Appendix — Anderson v. Federal Bureau of Investigation
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Office of the Clerk
United States Court of Appeals for the Ninth Circuit
95 Seventh Street
Post Office Box 193939
San Francisco, California 94119-3939
December 14, 2009
To: Don Benny Anderson
From: Molly C. Dwyer, Clerk of Court
U.S. Court of Appeals for the Ninth Circuit
By: Rhonda Roberts, Deputy Clerk
Re: USCA No. 09°16311 Don Anderson v. FBI
We have received your recent transmittal to this
office. However, per court’s order filed on 10/16/09 “No
further filings shall be accepted in this closed case.
Therefore ['m returning your motion along with a copy of
the order filed on 10/16/09.
Case: 09-16311 10/16/09 Page lof1 DktEntry:
FILED
Oct 16 2009
Molly C. Dwyer, Clerk U.S. Court of Appeals
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DON BENNY ANDERSON, ] No. 09-16311
]
Petitioner — Appellant, |]
] D.C. No. 2:08-cv-
v. }) 1266-JCM-LRL
] District of Nevada
]
]
]
]
]
FEDERAL BUREAU OF
INVESTIGATION,
Las Vegas
Respondent — Appellee ORDER
Before: CANBY, THOMAS and IKUTA, Circuit Judges.
The motion for reconsideration is denied. See 9%
Cir. R. 27-10.
The emergency motion is denied.
No further filings shall be accepted in this closed
CLERK PLEASE STAMP FILED; PUT IN RETURN
ENVELOPE.
MANDATE of Oct. 21, 2009, Court issued MANDATE
pursuant to Rule 41(a). APPELLANTS MOTION FOR
STAY OF THE MANDATE PENDING, PETITION FOR
REHEARING EN BANC, Rule 36. En Banc
Determination, pursuant to Rule 41(@—), KEEPS THE
CASE OPEN OR REOPENS CASE FOR REVIEW VIA
THIS PETITION — The doctrine of “opening the door’.
Circuit Advisory Committee Note to Rules 35-1 to 35-3.
(2) Petition for Rehearing for En Banc. When the clerk
receives a timely petition for rehearing en banc, copies are
sent to all active judges....any judge may, within 21 days
of receipt make... recommendation as to en banc
consideration. Upon receipt....any judge has 14 days to
call for enbanc consideration. When court votes to rehear
a matter en banc...will enter an order so indicating.
Panel decision is contrary to decision(s) of the Supreme
Court of United States and precedent(s) of this court — see
page(s) iii — v. This a Schlup v. Delo gateway case.
th Circuit Case No. 09-16311
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DON BENNY ANDERSON,
Petitioner-Appellant,
Vv.
UNITED STATES PAROLE
COMMISSION et al.,
Respondent: Appellee,
APPELLANTS MOTION FOR STAY OF THE
MANDATE PENDING,
Rule 35. En Banc Determination, pursuant to 41(a)
PETITION FOR REHEARING EN BANC PURSUANT
TO RULE 41(a).
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT DISTRICT OF NEVADA, LAS VEGAS 2:08-cv-
01256-JCM-LRL.
Telephone Numbers and Office Addresses of Attorneys:
Counsel for Appellant: Don Benny Anderson
Tel: (217) 246-4999
2500 Moultrie Avenue
P.O. Box 1156
Mattoon, IL 61938-1156
Counsel for Appellee: Robert L. Ellman
Appellate Chief and Assistant
U.S. Attorney
Tel: (702) 388-6546
333 Las Vegas Blvd. South,
Suite 5000
Las Vegas, Nevada 89101
December 9, 2009
Based on my professional judgment, I believe the
panel decision is contrary to the following decision(s) of
the Supreme Court of the United States or the
precedent(s) of this court:
Page
Adickes v. Kress Co., 398 U.S. 14411 97O). occ cc cccevcceess 44
Allen v. City of Beverly Hills, 911 F. 2d 367, 373
id uweubnins 70
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
FESR RESIS RE AI a oo ene ee 38
Bhasis v. Gonzales, 423 F. 3d 977, 986-87
a sor enneniovesd 46
Brown v. United States, G10 F. 2d 672, 677
FRE RE AS TA SOE Re OP 70
C£ Young v. United States ex rel. Vuitton et
Fils S.A., 481 U.S. 787, 810 1. 21 (LIB Dc cecc cee vee eves eee 66
Chang v. Chen, 80 F. 3d 1293, 1296, 1301
cc casaunnheniis 70
Citizens to Preserve Overton Park v. Volpe,
pe Ss | ea re 45
Cochran v. Kansas, 316 U.S. 255, 257-288 (1942).......... 9
Cohen v. Beneficial Loan Corp., 337 U.S. 541,
ea seasaananhteednienvel 33
Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404,
I yi cscscaniesnctinaitinibtacunsints siassesesatd 68
Conley v. Gibson, 355 U.S. 41, 45 (1987)... 60.606. ccceees 9,44
County of Los Angeles v. Davis, 440 U.S. 626,
630 Case No. O9-IGBII (A97D, oo cicccesecesecvevescesseecees 32,37
Digital Equipment Corp. v. Desktop Direct, Inc.,
TIGER BOR FOGG IDB eoeeicccccscciccccsescsvcessccessseceee 33
Duncan v. Missouri, 152 U.S. 377, 382 (1894)... 0000000 9
Elrod v. Burns, 427 U.S. 347, 6 S. Ct. 2673;
ae axes eceieait 7
Gomullion v. Lightfoot, 364 U.S. 155 (1960)......0.0060 00000 8
Haines v. Kerner, , 520-21 (197D.iicccccccecesececceserecees 69
Hormel v. Helvering, 312 U.S. 552, 566 (194V).............60
Hughes v. Rowe, 449 U.S. 5, 10 (198O).....0cccccecescseevees 44
In re Campbell, 628 F. 24 1260, 1261
i sae ea eis anascninesnnsennceesans 32,37
In Re Sawyer, 124 U.S. 2OO (188... cccseccccsecvcceveveseeeees 68
Lane v. Williams, 455 U.S. 624 (1982)........0.0000ccceeeees 40
Lauro Lines s.r.l. v. Chasser et al,
ES SELLE 33
Liheber v. Health Services Acquisition Corp.,
486 U.S. 847, 862 (198)... wp ...54, 62, 63, 66
Liner v. Jatco, Inc., 375 U.S.301, 306 n. 3 (1964)........40
Liteky v. United States, 510 U.S. 540, 548 (1994......65
Marbury v. Madison, 5 U.S. (1 Cranch)
FERRERS IRS HR Se 24, 55, 61
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (19BO)... cccsecsceseeecsceesenens 11
McNabb v. U.S., 318 U.S. 332, 346, 63 S. Ct.
GOB, 615, 87 L Fed. B19, (194D...cccccccccccvcccsevsseccees 41, 51
Moore v. Czermiak, Court of Appeals
Fe asc iassecasinedteierdtancavsissssevestoureass 59
Nascimento vy. Dummer, 508 F. ¥4 906, 908
I i cities ncn eecuncainiiaeniin mapeiadeianica aulisciacs 14, 55
North Carolina v. Rice, 404 U.S. 244, 246 (1971)
alas cancer accents aden aiiold wecaiies 40
Norton v. Shelby County, 118 U.S. 426 p. 442........000006 8
Nudd v Burrows, 91 U.S. 426... ccccccescvccccccccvccccesececs 45
Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604,
re I dies sce dascndanauindeknisninaecvarabinesvunes 27
Owens v. Kaiser Found. Health Plan, Inc.,
244 F.3d 708, 712 (GH Cir. QOOD 0... cccccccecseeccevseeeees 27
Perez v. Brownell, 356 U.S. 44, 7-8 S. Ct. 568,
BE Se i viincinnincecicvnsscdestecunnecssievcean x
Perry v. United States, 204 U.S. 330, 358.......00cevereee 10
Preston v. United States, 923 F. 2d 731
I i ca ciusvanksavinsdnssanckeakcbaaaueadcniial 66
Rand v. Rowland, U.S. Court of Appeals for the
Fb Cir. — August 27, 1998... ..cceroscceveroccsccceeecs 37, 69, 72
Scheuer v. Rhodes, 416 U.S. 232, 286 (L97D). 0... cee cere 44
Schlup v. Delo, 513 U.S. 298 (GIB)... ccccccccccceceeccrenens 15
Singleton v. Wulff 428 U.S. 106, 120 (1976)..........0...59
Stuard v. Stewart, 401 F. 3d 1064 (9thCir. 2005)....... 60
a. 6
Suzuki Motor Corp. v. Consumers Union of
United States, Inc., 330 F. 3d 1110, 131
ER SEisapisesasesertsoeesseseseces conse sone 11
U.S. v. Will, 449 U.S. 200, 216, 101 S. Ct. 471,
66 L. Ed. 2d 392, 406 (LBD... .scessvscccserserseeeecseeeees 68
United States v. Chodwick, 433 U.S. 1 an 16 (1976)....7
United States v. Hasting, 461 U.S. 499, 505
I . copecnveeseonsccnees AO, 41, 51
United States v. Simpson, 927 F.2d 1088, 1090
i cosececseccceccoes 40, 51
United States v. Ziegler, 497 F.3d 890, 901
Nee sisksscerescesasseeoseresses seoveoes 60
U.S. v. Throckmorton, 98 U.S. GLiwccicccccecsccccenscveccees 45
Varsic v. U.S. District Court, 607 F. 2d 245, 251
Nn cccesceceveccesevececorecov ors 49
Based on my professional judgment, I believe this appeal
requires an answer to one or more precedent-setting
questions of exceptional importance:
(1) Whether seeking a stay pending the disposition of
this appeal and the Ninth Circuit’s ability to consider the
matter quickly to prevent further irreparable harm on
von Benny Anderson are warranted. “Loss of First
Amendment Freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Elrod v.
Burns, 427 U.S. 347, 6 S. Ct. 2673; 47 L.Ed. (1976) and
WE THE PEOPLE, “It is deeply distressing that the
Department of Justice, whose mission is to protect the
constitutional liberties of the people of the United States,
should even appear to be seeking to subvert them by
extreme and dubious legal argument.” United States v.
Chodwick, 433 U.S. 1 an 16 (1976). “There can be no
sanction or penalty imposed upon one, because of his
exercise of constitutional rights.” Miller v. U.S., 230 F.2d,
486, 490. “It will be an evil day for American Liberty if
the theory of a government outside supreme law finds
lodgment in our censtitutional jurisprudence. No higher
a. 7
duty rests upon this Court than to exert its full authority
to prevent all violations of the principles of the
Constitution.” Gomillion v. Lightfoot, 364 U.S. 155 (1966).
‘An unconstitutional act is not law: it confers no rights; it
imposes no duties; affords no protection; it creates no
office; it is in legal contemplation, as inoperative as
though it had never been passed.” Perez v. Brownell, 356
U.S. 44, 7:8 S. Ct. 568, 2 L. Ed. 2d 603 (1958). “Where
rights secured by the Constitution are involved, there can
be no ‘rule making’ or legislation which would abrogate
them.” Norton v. Shelby County, 118 U.S. 425 p. 442.
“The claim and exercise of a Constitution right cannot be
converted into a crime”...”a denial of them would be a
denial of due process of law”. Warnock v. Pecos County,
Texas, 88 F3d 341 (6 Cir. 1996). “No man [or woman] in
this country is so high that he is above the law. No officer
of the law may set that law at defiance with impunity. All
the officers of the government from the highest to the
lowest, are creatures of the law, and are bound to obey it.”
Cannon v. Commission on Judicial Qualifications, (1975)
14 Cal. 3d 678, 694.
Article I. (2) Whether judges have violated the
following Summary of Constitutional Rights,
Article II. Powers and Duties.
