JUDGE DONALD L. GRAHAM AND
ELEVENTH CIRCUIT, U.S. COURT OF APPEALS: MASTERS OF DISHONESTY
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Purpose and Background
Corruption is defined as the: "lack of integrity or honesty (especially susceptibility to bribery); use of a position of trust for dishonest gain". URL: http://wordnet.princeton.edu. This web page is part of collection of web pages on this website, mmason.freeshell.org, that documents Judicial Misconduct and Abuse by U.S. District Judge Donald L. Graham and the extreme measures that his colleagues at the Eleventh Circuit, U.S. Court of Appeals will deploy to conceal the egregious conduct of Judge Graham. This page is a part of the series which asserts that there is a "culture of corruption" within the federal judiciary. The core allegations of misconduct and abuse by Judge Graham are listed and documented at mmason.freeshell.org/CoreAllegations.htm. There are scores of pages and documents on this website and they are all interlinked. This website tells a story from many different angles and perspectives. This page is a placeholder and a pointer, or a central starting point to other pages that demonstrate that the behavior of a judicial miscreant, Judge Donald L. Graham, that is not remedied by any of the current methods of judicial discipline. The current methods of federal judicial discipline are:
- Impeachment
- Judicial Misconduct and Disability Act
- Lawsuits Against Judges
- Appellate Review
Summary of the Core Allegations which were before the Eleventh Circuit in all attempts at appellate review includes, but definitely is not limited to, the following:
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Lying and intentionally misrepresenting law.
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Refusing to rule on a motion for a preliminary injunction that had been pending for more than 17 months.
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Allowing scores of motions and filings to languish without being decided.
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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.
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Violating clearly established law and the authority of the U.S. Supreme Court by issuing pre-filing injunctions.
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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.
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Lying and intentionally misrepresenting material facts.
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Ignoring the U.S. Supreme Court denying access to the courts by refusing to state any reason for denying IFP applications.
TABLE OF CONTENTS
Impeachment
Herding Judicial Misconduct Complaints
Judicial Misconduct and Disability Act
Lawsuits Against Judges
Appellate Review
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Lying to Cover a Lie
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Denying Access
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Ignoring Issues (Sua Sponte Issued Filing Injunction)
IMPEACHMENT
Impeachment is not a likely option and virtually impossible as the process requires the attention of all the 535 members of the House and Senate. According to the Federal Judicial Center, http://air.fjc.gov/history/topics/topics_ji_bdy.html , only 13 judges have been before the Congress on impeachment charges in the entire history of the United States. Of these 13 judges, only 7 have been kicked out of office: John Pickering, West H. Humphreys, Robert W. Archbald, Halsted L. Ritter, Harry E. Claiborne, Alcee L. Hastings, and Walter L. Nixon. Judge Mark H. Delahay resigned. It is easier to impeach the President of the United States than to impeach a federal judge. For example, of the 43 presidents of the United States, two have been impeached, Bill Clinton and Andrew Johnson, or about 4 per cent. According to the Federal Judicial Center, we have had 3055 federal judges, only 13, or about 0.004 per cent have been impeached.
As a practical matter, federal judges are rarely called to answer for their performance on the job. As difficult as they are to remove, federal judges are equally difficult to demote. Article III explicitly prohibits the diminishment of a judge's salary while in office, no matter how errant-or delinquent or unpopular-his or her decisions may be. On the whole, judges are easily the most independent constitutional officers.On Judicial Activism, by Judge Diarmuid F. O'Scannlain , URL: http://open-spaces.com/article-v3n1-oscannlain.php
HERDING JUDICIAL MISCONDUCT COMPLAINTS
This Flowchart demonstrates how complaints of Judicial Misconduct against U.S. District Judge Donald L. Graham were handled.
