decisions proscribing certain acts of Judges.
  • Judge Graham has repeatedly and improperly denied access to the courts by arbitrarily denying in forma pauperis, “IFP”, petitions 18 separate times.
  • 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.
  • 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 attempted to circumvent the appellate process by using intimidation.

These allegations and others fully documented at: (1)http://mmason.freeshell.org/CoreAllegations.htm; or (2)Documented Acts of Misconduct by U.S. Dist. Judge Donald L. Graham. As of this date, the Judges at the Eleventh Circuit have allowed Teflon Don to escape rebuke and condemnation as Judge Graham has not been punished in any way for these acts. For example, many of these allegations were mentioned in a direct appeal and simply ignored by the appellate panel, see “Eleventh Circuit Case No. 01-13664: The Appeal From Hell“. Petitions for mandamus met with a similar fate, see for example, Case No. 01-15754, “Eleventh Circuit Disses The U.S. Supreme Court Chooses To Protect Judge Graham“. Judge Graham’s behavior easily fits within positively defined definitions of judicial misconduct.

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 Opinion online at: http://www.ca9.uscourts.gov/coa/newopinions.nsf/
F822E1DE5540855A8825708B0081F154/$file/0389037o.pdf?openelement
.

“[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 District Judge Ronald F. Kilburn, Case No. 90-478, (Vermont Supreme Court 1991)(citing In re Hill, 152 Vt. 548, 572-75, 568 A.2d 361, 373-75 (1989)). See http://dol.state.vt.us/SUPCT/157/op90-478.txt.

“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.

“Legal error and judicial misconduct are not mutually exclusive.” In Re Feinberg, 5 NY3d 206,New York State Commission on Judicial Conduct.

The University of New Mexico, Institute of Public Law, Judicial Education Center, has put together a Judicial Ethics Handbook which defines judicial misconduct.

If Judge Edmondson had an affirmative definition like the ones described above, then Judge Graham would have to disciplined. If the states are able to cite and list specific examples of judicial misconduct, then there is no reason why the federal judiciary can not do the same. To simply say, no that is not misconduct as Judge Edmondson does reflexively, is not enough.

Pending Judicial Misconduct Complaints

It has been said that the Committee on Judicial Conduct and Disability, has become quite serious in investigating federal judges for misconduct. According to law.com, in March of this year, the Judicial Conference adopted the first-ever binding nationwide procedures for handling complaints of judicial misconduct. As a result of this, Mason submitted to complaints to both the Judicial Conference and Judge Edmondson again.

Eleventh Circuit: Notice of Appeal Does Not Divest District Judge of Jurisdiction of Matters Involved In the Appeal!

May 28, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham, The “Teflon Don

Point of This Post

The Purpose of this post is to set forth yet another extreme measure that the Eleventh Circuit deployed in order to conceal and shield U.S. Dist. Judge Donald L. Graham from public rebuke and scrutiny. The law clerks or staff attorneys who decide cases at the Eleventh Circuit, U.S. Court of Appeals are making a joke and a mockery of our legal system. This posting discusses a single element of the Eleventh Circuit’s, U. S. Court Appeal Case No. 01-13664-A, an unpublished opinion. This is appeal has been described as: Eleventh Circuit Case No. 01-13664: The Appeal From Hell. This appeal, Case No. 01-13664-A, is loaded with the stench of dishonesty and lawlessness; however, this post will only analyze the single issue of jurisdiction of the lower court, trial court, or district court during the appeal. This posting will show that the Eleventh Circuit used an unpublished opinion to get the desired outcome, affirming Judge Graham, notwithstanding the law and the facts. The Eleventh Circuit took for itself the right to maintain two irreconcilable, inconsistent, and illogical legal positions. First it rightly claimed that an order, pre-filing injunction, rendered on September 20, 2001, Doc. 878, or three months after the notice of appeal was filed on June 25, 2001 was beyond the scope of appeal . See post, “Putrid Dishonesty:Beyond the Scope of Appeal“. Secondly, the inconsistency arose when the Eleventh Circuit rendered its opinion in October 2002, it then used the very same pre-filing injunction, rendered on September 20, 2001 that it claimed was beyond the scope of appeal to affirm Judge Graham. The Eleventh Circuit had it both ways. The reason for this inconsistency is that the Eleventh Circuit badly needed this order included in order to make a finding pursuant to Rule 41(b), Federal Rules Civil Procedure.

The icing on the cake and even worse and more dishonest than the taking of two inconsistent legal positions is the fact that the pre-filing injunction, rendered on September 20, 2001, Doc. 878, is actually illegal. At page 3 of the pre-filing injunction of September 20, 2001, Doc. 878, it expressly states: “THIS CAUSE came before the Court sua sponte. ” Sua Sponte issued pre-filing injunctions, or pre-filing injunctions issued without notice and opportunity to respond are routinely rejected as a matter of course. Pre-filing injunctions implicate the right of access to the courts, even Teflon Don recognizes this fact. See pg. 7, Doc. 878, (“This screening requirement best balances the interest in constitutionally mandated access to the federal courts with the need to protect the Court’s jurisdiction and integrity.“). Judge Graham is expressly rejecting the authority of the United States Supreme Court who has said on multiple occasions that the right of access to the courts is constitutionally protected and requires due process before that right is abridged or restrained in any manner.

Recap

The Eleventh Circuit, using the device of an unpublished opinion, did the following:

  1. It declared the sua sponte issued pre-filing injunction of September 20, 2001 beyond the scope of appeal and struck Mason’s appellate brief because of it in March 2002. See post, “Putrid Dishonesty:Beyond the Scope of Appeal“.
  2. On October 16, 2002, when the Eleventh Circuit rendered its unpublished opinion, it then included the sua sponte issued pre-filing injunction of September 20, 2001 in its decision.
  3. The Eleventh Circuit used a clearly invalid sua sponte issued pre-filing injunction to justify its goal of affirming Judge Graham.

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 Opinion

The Eleventh Circuit rendered its opinion in Case No. 01-13664 on October 16, 2002. The Opinion makes the following “finding”:

Moreover, despite the closure of the case by the district court, Mason’s continual filing of motions with the court addressing matters previously settled prompted the district court to prohibit Mason from further filings without explicit permission and initiate criminal contempt proceedings. Therefore, the record supports the district court’s implicit finding that a sanction less than dismissal of the action with prejudice would have had no effect.

See Opinion, pgs. 13-14.

This finding is a direct reference to a pre-filing injunction or vexatious litigant injunction rendered by Judge Graham on September 20, 2001. See below.

The Sua Sponte Issued Pre-Filing Injunction

Plaintiff Marcellus M. Mason is Permanently enjoined
from filing any additional pleadings in case numbers 99-14027- CIV-GRAHAM, 00-14116-CIV-GRAHAM, 00-14201-CIV-GRAHAM, 00-14202- CIV-GRAHAM, 00-14240-CIV-GRAHAM, 01-14074-CIV-GRAHAM, 01-14078- CIV-GRAHAM, and 01-14230-CIV-GRAHAM or from filing any new lawsuit which relates in any way to Plaintiff Marcellus M. Mason’s former employment and/or subsequent interactions with Defendants without first receiving permission from the Court, as set forth below. This injunction shall apply equally to any persons or entities acting at the behest, direction, or instigation, or in concert with Marcellus M. Mason.

