Powerstein v. United States Of America, 185 Fed. Appx. 811 (11th Cir. 2006)

JUDGE DONALD L. GRAHAM WILL LIE IN A HEARTBEAT IF HE NEEDS TO

HOME | JUDICIAL MISCONDUCT COMPLAINTS AGAINST JUDGE GRAHAM  |JUDGE GRAHAM OVERRULES THE FIRST AMENDMENT | In Forma Pauperis Mockery| METHODS USED TO UNDERMINE JUDICIAL DISCIPLINE

Justice Turned On Its Head

Judge Donald L. Graham is Above the Law!!!

On September 20, 2001, Judge Donald L. Graham issued a pre-filing injunction sua sponte or own his motion without notice and opportunity to the litigant, Marcellus M. Mason.   "THIS CAUSE came before the Court sua sponte." Case No. 99-14027-CV-Graham, Docket Entry No. 878, pgs. 3.

2006 U.S. App. LEXIS 14928,*;185 Fed. Appx. 811

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALLEN D. POWERSTEIN, Defendant-Appellant.

No. 05-15144 Non-Argument Calendar

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

185 Fed. Appx. 811; 2006 U.S. App. LEXIS 14928

June 19, 2006, Decided

June 19, 2006, Filed

NOTICE:

[*1] NOT FOR PUBLICATION

SUBSEQUENT HISTORY:   Rehearing, en banc, denied by United States v. Powerstein, 186 Fed. Appx. 987, 2006 U.S. App. LEXIS 25232 (11th Cir. Fla., 2006)
Rehearing, en banc, denied by United States v. Powerstein, 2006 U.S. App. LEXIS 32674 (11th Cir., Aug. 4, 2006)

PRIOR HISTORY:

D. C. Docket No. 93-00006-CR-OC-20-HTS. Appeal from the United States District Court for the Middle District of Florida.
Powerstein v. United States, 221 F.3d 1356, 2000 U.S. App. LEXIS 21354 (11th Cir. Fla., 2000)

DISPOSITION:

AFFIRMED.

COUNSEL:   For Allen D. Powerstein, Appellant, Pro se, DUNNELLON, FL.

For United States of America, Appellee: Peggy Morris Ronca, JACKSONVILLE, FL.

JUDGES:   Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

OPINION

PER CURIAM:

In 1993, a federal grand jury indicted appellant on thirteen counts involving the crimes of tax fraud and tax evasion. Pursuant to a plea agreement in which he waived his right to appeal any sentence imposed within the sentence range prescribed by the Sentencing Guidelines, appellant pled guilty to counts one and eleven of the indictment, and in March 1994, the district court sentenced him to concurrent prison terms of sixty-three months, to be followed by a three-year term of supervised release. Appellant appealed his sentences. We dismissed his appeal in May 1998, on the ground that he had waived his right to challenge his sentences. United States v. Powerstein, No. 94-2491 (11th Cir. 1998) (unpublished).

In an effort to have his plea agreement and sentences set aside, appellant returned to the district court, filing a series of motions. The district court denied his motions, the final ruling occurring on January 19, 1999. In the order entered [*2] that day, the court denied appellant's December 28, 1998 motion on the ground that it constituted a successive motion for 28 U.S.C. § 2255 relief. Appellant appealed that ruling. On June 20, 2000, concluding that appellant's December 28 motion was not a successive § 2255 motion, we vacated the court's January 19 order and remanded the case for further proceedings. Powerstein v. United States, 221 F.3d 1356, No. 99-13170 (11th Cir. 2000) (unpublished).

While the appeal in No. 99-13170 was pending, appellant, continuing his effort to litigate the sentencing issues he had waived in the plea agreement, filed a variety of motions in the district court, including a renewed motion for writ of error coram nobis. In August 1999, after the court had denied some of these motions, appellant appealed the rulings. No. 99-13315. We dismissed the appeal for want of prosecution on December 14, 1999.

