|
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
HOME PAGE |JUDICIAL MISCONDUCT COMPLAINTS JUNK LAW FEDERAL MAGISTRATE OVERRULES THE FIRST AMENDMENT UNDERMINE APPEAL RIGHT AND DISHONESTY | A TALE OF TWO APPEALS, SAME FACTS, DIFFERENT OUTCOME JUDICIAL DISHONESTY DOCUMENTED| METHODS USED TO CONCEAL THE MISCONDUCT OF JUDGE DONALD L. GRAHAM |
Eleventh Circuit US Court of Appeal: Sua Sponte Issued Filing Injunctions Are ValidTABLE OF CONTENTSKEY POINT-FRAMING AN INNOCENT PERSONThe Consequences of this Sua Sponte Issued Injunction Judge Graham's Ignores "Rule of Law"Case Law on Sua Sponte Pre-Filing Injunctions: Invalid Lack Of Due Process Void For Lack of Due ProcessAppellate History: Exercise in FutilityKEY POINT-FRAMING AN INNOCENT PERSONJudge Donald L. Graham, AUSA Theodore Cooperstein, and AUSA Robert Waters used a clearly void sua sponte issued pre-filing injunction to form the basis of a criminal contempt complaint. THE KEY POINT HERE IS THAT THE ELEVENTH CIRCUIT HAS REFUSED TO REVIEW A SUA SPONTE ISSUED PRE-FILING INJUNCTION FOR VOIDNESS WHILE IT SAT BACK AND ALLOWED AN INNOCENT MAN TO BE CONVICTED AND JAILED BASED UPON AN ALLEGED VIOLATION OF A CLEARLY VOID SUA SPONTE ISSUED PRE-FILING INJUNCTION. MARCELLUS MASON HAS FILED A PLETOHORA OF LEGAL INSTRUMENTS SEEKING APPELLATE REVIEW WITH THE ELEVENTH CIRCUIT, US COURT OF APPEALS, AND HAS BEEN REFUSED THE LEGAL RIGHT OF APPELLATE REVIEW. NONE OF THE PARTIES RELYING ON THIS CLEARLY VOID SUA SPONTE ISSUED PRE-FILING INJUNCTION HAVE STATED WHY THEY THINK IT IS LEGAL. Definition of Sua Sponte
"Sua sponte, Latin for "of one's own accord," is a legal term that means to act spontaneously without prompting from another party. The term is usually applied to actions by a judge, taken without a prior motion or request from the parties." URL: http://en.wikipedia.org/wiki/Sua_sponte.
U.S. District Judge Donald L. Graham: "I have the power to issue Pre-filing Injunctions without giving Notice an Opportunity to Respond"
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: 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).Constitutional Right of Access To the CourtsThe 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.").
US CIRCUIT COURT OF APPEALS HAVE ROUTINELY REJECTED "SUA SPONTE" PRE-FILING INJUNCTIONS. Case Law on Pre-Filing Injunctions or Vexatious Litigant InjunctionsA 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. Sch. Bd., 2006 U.S. App. LEXIS 8128 (11th Cir. 2006), the Eleventh Circuit held that a litigant or Weaver was entitled to “notice and an opportunity to be heard” before a restriction was imposed on Weaver’s 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 , 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
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 FINDING OF BAD FAITHIn 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). The United States Supreme Court has stated: “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.” (emphasis added) Chambers v. Nasco, Inc., 501 U.S. 32, 50 (1991).