The Circuit Court of Appeals of the United States and the Eleventh Circuit in particular have developed the perfect mechanism for disposing of complaints of judicial misconduct and avoiding public scrutiny. Complaints of judicial misconduct can come in principally three forms:
- Judicial Misconduct Disability Act Complaint, 28 U.S.C. §§351
- Petition for Mandamus
- Direct Appeal
The first hurdle to public scrutiny is that the results of the above are beyond public scrutiny because the results are not published and released. The Courts give themselves permission not to publish opinions with respect to mandamus and direct appeals. Judicial Misconduct Act Complaints are confidential by law. The public can not scrutinize what it does not knows exists.
Isolation
A litigant can initiate complaints through all three methods. The Eleventh Circuit will claim that the methods are mutually exclusive. This is a perfect strategy. Having made this claim of mutual exclusiveness, the Eleventh Circuit is now free to dispose of valid complaints on this procedural ground. There is no law that says the methods are mutually exclusive.
Valid complaints in the form of mandamus and the Judicial Misconduct Act will be summarily dismissed on the "plausible" ground that they are properly handled under the direct appeal. These summary dismissals, when viewed in isolation can appear to be plausible.
Herding
Herding or Shepherding for the purpose of this website means guiding a complaint of judicial misconduct towards a particular method. The Eleventh Circuit guides the other forms of judicial complaints towards the direct appeal method. Having guided the other forms of judicial misconduct towards direct appeal, the Eleventh Circuit is now free to ignore the complaint of judicial misconduct altogether by rendering unpublished opinion or by basing this opinion upon facts that are directly contradicted by the record. The reader must bear in mind that the only thing he or she knows is what the opinion says even if you could get your hands on the unpublished opinion.
Judicial Misconduct and Disability Act/font>h2>
The Judicial Misconduct and Disability Act, 28 U.S.C.,
§351, et.al., formerly, 28 U.S.C., §372(c), was enacted by Congress as a
mechanism for disciplining miscreant judges like Judge Graham. However,
the act allows other Judges, primarily the Chief Judge of the Circuit to
administer and "investigate" complaints. Complaints under
this act are summarily dismissed at a rate higher than 90%.
Complaints are kept secret and not open to the public. Acts of
misconduct are defined out of existence by asserting that they
"directly relate to the merits". Judge R. Lanier Anderson
and Judge J.L. Edmondson have made mockery of the act and reduced it to a
"toothless tiger". See mmason.freeshell.org/372c/index.html.
Lawsuits Against Judges
Filing a lawsuit against a federal judge is futile because
they have given themselves "absolute immunity" or "judicial
immunity" . Federal Judges have interpreted "absolute
immunity" to mean that they are absolutely immune to lawsuits.
There is no constitutional or statutory basis for "judicial
immunity". In order to prevail in a lawsuit against a federal
judge, you have to go through another federal judge. In this matter,
the Judges at the Eleventh Circuit gave Judge Graham "absolute
immunity" or "judicial immunity" in a lawsuit filed by
Marcellus Mason; however, the "Opinion" (unpublished), does not
state what Judge Graham is immune from. See mmason.freeshell.org/junklaw/AbsolutelyImmune.html
.
Appellate Review
The methods employed by the Eleventh Circuit to circumvent legitimate appellate review are many and seem to be only limited by the Eleventh Circuit's imagination.
These methods include, but are not limited to the following:
- Blocking Access To the Courts
- Outright Lying
- Ignoring Issues
- Omitting Material Facts
- Exceeding the Scope of Appeal
- Using Unpublished Opinions. This is not
a separate method, however it is widely used by the Eleventh
Circuit to achieve their nefarious ends. The opinions
cited here are not just unpublished, they are virtually
invisible because they have never been released to the Court's
own Internet site.
While ignoring an issue, the failure of Judge Graham
to disqualify or recuse, the Eleventh Circuit used every single method
listed above to avoid appellate review with respect to this issue.
See mmason.freeshell.org/ignore_issue.htm.