Meanwhile, in October 1999, the district court denied appellant's renewed motion for a writ of error coram nobis; in December 1999, the court denied his motion for reconsideration of that ruling. Appellant appealed, No. 00-10432. In September 2001, we affirmed.

Appellant was released [*3] from prison and completed his term of supervised release in November 2001. Thereafter, he resumed his effort to obtain collateral relief in the district court and in this court. n1 July 21, 2005, the district court held a hearing in which it reviewed the history of appellant's case. The court told appellant that he had exhausted every claim that might have merit and that it intended to enter an order barring him from filing additional pleadings attacking his convictions and sentences. The court gave appellant thirty days to brief his objections to the proposed ban. Appellant filed a brief challenging the court's authority to enter the proposed order. After the Government responded, and appellant filed an omnibus motion in opposition, the court entered an order barring appellant "from filing any other pleading or documents of any kind in this case, subject to the pains and penalties of contempt of court, unless this Court is ordered by the Eleventh Circuit . . . or the Supreme Court . . . to accept the filing." Appellant appeals that order.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1

Appellant filed a total of 61 documents seeking collateral relief.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[*4] Appellant contends that the district court: (1) abused its discretion in entering the order; (2) lacked authority to enter the order; and (3) violated his constitutional rights regarding double jeopardy by entering the order because, if he violates it and is found in contempt, he will be punished once again for conduct for which he has already served a prison term.

We review a district court's grant of injunctive relief for abuse of discretion and will affirm unless the district court made a clear error of judgment. SunAmerica Corp. v. Sun Life Assurance Co. of Canada, 77 F.3d 1325, 1333 (11th Cir. 1996). We review questions of constitutional law de novo. United States v. Noel, 231 F.3d 833, 836 (11th Cir. 2000).

Procedural due process requires notice and an opportunity to be heard before any governmental deprivation of a property or liberty interest. Zipperer v. City of Fort Myers, 41 F.3d 619, 623 (11th Cir. 1995). Meaningful access to the courts is a right of constitutional significance. See Christopher v. Harbury, 536 U.S. 403, 415, 122 S. Ct. 2179, 153 L. Ed. 2d 413 & n.12, 536 U.S. 403, 122 S. Ct. 2179, 2187, 153 L. Ed. 2d 413 & n.12, 536 U.S. 403, 122 S. Ct. 2179, 153 L. Ed. 2d 413 (2002). Thus, appellant [*5] was entitled to notice and an opportunity to be heard before the court imposed the injunctive order complained of.

Courts, however, have the jurisdiction to protect themselves against abusive litigants. Procup v. Strickland, 792 F.2d 1069, 1073 (11th Cir. 1986) (en banc). "Federal courts have both the inherent power and the constitutional obligation to protect their jurisdiction from conduct which impairs their ability to carry out Article III functions. . . . The court has a responsibility to prevent single litigants from unnecessarily encroaching on the judicial machinery needed by others." Id. at 1073-74 (citation omitted). A litigant "can be severely restricted as to what he may file and how he must behave in his applications for judicial relief. He just cannot be completely foreclosed from any access to the court." Id. at 1074.

The district court did not abuse its discretion in entering the injunctive order before us. First, to satisfy due process requirements, the court provided appellant with adequate notice and an opportunity to respond. Second, the court did not place appellant at risk of double jeopardy since any future [*6] incarceration would serve as a contempt sanction, not for the crimes alleged in counts one and eleven of the 1993 indictment against appellant. See United States v. Woods, 127 F.3d 990, 992 (11th Cir. 1997) ("a prosecution and conviction for criminal contempt is punishment for the conduct constituting contempt of court, not for any underlying crime"). Further, the injunction's requirements are within the scope of authority given to district courts. This injunction does not cut off access to the courts; appellant has the right to file pleadings in other cases, and may also file additional pleadings in this case if he permitted by this court or the Supreme Court. Given that he completed his sentences almost five years ago, and has filed more than forty pleadings and fifteen appeals since then, he has already had the opportunity fully to litigate the validity of his convictions and sentences. Finally, as he is no longer being punished for the crimes to which he was adjudged guilty, the claims he raises are moot for there is nothing a court could do to provide relief.

