Posts Tagged ‘Mismanagement’

Eleventh Circuit Disses The U.S. Supreme Court Chooses To Protect Judge Graham

April 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 U.S. Supreme Court once said: “But unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.” Hutto v. Davis, 454 U.S. 370 (1982). This post is a yet another perfect example of how the “unpublished” Opinion is used to defy the authority of the United States Supreme Court. What is clear from this post is that if the Eleventh Circuit, U.S. Court Of Appeal, does not like the facts or the law involved in a case, it will simply make a terse one sentence “opinion” ignoring both the facts and the law. “The “petition for writ of mandamus and petition for writ of prohibition” is DENIED.” See “Opinion“, Case No. 01-15754. In this matter, Case No. 01-15754, the Eleventh Circuit declined to honor a petition for mandamus as a notice of appeal and perform meaningful appellate review as required by the U.S. Supreme Court. The petition attacks a sua sponte issued pre-filing injunction that was rendered on September 20, 2001 and excoriates Judge Graham for his misconduct and mismanagement. It is no wonder that Judge Graham feels that he is above the law and that he is the “Teflon Don”.

In addition, on a parallel track, a direct appeal, Case No. 01-13664, is already pending when Judge Graham renders the sua sponte issued pre-filing injunction of September 20, 2001. The handling of this matter yields even more dishonest and evasive measures.

  • The Eleventh Circuit struck Mason’s appellate brief for arguing against the sua sponte issued pre-filing injunction of September 20, 2001 because they claimed it was “beyond the scope of appeal”. However, when the Eleventh Circuit rendered its opinion affirming Judge Graham it then used the same sua sponte issued pre-filing injunction to affirm Judge Graham. See full story of this despicable act at this site, post entitled, “Putrid Dishonesty:Beyond the Scope of Appeal
  • The Eleventh Circuit refused to test the allegations of misconduct leveled at Judge Graham for veracity, even though admittedly fully briefed, it declines to review the issue of whether or not Judge Graham abused his discretion by failing to disqualify. See full story, this site, post entitled, “Are Allegations of Misconduct Reviewable on Appeal?

The Eleventh Circuit had to make a choice. It could save Judge Graham from his record, or it could follow binding precedent as set forth by the United States Supreme Court. It chose to save Judge Graham from the consequences of his own misbehavior and hubris. Is the Eleventh Circuit free to ignore the edicts of the United States Supreme Court?

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

United States Supreme Court

A document intended to serve as an appellate brief may qualify as the notice of appeal required by Rule 3. So long as such a document is filed within the time allowed by Rule 4 for a notice of appeal and satisfies Rule 3(c)’s requirements as to the content of such a notice, it may be treated as the “functional equivalent” of the formal notice demanded by Rule 3.” SMITH v. BARRY ET AL. 502 U.S. 244 (1992) (Syllabus). See also Eleventh Circuit’s Finch v. Vernon, 845 F. 2d 256, 259-260 (11th Cir. 1988) (citing United States v. Rogers, 788 F.2d 1472, 1475 (11th Cir.1986) (notice of appeal requirement is satisfied by any statement clearly evincing the party’s intent to appeal); Yates v. Mobile County Personnel Board, 658 F.2d 298, 299 (5th Cir. Unit B Oct. 1981) (“A petition for mandamus filed in this court, however, may also satisfy the notice of appeal requirement, especially when the appellant is proceeding pro se … and is thus generally ignorant of procedural rules.”).”).

The Eleventh Circuit received a mandamus petition that was docketed as being received on October 2, 2001. See Receipt. This is a 25 page petition plus exhibits. Microsoft Word Format, html format, and pdf format. According to the Supreme Court and the Eleventh Circuit’s own binding precedents, this mandamus petition should have been treated 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.“); Rinaldo v. Corbett, 256 F.3d 1276, 1279-80 (11th Cir.2001)To perform its function a notice of appeal must specify the parties taking the appeal, designate the judgment or order being appealed, and name the court to which the appeal is being taken. Fed. R.App. P. 3(c)(1). That is all.Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475 F.3d 1228 (11th Cir. 2007).