See Doc. 878, pg. 8.

Law On Jurisdiction During Appeal

According to the published decisions of the Eleventh Circuit: “It is the general rule of this Circuit that the filing of a timely and sufficient notice of appeal acts to divest the trial court of jurisdiction over the matters at issue in the appeal, except to the extent that the trial court must act in aid of the appeal.” SHEWCHUN v. United States, 797 F.2d 941 (11th Cir. 1986). “It is well-settled law that the filing of a notice of appeal divests the district court of jurisdiction over a case.” WEAVER v. FLORIDA POWER & LIGHT COMPANY, 172 F.3d 771,(11th Cir. 1999)(citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982)). “The general rule regarding divestiture of jurisdiction, however, does not apply to collateral matters not affecting the questions presented on appeal.” id.

“The district court’s exercise of jurisdiction should not “materially alter the status of the case on appeal.” Mayweathers v. Newland , 258 F.3d 930 (9th Cir. 2001).

Given the above definition, if the sua sponte issued pre-filing injunction, Doc. 878, is involved in the appeal then Judge Graham would not have jurisdiction to enter an order pertaining to “questions presented on appeal”. At pages 13, 14, of the opinion the sua sponte issued pre-filing injunction was clearly involved in the appeal as it used to justify a dismissal of the case under Rule 41(b), Fed.R.Civ.P.; Consequently, Judge Graham was without jurisdiction to render the order. You can’t on the one hand argue that an order, the sua sponte issued pre-filing injunction of September 20, 2001 is a “collateral issue” and beyond the scope of appeal on March 6, 2002, and then turnaround on October 16, 2002 and include the very same sua sponte issued pre-filing injunction of September 20, 2001 to affirm Judge Graham. Incidentally, as documented below the sua sponte issued pre-filing injunction of September 20, 2001 is clearly invalid.

Subsequent Decisions are Equally Dishonest

A petition for mandamus was filed on or about April 19, 2004. On May 20, 2004, the Eleventh Circuit stated:

In Mason’s case, he filed a notice of appeal as to the dismissal of his civil case. The September 20, 2001 order did not relate to the issue on appeal, but instead enjoined Mason from filing any further pleadings in the district court without permission. Because the order related to collateral issues, the district court had jurisdiction to issue it.

How can an issue, the sua sponte issued pre-filing injunction of September 20, 2001, be a “collateral issue” and used in the opinion at the same time? If it is a
“collateral issue” then how it an integral part of the appeal and the opinion at the same time as demonstrated above?
See Opinion Case No. 04-11894. Incredibly, this “opinion” makes the following admission:

This Court granted, in part, the appellees’ motion to strike Mason’s brief, holding that the portions of the brief that related to the September 20, 2001 order were beyond the scope of appeal.

This type of dishonesty simply cannot be tolerated in a free society as it is offensive and insulting.

Quick Facts

This appeal was docketed under Eleventh Circuit Case No. 01-13664. The Notice of Appeal was filed on June 27, 2001. See Docket No. 795. This was an appeal from a Rule 41(b), Fed.R.Civ.P. dismissal by Judge Graham in district court Case No. 99-14027-CIV-Graham/Lynch. Judge Donald L. Graham, “Teflon Don”, failed to make the explicit finding that “lesser sanctions would not suffice“. Incidentally, Judge Graham’s colleague at the S.D. Fla., failed to make the same finding that “lesser sanctions would not suffice” but was reversed by the Eleventh Circuit. See posting this site, “Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal

On June 20, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:
[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

On July 25, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:

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.

Highlands County asked and got Judge Graham to dismiss a lawsuit because of alleged violations of these orders, which Mason contended on appeal, were illegal. (For a completely different story and more dishonesty see how the Eleventh Circuit was willing to discuss Mason’s alleged violations of these orders while steadfastly refusing to review these very orders for validity, see posts, “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity” and “A Federal Magistrate May Issue An Injunction So Long As He Does Not Call it An Injunction ” Highlands County filed two motions for sanctions in the form of dismissal of the plaintiff’s lawsuit. Docket Entry Nos. 511 and 646. These motions depicted out of court communications between Highlands County and the Plaintiff, Marcellus Mason. Judge Graham and his Magistrate granted these motions and dismissed the case on June 20, 2001. See Docket Entry Nos. 766 an and 791.
The following alleged out of court lawful communications were used to dismiss the lawsuit.

  • “They claimed that, during the week of 5 February 2001, Mason had demanded to view his personnel file from Highlands County’s Human Resource Director Fred Carino, a named defendant in the case.” See Opinion, pg. 4.
  • They stated that, on 13 and 14 February 2001, Mason also appeared at Carino’s office and demanded to view the billing records for Highlands County’s attorney and Highlands County’s liability insurance documents. See Opinion, pgs. 4-5.
  • They attached a copy of an e-mail apparently sent by Mason in which he explained that he would file a criminal complaint against Carino if he was denied any requested documents and expressed his belief that the county had “waived” its rights under the Orders as a result of Carino’s conversations with Mason and letter. See Opinion, pg. 5.
  • On 6 April 2001, Heartland again moved for sanctions in the form of dismissal because Mason had “repeatedly personally contacted [by e-mail] supervisory employees and/or individual Defendants” in the case since the magistrate judge’s 27 March order. See Opinion, pg. 6.

Legal Requirements For a Fed.R.Civ.P. 41(b) Dismissal

The Eleventh Circuit “has clearly stated that because dismissal is considered a drastic sanction, a district court may only implement it, as a last resort, when: (1) a party engages in a clear pattern of delay or willful contempt (contumacious conduct); and (2) the district court specifically finds that lesser sanctions would not suffice.” World Thrust Films v. International Family Entertainment, 41 F. 3d 1454 (11th Cir. 1995). “A district court has authority under Federal Rules of Civil Procedure 41(b) to dismiss actions for failure to comply with local rules.” id..

Although we occasionally have found implicit in an order the conclusion that “lesser sanctions would not suffice’, we have never suggested that the district court need not make that finding, which is essential before a party can be penalized for his attorney’s misconduct.” Mingo v. Sugar Cane Growers Co-op of Florida, 864 F.2d 101, 102 (11th Cir.1989) (citations omitted). This court has only inferred such a finding “where lesser sanctions would have “greatly prejudiced’ defendants.

——————–SCOPE OF APPEAL LINE JUNE 25, 2001——————————-

—————–BEYOND THE SCOPE OF APPEAL LINE JUNE 26,2001———————–

=====================================================================

Beyond the Scope of Appeal

On September 20, 2001, Judge Graham rendered a pre-filing injunction sua sponte, or own his motion and without notice and opportunity to respond which is a violation of due process. Docket No. 878. The validity of this sua sponte pre-filing injunction is not the point of this posting, however ample case law against its validity is set forth in http://mmason.freeshell.org/SuaSponte.htm#caselaw.