VOID FOR LACK OF DUE PROCESS 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”.” E.g., 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)
A Notice of Appeal is pending and was filed on March 13, 2008 and is awaiting an in forma pauperis motion ruling. See Docket Entry No. 142 and Docket Entry 143. Rule 60(b)(4) Fed.R.Civ.P. MOTION A Motion was presented in the Southern District of Florida To Vacate This Sua Sponte Issued pre-filing Injunction Under Rule 60(b)(4) Fed.R.Civ.P., on June 8, 2007. See Motion To Vacate, 23 pages. This motion, among other things, seeks to have the sua sponte issued pre-fling injunction declared void pursuant to Rule 60(b)(4), Fed.R.Civ.P. The Court, having declared a sua sponte issued pre-filing injunction void, would no longer have a legal basis for a violation of void order and criminal contempt complaint. The Highlands County Board of County Commissioners, the original Defendant in the civil case [99-14027-CV-GRAHAM] in which the sua sponte issued pre-filing injunction was rendered, refused to file a brief. The Government, who filed the information in the criminal case [02-14020-CR-Moore], replied on August 2, 2007. The Government's Response as filed by AUSA Robert Waters does not cite the record, or cite one legal authority for its apparent position that a sua sponte issued pre-filing injunction is not void and may form the basis of a criminal contempt complaint. See The Government's Response (5 pages). On or about 10/19/07, Marcellus Mason was jailed until 11/29/2007 for an alleged probation violation due to a criminal contempt conviction based upon this sua sponte issued pre-filing injunction. This matter is online under the court's electronic filing system under Case No. 02-14020, Judge K. Michael Moore. On October 16, 2007, Magistrate John J. O'Sullivan rendered a Report and Recommendation, "R&R", and apparently ruled that a clearly void order may become valid by a later filed contempt charge. Stated alternatively, Magistrate John J. O'Sullivan has explicitly ruled that a void order maybe "bootstrapped" or become valid by a later filed criminal contempt complaint. On 12/06/2007, the Report and Recommendation of the Magistrate was returned undeliverable to the Court. See Docket. This "R&R" was rendered while Marcellus Mason was in jail. The R&R prevaricates with respect to several issues, but expressly states that a clearly void sua sponte issued pre-filing injunction may form the basis of a criminal contempt complaint and conviction. On December 14, 2007, Mason filed a motion with the Court notifying it that he did not receive the R&R because he was in jail and the the R&R was returned to sender by the USPS because the R&R was addressed improperly. See Docket Entry No. 132. Upon reading the R&R after getting out of jail, Marcellus Mason amended his original motion to vacate the conviction and only sought relief with respect to a declaration that a sua sponte pre-filing injunction is void. See Docket Entry No. 134. On December 21,2007, Marcellus Mason filed objections to the R&R. See Docket Entry No. 133. On 01/04/2008, Judge K.M. Moore ordered the government to file a response. See Docket Entry No. 136. On 01/07/2008, AUSA Theodore Cooperstein, filed a response as ordered by the Court, but declined to inform the court as to how a clearly void sua sponte issued pre-filing injunction may form the basis of a criminal contempt complaint. See Docket Entry No. 137. On 03/04/2008, Judge K.M. Moore denied the Motion. See Docket Entry No. 141. Specifically, Judge K.M. Moore did not address the underlying motion challenging the validity of the sua sponte issued pre-filing injunction instead he "split the baby" by denying the motion to file a response to the unreceived Report and Recommendation and ordering Marcellus Mason off of supervised release probation.
A Notice of Appeal has been filed and is awaiting an in forma pauperis motion. See Docket Entry No. 142 and Docket Entry 143.
Consequences
APPELLATE HISTORY: AN EXERCISE IN FUTILITY?
There has never been
any appellate review of the pre-filing injunction of September 20.
2001. The Eleventh
Circuit has had multiple opportunities to review the September 20, 2001
order, but has declined to do so for a different reason each time.
Consider the following futile attempts at appellate
review:
TABLE
1
The Eleventh Circuit
has used the in forma pauperis statutes to
routinely deny review of the sua
sponte issued pre-filing injunction of September 20,
2001. The Eleventh Circuit has claimed
that each and every IFP petition filed by Mason was frivolous for one
reason or another and never the same reason. The U.S. Supreme Court has stated
that “a finding of factual frivolousness is
appropriate when the facts alleged rise to the level of the irrational or
the wholly incredible, whether or not there are judicially noticeable
facts available to contradict them.”
[1] Among other things,
The Eleventh Circuit was provided with a notice that Mason’s home was in
foreclosure.
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