Lying to Cover a Lie
If one assumes that the the personal integrity of Federal Judges is important and essential to the rule of law, then one of the most pernicious acts committed by Judge Graham and his enablers is outright lying. Firstly, Judge Donald L. Graham lies by intentionally misrepresenting the law. Secondly, Judge Graham's enablers at the Eleventh Circuit, U.S. Court of Appeal, Judge Ed Carnes and Judge Frank Hull, realizing this lying is a problem, then lie to cover Judge Graham's lie, a truly remarkable story. Judge Graham told Marcellus Mason that he could not state a claim against a state actor, Highlands County Board of County Commissioners for violations 42 U.S.C. §1981. At the very moment Judge Graham told Mason he could not state a claim against a state actor, Highlands County Board of County Commissioners for violations 42 U.S.C. §1981, he was allowing another Plaintiff in another case, Case No. 00-14094-CV-Graham, to state a claim against the very same state actor, Highlands County Board of County Commissioners for violations 42 U.S.C. §1981. The Eleventh Circuit, Judge Ed Carnes and Judge Frank Hull, then tried to cover for this lie by asserting that Marcellus Mason had not sought claims under 42 U.S.C. §1981. It is difficult to imagine that anybody, much less a Federal Judge, would tell a lie that is easily proven with documents. For a complete discussion and documentation of both lies, see mmason.freeshell.org/liar.htm
Block Access By Arbitrarily Denying IFP/font>
In order to seek appellate review, you must file an appeal and pay the filing and docketing fees. If you are indigent, the Congress has enacted legislation, 28 U.S.C. § 1915, et.al., "in forma pauperis", "IFP", statutes, which allows judges to permit lawsuits and appeals to proceed without payment. This page will demonstrate how the IFP statutes have been abused by the individual judges at the Eleventh Circuit to thwart appellate review of Judge Graham's abusive behavior. See mmason.freeshell.org/ifp/KilliingAppeal.htm.Ignoring Issues
In yet another extreme example of judicial dishonesty, the Eleventh Circuit aggressively fought off all attempts by Marcellus Mason to seek appellate review of a sua sponte issued pre-filing injunction. Sua sponte is "A decision or act a judge makes without having been asked by either party." A Notice of Appeal was filed on June 25, 2001. (Docket Entry 795). On September 20, 2001, Judge Graham issues a pre-filing injunction, sua sponte. See Docket Entry Number 878, (D.E. # 878) . Page 3, of this document boldly asserts: "THIS CAUSE came before the Court sua sponte." This injunction was issued while an appeal was pending and briefs had not been filed. Sua sponte issued pre-filing injunctions are routinely rejected by the courts as being offensive to due process. See mmason.freeshell.org/SuaSponte.htm, for documented support of all the allegations in this section.
Lying About Jurisdiction.
Dist. Ct. Case No. 99-14027-CV-Graham
Eleventh Circuit Case No. 01-13664-A
As stated above, a Notice of Appeal was filed on June 25, 2001. (Docket Entry 795). On September 20, 2001, Judge Graham issues a pre-filing injunction, sua sponte. See Docket Entry Number 878, (D.E. # 878). This injunction in part stated:
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.
The US Supreme Court has held that: "The filing of a notice of appeal is an event of jurisdictional significance - it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). In its opinion of October 16, 2002, Case No. 01-13664, pgs. 13-14, the Eleventh Circuit stated:
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.
In early 2004, Mason filed a petition for mandamus challenging the jurisdiction of Judge Graham to render the pre-filing injunction of September 20, 2001. However, in stark contrast to the above, the Eleventh Circuit held:
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.
See pg. 4, Case No. 04-11894, May 20,
2004. This type of jurisprudence simply can not be tolerated in a
free society.
Beyond the Scope of Appeal: A Despicable and Egregious Act
Dist. Ct. Case No. 99-14027-CV-Graham
Eleventh Circuit Case No. 01-13664-A
As stated above, a Notice of Appeal was filed on June 25, 2001. (Docket Entry 795). On September 20, 2001, Judge Graham issues a pre-filing injunction, sua sponte. See Docket Entry Number 878, (D.E. # 878).