Right of Access To Courts is Constitutionally Protected

The right of access to the Courts is clear according to the U.S. Supreme Court. Bounds v. Smith, 430 U.S. 817 (1977);M.L.B. v. S.L.J., 519 U.S. 102 (1996). The Supreme court has stated the right of access to the courts also protected by the First Amendment. BE&K Construction CO. v. National Labor Relations Board et al. 536 U.S. 516 (2001)(“the right to petition extends to all departments of the Government,” and that “[t]he right of access to the courts is … but one aspect of the right of petition.”). California Motor Transp. Co. v. Trucking Unlimited, 404 U. S. 508, 510 (1972)(“The right of access to the courts is indeed but one aspect of the right of petition.“). See Tennessee v. Lane, 541 U.S. 509 (2004)(recognizing “the fundamental right of access to the courts”); Procunier v. Martinez, 416 U.S. 396 (1974)(“The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights.“).

Orders Issued Inconsistent With Due Process Are Void

A judgment is void if the rendering court acted in a manner inconsistent with due process of law. Wright & Miller, Federal Practice and Procedure § 2862. “A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere.” World-Wide Volkswagen Corp. V. Woodson, 444 U.S. 286 (1980). “[T]he constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. Thus, the warrant is a nullity.” Anderson v. Dunn, 19 U.S. 204, 217 (1821). “’No judgment of a court is due process of law, if rendered without jurisdiction in the court, or without notice to the party.” Old Wayne Mut. Life Ass’n v. McDonough, 204 U.S. 8, 15 (1907). 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. E.g., s Burke v. Smith, 252 F.3d 1260 (11th Cir. 2001); U.S. v. Boch Oldsmobile, Inc., 909 F.2d 657, 662 (1st Cir. 1990);Beller & Keller v. Tyler, 120 F.3d 21, 23 (2nd Cir. 1997); Union Switch & Signal v. Local 610, 900 F.2d 608, 612 n.1 (3rd Cir. 1990); Eberhardt v. Integrated Design & Const., Inc. 167 F.3d 861, 867 (4th Cir. 1999); New York Life Ins. Co. v. Brown 84 F.3d 137, 143 (5th Cir. 1996)

Supreme Court’s Emphasis on Due Process

In a long line of cases, the United States Supreme Court has held that impingements of constitutional rights are, without variation, subject to the strictures of “due process” or notice and opportunity to be heard prior to their enactments. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950); Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951); Goldberg v. Kelly, 397 U.S. 254 (1970), Fuentes v. Shevin, 407 U.S. 67 (1972); Owen v. City Of Independence, 445 U.S. 622 (1980); Carey v.Piphus, 435 U.S. 247, 259 (1978); Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

Case Law Against

Case Law On Pre-Filing Injunctions

US CIRCUIT COURT OF APPEALS HAVE ROUTINELY REJECTED “SUA SPONTE” PRE-FILING INJUNCTIONS.

A long line of United States appellate courts, including the Eleventh Circuit, have rejected sua sponte issuances of pre-filing injunctions because they are violations of due process. In Weaver v. Leon County Sch. Bd., 2006 U.S. App. LEXIS 8128 (11th Cir. 2006), the Eleventh Circuit held that a litigant was entitled to notice and an opportunity to be heard before a restriction was imposed on his ability to challenge an injunction. U.S. v. Powerstein, 2006 U.S. App. LEXIS 14928,*;185 Fed. Appx. 811 (11th Cir. 2006)(litigant entitled to notice and an opportunity to be heard before the court imposed the injunctive order ). See Sires v. Fair, 107 F.3d 1;1997 U.S. App. LEXIS 2173 (1st Cir. 1997); Cok v. Family Court of Rhode Island , 985 F.2d 32 (C.A.1 (R.I.), 1993) (vacating a pre-fling injunction issued without notice); MLE Realty Assocs. v. Handler, 192 F.3d 259, 1999 U.S. App. LEXIS 23362 (2nd Cir. 1999) ; Lau v. Meddaugh, 229 F.3d 121 (2nd Cir. 2000) ; Holton v. Oral Surg. Sing Sing Corr., 24 Fed. Appx. 37; 2001 U.S. App. LEXIS 25151 (2nd Cir. 2001); Moates v. Barkley, 147 F.3d 207, 208 (C.A.2 (N.Y.), 1998) (district court may not impose a filing injunction on a litigant without providing the litigant with notice and an opportunity to be heard.); Gonzales v. Feiner, 131 Fed. Appx. 373, * 2005 U.S. App. LEXIS 8370, ** (3rd Cir. 2005) ; Wiliams v. Cambridge Integrated Servs. Group , 148 Fed Appx. 87, 2005 U.S. App. LEXIS 18624 (3rd Cir. 2005) ; Brow v. Farrelly, 994 F.2d 1027 (C.A.3 (Virgin Islands), 1992)(vacating a sua sponte issued injunction); It is imperative that the court afford the litigant notice and an opportunity to be heard prior to issuing such an injunction. In Re Head, 2006 U.S. App. LEXIS 8265,*;174 Fed. Appx. 167 (4th Cir. 2006)(vacated a 10 yr. old sua sponte injunction); Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 819 (4th Cir. 2004)(vacating a pre-filing injunction issued without notice); Tucker v. Drew, 1994 U.S. App. LEXIS 11784 (4 th Cir. 1994) ;DOUGLAS BAUM v. BLUE MOON VENTURES, LLC , 2008 U.S. App. LEXIS 91,*;513 F.3d 181;49 Bankr. Ct. Dec. 68 (5th Cir. 2008)(“Notice and a hearing are required if the district court sua sponte imposes a pre-filing injunction or sua sponte modifies an existing injunction to deter vexatious filings.”) ;De Long v. Hennessey, 912 F.2d 1144 (9th Cir.) ; Roscoe v. Hansen, 107 F.3d 880;1997 U.S. App. LEXIS 4996 (10th Cir. 1997); Molski v. Evergreen Dynasty Corp., 2007 U.S. App. LEXIS 20966,*;500 F.3d 1047 (9th Cir. 2007)(litigant must be given notice and a chance to be heard before the [injunctive] order is entered.); Tripati v. Beaman, 878 F.2d 351,354 (C.A.10 (Wyo.), 1989)(vacated and holding that the litigant is entitled to notice and an opportunity to oppose the court’s order before it is instituted.); Procup v. Strickland, 567 F.Supp. 146 (M.D. Fla., 1983)(court issued a show cause order) Procup v. Strickland, 760 F.2d 1107, 1110 (C.A.11 (Fla.), 1985) (held that district court did give adequate notice and opportunity to be heard before issuance of the injunction); Cofield v. Alabama Pub. Serv. Comm., 936 F.2d 512, 514 (11th Cir.1991)(noting that court issued show cause order prior to rendering pre-fling injunction); In re Powell, 851 F.2d 427, 431 (D.C.Cir.1988)(reversing and holding If a pro se litigant is to be deprived of such a vital constitutional right as access to the courts, he should, at least, be provided with an opportunity to oppose the entry of an order restricting him before it is entered.); Martin v. Circuit Court, 627 So.2d 1298 (Fla.App. 4 Dist., 1993)(reversing a pre-filing order and holding that limiting the constitutional right of access to the courts, essential due process safeguards must first be provided); Lawsuits of Carter, In re, 510 S.E.2d 91, 95; 235 Ga.App. 551 (Ga. App., 1998)(reversing a pre-filing injunction because notice or an opportunity not given); Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002) (holding that injunctions “may not be expanded beyond the meaning of its terms absent notice and an opportunity to be heard.”).