The challenged district court order is, accordingly,

AFFIRMED.

COURTS HAVE UNIVERSALLY REJECTED SUA SPONTE PRE-FILING INJUNCTIONS

A pre-filing injunction “entered against a litigious plaintiff is "an extreme remedy," which "should be used only in exigent circumstances…[and] the litigant in question must first be afforded notice and an opportunity to respond. ” Heimbecker v. 555 Associates, Civil action No. 01-6140 (E.D. Pa. 3/26/2003) (E.D. Pa., 2003) (citing Chipps v. U.S.D.C. for the M.D. of Pa., 882 F.2d 72, 73 (3d Cir. 1989)). It is immaterial that the sua sponte issued pre-fling injunction may or may not be otherwise justified because “proper procedures must be followed.” Finn v. Gunter, 722 F.2d 711 (C.A.11 (Fla.), 1984)(insisting on due process and refusing to affirm a summary judgment due to alleged ultimate futility ). In a very long line of cases, U.S. Circuit Courts of Appeal and other jurisdictions have consistently, without variation, rejected sua sponte issued filing injunctions or pre-filing injunctions issued without notice and opportunity to respond. In Weaver v. Sch. Bd., 2006 U.S. App. LEXIS 8128 (unpublished) (11^th 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. See 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); Sires v. Fair, 107 F.3d 1;1997 U.S. App. LEXIS 2173 (1^st Cir. 1997)(vacated because the litigant “was not "warned or otherwise given notice that filing restrictions were contemplated”); MLE Realty Assoc. v. Handler, 192 F.3d 259,262 (2nd Cir., 1999)(vacating a sua sponte issued injunction because notice was not given). Lau v. Meddaugh, 229 F.3d 121, 123 (2nd Cir., 2000)(vacating a sua sponte issued injunction);    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 sua sponte without providing the litigant with notice and an opportunity to be heard.”). Brow v. Farrelly, 994 F.2d 1027 (C.A.3 (Virgin Islands), 1992)(vacating a sua sponte issued injunction); Williams v. Cambridge Integrated Services Group, 2005 U.S. App. LEXIS 18624,*7;148 Fed. Appx. 87 (3^rd Cir. 2005)( reversing and holding that: “Sufficient notice and opportunity to be heard are essential prerequisites to the entry of a pre-filing injunction.”); Gonzalez v. Usher Feiner, 2005 U.S. App. LEXIS 8370,*12;131 Fed. Appx. 373 (3^rd Cir. 2003)(reversing a sua sponte issued injunction and questioning whether a pre-filing injunction is warranted based on Gonzalez's history of filing six frivolous cases in ten years.). “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, 2006U.S. App. LEXIS 8265,*;174 Fed. Appx. 167 (4^th 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); De Long v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir.), cert. denied, 498 U.S. 1001, 111 S.Ct. 562, 112 L.Ed.2d 569 (1990)(reversed for failure to notice of pre-fling injunction); 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(4^th Cir. 2005); Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir. 1987).

ORDERS ISSUED IN VIOLATION OF DUE PROCESS ARE VOID
It is well settled that an order issued in violation of due process is void. “Generally, a judgment is void under Rule 60 (b) (4) “if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if acted in a manner inconsistent with due process of law. (emphasis added)” E.g.,Burke v. Smith, 252 F.3d 1260 (11^th 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); Simer v. Rios, 661 F.2d 655, 663-4 (C.A.7 (Ill.), 1981)(“a judgment is void for purposes of Rule 60(b)(4) is if the judgment was entered in violation of due process… Because this notice never was delivered the judgment must be vacated as void.”). “'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).

<