(3) Whether judges disposition on the merits of case
was wrong in light of Informal Package for Pro Se
Appellants (April 2009) page 4. “I. THE COURT OF
APPEALS...reviews final decisions of the United States
District Court...court looks at the district court or
administrative record in the case and the briefs of the
parties to see if there are any constitutional, legal, or
factual mistakes. “...in a ‘motion to dismiss, the material
allegations of the complaint are taken as admitted’. From
this vantage point, courts are reluctant to dismiss
complaints unless it appears the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief (see Conley v. Gibson, 355 U.S. 41 (1957). Cochran
a. 8
v. Kansas, 316 U.S. 2565, 257-258 (1942). “However inept
Cochran’s choice of words, he has set out allegations
supported by affidavits, and nowhere denied, that Kansas
refused him privileges of appeal which it afforded to
others.***The State properly concedes that if the alleged
facts pertaining to the suppression of... appeal were
disclosed as true...there would be no question but that
there was a violation of the equal protection clause of the
Fourteenth Amendment.” Duncan v. Missour1, 152 U.S.
377, 382 (1894).
(4) Whether case was dismissed due to judicial bias
because judges refused to rule on claims and issues
presented by plaintiff, in violation of the Code of Conduct
for United States Judges, Canon 2A. Whether judges
actions warrant disqualification under 28 U.S.C. 455(a);
(5) Whether new facts or legal bases not presented in
brief would warrant reconsideration;
(6) Whether LEGAL basis in support of belief that this
court’s final decision was incorrect;
(7) Whether case proceedings involves questions of
exceptional umportance— see page iii;
(8) Whether Court should grant rehearing or rehearing
en banc because the case presents important questions of
the highest order regarding the overthrow of the United
States Constitution;
(9) Whether petition presents substantial question.
Whether court of appeal judges should grant Petitioner-
Appellant petition for rehearing en banc of the ORDER of
October 09, 2009. “The motion for reconsideration is
denied. See 9th Cir. R. 46-3.” (See Exhibit J). Also see
Mandate Order, filed October 21, 2009 — Rule 41{a). (See
Exhibit K).
(10) Whether Court of Appeals has never properly
determined the appropriate remedy for the district courts
judges failure to disqualify himself under Section 455(a);
(11) Whether petition demonstrates substantial harm
that would result from reactivation of proceedings in the
a. 9
district court for the relief sought to obtain a stay. “The
innocent individual who is harmed by an abuse of
governmental authority is assured that he will be
compensated for his injury.” Perzy v. United States, 204
U.S. 330, 358.
(12) Whether jurisdiction of the federal courts is
limited to “cases” and “controversies”; U.S, Const., Art.
III, sec.2. Whether District Court and Court of Appeals
judges in furtherance of organized crime, caused Don
Benny Anderson, to suffer further irreparable injury,
covering up transfer of case to the United States District
Court for the Western District of Tennessee, where no
case or controversies ever existed, to get rid of case.
Whether said court lacks jurisdiction of the subject
matter. Whether case was transferred from a court where
Anderson had standing for each claim he seeks to press
and each form of relief sought, in order to conceal
repeated and flagrant violations of Canon 2A of the Code
of Conduct of United States Judges and 28 U.S.C. §
455(a);
(13) Whether Court of Appeals should order remand
and compel district court to issue new order as instructed
to avoid relitigation of issues that parties had a fair
opportunity to contest and issue new order or judgment;
(14) Whether district court’s order is appealable
because Court of Appeals can disposes of all claims and
issues of all parties and judgment;
(15) Whether Order immediately allowed the collateral
order doctrine to become applicable in this case at bar;
(16) Whether judgment sought should be rendered
because the pleadings, the discovery and disclosure
material on file, and affidavits show that there is no
genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law, Fed. R. Civ. P.
56(c); Suzuki Motor Corp. v. Consumers Union of United
States, Inc., 330 F. 3d 1110, 1131 (9% Cir. 2003:.
a. 10
(17) Whether motion for summary judgment,
Anderson’s affidavit was sufficient to shift the burden to
government to demonstrate the existence of a triable
issue of fact with respect {to relief and compensation],
Fed. R. Civ. P. 56(e)(2); Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986);
(18) Whether District Court and Court of Appeals
judges abused their proper exercise of discretion in failing
to fulfill Anderson’s request that court, sua sponte, on its
own motion and pursuant 2243, which confers on federal
courts the discretion to dispose of habeas corpus matters
and to tailor remedies “as law and justice require” order
compensation or relief as court would deem just and
proper, caused Don Benny Anderson to suffer further
irreparable injury, covering up repeated and flagrant
violations of Canon 2A of the Code of Conduct of United
States Judges and 28 U.S.C. § 455(a);
(19) Whether judges of the district court and court of
appeals erred in failing to vacate their findings of fact and
conclusions of law due to violations of statutory provisions
furthering kidnapping in violation of Title 18 § 1201;
domestic terrorism in violation of Title 18 § 2331; forced
labor in violation of Title 18 § 1589; involuntary servitude
in violation of Title 18 § 1584; peonage, slavery,
involuntary servitude or forced labor in violation of Title
18 § 1590; conspiracy against rights in violation of Title
18 § 241; deprivation of rights under color of law in
violation of Title 18 § 242 and repeated and flagrant
violations of Canon 2A of the Code of Conduct of United
States Judges and 28 U.S.C. § 455(a);
(20) Whether District Court and Court of Appeals
properly exercised their discretion in refusing to rule
whether the United States Parole Commission imposition
of sentence on Anderson is consistent with Article II
judicial authority and other guarantees of the
Constitution;
a. ll
(21) Whether judges of the district court erred in
failing to exercise proper discretion in 2:08-cv-01239-RCJ-
LRL and original motion for summary judgment, and by
dismissing no. 2:08-cv-01256-JCM-LRL by fraudulently
transferring said motion to Memphis TN district court,
where judges could find no record of the case;
(22) Whether judges in the U.S. Court of Appeals .
failed to exercise proper discretion in the combined
motion for summary judgment, as required by Rule 56;
(23) Whether District Court and Court of Appeals
judges misconduct particularly with respect Orders and
Judgment require vacating Orders and Judgment as a
remedy for the violation of violations of Canon 2A of the
Code of Conduct of United States Judges and 28 U.S.C. §
455(a). . “Acts in excess of judicial authority constitutes
misconduct, particularly where a judge deliberately
disregards the requirements of fairness and due process.”
Geller v. Commission on Judicial Qualifications, (1973) 10
Cal. 3d 270, 286.
(24) Whether Anderson demonstrates substantial
harm that would result from the reactivation of
proceedings in the district court;
(25) Whether government failed to address the
argument that the district court has been divested of
jurisdiction by the filing of notice of appeal;
(26) Whether petitioner's contention that the collateral
order doctrine provide grounds for an appeal under 28
U.S.C. Section 1291;
(27) Whether court must address petitioner's
argument that collateral order doctrine grounds provides
jurisdiction for court of appeals to rule on the merits of
case;
(28) Whether petitioner in fact had Article III
standing in district court before illegal transfer;
(29) Whether petitioner’s request here that this court
of appeals shorten the time for government to respond to
Anderson request here for immediate proceedings and
a. 12
deadlines that, in Anderson’s view, present issues of
irreparable harm and thus necessitate consideration of
the this stay motion as soon as possible. Anderson
proposes that the government respond to this motion by
December 20, 2009. and if Court deems a hearing is
necessary, it be set as soon as possible;
(30) Whether Anderson is in involuntary servitude in
violation of the Thirteenth Amendment which is imposed
by the imprisonment of one who is convicted without
evidence. U.S. Caminito v. Murphy, 222 F. 2d 69.
(31) Whether the District Court , in the Order, dated
April 28, 2009, which stated the following, “ Before the
court is petitioner's motion for summary judgment (docket
#12). This motion shall be denied as moot, as this court
transferred the petition for a writ of habeas corpus to the
United States District Court for the Western District of
Tennessee on November 19, 2008. IT IS THEREFORE
ORDERED that the motion for summary judgment
(docket #12) is DENIED as moot, as this matter has been
transferred to the United States District Court for the
Western District of Tennessee.”, failed to properly rule on
Anderson’s facts of this case.
(32) Whether the Court of Appeals was so biased that
they deliberately closed their eyes to the 9% Circuit
precedent in #31 above, and failed to determine whether
Anderson’s petition could be amended, as show in the
following: “Court’s order before: Canby, Thomas, and
Ikuta, Circuit Judges. A review of the record
demonstrates that this court lacks jurisdiction over this
appeal because the order challenged in the appeal is not
final or appealable. See Nascimento v. Dummer, 508 F-.
34 905, 908 (% Cir. 2007) (transfer orders are not
directly appealable). Consequently, this appeal is
dismissed for lack of jurisdiction.”
(33) Whether the District Court and the Court of
Appeals acted in conspiracy to alter the identity of the
Respondent in this matter. Anderson has named the
a. 13
Respondent as United States Parole Commission while
the courts persist in naming the Respondent as Federal
Bureau of Investigation in order to dispose of the issues
by claiming lack of jurisdiction.
(34) Whether Anderson’s petition seeking habeas
corpus relief is appropriate under 28 U.S.C. Section 2241
because he is challenging the fact or duration of his
confinement /custody or restraint. Habeas corpus via
2241 is appropriate where United States Parole
Commission knowingly and willingly covered up
organized government crime and illegally and
unconstitutionally imposed sentence. Anderson attacks
the execution of sentence by United States Parole
Commission and only cognizable under 28 U.S.C. Section
2241. (See Exhibit D — Exhibit 1 — page 3-4.)
(35) Whether the miscarriage of justice exception,
Schlup v. Delo, 513 U.S. 298 (1996, applies in this case
where Anderson’s evidence showed innocence and
establishes that the court cannot have confidence in any
finding of guilt, Sch/iup, 513 U13 U.S. at 317. His
constitutional rights were violated and the government
did not dispute evidence that he is factually and actually
innocent. Anderson has shown that his case falls within
the narrow gateway of cases where a fundamental
miscarriage of justice has occurred.