Courts have felt that the notice and opportunity to respond was so important that they have reversed district courts even where they thought the pre-filing injunction was otherwise valid. See Oliver, In re, 682 F.2d 443, 446 (C.A.3 (Pa.), 1982); Scott v. Wells Fargo Home Mortgage , 2005 U.S. App. LEXIS 15709,*;143 Fed. Appx. 525(4th Cir. 2005); Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir. 1987).

Judge Graham Uses Act of Cowardice Hides Behind Dresstail of Court Reporter To Intimidate Litigant!

April 21, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham

What this Posting Will Prove

Judge Graham attempted to use intimidation in order to prevent Marcellus Mason from appealing arbitrary denials of Rule 60(b), Fed.R.Civ.P. motions. In order to accomplish this task Judge Graham scheduled a “Status/Motion Hearing” with AUSA Robert Waters and U.S. Probation required to be at a civil hearing. Mason was on probation at the time. However, Judge Graham did not think his hearing was important enough to reduce his ‘rants’ to writing, he opted instead to hide behind the dresstail of a court reporter and have her write some account of the hearing. See Document No. 934. Apparently, Judge Graham does not know, or more likely does not care that: “Even 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). Moreover, there is no time limit bringing a Rule 60(b)(4) motion. See HERTZ CORP. v. ALAMO RENT-A-CAR, INC., 16 F.3d 1126 (11th Cir. 1994).

Background

In District Case No. 99-14027-CIV-GRAHAM, Marcellus M. Mason, Jr. v. Highlands County Board of County Commissioners, Judge Graham rendered a “vexatious litigant order”, “pre-filing order”, “pre-filing injunction”, “filing injunction”, “leave to file” injunction, sua sponte on September 20, 2001. See Page 3, Docket Entry Number 878, (D.E. # 878) . This document boldly asserts: THIS CAUSE came before the Court sua sponte. Sua Sponte meaning on the courts’ own motion and without a request from any party. It is well settled and black letter law that sua sponte issued pre-filing injunctions rendered without notice and opportunity to respond, “due process”, are clearly void. See Case Law Authority. One of the terms of this clearly void sua sponte issued pre-filing injunction is:

3. Any request for permission to file additional pleadings in the above captioned cases already before the Court SHALL be in the form of an application filed with the Clerk of Court and addressed to United States District Judge Donald L. Graham. This application shall consist of a one paragraph explanation of the requested relief in the proposed pleading, and shall not exceed one page. The application shall not include the proposed pleading.

See Page 9, Docket Entry Number 878, (D.E. # 878). Incidentally, Mason has challenged this clearly void sua sponte issued pre-filing injunction on what has to be a world record number of times; however, the Eleventh Circuit has declined to reach the merits of this sua sponte issued pre-filing injunction by asserting all manner of procedural arguments. See Futile Appellate Review Attempts. As a matter of fact, the denials are not consistent and even contradict each other on each successive attempt at appellate review. Even an ardent supporter of the system would have a hard time arguing that there is not a certain amount of dishonesty involved in the matter. For a really egregious example of this dishonesty, see this site page, “Putrid Dishonesty:Beyond the Scope of Appeal“. Judge Graham is truly the “Teflon Don” because none of his misconduct sticks to him. See this site postings “Documented Acts of Misconduct by U.S. Dist. Judge Donald L. Graham” and “Chief Judge J.L. Edmondson Aggressively Defends Judge Donald L. Graham

Alleged violations of this clearly void sua sponte issued pre-filing injunction formed the basis of a criminal contempt information and conviction in this matter. Essentially, Judge Graham and AUSA Robert Waters concocted a crime and framed an innocent man using the enormous power of the U.S. Government. See Framed and Wrongful Conviction. Mason was sentenced to five years probation on this concocted charge and was sentenced to the following special terms in addition to the standard terms of probation:

  • Mental Health counseling.
  • Prohibited from using the Internet. The government and AUSA Robert Waters asked for this term to stop criticism of Judge Graham on the Internet. See this site’s posting, “Power of US Government Used To Suppress Criticism of U.S. Dist. Judge Graham” This term was particularly offensive because Mason made his living off the Internet, being a MCSE and Microsoft Certified Systems Engineer, and CNE, Certified Novell Engineer.

    One Page Request to File Pleading

    On December 16, 2004, pursuant to the terms of the sua sponte issued pre-filing injunction, Mason filed a one page letter seeking permission to file a Fed.R.Civ.P. Rule 60(b)(4) motion to disqualify Judge Graham. See Document No. 932. This one page letter stated that Judge Graham should have disqualified because he had, among other things, lied and intentionally misrepresented the law. On appeal, the Eleventh Circuit had “forgot” or “overlooked” the issue of whether Judge Graham should have disqualified or not. See post this site, “Does A Mere Clause In a Sentence Represent Meaningful Appeal?” Incidentally, when the Eleventh Circuit and Judge Stanley F. Birch, Jr. and in particular, was told on a motion for rehearing that they “overlooked” the issue of whether or not Judge Graham should have disqualified, the Eleventh Circuit simply stated: “The petition(s) for rehearing filed by Appellant, Marcellus M. Mason, Jr., is DENIED“. See Order. On January 9, 2005, Judge Graham issued what he termed a “NOTICE OF HEARING”. See Document No. 933. Judge Graham claimed that it was supposed to be a “Status/Motion Hearing” set for January 14, 2005. Notwithstanding the fact that this was a civil case, Judge Graham ‘invited the following people: Frank Smith, U.S. Probation Office, Lynn Waxman, Appellate Attorney, and Assistant U.S. Attorney Robert Waters. It is fair to say that in Judge Graham’s mind this “NOTICE OF HEARING” is important.

    The “Status/Motion Hearing”

    The “Status/Motion Hearing” was indeed held on January 14, 2005. There was no discussion of the merits of the impending motion or request to file a motion. Exactly what role would AUSA Robert Waters and Frank Smith, U.S. Probation, play in a civil matter? Judge Graham said the matter is over. Mason asked Judge Graham was he prohibiting the filing of a Fed.R.Civ.P. Rule 60(b)(4)? Judge did not answer the question directly. He kept expressing his apparent personal opinion and desire for the matter to be over. Judge Graham exclaimed: “The Eleventh Circuit denied your appeal!” Judge Graham did not reduce any of his barking of commands to writing; instead he had his court reporter, C. Horenkamp, file an unsigned piece of paper called a ‘Civil Court Minutes’ on January 18, 2005. See Document No. 934. It appears that Judge Graham was attempting to “sua sponte” modify the sua sponte issued pre-filing injunction of September 20, 2001. Until now, Judge Graham has declined to put his “commands” in writing. However, an open letter to Judge Graham has been posted to this site explaining, with case law, to Judge Graham that orders and/order injunctions must be reduced to writing. See this site posting, “Open Letter to Judge Donald L. Graham Dated April 3, 2008“. Additionally, Judge Graham was sent a letter directly to chambers. It is clear that Judge Graham is attempting bully Mason into submission without reducing his “commands” to writing where they can be documented, archived, and appealed. Judge Graham is clearly trying to circumvent the appellate process. Judge Graham wants to have it both ways in that he wants deny access to the courts by Mason, but he is not man enough to put it in writing! Man up! Judge Graham has no compunction about violating the ‘rule of law’.