The Defendant, Highlands County Board of County Commissioners, and U.S. Dist. Judge Donald L. Graham also received a copy of the mandamus petiton. Judge Graham did not file a brief in opposition to the petition. The Defendant did not file a responsive brief to the petition. The Eleventh Circuit did not require anyone to respond the petition.

Basis of Mandamus or Appeal

On September 20, 2001, Judge Graham rendered a pre-filing injunction, sua sponte, against Marcellus Mason. See Document No. 878. This type of order is also referred to as “Vexatious Litigant injunction“, “pre-screening injunction”, and “leave to file injunction”. This order specifically states: “THIS CAUSE came before the Court sua sponte.” See Document No. 878, pg. 3. There is a string of U.S. appellate courts and state courts, including Florida and Georgia that have declared sua sponte issued pre-filing injunctions issued without notice and opportunity to respond to be invalid. See Case Law On Pre-Filing Injunctions Section, Judge Graham Disagrees With The 1st, 2nd, 3rd, 4th, 5th, 9th, 10th, 11th, And DC Circuit Courts Of Appeal.

A mandamus petition was docketed as being received on October 2, 2001 by the Eleventh Circuit. See Receipt. This petition attacks the sua sponte issued pre-filing injunction of September 20, 2001. This petition also excoriates Judge Graham and takes him to task for the following:

  • Graham has usurped the power of law enforcement.
  • Graham has usurped the power of the “Legislature.”
  • Graham improperly interjected himself into matters under the Florida Public Records Act.
  • Grant has allowed significant and material pretrial motions to languish in the Court without making a decision. Petitioner will show that Graham has allowed motions and appeals to go for months without being addressed. Petitioner will show that Graham has granted summary judgments without addressing filings by this Petitioner, which attacks the summary judgment. Graham has repeated refused to rule on the Petitioner’s Motions For Summary Judgment.
  • Graham has had Petitioner’s Motion for a Preliminary Injunction to languish in his Court and die on the vine without a ruling on the merits, despite the fact that the motion has been pending since November 24, 1999.
  • Graham has failed to conduct proper “de novo” reviews when required. Graham has effectively undermined the will of Congress by allowing a Magistrate Judge to decide dispositive matters without the express authorization of all the parties. The Magistrate Judge has been granted “de facto” dispositive authority by Graham.
  • Graham has been dishonest in claiming that matters have been litigated when they have not been litigated.
  • On numerous occasions, Graham has exercised judicial authority without explaining the law and the facts that underlie his decisions. In this respect Graham has made a host of arbitrary and capricious decisions.
  • Graham has been guilty of gross mismanagement and malfeasance in every case to which this Petitioner has been a party to.

See Petition For Mandamus, pgs. 3,8-12,18-23.

Is The Eleventh Circuit An Advocate for Judge Graham?

In reply to the 25 page petition on December 5, 2001, the Eleventh Circuit rendered the following “Opinion”:

“The “petition for writ of mandamus and petition for writ of prohibition” is DENIED.” See “Opinion“, Case No. 01-15754.

Mason filed a motion for clarification seeking to know the basis upon which the decision was made or what the opinion stood for, however the Eleventh Circuit declined to discuss the matter.

Rehearing Denied

On January 25, 2002, the Eleventh Circuit denied a motion for clarification:

Petitioner’s “motion for reconsideration and clarification” of this Court’s December 5, 2001, Order, is DENIED as Petitioner has offered no reason sufficient to warrant either reconsideration or clarification of this Court’s Order.

Rehearing Denied

Personal Responsibility and Integrity of the Judges

On February 6, 2004, Judge Stanley Marcus, Judge Rosemary Barkett, and Judge Susan Black were sent a letter via U.S. certified mail informing them of the legal atrocities in this matter. See Letter. However, all declined to answer or take the appropriate legal action as required by the United States Supreme Court.


Does A Mere Clause In a Sentence Represent Meaningful Appeal?