Don Benny Anderson
Attorney of Record, pro se
a. 14
TABLE OF CONTENTS
Page
TELEPHONE NUMBERS AND
OFFICE ADDRESSES OF ATTORNEYG6G.................06. 2
QUESTIONS PRESENTED. .............ccccccscccesecscseecevecs 7
Tee Oe Ces coc cccccccocccc ccs cnccceccorccece 15-16
TABLES OF AUTEM ie occccccceccoscccccccesecccceeecosceee 16 - 22
INTRODUCTION AND REASONS FOR
GRANTING REHEARING OR REHEARING
EN BANC Statements Required by Rules 35 and 40....23
STATEMENT OF FACTS and ARGUMENTSB....... 23-70
2 REECE ACA SE ee RRL a ee eee eRe 70-72
CERTIFICATE OF SERVICE. .........ccccccccccssccos cee 73-74
TABLE OF AUTHORITIES
Page
175 F.RB.D. B63, BCE (TID co ccccvecccvecceccvccscnes 44, 54, 64
Adickes v. Kress Co., 398 U.S. 144 (1970) ...06.0cccccceee- 44
Allen v. City of Beverly Hills, 911 F. 2d 367, 373
Fe Se iutnnenteiacceiacnancnesdaitediasia bet hitnbiices toss 70
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
ii ncavadanetiiuiis Gadiatee nian teats nn ees 38
Berner v. Delahanty, 129 F.3d 20, 23 (1st Cir. 1997)...55
Bhasis v. Gonzales, 423 F. 3d 977, 986-87
CI aati dicta ata creas cade scacedecesess 46
Books v. City of Elkhart, 239 F.3d 826, 827
FP eB BI os cccceccssavsnnccceveccecnseoeoneed 60, 69
Boyce v. Grundy, 3 Pet.
lb cidésinctednsibeniiesibaibintsdnunaiabibiehiueneniiaticadedestuned 45
Brown v. United States, 610 F. 2d 672, 677
Sr See Mech tecsuececaaadcbcateuisonducsubedacsntudaahaumes 70
a. 15
Cannon v. Commission on Judicial Qualifications,
ee ee casekentbnebsennstenvec ves 8
Cf Young v. United States ex rel. Vuitton et Fils
S_A., 481 U.S. 787, 810 n. 21 (1987).........00+- ceases 66
Chang v. Chen, 80 F. 3d 1298, 1296, 1301
I a ctannconeuaeecees 70
Citizens to Preserve Overton Park v. Volpe,
401 U.S. 402, 415, 416 (1970).... —
Cochran v. Kansas, 316 U.S. 256, 257-268 (1942) eee 9
Cohen v. Beneficial Loan Corp., 337 U.S. 541,
ee RR IE apa ae 33
Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404,
aes cnr 68
Coleman v. Bucheit, Inc., No. 03 C 7495, 2004 WL
609369, at *2 (ND. IIL Nov. 3, 2OOW «00.06... ccccceveeeccees 50
Conley v. Gibson, 355 U.S. 41, 45 (1957)......... pound 9, 44
Cont] Ins. Co. v. M/V Orsula, 354 F. #4 603, 608
clic ias cle cenel bet pbdneeababerneneesnnsesendios 50
Cooper V. O'Conner, D9 F2d 433....0..0c0cssecvseceescevaceves 68
County of Los Angeles v. Davis, 440 U.S. 626,
630 Case No. O9-163B11 (LO7D). 0. oc. cecccccececesceseeseneseees 32, 37
Digital Equipment Corp. v. Desktop Direct, Inc.,
eB Be i ccnccccocccaceccnacnecsesoceccsee sees 33
Duncan v. Missourt, 152 U.S. 377, 382 (1B89W........6.465 9
Elrod v. Burns, 427 U.S. 347, 6 S. Ct. 2673;
TD ices naa hehe dlaiananieensennte desea: 7
Ethyl Corp. v. EPA, 541 F.2d I, 34-37 (D.C. Cir.)
(en banc), cert. denied, 426 U.S. 94] (1976)......66. 0000+. 46
Geller v. Commission on Judicial Qualifications,
(19TH 10 Cal, Bd BTO, BOG e..c0rvceccoveescesccccccccccsccsccce. 13
Gomillion v. Lightfoot, 364 U.S. 155 (1966)..........0...«. 8
Haines v. Kerner, , 820-21 (197 Daiiccccccccccccccecseveeee 69
Hormel v. Helvering, 312 U.S. 562, 556 (194V).......... 60
Hughes v. Rowe, 449 U.S. 5, 10 (19BO)... 6.0 6c ccc ceveeeees 44
Idema v. Rice, 478 £Supp.2d 47 (D.D.C 2007)....... 29, 71
In re Campbell, 628 F. 2°¢ 1260, 1261
oo al Lend ai sh cis bald dea lon tanersnanndell 32, 37
In Re Sawyer, 124 U.S. 200 (188).......0ccececeecsvcccevees 68
Irving v. United States, 162 F.3d 154, 160
TI sseeseuononessentesvnce 55
Lane v. Williams, 455 U.S. 624 (L9BD. 0.06. .cccceccesseees 40
490 U.S. 495
SI siisas tnueldeueudtaatasie nis taadbebdebeetdensesdseseuecece cence 33
Liljeber v. Health Services Acquisition Corp.,
486 U.S. 847, 862 (19BB)........0.cccceceecensees 54, 62, 63, 66
Liner v. Jatfco, Inc., 375 U.S.301, 306 2.3 (196EH........ 40
Liteky v. United States, 510 U.S. 540, 548 (1994)......65
Marbury v. Madison, 5 U.S. (1 Cranch) 137
ek eee amnesia 24, 55, 61
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (19BG)... 02. csecevccesecseccescsecesceeees 11
McNabb v. U.S., 318 U.S. 332, 345, 63 S.
Ct. G08, 615, 87 L Ed. B19, 19D»... ccc csesevececeess 41, 51
Miller v. U.S, 230 F.2d, 486, 490...............ccceccccseeceess 7
Moore v. Czermiak, Court of Appeals No. 04-15713
RARER SFE eR ce er oe a 59
Nascimento v. Dummer, 508 F. F¢ 905, 908
reise dessins ties: sv, 14, 55
North Carolina v. Rice, 404 U.S. 244, 246 (197)
EEE SET Sy Ae 40
Norton v. Shelby County, 118 U.S. 4265 p. 442............. 8
Nudd v Burrows, 91 U.S. 46 ....ccscccvcccccescseccccccsscces 45
Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604,
ns ssc tina tpeuneneunvoves 27
Owens v. Kaiser Found. Health Plan, Inc., 244
F. Sd 708, 7123 (G* Cir. BOOD ...ccccecccccccccescccccsscecsececees 4
Perez v. Brownell, 356 U.S. 44, 7:8 S. Ct. 568,
i nina ci sc ccs cts benceadenceccteceevseccusse 8
Perry v. United States, 204 U.S. 330, BBB. .........60005. 10
Preston v. United States, 923 F. 2d 731
ea sciponuneubbanenesoes 66
Rand v. Rowland, U.S. Court of Appeals for the
Hh Cir. — August 27, 199B.....cccccscererceveccecees 37, 69, 72
Robert L. Stern et al., Supreme Court Practice 299
a. 17
(5th ed. 1979)
Scheuer v. Rhodes, 416 U.S. 232, 236 (197D....000c..05.
Schlup v. Delo, 513 U.S. 298 (V99B)....c0ccevcecceceececeees 15
Singleton v. Wulff 428 U.S. 106, 120 19760)....0. 00.0005 59
Stuard v. Stewart, 401 F. 3d 1064 (9thCir. 2005)....... 60
Suzuki Motor Corp. v. Consumers Union of United
States, Inc., 330 F. 3d 1110, 11391 (G» Cir. 2003)...... 11
Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294,
297 (D.C. Cir. 1987) Id. at 298... ae 45
United States v. Chodwick, 433 U. S. ‘1 an 16 (1976) 7
United States v. Cooley, 1 F.3d (85 (10 Cir. 1993)......66
United States v. Hasting, 461 U.S. 499, 505
ies a nccicianeamibiwenssmienetae iam ian x 40, 4161
United States v. Simpson, 927 F.2d 1088, 1090
(H> Cir. 1991)... sannacoesesit, G4
United States v. Seis 497 F 3d 890, ‘901
a Nautica dehcxenneenkssucdesen’ 60
U.S. v. Throckmorton, 98 U.S. 61
US. v. Will, 449 U.S. 200, 216, 101 S. Ct. 471,
OBL, Tl Bil BO GOD IB ooo coe vscc0cveeevecescceeseceses 68
U.S. Caminito v. Murphy, 222 F. 2d 698.0... .c0cceccveces 14
Varsic v. U.S. District Court, 607 F. 2d 245, 261
(94 Cir. 1979
Von Holdt v. Husky Injecting Molding Sys. Ltd.,
887 F.Supp. 185, 188 (N.D. [lL V9 ccc ec cee sec cece seee 50
Walker v. Washington, 627 F. 24 541, 545
(D.C. Cir, 19BO) (per CUsIiam),..seciccsersorrerersrcceecseseess 45
Warnock v. Pecos County, Texas, 88 F3d 341
gg ae REESE ESTO REA 8
Wawszkiewicz v. Department of Treasury, 670 F.
2d 296, 301 & n. 42 (D.C. Cir VOBD ccc cccccc ces seceseeees 46
Wild v. Subscription Plus, Inc., 292 F. 3d 526, 530
laa 49
Wisconsin Gas, supra, 768 F2d at 674 (quoting
Virginia Petroleum Jobbers Ass'n v. FPC,
259 F.2d 921, 926 (D.C. Cir, 195 8).......cccsscccesssecseseee 48, 61
INTRODUCTION AND REASONS FOR GRANTING
REHEARING OR RFHEARING
EN BANC (35 4)
Petitioner-Appellant petition for rehearing en banc
of the Mandate Order, filed October 26, 2009 — Rule 41(a)
(See Exhibit F) and the judgment of this Court, entered
07/29/09 (See Exhibit A) that takes effect by MANDATE
October 26, 2009.
Statements Required by Rules 35 and 40: Motion
for Rehearing or Rehearing En Banc is warranted because
(1) it is timely filed with in 45 days;
(2) disposition on the merits of case was wrong;
(83) US CODE: Title 28a, Rule 41. Dismissal of
Actions, Cornell University Law School, U.S. Code
collection TITLE 28 App. > FEDERAL. VI. > Rule 41.
Anderson moves court pursuant to Rule 41 (a)(1)G) for
summary judgment. “A motion for summary judgment
may be forthcoming prior to answer, and if well taken,
will eliminate the necessity for an answer.”
Subdivision (b) — In this case tried without a jury, after
the close of all evidence Anderson moves for dismissal of
government's case under Rule 41 (b) on the ground that
government has presented no evidence or document that
could pass as evidence and is insufficient for recovery.
Notice to court! Moving party gives notice APPELLANT’S
INFORMAL BRIEF is unopposed by Respondent-
_ Appellee. (9 Cir. R. 27 (Eff. 01/1999). Anderson’s own
evidence is not conflicting nor does it present questions of
credibility. In this non-jury case, judges may pass on
conflicts of evidence and credibility and, if judges perform
this function of evaluating evidence and testimony and
grant the motion on the merits, findings are required. The
court should only decide whether there is evidence which
would support a judgment for Anderson, plaintiff, and,
therefore, findings are not required by Rule 52.
a. 19
Rule 52 (c) authorizes entry of judgment against
the defendant as well as the plaintiff, and earlier than the
close of the case of the party against whom judgment is
rendered. A motion to dismiss under Rule 41 on the
ground that... evidence is legally insufficient should now
be aa as a motion for judgment...as provided in Rule
52 (c);
(4) new facts or legal bases not presented in brief;
(5) LEGAL basis in support of belief that this court’s final
decision was incorrect; (6) case proceedings involves
questions of exceptional importance— see page iii; (7)
Court should grant rehearing en banc because the case
presents an important questions of the highest order
regarding the overthrow of the United States
Constitution, political kidnapping of Don Benny
Anderson., stopping Anderson’s from running for public
office, conspirators in this court are attempting to stop
Anderson from exposing government lies, crimes and
treason. Court's judges are acting in a conspiracy
attempting to muzzle Anderson by keeping him as a
convicted felon in bogus Judgments. Government agents
have admitted they and Judges Canby, Thomas, and
Ikuta have committed a multitude of crimes. (See Exhibit
AAA, page 7-8). Constitution does not prohibit Anderson
from running for public office, but judges are illegally and
unconstitutionally keeping him on parole in violation of
the Constitution (See Marbury v. Madison, 5 U.S. (1
Cranch) 137 (1803) page 18-20 of this document) to stop
him from campaigning all over the country. Judges
Canby, Thomas, and Ikuta have refused to comply with
Article 1, Section 9, of the Constitution by denying habeas
corpus privileges to Anderson without judicial review,
resulting in violation of his Eighth Amendment, cruel and
unusual punishments inflicted and other constitutional
rights.
a. 20
“1631 YORDER
Facts showing the existence and nature of the claimed
emergency:
Notice to court! Moving party gives notice APPELLANTS
INFORMAL BRIEF is unopposed by Respondent-
Appellee. (9% Cir. R. 27 (Eff. 01/1999)
The following facts, are based on federal and state
agents violation the Supreme Law: Constitution for the
United States of America, violation of the laws of the land
facts found in Exhibit AA - APPELLANT'S MOTION TO
RECONSIDER ORDER, Exhibit A - ORDER, filed July
29, 2009-U.S. Court of Appeals, Exhibit B — ORDER
DENYING AND DISMISSING HABEAS PETITION,
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD
FAITH, AND ORDER RESTRICTING FILING
PRIVILEGES IN THIS DISTRICT-U.S. DISTRICT
COURT FOR THE WESTERN DISTRICT OF
TENNESSEE WESTERN DIVISION, Exhibit C ~-DON
BENNY ANDERSON’S “REPLY TO RESPONDENT’ TO
RESPONDENT — Filed June 9, 2009, Exhibit D -—
APPELLANTS MOTION FOR CONSOLIDATION AND
JUDGMENT/ORDER AND TO STAY BRIEFING
SCHEDULE DURING PENDENCY OF MOTION
includes EXHIBIT 1 — ORIGINAL MOTION FOR
SUMMARY JUDGMENT AND TO DISMISS (Note:
Respondent is correctly identified as United States Parole
Commission), and Exhibit E - APPELLANTS
INFORMAL BRIEF show the existence and nature of the
claimed emergency.
a. 2]
. Fact - Since the Respondent-Appellee has not refuted
any claims or issues, writ of habeas corpus should be
granted immediately.