Chief Judge J.L. Edmondson Aggressively Defends Judge Donald L. Graham

April 17, 2008

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 Chief Circuit Judge J.L. Edmondson and his cohorts to speak for them. Unlike, Judge Graham and his enablers, 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 Judge Edmondson and his colleagues at the Eleventh Circuit, U.S. Court of Appeals have defined the concept of “judicial misconduct” out of existence. Moreover, the record here will reveal that Judge Edmondson and his colleagues will not mention the allegations of misconduct raised against Judge Graham, much less test them for veracity.

What To Focus On

  • The allegations of misconduct are not denied.
  • The allegations of misconduct are rarely mentioned.
  • The Allegations of misconduct were ignored in the appellate process
    • Usurping Legal Authority
    • Refusing to Rule on a motion for a preliminary injunction
    • Allowing Scores of Motion to Languish
    • Judge attempted to arrogate his own authority by ordering the clerk to return notices of appeals without filing them.

      • intentionally lying and misrepresenting the law;
      • refusing to rule on a motion for a preliminary injunction for more than 15 months;
      • allowing scores of motions to go undecided;
      • and usurping legal authority.
      • The complaint alleges (Core Allegations):
      • intentionally lying and misrepresenting the law;
      • refusing to rule on a motion for a preliminary injunction for more than 15 months;
      • allowing scores of motions to go undecided;
      • and usurping legal authority.
    • See Complaint and Order, Judicial Council Order.

      December 14, 2001, Judge R. Lanier Anderson renders order dismissing the complaint due to:

      The allegations of the Complaint are “directly related to the merits of a decision or procedural ruling”. Additionally, this complainant currently has pending in this court several Petitions for Writs of Mandamus that address this issue. Consequently, pursuant to 28 U.S.C. 372(c)(3)(A) and Addendum Three Rule 4(a)(2) this Complaint is Dismissed.

      When Judge Anderson wrote this order, the Eleventh Circuit had already had denied the mandamus petition, Case No. 01-15754, which he references in his order dismissing this complaint. Consequently, Judge Anderson knows that Judge Graham’s misconduct has not been discussed, much less remedied.


      INTERVENING MANDAMUS

      December 5, 2001, in a terse one page, (Case No. 01-15754), “opinion” denies relief. “The “petition for writ of mandamus and petition for writ of prohibition” is DENIED.”
      January 25, 2002, the Eleventh Circuit refuses to give the basis for its opinion of December 5, 2001 and denies a motion for rehearing or clarification.

      Complaint No. 02-0029

      Judge Graham attempted to use the contempt process to force Mason to drop a lawsuit filed against him.

      In this Complaint, Mr. Mason makes the unsupported allegation that Judge Graham has “improperly and illegally used his office to bring criminal contempt charges against me since the imitation (sic) of my last complaint on February 8, 2002”. Although Mr. Mason does not submit any evidence or documentation in support of his allegation, Judge Graham did in fact issue an Order to Show Cause regarding possible contempt charges against Mr. Mason detailing why Mr. Mason should be charged with criminal contempt, Not one reason cited in this order relates to any complaints having been filed against Judge Graham by Mr. Mason. The allegations that Judge Graham improperly and illegally issued the Order to Show Cause, and that it was issued in retaliation for Mr. Mason having filed complaints against judge Graham are clearly disputed by Mr. Mason’s behavior and obvious disregard for Judge Graham’s Omnibus Order and are “directly related to the merits of a decision or procedural ruling”, Therefore, pursuant to 28 U .S.C. § 372(c)(3)(A) and Addendum III Rule 4(a)(2), this Complaint is Dismissed .

      See Complaint and Order.


      COMPLAINTS FILED IN 2005

      A Series of complaints, Nos. 05-00008, 05-0011, 05-0012, 05-0013, 05-0020, and 05-0021, were filed in 2005. In order to keep Judge Edmondson from viewing allegations of misfeasance, malfeasance, and nonfeasance against Judge Graham in isolation, Mason included the following allegations in all the complaints so that Judge Graham’s record could be viewed in the aggregate.

      Additionally, in 2005, Judge Edmondson knows for certain that Judge Graham has escaped appellate review because the Eleventh Circuit, though fully briefed, refused to discuss whether Judge Graham should have disqualified. Moreover, the Eleventh Circuit declined to discuss the allegations of misconduct and abuse that Mason used to support the thesis that Judge Graham should have disqualified. See, Case No. 01-13664, Unpublished Opinion.


      Complaint No. 05-0008

      Complaint filed January 29, 2005.

      Additionally, Judge Graham knowing falsely created a Civil Justice Act Report that concealed the fact that he had a motion for a preliminary injunction pending for more than 15 months. Judge Edmondson reply to these allegations:

      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. Notwithstanding 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. The allegations of this Complaint are “frivolous”, “successive”, and “appropriate corrective action has been taken”. Therefore, pursuant to Chapter 16 of Title 28 U .S.C. § 352 (b)(I)(ii) and Addendum III Rules 4 (b)(3) and (4) and 18(c) this Complaint is DISMISSED.


      Order 05-0011. Complaint No. 05-0011
      Complaint filed January 31, 2005.
      This complaint, in addition to the core allegations, alleges the following:
      Judge Graham has arrogated his own authority, much like Sadam Hussein, Stalin, Hitler, other infamous autocrats and dictators. Specific acts of misconduct committed by Mr. Graham include, but is not limited to the following:
      Concocting a patently illegal injunction or pre-filing screening under the guise of “inherent authority”. See (D.E. 878), URL: http://mmason.freeshell.org/DE-878/de878.pdf.Using this patently illegal injunction to initiate and gain a criminal contempt conviction. Allowing the Eleventh Circuit to use this patently illegal injunction, (D.E. 878), rendered on September 20, 2001 , to affirm the dismissal of a case, 99-14027-CV-Graham, that closed on June 20, 2001. Imagine that! Allowing the Eleventh Circuit to destroy my right under the “rule of law” to appeal this patently illegal injunction, (D.E. 878).Using intimidation by ordering me, Robert Waters, AUSA, Frank Smith, U.S. Probation, and others to come to a “Status/Motion Hearing” on January 9, 2005. Abusing his office and circumventing the appellate process by ordering me not to file any one page requests to file Rule 60(b) motions and refusing to put this illegal order in writing so that it can be challenged on appeal. July 7, 2005, Judge Edmondson answered these allegations:

      In this complaint, there are only two allegations that have not been determined in previous complaints filed by Mr. Mason against Judge Graham. Mr. Mason first complains that Judge Graham issued a verbal order on January 14, 2005, which advised him not to file any further pleadings with the court . Mr. Mason then complains that this order was not in writing to prevent him from filing an appeal. The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling or frivolous or both”, and the allegations of the complaint “lack any factual foundation or are conclusively refuted by objective evidence” . Therefore, pursuant to Chapter 16 of Title 28 U .S .C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3) and (4) this Complaint is DISMISSED.