April 7, 2008


Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham


Point of this Post

The Eleventh Circuit, U.S. Court of Appeal cited a mere clause in a sentence in an unpublished opinion and apparently considered this “meaningful appellate review” of Judge Graham’s failure to disqualify. This appeal was captioned under Eleventh Circuit Case No. 01-13364 and Dist. Ct. Case No. 99-14027-CV-Graham/Lynch. This appeal was ultimately concluded with an unpublished opinion that to be kind and civil amounted to nothing more than dishonesty and a reckless disregard for the “rule of law”. See Undermining An Appeal Right to see other ways this appeal was undermined.

It couldn’t be more clear that the Judges at the Eleventh Circuit, U.S. Court of Appeal, are not going to let the “rule of law” prohibit them from achieving their desired outcome-a total vindication of Judge Graham’s miscreant behavior. This behavior is fully documented at: http://mmason.freeshell.org/CoreAllegations.htm

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

MOTION FOR REHEARING

The Eleventh Circuit was told of their “mistake” or omission of failing to decide whether Judge Graham should or disqualified or recused himself. Judge Stanley F. Birch, Jr., writing for the panel, rejected Mason’s plea to consider whether Judge Graham should have disqualified or recused himself. On Jan 31, 2003, Judge Birch said: “The petition(s) for rehearing filed by appellant, Marcellus M. Mason, Jr., is DENIED.” See Rehearing Denial Order.

Disqualification on Appeal

See Case Background Information.
On March 11, 2002, Marcellus Mason filed a brief with the Eleventh Circuit, U.S. Court of Appeal that stated, among other things, Judge Graham should have disqualified or recused himself. See Appellant’s Brief. This brief excoriates Judge Graham and accuses him of the following:

  • Usurping authority by allowing a Magistrate to render an injunction.
  • Usurping authority by prohibiting out of court direct communication with the government
  • Usurping authority by administering the Florida Public Records Act.
  • Intentionally lying and misrepresenting the law.
  • Refusing to rule on a motion for a preliminary injunction that had been pending for more than 19 months.
  • Mismanagement of the Case by Allowing scores of motions and filings to languish without being decided.

These allegations, and others, are fully documented at http://mmason.freeshell.org/CoreAllegations.htm.

    Meaningless Appeal

    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. The “opinion” is 14 pages long. There is absolutely no discussion as to whether the allegations of misconduct are true or not.

Rehearing Motion

Subsequent to the Eleventh Circuit’s failure to decide whether or not Judge Graham should have disqualified or recuse in their “opinion”, Mason filed motion informing the Court of this “oversight” or failure.

This Court’s opinion does not address whether or not the district court abused his discretion by not disqualifying. Plaintiff raised this issue in his Initial Brief at pages 30-33. Mason contends that the district court is in violation of Canon 1, Canon 3, Code Of Conduct For United States Judges Code Of Conduct For United States Judges. Plaintiff’s motion to disqualify was submitted on February 7, 2001, (Doc. 460), which was submitted prior to Defendants’ motions for dismissal in the form of sanctions, the first of which was not submitted until March 2, 2001, (Doc. 511). The district judge should have never taken action on the Defendant’s motion for dismissal that was submitted on March 2, 2001 because he was required to disqualify on Mason’s motion submitted on February 7, 2001.

Pg. 13, Motion For Rehearing.

On Jan 31, 2003, Judge Birch said: “The petition(s) for rehearing filed by appellant, Marcellus M. Mason, Jr., is DENIED.” See Rehearing Denial Order.


Compare Judge Graham To Judge Duross Fitzpatrick

In Chudasama v. Mazda Motor Corp., 123 F.3d 1353 (C.A.11 (Ga.), 1997), Judge Duross Fitzpatrick, Middle District of Georgia, the district court was excoriated for mismanagement of a case. This case involved the district court’s failure to resolve discovery disputes and failure to decide motions. “Failure to consider and rule on significant pretrial motions before issuing dispositive orders can be an abuse of discretion.” Chudasama, supra.

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