On March 6, 2002, Eleventh Circuit Case No. 01-13664, the Eleventh Circuit struck Mason’s brief for arguing against the September 20, 2001 sua sponte issued pre-filing injunction. Moreover, the Eleventh Circuit ordered Mason to file all new initial briefs less any mention of the sua sponte issued pre-filing injunction. The Eleventh Circuit claimed the sua sponte issued pre-filing injunction was “beyond the scope of appeal”. See Order Striking Appellant's Brief.
On March 25, 2002, 19 days after the Eleventh Circuit, struck Mason’s brief for arguing against the sua sponte issued pre-filing injunction, Highlands County argued for the same sua sponte issued pre-filing injunction in their Answer Brief on pages 18 and 19. However, the Eleventh Circuit, while granting Mason’s motion to strike Highlands County brief for arguing for the same sua sponte issued pre-filing injunction, did not make Highlands County file all new answer briefs as they had done Mason. The Eleventh Circuit claimed that it would not consider the sua sponte issued pre-filing injunction in its decision. See Order Striking Appellees' Brief ("Appellant's motion to strike Appellees' brief is GRANTED IN PART to the extent that Appellees cite to the District Court's September 2001, Omnibus Order, as that order is outside the scope of this appeal. This Court will disregard any references in Appellees' brief to matters outside the scope of this appeal.").
As stated above, in its opinion of October 16, 2002, Case No. 01-13664, pgs. 13-14, the Eleventh Circuit stated:
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.
It
is outrageous that the Eleventh Circuit would use the same sua sponte
pre-filing injunction of September 20, 2001 that it struck Mason's brief for
arguing in order to make a finding to support a Rule 41(b), Fed.R.Civ.P.
dismissal. See "Implicit
finding Beyond the Scope.", pgs. 13, 14, Opinion.
Refusal to Review Injunctions For Validity
11thCir. No. 01-13664
One would think that the job of an appellate court is to review an order for validity when that order is challenged on appeal, however, one would be dead wrong. If the Eleventh Circuit does not want to review an order, it won't do it. In June and July 2000, Maria Sorolis and Brian Koji, Allen, Norton & Blue asked the Magistrate to grant them preliminary injunctions that required Mason to contact them before he could talk to the government defendants. See Docket Entries No. 199 and 231. These orders required Mason, a nonlawyer, living in Sebring, FL to contact private attorneys some 90 miles away in Tampa, FL . These orders were granted on June 19, 2000 and July 25, 2000 stated in part:
“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.” (DE #201 This order is dated June 19, 2000,
“Plaintiff shall correspond only with Defendants' counsel including any requests for public records.” (DE #246). “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.” (DE #246). This order is dated July 25, 2000.
These orders have been the objects of a plethora of legal attacks and challenges; however, these orders have survived appellate review, not because they are valid, but because the Eleventh Circuit has chosen not to review them for validity for one unlawful and dishonest reason or another. The Eleventh Circuit has employed two tactics to avoid reviewing these injunctions for validity. On paid petitions like the two presented here, Case No. 01-13664 and Case No. 01-15754, the Eleventh Circuit simply ignores the issue. On petitions where Mason has sought to have the filing fee waived, in forma pauperis, "IFP", the Eleventh Circuit attacks each and every petition and claim that they are "frivolous" and denied the opportunity to review these orders for validity.
11thCir. No. 01-13664, Direct Appeal, Decided October 16, 2002
"On appeal, Mason argues that the magistrate's discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records." See Opinion, pg. 9.
This is the extent of appellate review as there absolutely no discussion about the validity of the orders in question.
11th Cir. No. 01-15754, Mandamus, Decided December 5, 2001.
These orders were challenged via a mandamus petition, however on December 5, 2001, the Eleventh Circuit ruled:
"The " petition for writ of mandamus and petition for writ of prohibition" is DENIED.” See Opinion.
A more complete history of the opportunities the Eleventh Circuit has had to review these orders. but adamantly declined to do so is fully set forth at: mmason.freeshell.org/DE201Orders/refuse_review.htm.