      Order No. 05-0012. Complaint No. 05-0012

      COMPLAINT FILED FEBRUARY 7, 2005. SPECIFIC ALLEGATIONS OF MISCONDUCT AND JUDICIAL ABUSE

      1. Mr. Graham abused his office by having the U.S. Marshall, Keith L. Kluttz, come and interrogate me at my home on or about February 5, 2004 when he had no earthly reason to do so.
      2. Mr. Graham abused his office by ordering me to come to “Status/Motion Hearing” on January 14, 2005 on a closed civil case, 99-14027.
      3. Mr. Graham conducted a quasi criminal hearing under the guise or cloak of a “Status/Motion Hearing” in a civil matter. The AUSA and U.S. Parole were attendance at this “Status/Motion Hearing”. I was unrepresented by a competent criminal defense lawyer.
      4. Graham ordered me to answer his intimidating questions in violation of my Fifth Amendment rights. Mr. Graham gave me no warning that my statements could be used against me even though the U.S. Attorney and U.S. Probation were in attendance.

      On January 9, 2005, Mr. Graham concocted what he termed a “Status/Motion Hearing” order. This order was then certified on January 10, 2005 by one of Mr. Graham’s clerks. This order specifically demands that the following individuals be there: Frank Smith, U.S. Probation, Robert Waters, AUSA, Lynn Waxman, Appellate Attorney, Maria Sorolis, counsel for Highlands County. This order was picked up by Fedex on January 10, 2005 and delivered to my home on January 11, 2005. Mr. Graham scheduled this hearing for January 14, 2005 at 15:30 in Fort Pierce. Mr. Graham was already scheduled to be in Fort Pierce on this date. Mr. Graham made no effort to talk to me or my appellate attorney about dates that would be convenient to us. Mr. Graham made no prior contact with me or Ms. Waxman. At this hearing, Mr. Graham made absolutely no mention of the merits of any pending motion in the civil case, 99-14027. Mr. Graham kept saying the case was closed and not to ‘file’ anymore Rule 60(b), Fed.R.Civ.P. motions or requests to file Rule 60(b), Fed.R.Civ.P. motions. Mr. Graham asked U.S. Probation about the terms of my probation. Why is this needed in a civil matter?
      For what purpose did AUSA Robert Waters and US Parole Officer Frank Smith attend a “Status/Motion Hearing” in a civil matter? Mr. Graham has refused to put any of the “commands” he made in writing so that they could be held up to public scrutiny. Mr. Graham felt it important enough to hastily concoct a “Status/Motion Hearing”, but not important enough to memorialize is “commands” to writing. Mr. Graham does not have the legal authority to demand, under the threat of arrest, that I attend a “Status/Motion Hearing” on a closed civil case. Mr. Graham had a deputy US Marshall come by my home and interrogate me without the presence of counsel even though criminal contempt case was pending, Case No. 02-14020-CR-Moore. I was questioned by the U.S. Marshall without benefit of having an attorney present. Mr. Graham had no probable cause to send the US Marshal to my house. The mere fact that Mr. Graham disagrees with my unrelenting attacks on his record and personal integrity is not sufficient reason to “sick the dogs on me”, or US Marshal. The US Marshal’s office is not Mr. Graham’s private police force.
      June 27, 2005, Judge Edmondson states:

      In this complaint, there are four allegations that have not been determined in previous complaints filed by Mr. Mason against Judge Graham. Mr. Mason complains that Judge Graham abused his office by ordering him to appear at a Status/Motion hearing held on January 14, 2005, and that Judge Graham scheduled this hearing without any attempt to talk with him or his attorney about dates that were suitable for them. Mr. Mason also complains that Judge Graham ordered him to answer intimidating questions at this hearing without warning that his statements could be used against him even though the U.S. Attorney and U.S. Probation offices were represented and present at this hearing. Mr. Mason further complains that Judge Graham improperly and without good cause sent the U.S. Marshals as his own private police force.

      The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling”, frivolous”. and the allegations of the complaint “lack any factual foundation or are conclusively refuted by objective evidence” and “successive”. Therefore, pursuant to Chapter 16 of Title 28 U.S.C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3)(4) and 18 (c) this Complaint is DISMISSED. Order No. 05-0012.

      Complaint No. 05-0013

      Complaint filed February 8, 2005
      In addition to the core allegations, this complaint alleges:
      Mr. Graham abused his office by ordering me to come to a “HEARING ON CONDUCT OF PARTIES DURING PROCEEDINGS” on December 4, 2001 on a closed civil case, 99-14027. The case was closed on June 20, 2001.This case was on appeal since June 25, 2001, consequently, Mr. Graham no longer had jurisdiction over the case. Why do I need to a ““NOTICE OF HEARING ON CONDUCT OF PARTIES DURING PROCEEDINGS” on a closed case? Does Mr. Graham get to order me to come to a hearing anytime he gets ready?
      Judge Edmondson’s reply:

      In this complaint Mr. Mason alleges that Judge Graham abused his office by ordering to appear at a hearing on December 4, 2001, when the case in question, No. 99-CV-14027, was closed and on appeal at the time the hearing was scheduled. The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling”. Therefore, pursuant to Chapter 16 of Title 28 U .S .C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3) and (4) this Complaint is DISMISSED. Order No. 05-0013.

      Complaint No. 05-0020

      Complaint filed February 16, 2005
      This complaint alleges:
      Judge illegally blocked Mason’s access to the courts by improperly denying motions to proceed without payment, in forma pauperis, on 18 different occasions, while refusing to cite a legal or factual reason for doing so as required by law.
      Graham allowed IFP motions to linger for months in violation of S.D.Fla. Local Rule 7.1.B.3 which calls for a hearing on motion in 90 days. (DE #8, 9-18-2001). Plaintiff’s motion was filed on 3/12/01 (DE #2). It took Graham more than six months to create a reason to deny this motion that was not denied until 9-18-2001. See (DE #8, 9-18-2001).
      Graham deliberately stated misleading facts or outright lied in justifying his injunction of September 20, 2001, (DE 878), by using the very unfiled lawsuits that he denied me IFP status to support this patently illegal injunction . For the purpose of justifying the injunction, (DE 878), 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, See pgs. 1-2, DE-878, URL: http://mmason.freeshell.org/DE-878/de878.pdf. Mr. Graham states, “Marcellus M. Mason (“Mason”) has filed eleven (11)cases and/or counterclaims in this District…” 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 me 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 me. 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 I 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 Edmondson’s reply:

      In this complaint Mr. Mason, although worded differently that his previous complaints, re-makes the allegation that Judge Graham denied him access to the courts by summarily denying a string of motions for in forma pauperis and that Judge Graham did not identify either of the only two reasons allowed for such denial. The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling” and “successive”. Therefore, pursuant to Chapter 16 of Title 28 U .S .C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3) and (4) this Complaint is DISMISSED.