. Fact -— Anderson’s ORIGINAL MOTION FOR
SUMMARY JUDGEMENT AND TO DISMISS (Note:
Respondent is correctly identified as United States
Parole Commission), (See Exhibit D, Exhibit 1, page
1);
. Fact - PETITIONER-PLAINTIFFS REBUTTAL TO
GOVERNMENTS DELIBERATELY COMBINED
MOTION TO DISMISS NOS. 2:08-cv-01256-JCM-LRL,
2:08-cv-01486-RCJ-PAL, 2:08-cv-01501-KJD-GWF,
2:08-cv-01514-JCM-GWF PETITIONS FOR WRIT OF
HABEAS CORPUS, AND TO PROHIBIT
PETITIONER FROM FILING ANY FURTHER
PETITIONS FOR HABEAS CORPUS IN THE
DISTRICT OF NEVADA AND PLAINTIFFS
MOTION FOR SUMMARY JUDGMENT AND
MOTION TO DISMISS WAS TIMELY SENT- CLERK
RETURNED IT STATING “YGU MUST HAVE AN
ORIGINAL MOTION FOR EACH CASE YOU HAVE.”
(See Exhibit D, Exhibit 1, page 1);
. Fact - the clerk of the court instructed Anderson to
amend his motion. (See Exhibit D, Exhibit 1, page 1);
. Fact - Anderson, in compliance with the clerk’s
directive, filed ORIGINAL MOTION FOR SUMMARY
JUDGMENT AND TO DISMISS NO: 2:08-cv-01256-
JCM-LRL. (See Exhibit D, Exhibit 1, page 1);
. Fact — A party may amend its pleading once within 20
days after a responsive pleading has been served, or if
that period has passed, then by leave of the court or by
consent of the other party. Fed R. Civ. P. 15(a). Courts
may freely grant leave when justice so requires, and
public policy strongly encourages courts to permit
amendments. Fed. R. Civ. P. 15(a); Outdoor Sys., Inc.
v. City of Mesa, 997 F.2d 604, 614 (9 Cir. 1993). The
policy of allowing amendments “is to be applied with
a. 22
extreme hberality.” Owens v. Kaiser Found. Health
Plan, Inc., 244 F.3d 708, 712 (4 Cir. 2001). (See
Waldrip v. Hall);
7. Court’s Clerk granted Anderson leave to amend. (See
number #3 above.)
8. Fact — Anderson filed PLAINTIFFS MOTION FOR
SUMMARY JUDGMENT AND MOTION TO
DISMISS GOVERNMENT'S MOTION. (See Exhibit D,
Exhibit 1,
page 1);
9. Fact — Anderson in Affidavit at page 2 (#6)
“Affiant/Plaintiff is serving a United States Parole
Commission sentence;” page 3 (#7) “Therefore,
Respondent is the United States Parole Commission ;”
(See Exhibit D, Exhibit 1, pages 2 and 3);
10.Fact - Gregory A. Brower, United States Attorney and
Robert L. Ellman, Appellate Chief and Assistant U.S.
Attorney, Counsel for Appellee, - fraudulently claim
that the Respondent is the Federal Bureau of
Investigation and fatal to jurisdiction of district court.
This issue must be resolved immediately so that
Anderson can obtain relief. (See Exhibit D, Exhibit 1,
pages 60 - 63) and see the following:
“I. Petitioner’s decision to treat the FBI as his
“warden” by naming the FBI as respondent is also fatal to
jurisdiction.” (See page 8 of Government’s motion).
Response made by Affidavit: “Anderson never claimed
to be in the custody of the FBI. Since Anderson claimed
that he was in custody and filed a PETITION FOR A
WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C.
2241 by a person in custody, Government should have
looked to the facts of the case to determine who the
Respondent would truly be. Ground 1 in Petitioner's
PETITION FOR A WRIT OF HABEAS CORPUS clearly
reveals that U.S. Parole Commission would be the |
Respondent because they claim they have jurisdiction
over Anderson and as result he had to report to Las Vegas
a. 23
Metropolitan Police and make reports to Parole Officer.
Respondent argues that he is in the actual custody and
control of the U.S. Parole Commission. There exists a
genuine issue necessary to be litigated because of the
fraudulent claim above.
J. “Because the petitioner in Padilla filed his petition
in a different district that of his actual “warden,” the
Court held that the district court lacked jurisdiction to
hear it. Jd.” (See page 3 of Government’s motion). _.
Response made by Affidavit: “Anderson does not claim
to be confined with a warden. Anderson relies on /dema
v. Rice, 478 £Supp.2d 47 (D.D.C 2007) This Court has
jurisdiction to hear this Writ. The issue is relevant and
there exists a bagi issue necessary to be titigated.
Prohibited See page 3 of / semana motion): “As
demonstrated above, plain defects in jurisdiction and
venue make clear that no post-conviction relief petition
filed by Petitioner is this district can ever progress to an
adjudication on the merits.” (See page 3 of Government’s
motion).
Response made by Affidavit: “At the time original writ
of habeas corpus was filed in this court, Don Benny
Anderson was residing with Kay Dahlgren at 8724
Litchfield Ave., Las Vegas, NV 89134, with intentions of
establishing a permanent residence there and opening a
business. This court had jurisdiction because the
Convicted Persons Questionnaire (See Exhibit C), was
presented for signature when registering with Las Vegas
Metropolitan Police, since he was on parole, and because
the court had not yet ruled on Case 2:08-cv-01239-RCL-
LRL. Petitioner would still be residing in Las Vegas if he
had not been forced to return to Illinois, and plans to live
in Nevada with Ms. Dahlgren and establish a gun sales
business, as plainly stated in all petitions. Anderson
requested an immediately decision in order to remain in
a. 24
Nevada so that he would not be compelled to return to
Illinois.
Because Affiant, who is currently serving a sentence
that was enhanced on the basis of a prior conviction is
still in custody, he may challenge the enhancing
conviction as constitutionally invalid even though the
prior conviction’s original custodial term has expired;
Affiant can collaterally attack the validity of a
previous conviction used to enhance United States Parole
Commission sentence obtained in violation of right to self-
representation or right to counsel;
Court cannot grant summary judgment for
Government's motions because summary judgment is
improper where the slightest doubt remains about the
facts. See Rand v. Rowland, U.S. Court of Appeals for the
gth Cir. ~ August 27, 1998;
Purpose of a motion for summary judgment is to head
off a full-scale trial conducting a trial in miniature,
on affidavits, so that not submitting affidavits is the
equivalent of not presenting any evidence at trial, See
Rand v Rowland, U.S. Court of Appeals for the 9% Cir. —
August 27, 1998;
Government never submitted any affidavits with its
motions; therefore, never presented any evidence at trial;
Plaintiff disagrees with this statement. There exists a
genuine issue necessary to be litigated. (See Exhibit D,
Exhibit 1, pages 60 - 63);"> EMERGENCY MOTION
UNDER ## CTRR, 27:3 CASE NO, 09-16311 FOR
JUDGMENT/ ORDER (Exhibit AAA — page 2-7).
“APPELLANTS MOTION TO RECONSIDER ORDER
(Exhibit AA)
In accordance with Circuit Rule 27-10, petitioner-
appeliant submits this Motion to Reconsider Order in
response to court’s order, filed July 29, 2009.
In an attempt to not rule on issues presented, court
has mislabeled the Respondent's identity as Federal
a. 25
Bureau of Investigation on its Order, in spite of the fact
that APPELLANTS INFORMAL BRIEF identified
UNITED STATES PAROLE COMMISSION Appellee and
Petitioner's had amended this error as explained in
Appellant’s Informal Brief, page 8: “6) Affiant/Plaintiff is
serving a United States Parole Commission sentence; 7)
Therefore, Respondent is the United States Parole
Commission;”
“ORDER Before: CANBY, THOMAS, and IKUTA,
Circuit Judges.
A review of the record demonstrates that this court
lacks jurisdiction over this appeal because the order
challenged in the appeal is not final or appealable. See
Nascimento v. Dummer, 508 F. 34 905, 908 (9 Cir. 2007)
(transfer orders are not directly appealable).
Consequently, this appeal is dismissed for lack of
jurisdiction.”
“The FBI fraudulently manufactured a conviction in
Memphis, TN for Explosive Property Destruction in 1987
with a sentence of 42 years, while Appellant was
incarcerated since 1982. (See Exhibit G). It is Anderson’s
contention that there was no actual trial in absentia, but
the conviction was a “paper creation” created by Federal
Bureau of Investigation. At the time of the alleged trial,
Anderson was in prison and was not aware of this
conviction until he was informed of it when required to
register with Las Vegas Metropolitan Police during his
visit to Nevada on September 18, 2008. Assistant U.S.
Attorney, Robert L. Elliman and U.S. Attorney Gregory A.
Brower, conspired with U.S. District Judge, James C.
Mahan who, knowing that no true physical trial took
place, engaged in procedural kidnapping by not
addressing claims and issues and by instead transferring
this case to the United States District Court for the
Western District of Tennessee in violation of the United
States Constitution, First Amendment, “Congress shall
a. 26
make no law...right of the people...to petition the
government for Redress of Grievances”.
The court transferred this petition to Tennessee
during “pendency of motion”, and failed to provide
Appellant with copy of the order. Courts have no
authority to “terminate” appealable and make them un-
appealable motions simply by refusing to adjudicate them
and calling them “moot”. A party asserting that an issue
is moot must demonstrate that there is no reasonable
expectation that the violation will recur”. See County of
Los Angeles v. Davis, 440 U.S. 626, 630 Case No. 09-
16311 (1979): accord In re Campbell, 628 F. 24 1260,
1261 (9 Cir. 1980.
The transfer in this petition was a criminal act in
furtherance of the crimes mention in Appellant’s Informal
Brief. Judge Thomas Anderson, District Court in
Tennessee, joined the conspiracies mentioned when he
entered an ORDER DENYING AND DISMISSING
HABEAS PETITION to cover up the kidnapping of
Anderson and to further his kidnapping.