      Order No. 05-0021. Complaint No. 05-0021

      Complaint filed February 19, 2005
      This complaint alleges:
      Mr. Graham should have disqualified himself long before any motion for attorney’s fees had been presented. “Disqualification is mandatory for conduct that calls a judge’s impartiality into question.” U.S. v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001). As this Complaint and previous complaints clearly demonstrate Judge Graham should have disqualified himself because he: (1)he intentionally misrepresented the law; (2)refused to rule on a motion for a preliminary injunction for more than 16 months;(3)usurped legal authority by requiring me to seek the permission of a private law firm to communicate with my government;(4)allowed scores of motions to go undecided; (5)concocted a “pre-filing” injunction;(5)lied on a Civil Justice Act Report;(6)See Section 372(c) complaints docketed under Case Nos. 05-0008, 05-0011, 05-0012, 05-0013, and a complaint dated Wednesday, February 16, 2005 for more reasons Graham should have disqualified. Mr. Graham and his Magistrate awarded the Defendants, Highlands County, a whopping award of $200,000 that he admitted in writing had nothing to do with the law or the “merits”. Mr. Graham even lied in order to award the defendants $200,000 in attorney’s fees. These allegations are fully supported by the following RECORD facts. See (DE #882), URL: http://mmason.freeshell.org/DE-882/de882.pdf . (DE 891), URL: http://mmason.freeshell.org/DE-891/de891.pdf . Judge Graham intentionally lied in order to award attorney’s fees of $200,000. Mr. Graham admitted that he knew the law and was not going to follow it with respect to the awards of attorney’s fees. At page 3 of the Report and Recommendation, Graham and his Magistrate admit that Christiansburg Garment Company v. Equal Employment Opportunity Commission, 434 U.S. 412 (1978) is the standard for awarding attorney’s fees. Mr. Graham and his Magistrate admit that I had no chance of paying $200,000 in attorney’s fees but awarded it to the defendants anyway. After awarding the Defendants $200, 000 in attorney’s fees against me, Mr. Graham then decided to deny me in forma pauperis status to appeal this travesty. Moreover, Mr. Graham refused to offer any lawful reason for denying me IFP status. See (DE #906), URL: http://mmason.freeshell.org/DE-906/de906.pdf . I prevailed on a summary judgment in a lawsuit filed against me by Highlands County and Mr. Graham refused to award me costs of less than $200.00. See (DE #27), URL: http://mmason.freeshell.org/00-14240/de27.pdf ; (DE #33), URL: http://mmason.freeshell.org/00-14240/Doc33/de33.pdf ; (DE #35), URL: http://mmason.freeshell.org/00-14240/Doc35/1.jpg . Judge Edmondson’s reply:

      In this complaint Mr. Mason repeats allegations, filed in previous complaints, that Judge Graham should have recused himself, that Judge Graham refused to rule on several motions, and that Judge Graham required him to seek permission from a private law firm to communicate with his government. The only new allegation in this complaint concerns the attorney fees awarded by Judge Graham to the defendants in the amount of $200,000. Mr. Mason claims Judge Graham lied in order to grant the fees. The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling” and “successive”. Therefore, pursuant to Chapter 16 of Title 28 U .S .C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3) and (4) this Complaint is DISMISSED.

      Order No. 05-0021.

      What makes this order particularly offensive is that both Judge Graham, for no stated reason, and the Eleventh Circuit, both denied Mason the opportunity to appeal the $200, 000 judgment. The Eleventh Circuit claimed the appeal of the $200,000 attorney’s fees was frivolous without providing a scintilla of evidence to support its mere fortuitous and self-serving conclusion.
      On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his motion and without notice to the litigant Marcellus M. Mason. See Docket Entry Number 878, (D.E. # 878) . Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte.
      EVEN MORE INCREDIBLE IS THE FACT THAT THE ELEVENTH CIRCUIT REFUSES TO REVIEW THIS SUA SPONTE ISSUED PRE-FILING INJUNCTION FOR VALIDITY. SEE mmason.freeshell.org/SuaSponte.htm#AppellateHistory.

  • When Does Judge Graham become Accountable?


    Judge Edmondson’s Attack on the Complainant

    On May 2, 2005, Circuit Judge J.L. Edmondson, Eleventh Circuit, U.S. Court of Appeal stated:

    Of the eight complaints not specifically naming Judge Graham as the complained–of judge, five name judges of this Court who served on panels reviewing Mr. Mason’s appeals — panels that affirmed decisions and rulings by Judge Graham. None of Mr. Mason’s judicial complaints have prevailed. All of the complaints that have been resolved to date have been dismissed for some or all of the following reasons: the complaints were (1) plainly untrue; (2) frivolous; (3) successive; (4) conclusively refuted by objective evidence; (5) lacking in factual foundation; (5) lacking in evidence sufficient to raise an inference that misconduct had occurred; or (6) directly related to the merits of a decision or procedural ruling…Eight of Mr. Mason’s twenty-one judicial complaints are still pending before this Court: Complaint numbers 05-0011, 05-0012, 05-0013, 05-0020, 05-0021, 05- 0022, 05-0023, and 05-0036. Six of those complaints name Judge Graham while the other two name judges of this Court who served on panels that affirmed decisions or rulings issued by Judge Graham. Four of the complaints are, on their face, successive. Accordingly, determination of those eight complaints will be held in abeyance pending the resolution of this Show Cause Order

    See Show Cause Order.

    The Perfect Scam

    IMPORTANT BACKGROUND AND CONCURRENT FACTS

    In order to fully understand the lengths that Judge Edmondson and his cohorts at the Eleventh Circuit are willing to go through to conceal the acts of misfeasance, malfeasance, nonfeasance committed by Judge Donald L. Graham, one must read the opinions in the direct appeal, Case
    No. 01-13664
    and mandamus petition, Case No. 01-15754 (“The “petition for writ of mandamus and petition for writ of prohibition” is DENIED.)in conjunction with the complaints listed below. The Eleventh Circuit does not deny the allegations it simply ignores them. In the direct appeal, the Eleventh Circuit acknowledges that it was briefed on the issue that Judge Graham should have disqualified because of the alleged misconduct, however, it refuses to discuss this issue on appeal (“Mason also raises issues that relate to non-sanction matters, … the denial of his motions to disqualify the district court and magistrate judges,“). Similarly, it refuses to discuss this issue in mandamus petition.

    The Eleventh Circuit and Judge Edmondson employed a perfect strategy to conceal these allegations of misconduct. The direct appeal and mandamus orders are non-published. Neither of these opinions have ever been available in the Court’s database or released. Couple this fact, with the fact that the Judicial Misconduct Complaints are kept confidential no one would ever know save this website.

    It is noteworthy and quite revealing that upon reading the complaints and Judge Edmondson’s replies that he does not deny, because he can not, any of the allegations set forth in any of the complaints below.

    The point of the foregoing is that Judge Edmondson and his cohorts knew full well that when these complaints were lodged that the Eleventh Circuit had already refused to address these allegations in the appellate process. Consequently, there is no remedy for these acts of misconduct and abuse.