CANBY, THOMAS and IKUTA, Circuit Judges, have
the burden of providing a copy of the probable cause
statement, docket sheet, indictment, court transcripts,
and a pre-sentence report showing that a trial actually
took place. Failure to provide these documents will prove
that Anderson’s allegations of a governmental conspiracy
are true.
ANSWERS TO COURTS OBJECTIONS TO
APPELLATE JURISDICTION
District court has been divested of jurisdiction by
Anderson appeal. Anderson’s case is immediately
appealable under the COLLATERAL ORDER
DOCTRINE ~- The collateral order doctrine is a ‘practical
construction’ of the final judgment rule of 28 U.S.C.
section 1291. Digital Equipment Corp. v. Desktop Direct,
Inc., 114 S.Ct. 1992, 1995 (1994. The doctrine allows
a.2/7
appeals from 'a small class fof orders] which finally
determine claims of right separable from, and collateral
denied review and too independent of the cause itself to
require that appellate consideration be deferred until the
whole case is adjudicated.’ Cohen v. Beneficial Loan
Corp., 337 U.S. 541, 546 (1949).
The Supreme Court of the United States delineated
the test for the availability of interlocutory appeals, called
the collateral order doctrine, for United States federal
courts in the case of Lauro Lines s.r.j. v. Chasser et al,
490 U.S. 495 (1989), holding that under the relevant
statute (28 U.S.C. § 1291) such an appeal would be
permitted only if:
1. the outcome: of the case would be conclusively
determined by the issue;
2. the matter appealed was collateral to the merits;
and,
3. the matter was effectively unreviewable if
immediate appeal were not allowed.
Because the district court has transferred this
petition to Tennessee, even though they knew that no
trial had ever taken place in that District, this matter has
been made effectively unreviewable in this Circuit. It is
then imperative that CANBY, THOMAS and IKUTA,
Circuit Judges, act to prevent imposition of further
irreparable harm to Anderson and to provide due process
which can be achieved by granting relief.
Anderson has proved collateral order doctrine proof
and evidence and provided grounds for an appeal under
28 U.S.C. Section 1291, in APPELLANT'S INFORMAL
BRIEF
If an improper appeal was taken, the district court
retains its jurisdiction to act on the case, [judges of this
court of appeals using its supervisory power should then
order a new impartial district court judge, not involved in
any of Anderson’s cases to assume jurisdiction and
a. 28
proceed as instructed by this court providing relief
requested], but there is no improper appeal in case at bar.
CANBY, THOMAS and IKUTA, Circuit Judges,
joining RICO, criminal conspiracy and procedural
kidnapping, knew from APPELLANTS INFORMAL
BRIEF that U.S. Attorney Gregory A. Brower, Chief
Appellant and Assistant U.S. Attorney, Robert L. Ellman
and U.S. District Judge, James C. Mahan, were acting in
a criminal conspiracy by allowing both district court and
this court of appeals itself to be made an accomplice in
willful disobedience of law, aiding and abetting organized
crime, in violation of RICO laws. They knew district
court had no authority to “terminate” appealable petition
and make it un-appealable by committing criminal acts
against Anderson, a victim of political kidnapping, who
was kidnapped in violation of Title 18 Section 1201; a
victim of domestic terrorism in violation of Title 18
Section 2331; in forced labor in violation of Title 18
Section 1589, in involuntary servitude in violation of Title
18 Section 1584; and victim in respect of peonage, slavery
involuntary servitude, or forced labor in violation of Title
18 Section 1590; victim of a conspiracy against rights in
violation of Title 18 Section 241. Anderson is also a victim
of deprivation of rights under color of law in violation of
Title 18 Section 242 since court transferred petition for
writ of habeas corpus to Tennessee, knowing the Federal
Bureau of Investigation had created a fictional crime of
Explosive Property Destruction in 1987, with a sentence
of 42 years, appearing in Anderson’s FBI rap sheet. (See
Exhibit G). This was done with the full knowledge that
Anderson had been incarcerated since 1982, that no
actual trial took place in absentia although a fictional
sentence of 42 years was created, and that the United
States District Court for the Western District of
Tennessee, Judge Thomas Anderson engaged in
procedural kidnapping to cover up that fact. This Court of
Appeals is covering up facts presented in APPELLANTS
a. 29
INFORMAL BRIEF by issuing this court’s ORDER, which
constitutes an overt act of procedural kidnapping in
violation of the Title 18 U.S.C. Section 1201.
It is self-evident, from court’s ORDER, that the court
is biased and prejudiced against Appellant and has
knowingly and willingly with criminal intent combined,
conspired, agreed and did act in favor of criminals in the
government and court only seeing its own arguments, but
refused to consider or the points raised in APPELLANTS
INFORMAL BRIEF and in his Legal Argument -
APPELLANT'S MOTION TO RECONSIDER ORDER:
“ANDERSON’S LEGAL ARGUMENTS
In the ORDER, dated April 28, 2009, Court stated
“Before the court is petitioner's motion for summary
judgment (docket #12). This motion shall be denied as
moot, as this court transferred the petition for writ of
habeas corpus to the United States District Court for the
Western District of Tennessee on November 19, 2008. IT
IS THEREFORE ORDERED that the motion for
summary judgment (docket #12) is DENIED as moot, as
this matter has been transferred to the United States
District Court for the Western District of Tennessee.”
(The court order (Exhibit B) from the Western Division
of Tennessee states that “It is unclear from the petition
whether Anderson challenges a federal or state
conviction. Because Anderson invokes 28 U.S.C. § 2241,
the Court will proceed under the assumption that
Anderson challenges a federal conviction.” This case was
transferred to the Tennessee court which could find no
record of any conviction there.] (See Exhibit AA — page 8).
Anderson has provided conclusive evidence that no
trial ever took place in Tennessee. And since the
Tennessee court has no record of this fictional conviction,
the 42-year conviction should be considered void.
Anderson’s current parole is based on that alleged
conviction, since all other sentences have already been
a. 30
completed. This court should, based on these facts,
render a writ of habeas corpus in Anderson’s favor. Any
other ruling is a violation of Anderson’s rights under the
Eighth Amendment of the Constitution for the United
States of America.
“Court transferred this petition to Tennessee during
“pendency of motion”, and failed to provide Appellant with
copy of the order. Courts have no authority to “terminate”
appealable and make them unappealable motions simply
by refusing to adjudicate them and calling them “moot”.
“A party asserting that an issue is moot must
demonstrate that there is no reasonable expectation that
the violation will recur’. See County of Los Angeles v.
Davis, 440 U.S. 625, 630 Case. No. 09-16311 (1979):
accord in re Campbell, 628 F. #4 1260, 1261 (9 Cir.
1980).” (See Exhibit AA — page 5)
“Anderson’s motions cannot be moot because the court
had jurisdiction and could have provided a remedy.
[District Court took evasive action of transferring
Appellant's petition to Tennessee, because they realized
that they could not rule for the government as no evidence
had been submitted to support government’s position.]
Court cannot grant summary judgment for Government's
motions because summary judgment is improper where
the slightest doubt remains about the fact. See Hand v.
Rowland, U.S. Court of Appeals for the #* Cir. — August
27, 1998.
To grant a motion for summary judgment, a court
must determine that there are no genuine issues of
material fact in dispute and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c). A
genuine issue exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
(1986). \n considering a motion for summary judgment,
the court is required to view the facts and draw
reasonable inferences in a light most favorable to the
a. 31
nonmoving party. Id. at 255. At the summary judgment
stage the Judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.”
Anderson, supra at 249.
Plaintiff has shown that this court has venue and
jurisdiction. Equitable remedies that the court can
provide in habeas cases include an order freeing Plaintiff
from penalties resulting ‘irom fictional convictions,
sentences, and judgments that persist beyond the end of
detention, appropriate compensation, and expungment of
all State and Federal records to be turned over to
Plaintiff, least Don Benny Anderson, Plaintiff, suffer
further irreparable injury.
Since all Courts have acted in complete absence of
jurisdiction to create a lawful conviction of sentence,
Anderson requests that this court, sua sponte, on its own
motion and pursuant 2243 which confers on federal courts
the discretion to dispose of habeas corpus matters and to
tailor remedies “as law and justice require” order
compensation or relief as this court would deem just and
proper. See case of Ervin McGee, dr. vs. City of Tulsa
(2007) where $14.5 million awarded for wrongful
conviction and imprisonment.
Collateral review of all federal and state judgments
are necessary because Plaintiff has made a showing he
has suffered from actual harm from them. Plaintiff has
reasonable expectation that he will have to register again
in Nevada until all cases are resolved, and fraudulently
alleged crimes and/or fictionally created crimes removed
from his rap sheet and all federal and state records, and
he will have to register in Florida as well as in other
states. Business, travel privileges and liberties are
restricted.
In the Government's Response In Opposition To
Motion For Summary Judgment, dated December 23,
2008, the Government makes mention of the Petitioner's
a. 32
58-page motion for summary judgment. The Petitioner's
motion actually included 67 pages. By overlooking the
final 9 pages of the motion, the Respondent disregarded
the allegations contained therein.
The Government provided no affidavits and no
authorities in its so-called Government’s Response In
opposition to Motion For Summary Judgment, as required
of the non-moving party in opposition to that motion for
summary judgment. Local Rule 7-2(b). Thus the court
should grant Plaintiffs motion and dismiss the non-
moving party's motion and claims.
What is relevant to this Informal Brief is the fact that
the record of this case contains not one affidavit by
government or a piece of paper from appellees that would
qualify as evidence under the Rules of Civil Procedure.
Although the record includes numerous fraudulent
governmental statements, there is nothing, beyond the
conspiracy of the U.S. Attorney Gregory A. Brower, Chief
Appellate and Assistant U.S. Attorney, Robert L. Elliman
and the corruption of the “fact-finder” U.S. District Judge,
James C. Mahan, in denying Appellant’s motion as “moot”
and transferring the petition for writ of habeas corpus to
Tennessee.
The inability of a federal court to “review moot cases
derives from the requirement of Article III of the
Constitution under which the exercise of judicial power
depends upon the existence of a case or controversy.”
Liner v. Jatco, Inc., 375 U.S.301, 306 n.3 1964). “Federal
courts are without power to decide questions that cannot
effect the rights of litigants in the case before them.”
North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per
curiam).
In Lane v. Williams, 455 U.S. 624 (1982), the court
observed: “ Collateral review of final judgment... is not
warranted absent a showing that the complainant suffers
actual harm from the judgment that he seeks to avoid.”
In this case, Anderson has demonstrated collateral
a. 33
consequences, which are made manifest by the court’s
Order, and are likely to recur.
It is evident that this court must use its supervisory
powers. The Supreme Court has recognized three bases
for the exercise of a court's supervisory power: (1) to
implement a remedy for violation of recognized rights, (2)
to preserve judicial integrity by ensuring that a conviction
rests on appropriate considerations validly before a jury,
and (3) to deter future illegal conduct. United States v.
Hasting, 461 U.S. 499, 505 (1983); United States v.
Simpson, 927 F.2d 1088,1090 (9 Cir. 1991. All three of
these bases apply to Anderson's case.
A court must not allow itself to be made an accomplice[
] in willful disobedience of law.” McNabb v. U.S., 318 U.S.
332, 3465, 63 S. Ct. 608, 615, 87 L Ed. 819, (1943).
“Guided by consideration of justice, a court may exercise
its supervisory powers as necessary to preserve judicial
integrity and deter illegal conduct.” United States v.
Hastings, 461 U.S. 499, 505, 103 S. Ct. 1974, 1978, 76 L.
Ed. 2d 06 (1983).