    Complaint #01-0054

    This complaint raised the following allegations:

    Complaint No. 01-0054. On November 7, 2001, former Chief Judge R. Lanier Anderson, without denying the truth of the allegations, stated:

    Marcellus M. Mason. Jr. filed this complaint against United States District Judge Donald L. Graham, pursuant to Title 28 U.S.C. § 372(c) and Addendum Three to the Rules of the Judicial Council of the Eleventh Circuit. The allegations of the Complaint are “directly related to the merits of a decision or procedural ruling” and/or ‘Action on the complaint is no longer necessary because of intervening events, and intervening events”. Consequently, pursuant to 28 U.S.C. § 372(c)(3)(A) and (3)(B) and Addendum Three Rule 4 (a)(2), this Complaint is DISMISSED.

    On March 5, 2002, the Judicial Council declined to do a review. See Order.


    Case No. 01-0068

    Complaint No. 01-0068

    Complaint filed on November 27, 2001

Open Letter to Judge Donald L. Graham Dated April 3, 2008

April 3, 2008

Judge Donald L. GrahamJudge Donald L. Graham

scales.gifJustice Turned On Its Head!


Thursday, April 03, 2008

RE: FYI: DC Case No. 99-14027-CV-Graham/Lynch

Dear Mr. Graham:

As you well know, I have nothing but the utmost disrespect and disdain for you personally. I recently spent 41 days in jail because you framed me. See http://mmason.freeshell.org/framed.htm#quick . I believe this is a criminal act on your part. I can tell you that I am more determined than ever to see that you are impeached and led off in handcuffs like I was for your criminal behavior. I don’t care how long it takes or what I have to go through, but I won’t stop trying to hold you accountable under the law. Do you understand? Do you understand? If you type http://mmason.freeshell.org/openletter/ you will see a directory with all the letters I am sending out in my new letter writing campaign. This letter is located at http://mmason.freeshell.org/openletter/Graham08282008.rtf and as an open letter and a post to my blog at: https://mcneilmason.wordpress.com.

As I examine an officially filed court document, Docket No. 934, http://mmason.freeshell.org/DE-934/de934.pdf , it is not quite clear to me what the purpose of our little chat was on January 14, 2005. It appears that you are trying to circumvent the appellate review you know is coming. This document has no signature, nor is signed by any judge, consequently it is not clear to me what this document purports to be. This is not a legal document. Given that it is not signed by any judge, or anybody else for that matter, I can only assume that it is only someone’s personal opinion. The law requires injunctions or changes to injunctions to be put in writing. “[I]f the district judge neither puts pen to paper nor identifies an authoritative document, nothing of legal significance has happened–for oral statements are not judgments and under Rule 65(d) have no legal effect, and until the judge enters something meeting the general description of an injunction or other judgment, the matter remains pending in the district court.” Hispanics United v. Village of Addison IL, 248 F.3d 617, 620-21 (7th Cir., 2001). “Oral statements are not injunctions. A judge who proclaims “I enjoin you” and does not follow up with an injunction has done nothing.” When a judge does not record an injunction or declaratory judgment on a separate document, the defendant is under no judicial compulsion. …[a]n opinion or statement in court “is not itself an order to act or desist; it is a statement of reasons supporting the judgment. The command comes in the separate document entered under Fed.R.Civ.P. 58, which alone is enforceable. There must be a separate document, with a self-contained statement of what the court directs to be done.” Bates v. Johnson, 901 F.2d 1424, 1427-28 (C.A.7 (Ill.), 1990).

As you well know, you issued a “pre-filing injunction” sua sponte on September 20, 2001. I’ve done a great deal of research on sua sponte issued pre-filing injunctions and have found that every U.S. Court of Appeal, including the Eleventh Circuit, and other jurisdictions that I have run across have rejected sua sponte issued pre-filing injunctions. See http://mmason.freeshell.org/SuaSponte.htm . These courts, including the Eleventh Circuit, have stated unequivocally that sua sponte issued pre-filing injunctions are violative of due process. Any order that violates due process is void.

If the purpose of our little chat on or about January 14, 2005 was to modify the sua sponte injunction of September 20, 2001. The law does not allow you to sua sponte modify a sua sponte issued filing injunction. I will require due process and something in writing stating how the sua sponte issued pre-filing injunction was modified. See Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002) (holding that injunctions “may not be expanded beyond the meaning of its terms absent notice and an opportunity to be heard.”). 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. Otherwise, I assume that the sua sponte issued pre-filing injunction has not been modified and you will receive requests accordingly. Moreover, with respect to the case being “closed” and Rule 60(b), Fed.R.Civ.P.: “Even 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).

You have proven to me that you are not constrained by the rule of law. You have a long history of lawlessness and misconduct that includes, but is not limited to, the following:
• You have lied and intentionally misrepresented the law.
• You 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 me not to communicate with my government, Highlands County Board of County Communications.
• You refused to rule on a motion for a preliminary injunction that had been pending for more than 17 months.
• You allowed scores of other important motions to simply linger without addressing them.
• You have abused the criminal contempt procedure by taking a void sua sponte issued pre-filing injunction and making it the basis of criminal contempt information.
• You have used the criminal contempt process to force the withdrawal of a lawsuit.
• You have awarded a massive $200,000 in attorney’s fees to Highlands County against an indigent me, not on the quality of the underlying lawsuit, but based upon your mere speculation about my motive.
• You have repeatedly improperly denied me access to the courts by arbitrarily denying in forma pauperis, “IFP”, petitions.
• You have falsely completed a Civil Justice Reform Act Report, “CJRA” in order to conceal the fact the fact that you had a motion for a preliminary injunction pending for more than 17 months.
Support for these allegations are fully set forth at: http://mmason.freeshell.org/CoreAllegations.htm and at https://mcneilmason.wordpress.com and
numerous other places. Mr. Graham, I am incapable of simply accepting this kind of lawlessness and behavior and moving on. In a word, I simply will not move on under any set of circumstances.

Mr. Graham you have enjoyed a pyrrhic victory at the cost of your reputation and that of your colleagues. It is kind of selfish of you to put your colleagues in the position that you have placed them in. You have subjected your colleagues at the Eleventh Circuit to ridicule by forcing them to make lawless and dishonest decisions in order to conceal your lawless behavior and hubris. I mock them at: https://mcneilmason.wordpress.com and layout their entire repertoire of tricks and dishonesty at: http://mmason.freeshell.org/methods.htm . I have defined you with your record. Anytime somebody wants to know something about you, they Google or Yahoo your name and it leads to one of my many websites and pages.

Mr. Graham, it would be in your best interests and those of your colleagues if you comport yourself to the rule of law. What have you gained by all of your lawless behavior? You have damaged your own reputation and are in the process of destroying other judges’ reputation as well. It says something about your character to put other judges in the position you have placed them.

Ultimately, I am seeking public scrutiny of your record. When that goal is reached, and I won’t quit my efforts until that time, the public outcry for disciplinary action against you and your enablers will be overwhelming. In the interest of the Federal Judiciary and your friends, you should consider resigning and firing Judge Lynch.

Marcellus Mason


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