Respectfully Submitted,
s/ Don Benny Anderson
Don Benny Anderson”
(See Exhibit AA- APPELLANTS MOTION TO
RECONSIDER ORDER pages 4-12)
As clearly explained in dAnderson’s’ Legal
Argument, this court has jurisdiction. The District Court
motion, filed October 16, 2009, conclusively demonstrates
bias in that Anderson’s arguments were complete ignored
and not addressed in the decision to deny the motion. The
court stated “The motion for reconsideration is denied.
See # Cir. R. 27-10. The emergency motion is denied. No
further filings shall be accepted in this closed case.
a. 34
“STATEMENT OF REASONS SUPPORTED BY
PERTINENT AUTHORITY TITLE 18 SECTION 1621
UNSWORN DECLARATIONS OF EVIDENCE
OF DON BENNY ANDERSON;
UNSWORN AFFIDAVIT/DECLARATIONS OF DON
BENNY ANDERSON UNDER THE PENALTY OF
PERJURY PURSUANT TO TITLE 28 U.S. SECTION
1746
1. My name is DON BENNY ANDERSON. I am
sixty-eight (68) years of age, having been born on
December 19, 1940; in Springfield, Dlinois;
2. I am of sound mind and fully competent to make
this Affidavit/ Declarations under the penalty of
perjury; |
3. This Affidavit/Declarations must stand for Truth
and Fact, unless challenged point-for-point by an
opposing Affidavit/Declarations drawn under the
same terms and conditions as this instrument;
4. This Affidavit/Declarations will stand for Truth
and Fact before United States Court of Appeals for
the Ninth Circuit in this MOTION TO
RECONSIDER ORDER;
5. This Affidavit/Declarations is made on personal
knowledge and set forth facts that are admissible
evidence;
6. Appellant requested this Court to consolidate the
following co-mingled cases: 1) DC No. 08-cv-01239-
RCJ-LRL, IN THE FURTHERANCE OF JUSTICE
ORDER WRIT OF HABEAS CORPUS BE
GRANTED NOW, DISTRICT OF NEVADA, LAS
VEGAS and 2) DC ORIGINAL MOTION FOR
SUMMARY JUDGMENT AND TO DISMISS NO.
2:08 -CV-01256-JCM-LRL, and to. exercise
supervisory power and rule on both motions;
a. 35
10.
Appellant believes that these are extremely
substantial issues which do require further
argument, because they reveal that laws of the
land have been violated:
United States Constitution, First Amendment:
“Congress shall make no law... abridging...the
right of the people... to petition the government for
Redress of Grievances.” This right was violated by
the all judges and courts by not addressing
Anderson’s claims and issues;
It is evident that chis court must use its
supervisory powers. The Supreme Court has
recognized three bases for the exercise of a court's
supervisory power: (1) to implement a remedy for
violation of recognized rights, (2) to preserve
judicial integrity by ensuring that a conviction
rests on appropriate considerations validly before a
jury, and (3) to deter future illegal conduct. United
States v. Hasting, 461 U.S. 499, 505 (1983); United
States v. Simpson, 927 F.2d 1088,1090 (9 Cir.
1991. All three of these bases apply to Anderson's
case.
MOTIONS ARE NOT MOOT AND COURT OF
APPEALS HAS JURISDICTION AND RELIEF
CAN BE GRANTED.
FURTHER DON BENNY ANDERSON SAYETH
NAUGHT.
Signed under Title 28 U.S.C. Section 1746 on this
6% day of August 2009.
_8/ Don Benny Anderson
Don Benny Anderson
2500 Moultrie Avenue
P. O. Box 1156
Mattoon, Illinois 61938
217 246-4999”
(See Exhibit AA — pages 2-4).
a. 36
“The merits of this APPELLANTS MOTION TO
RECONSIDER ORDER concern court's disposition of the
factual matters underlying the case. Under governing law
a court is required to "construe the complaint in the light
most favorable to the plaintiff and its allegations must be
taken as true," any ambiguities or uncertainties
concerning the "sufficiency of the claims must be resolved
in favor of the plaintiff."
A “complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Hughes v. Rowe, 449
U.S. 5, 10 (1980 }); Scheuer v. Rhodes, 416 U.S. 282, 286
(1979); Conley v. Gibson, 355 U.S. 41, 45 (1957). In
judgment, the court must consider the pleadings, related
documents, and evidence in a light most favorable to the
non-moving party. Adickes v. Kress Co., 398 U.S. 144
(1970).
Moreover, in analyzing a motion for
[reconsideration], the court is obligated to view the record
and the inferences to be drawn therefrom, in the light
most favorable to the non-movant.” Taxpayers Watchdog,
Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). Id. at
298. See Walker v. Washington, 627 F. 24 541, 545 (D.C.
Cir. 1980) (per curiam). Thus, this court's Order of the
factual matters in this case is not "so clear as to make
[dismissal] proper.” Taxpayers Watchdog, Inc. v. Stanley,
819 F.2d 294, 297 (D.C. Cir. 1987).
All of the government’s orders, trials, judgments,
convictions, sentences, actions, allegations, and statement
in its pleadings rest on fraudulent assumptions —by law —
therefore the government's entire case must be dismissed
for fraud because: “Fraud destroys the validity of
everything into which it enters,” Nudd v Burrows, 91
U.S. 426; “Fraud vitiates everything,” Boyce v. Grundy, 3
Pet. 210; “Fraud vitiates the most solemn contracts,
a. 37
documents and even judgments,” U.S. v. Throckmorton,
98 U.S. 61.
If the court and government cannot now produce
records requested, then the Order issued by judges should
have legal authority. Judges know that their Order was
arbitrary and capricious, and issued with criminal intent -
to create irreparable harm to Appellant, knowing the
government failed to meet the criteria for dismissal. On
appeal, this appellate court should review issues raised by
de novo review.
The Supreme Court has instructed and reviewing
court is required to undertake a “searching and careful”
review of the facts. Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402 415, 416 (197); see also
Wawszkiewicz v. Department of Treasury, 670 F. 2d 296,
301 & n. 42 (D.C. Cir. 1981); Ethyl Corp. v. EPA, 541 F.2d
L 34-37 (D.C.Cir.) (en banc), cert. denied, 426 U.S. 94l
(1976). Appellant respectfully submit that the “searching
and careful” review that Supreme Court requires has
never been performed in this case. The Court is urged to
examine the facts of the case with a careful and critical
eye, including the statements and affidavits of Anderson.
Such a review will show that government's position is
completely unsupported by the evidence presented.
Therefore the court, in its ORDER for dismissal, steered
away from a de novo review. Dismissal of this appeal is
particularly inappropriate in this case given the need for
judicial consideration of the substantial record submitted
during the proceedings. Appellant should be granted a
fair determination of all facts presented.
FULL CONSIDERATION OF ALL FACTORS -
CANBY, THOMAS, and IKUTA, Circuit Judges, must
show proper consideration of all factors, both favorable
and unfavorable, but they failed to do so. See Bahasis v.
Gonzales, 423 F. 3d 977, 986-87 (9 Cir. 2005) (holding
that the BIA abused ita discretion by improperly
discrediting petitioner’s affidavit as “self-serving” and
a. 38
failing to properly consider the factors relevant to
eligibility for relief). Court abused its discretion, did not
engage in substantive analysis and articulate reasons for
its decision. Judges erred by denying motions while
failing to articulate their reasons for denying motions
individually and in a complete and proper order, and by
failing to consider all attached evidence properly in an
impartial manner. Because court entertained motions in
the first instance, and then failed to provide specific and
cogent reasons for its decision, petitioner is left without a
reasoned decision to review and challenge in this
APPELLANTS MOTION TO RECONSIDER ORDER.
Court must issue an Order that fully explains the denying
of all motions included in attached exhibits individually
as a result of this Motion to Reconsider Order, and must
address and rule upon each motion, giving specific, cogent
reasons for the grant or denial. Streamlining procedures
without court weighing the favorable and unfavorable
factors and indicating with specificity that court had
heard and entertained each specific fact and weighed the
favorable and unfavorable is nothing but “procedural
kidnapping’, in violation of Title 18 Section 1201 and the
First Amendment.
The Court of Appeals has not presented a “point by
point comparison” of all relevant affidavit/declarations,
claims, issues and questions. The court and government
do not dispute Appellant’s legal points with evidence
showing he is wrong. Court and Government do not
dispute the likelihood that Appellant will prevail on the
merits. Nor does the court or government present new
case authority in support of any claim that Appellant is
unlikely to prevail on the merits.
Appellant satisfies the Standard for Irreparable harm.
Appellant has demonstrated injury that is “certain and
great;...not theoretical.”. D.C. Circuit’s long-standing
recognition that availability (or unavailability) of possible
compensatory remedy plays a crucial role in the
a.39
irreparable harm analysis: The possibility that adequate
compensation or other corrective relief will be available at
a later date, in the ordinary course of litigation, weights
heavily against a claim of irreparable harm. Wisconsin
Gas, supra, 758 F2d at 674 (quoting Virginia Petroleum
Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958).
The essence of “irreparable” harm is that such harm is not
susceptible of repair through later judicial relief in an
action for monetary damages. Appellant argues that he
has shown irreparable injury because he will not be able
to recover money damages from the government.
Demonstrated irreparable harm _ identified by
Anderson includes his inability to move to Nevada and to
open a gun business there. Anderson’s travel is restricted
and he was forced to return to Illinois after a week. He is
unable to travel outside his immediate District for any
reason without written permission from his supervisor.
Anderson is required to report to Parole Officer monthly,
when changing employment or residence, and when
contacted by any law enforcement. He cannot possess
firearms, and cannot have any contact with other
convicted felons and must report same, should it occur.
His right to hold office will not be restored until his period
of supervision is concluded. Anderson is entitled to
compensation for the premeditated kidnapping and
destruction of his good name, family and loss of business
opportunities. He would like to travel abroad and
throughout the United States, to run for public office, to
vote in state and federal elections, to sit on a jury, and to
go into business immediately. He may suffer future false
arrest, conviction and sentence on fictional charges such
as this case at bar, and have previous convictions used
against him as long as false arrest records, conviction
records and sentencing records remain on his record.
What is paramount to this APPELLANTS MOTION
TO RECONSIDER ORDER is the fact that the Record of
this case contains not one affidavit by government or a
a. 40
piece of paper from appellees that would qualify as
evidence under the Rules of Civil Procedure. Although
the Record includes numerous fraudulent government
statements, there is nothing to support appellees' transfer
of this case to Tennessee or the Order to dismiss.
Varsic v. U.S. District Court, 607 F. 2d 245, 251 (9
Cir. 1979(transfer orders under 28 U.S.C. Section 1406
are not directly appealable). In this case at bar, district
court had personal jurisdiction over Anderson and issues
raised. Nor was district court transfer order issued under
28 U.S.C. Section 1406 which is not directly appealable.
Under 28 U.S.C. section 1406(a), a district court
may “transfer a case brought in the wrong division or
district” to a district where it might have been originally
brought if it is “in the interest of justice”. In deciding
whether transfer is appropriate under section 1406(a),
courts are to look at whether the transfer is in the
interest of justice; that is, whether the transferee forum is
convenient to the parties and witnesses as well as what
impact transfer has on the efficient administration of the
court system. Wild v. Subscription Plus, Inc., 292 F. 3d
526, 530 (7 Cir. 2002). When evaluating the convenience
of the parties and witnesses, a court can consider: 1) the
plaintiffs choice of forum: 2) the situs of material events;
3) the relative ease of access to sources of proof; 4) the
convenience of the witnesses; and 5) the convenience to
the parties. Coleman v. Bucheit, Inc., No. 03 C 7496,
2004 WL 609369, at *2 (ND. Ill. Nov. 3, 2004). The
balancing of these factors is committed to the sound
discretion of the trial judge Cont? Ins. Co. v. M/V Orsula,
364 F. #4 603, G08 (7 Cir. 2003) and the decision
whether to transfer a case on venue grounds is “largely a
discretionary determination,” to be decided on a case by
case basis. Von Holdt v. Husky Injecting Molding Sys.
Ltd., 887 F.Supp. 185, 188 (ND. Ill. 1995). Evidence
presented show that Tennessee was the wrong venue for
this case. Since the United States District Court of
a. 41
Nevada had proper venue and jurisdiction, this Court of
Appeals now has complete lawful jurisdiction.
Anderson declares the source of information relied on
is unaltered court tape recordings and perfect transcripts
made from them, without omissions or inaudible portions
from the following court cases to reveal that he is a victim
of political kidnapping and was kidnapped in violation of
Title 18 Section 1201; a victim of domestic terrorism in
violation of Title 18 Section 2331; in forced labor in
violation of Title 18 Section 1589, in involuntary servitude
in violation of Title 18 Section 1584; and victim in respect
of peonage, slavery involuntary servitude, or forced labor
in violation of Title 18 Section 1590; victim of a conspiracy
against rights in violation of Title 18 Section 241; and a
victim of deprivation of rights under color of law in
violation of Title 18 Section 242.
CONCLUSION - District Court and Court of Appeals
orders in the case at bar breed contempt, destroy domestic
tranquility, overthrow the United States Constitution by
blocking the Right to Petition for Redress of Grievances
by blocking meaningful access to the court, or covering up
violation by the Government of any Article of the
Constitution, or the refusal of the Government to justify
and/or cease its unlawful behavior. ” (See Exhibit AA —
pages 12-18).
“For the reasons set forth above, the ORDER to
dismiss for lack of jurisdiction should be vacated and this
court must use its supervisory powers. The Supreme
Court has recognized three bases for the exercise of a
court's supervisory power: (1) to implement a remedy for
violation of recognized rights, (2) to preserve judicial
integrity by ensuring that a conviction rests on
appropriate considerations validly before a jury, and (3) to
deter future illegal conduct. United States v. Hasting, 461
U.S. 499, 506 (1989); United States v. Simpson, 927 F.2d
1088, 1090 (#4 Cir. 1991. All three of these bases apply to
Anderson’s case.
a. 42
“A court must not allow itself to be made an
accomplice [ ] in willful disobedience of law” McNabb v.
U.S., 318 U.S. 332, 345, 63 S. Ct. G08, 615, 87 L.Ed. 819
(1943). “Guided by considerations of justice, a court may
exercise its supervisory powers as necessary to preserve
judicial integrity and deter illegal conduct.” United
States v. Hastings, 461 U.S. 499, 505, 103 S. Ct., 1974,
1978, 76 L. Ed. 2d 96 (1983).
REQUIREMENT FOR DUE PROCESS
Constitutional Basis — Petitioner is entitled to Fifth
Amendment due process right wo a fair hearing or decision
in an Order. Court’s Order is a denial of due process
under the Fifth Amendment because the proceeding or
decision*making process was fundamentally unfair and
Petitioner was prevented from reasonably having his case
heard by impartial judges. Judges have denied Petitioner
due process by covering up that the United States Parole
Commission unconstitutionally sentenced Anderson, and
he was tried in absentia in federal courts without notice of
trials or being present. Federal Bureau of Investigation
manufactured fictional convictions which came to light
when Anderson was required to register with the local
police in Las Vegas. All federal and state courts acted in
the complete absence of jurisdiction. This court knows it is
a violation of Anderson’s rights under the Fifth
Amendment of the Constitution to try him in absentia
and for all federal and states courts to kidnap Anderson
in violation of our Conatitution for the United States of
America. Court must consider the evidence, each
Declaration in affidavits submitted by petitioner in each
individual motion presented, and meet due process
requirements. Due process, under the Fifth Amendment
requires that violation of the United States Constitution,
First Amendment, “Congress shall make no law...right of
the people...to petition the government for Redress of
a. 43
Grievances” must be addressed and _ grievances
adjudicated.
The attached Certificate of Service lists all Exhibits,
including motions which were dismissed by Courts
without due process, violating Anderson’s§ Fifth
Amendment rights.”
(See Exhibit AA — pages 19-20).
The Court should grant rehearing or rehearing en
banc because of violation of the Fifth Amendment right to
due process by Court of Appeals judges.
This motion is timely filed. Pursuant to Rule 41(d)(1)
of the Federal Rules of Appellate Procedure and Circuit
Rule 41, Appellant Don Benny Anderson hereby requests
the Court to stay issuance of its mandate pending
Appellant's Motion for Panel Rehearing, Petition for
Rehearing EN BANC.
Under the Federal Rules of Appellate Procedure, “The
timely filing of a petition for panel rehearing, petition for
rehearing en banc, or motion for stay of mandate, stays
the mandate until disposition of the petition or motion,”
FED. R. APP. P. 41(@)(1) By operation of law, such a stay
remains in place until Court’s final disposition of this
petition. Anderson, seeking stay petition, presents
substantial questions and there is good cause for a stay.
Anderson files petition seeking a stay only pending this
Court’s final disposition of the petition.
Judges’ disposition on the merits of case was wrong in
light of Informal Package for Pro Se Appellants (April
2009) page 4 “I. THE COURT OF APPEALS...reviews
final decisions of the United States District Court...court
looks at the district court or administrative record in the
case and the briefs of the parties to see if there are any
constitutional, legal, or factual mistakes. NO NEW
EVIDENCE OR TESTIMONY CAN BE PRESENTED IN
THIS COURT.” The only evidence was presented by
Anderson. Government failed to present any rebuttal in
opposition. The Court should grant rehearing or rehearing
a. 44
en banc because of violation of the Fifth Amendment right
to due process by Court of Appeals judges.
Case was dismissed due to judicial bias because judges
refused to rule on claims and issues presented by plaintiff,
in violation of the Code of Conduct for United States
Judges. Canon 2A of the Code of Conduct for United
States Judges states that “[a] judge should respect and
comply with the law and should act at all times in a
manner that promotes public confidence in the integrity
and impartiality of the judiciary.” 1756 F RD. 363, 365
(1998), warranted disqualification under 28 U.S.C. 455(a).
“Any justice, judge, or magistrate of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonable be questioned.” In
accordance with Lileber v. Health Services Acquisition
Corp., 486 U.S. 847, 862 (1988), in refusing to vacate the
district court’s findings of fact and conclusions of law, the
Court in Libeberg v. Health Serviced Acquisition Corp.
states that, in determining whether a judgment should be
vacated for violation of Section 455(a), it is appropriate to
consider the risk of injustice to the parties in the
particular case, the risk that the denial of relief will
produce injustice in other cases, and the risk of
undermining the publics confidence in the judicial
process. Applying that standard to the facts of this case,
the court of appeals should conclude that violations of the
Code of Conduct and Section 455(a) are serious; full
retroactive disqualification is necessary to correct
injustice and help restore the damage to public confidence
in the judicial process. It will penalize government, who
is not innocent, aware of the misconduct and criminal acts
committed in furtherance of injustice, and it would have a
great deterrent effect on criminal activity in the
government. The above facts show good cause for stay.
See Fed. R. App. P. 35 & 40; 9t Cir. R. 23 & 40;
New facts or legal bases not presented in brief warrant
reconsideration.
LEGAL basis in support of belief that this court’s final
decision was incorrect: See Jrving v. United States, 162
F.3d 154, 160 (1st Cir. 1998) (en banc), admonishing that
the federal courts “have an affirmative obligation to
examine jurisdictional concerns on their own initiative"
even if the parties have neglected them; Berner v.
Delahanty, 129 F.3d 20, 23 (1st Cir. 1997), noting "that a
court should first confirm the existence of rudiments such
as jurisdiction ... before tackling the merits of a
controverted case". District Court made their decision
based on Nascimento v. Dummer, 508 F.34 905, 908 (GF
Cir. 2007), but did not question lower court’s jurisdiction
before dismissing. They did not follow the criteria set
forth in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
which requires judicial review of all facts.
Section 2.01 ‘IT IS EMPHATICALLY THE
PROVINCE AND DUTY OF THE JUDICIAL
DEPARTMENT TO SAY WHAT THE LAW IS.”
(a) Marbury v. Madison, 5 U.S. (1 Cranch) 137
(1803) ‘Congress cannot pass laws that are
contrary to the Constitution, and it is the role of the
Federal courts to interpret what the Constitution
permits.
Marbury v. Madison is a landmark case in United
States law. It formed the basis for the exercise of judicial
review in the United States under Article III of the
Constitution.
Marbury v. Madison was the first time the Supreme
Court declared something "“unconstitutional," and
established the concept of judicial review... (the idea that
courts may oversee and nullify the actions of another
branch of government). The landmark decision helped
define the "checks and balances" of the American form of
government.
a. 46
The concept was also laid out by Alexander Hamilton
in Federalist No. 78:...
The interpretation of the laws is the proper and
peculiar province of the courts. A constitution is, in fact,
and must be regarded by the judges, as a fundamental
law. It, therefore, belongs to them to ascertain its
meaning, as well as the meaning of any particular act
proceeding from the legislative body. If there should
happen to be an irreconcilable variance between the two,
that which has the superior obligation and validity ought,
of course, to be preferred; or, in other words, the
Constitution ought to be preferred to the statute, the
intention of the people to the intention of their agents.
Section 2.02 IT IS EMPHATICALLY THE
PROVINCE AND DUTY OF THE JUDICIAL
DEPARTMENT TO SAY WHAT THE LAW IS.
Inscription on the wall of the Supreme Court Building
from Marbury v. Madison, in which Chief Justice John
Marshall outlined the concept of judicial review.
Marshall stated: "The Government of the United
States has been emphatically termed a government of
laws, and not of men. It will certainly cease to deserve
this high appellation if the laws furnish no remedy for the
violation of a vested legal right.” One of the key legal
principles on which Marbury relies is the notion that for
every violation of a vested legal mght, there must be a
legal remedy.
A federal court has a "special obligation to ‘satisfy
- itself not only of its own jurisdiction, but also that of the
lower courts in a cause under review." Ifa court does not
have the power to hear a case, it will not issue dicta.
Consequently, with exceptions not applicable here, a
federal court must decide whether it has junsdiction
before discussing the merits of the case. Because of the
canon of constitutional avoidance (i.e., where a statute
can fairly be interpreted so az to avoid a constitutional
a. 47
issue, it should be so interpreted), courts generally deal
with the constitutional issues only if necessary.
Marshall then looked to Article [II of the Constitution,
which defines the Supreme Court's original and appellate
jurisdictions (see Relevant Law above). Marbury had
argued that the Constitution was only intended to set a
floor for original jurisdiction that Congress could add to.
Marshall disagreed and held that Congress does not have
the power to modify the Supreme Court's original
jurisdiction.
This conflict raised the important question of what
happens when an Act of Congress conflicts with the
Constitution. Marshall answered that Acts of Congress
that conflict with the Constitution are not law and the
Courts are bound instead to follow the Constitution,
affirming the principle of judicial review. In support of
this position Marshall looked to the nature of the written
Constitution—there would be no point of having a written
Constitution if the courts could just ignore it. "To what
purpose are powers limited, and to what purpose is that
limitation committed to writing, if these limits may, at
any time, be passed by those intended to be restrained?"
Marshall also argued that the very nature of the judicial
function requires courts to make this determination.
Since it is a court's duty to decide cases, courts have to be
able to decide what law applies to each case. Therefore, if
two laws conflict with each other, a court must decide
which law applies. Finally, Marshali pointed to the
judge's oath requiring them to uphold the Constitution,
and to the Supremacy Clause of the Constitution, which
lists the "Constitution" before the "laws of the United
States." Part of the core of this reasoning is found in the
following statements from the decision:
It is emphatically the province and duty of the Judicial
Department [the judicial branch] to say what the law is.
Those who apply the rule to particular cases must, of
necessity, expound and interpret that rule. If two laws
a. 48
conflict with each other, the Courts must decide on the
operation of each.
So, if a law [e.g., a statute or treaty] be in opposition to
the Constitution, if both the law and the Constitution
apply to a particular case, so that the Court must either
decide that case conformably to the law, disregarding the
Constitution, or conformably to the Constitution,
disregarding the law, the Court must determine which of
these conflicting rules governs the case. This is of the very
essence of judicial duty. If, then, the Courts are to regard
the Constitution, and the Constitution is superior to any
ordinary act of the Legislature, the Constitution, and not
such ordinary act, must govern the case to which they
both apply.
Those, then, who controvert the principle that the
Constitution is to be considered in court as a paramount
law are reduced to the necessity of maintaining that
courts must close their eyes on the Constitution, and see
only the law [e.g., the statute or treaty].”
“In Moore v. Czermiak, Court of Appeals No. 04-15713
(2009), petitions for rehearing and rehearing en banc, “it
was observed that a federal appellate court “lacks the
factfinding and record-developing capabilities of a federal
district court”. They simply decline to base decisions on
arguments and theories that the state has never offered,
and which it has therefore forfeited. In Moore, it was
stated that “It would work great prejudice to the
petitioner were we to affirm the denial of his habeas
petition on the basis of such speculative arguments and
assertions offered for the first time by a member of this
court—arguments and assertions to which Moore has had
no occasion, opportunity, or reason to respond. Without
any indication from the state as to what evidence it may
have reason to respond. Without any indication from the
state as to what evidence it may have possessed and why
that evidence may have rendered counsel’s failure to
a. 49
suppress...,it is simply impossible for a petitioner to
respond to the states ‘evidence’ or ‘arguments’.”
“Not only did the state forfeit any such contentions by
not raising them on appeal, but it first forfeited these
theories in federal court by failing to raise them in the
district court.” See Singleton v. Wulff 428 U.S. 106, 120
(1976).
“The decision to consider an issue not raised below is
discretionary, and such an issue should not be decided if it
would prejudice the other party.” The Supreme Court has
explained that this forfeiture rule “is essential in order
that parties may have the opportunity to offer all the
evidence they believe relevant to the issues which the
trial tribunal is alone competent to decide” and that “it is
equally essential in order that litigants may not be
surprised on appeal by final decision there of issues upon
which they have had no opportunity to introduce
evidence.” Hormel v. Helvering, 312 U.S. 552, 566 (194D.
Continuing in their opinion re: Moore, the court cited
In Stuard v. Stewart, 401 F. 3d 1064 (9thCir. 2005), “we
squarely rejected the notion that his court could create
argument for the state that it did not raise or appeal.”
They also held that “we are not going to construct an
argument for the state sua sponte, depriving [the
defendant’s] counsel of a fair chance to respond to it”.
“We apply that rule with same vigor against criminal
defendants; we should be no less vigorous in applying it
against the government.” United States v. Ziegler, 497
F.3d 890, 901 (¥* Cir. 2007).” (See Exhibit AAA — pages
16-17).
Whether there exist “a substantial question” and “good
cause” for a stay turns on the applicant’s “reasonable
probability of succeeding on the merits and whether the
applicant will suffer irreparable injury.” Books v. City of
Elkhart, 289 F.8d 826, 827 (7th Cir.) cert. denied.
Existence of “substantial” issues constitutes “good cause”
a. 50
that would require the court to grant the stay. Both
elements are present here.
Appellant satisfies the Standard for Irreparable harm.
Appellant has demonstrated injury that is “certain and
great;...not theoretical.”, D.C. Circuit’s long-standing
recognition that availability (or unavailability) of possible
compensatory remedy plays a crucial role in the
irreparable harm analysis: The possibility that adequate
compensation or other corrective relief will be available at
a later date... weights heavily against a claim of
irreparable harm. Wisconsin Gas, (quoting Virginia
Petroleum Jobbers Ass’n v. FPC, ...The essence of
“irreparable” harm is that such harm is not susceptible of
repair through later judicial relief in an action for
monetary damages. Appellant argues that he has shown
irreparable injury because he will not be able to recover
money damages from government.”...
Anderson has shown irreparable injury by courts not
tailoring remedies “as law and justice require” and
provide compensation and relief as is deemed just and
proper. Corrupt judges refuse to follow the criteria set
forth in Marbury v. Madison, & U.S. (1 Cranch) 137 (1803)
which requires judicial review of all facts. “IT IS
EMPHATICALLY THE PROVINCE AND DUTY OF THE
JUDICIAL DEPARTMENT TO SAY WHAT THE LAW
IS.” One of the key legal principles on which Marbury
relies is the notion that for every violation of a vested
legal right, there must be a legal remedy. Anderson has
requested one billion dollars from the United States
Parole Commission for false imprisonment and
kidnapping. (See Exhibit D of Exhibit H).
Anderson also shows irreparable injury in that he is
unable to establish a residence and gun sales business in
Nevada, travel for more that a week, family relations
have been destroyed, having to report to Parole Officer,
being denied his Second Amendment right to bear arms,
cannot have contact with law enforcement officials and
a. 51
felons and must report same should they occur, being
denied opportunities to run for Public Office, not allowed
to run for the office of President exposing government and
judicial treason, slavery, lives stolen and destroyed via
procedural kidnappings, campaigning across the country
revealing Presidential-Appointed Criminals, acting under
color of law, as long as bogus convictions remain on his
record ...
Streamlining procedures without court weighing the
favorable and unfavorable factors and indicating with
specificity that court had heard and entertained each
specific fact and weighed the favorable and unfavorable is
nothing but “procedural kidnapping”, in violation of Title
18 Section 1201.” (See Exhibit AA ~— Appellants Motion to
Reconsider Order, page 8.)
APPELLANTS INFORMAL BRIEF contained...
claims/issues raised as mandated by questions by the
court, none of which have been addressed by this court:
(See Exhibit E — pages 3-4). .
No conflict of evidence or credibility question exists;
granting this court authority to treat as a motion for
judgment as provided in Rule 52(c) to eliminate the
necessity for an answer, or dismiss due to judicial bias
because courts refuse to rule on claims and issues
presented by plaintiff, in violation of the Code of Conduct
for United States Judges. Canon 2A of the Code of
Conduct for United States Judges states that “[a] judge
should respect and comply with the law and should act at
all times in a manner that promotes public confidence in
the integrity and impartiality of the judiciary.” 175 F.R.D.
363, 365 (1998), warranted disqualification under 28
U.S.C. 455(a). “Any justice, judge, or magistrate of the
United States shall disqualify himself in any proceeding
in which his impartiality might reasonable be
questioned.” In accordance with Lileberg v. Health
Services Acquisition Corp., 486 U.S. 847, 862 (1988), in
refusing to vacate the district court’s findings of fact and
a. 52
conclusions of law, the Court in Lileberg v. Health
Serviced Acquisition Corp. states that, in determining
whether a judgment should be vacated for violation of
Section 455(a), it is appropriate to consider the risk of
injustice to the parties in the particular case, the risk that
the denial of relief will produce injustice in other cases,
and the risk of undermining the public’s confidence in the
judicial process. Applying that standard to the facts of
this case, the court of appeals should conclude that
violations of the Code of Conduct and Section 455(a) are
serious; full retroactive disqualification is necessary to
correct injustice and help restore the damage to public
confidence in the judicial process. It will penalize
government, who is not innocent, aware of the misconduct
and criminal acts committed in furtherance of injustice,
and it would have a great deterrent effect on criminal
activity in the government. The above facts show good
cause for stay.
The question of whether showing of actual bias is
required before disqualification is available to remedy
flagrant and concealed violations of 28 U.S.C. § 455(a) is a
substantial one for purposes of Rule 41(d)(1). The
Supreme Court found the issue of remedies for violations
of 28 U.S.C. § 455(a) deserving of its attention in Lijeberg
v. Health Services Acquisition Corp. 486 U.S. 847 (1988).
The Court found that the district judge committed
clear and repeated violations of the Code of Conduct for
United States Judges. The Court also found that the
district judge’s “conduct destroyed the appearance of
impartiality” in violation of 28 U.S.C. § 455(a), which
required that he disqualify himself at the time the
violations began to occur.
Unfortunately, the filing of judicial misconduct
complaints has often not resulted in meaningful review of
the underlying misconduct charges. Courts have been
quick to dismiss the complaints without investigation and
without providing any reasons. The public perceives,
a. 53
rightly or wrongly, that charges of misconduct will not be
taken seriously.
Anderson respectfully submits that District Judge
Robert C. Jones should have been disqualified as October
24, 2008, the date of his earliest known violation of 28
U.S.C. § 455(a) and the Code of Conduct of United States
Judges.
STATUTORY PROVISION AND CANONS
INVOLVED - Section 455(a) of Title 28 of the United
States Code provides: “Any justice, judge, or magistrate of
the United States shall disqualify himself in any
proceeding in which his impartiality might reasonably be
question.” Canon 2A of the Code of Conduct for United
States Judges states that “[a] judge should respect and
comply with the law and should act at all time in a
manner that promotes public confidence in the integrity
and impartiality of the judiciary.”. 175 F RD. 363,
3651998).
Judge Jones demonstrated abuse of power, bias or
prejudice committing fraud on the court by the court
issuing JUDGMENT IN CIVIL CASE and ORDER
claiming: “The Court denies the Petition because it is
. clear that Petitioner is not entitled to relief, 28 U.S.C.
Section 2243” and knowingly and willingly not addressing
claims point by point in order to further and cover up
Department of Justice, United States Parole Commission,
Bureau of Prisons organized crime. (See EXHIBIT F -
Appellant’s Informal Brief, page 8 and What are the facts
of your case? pages 2-8.) Such disqualification would
require vacatur of the district court’s findings of fact and
conclusions of law.
The requirement that Anderson show actual bias is
inconsistent with the language of 28 U.S.C. § 455(a).
Under that provision, “what matters is not the reality of
bias or prejudice but its appearance.” Liteky v. United
States, 510 U.S. 540, 548 (1994)...Moreover, were the
Supreme Court to determine that a new trial is required,
a. 54
that decision would substantially alter further
proceedings in this case, potentially nullifying any actions
taken by the district court on remand in the interim.
Accordingly, the requirements for a stay under Rule
41(d)(1) of the Federal Rules of Appellate Procedure and
Circuit Rule 41 are met.
Anderson shows a pattern of actual bias. Judges’
decisions conveyed the impression that they “had become
an active participant in [crime], rather than remaining as
a detached adjudicator’. (See EXHIBIT E - Appellant’s
Informal Brief, page 8 and What are the facts of your
case? pages 2-43.) Flagrant and egregious violations of the
Code of Judicial Conduct by judges warrant vacatur of the
district court’s findings of fact and conclusions of law,
including all Orders imposed. Such a remedy would be
commensurate with the gross ethical violations that
occurred in this case, and would more fully restore the
public’s confidence in the integrity and impartiality of the
judiciary. Only by developing a full record will the public
be assured that the judiciary has taken all reasonable
steps to determine the extent of, in this case, the district
and court of appeals judges ethical breaches, and to
fashion an appropriate remedy based on all the facts.
Secondly, this court should exercise its supervisory
powers over district courts. Ct. R. 10. See Robert L.
Stern et al, Supreme Court Practice 299 (5% ed. 1979).
The circumstances under which judges should be
disqualified from hearing cases, and the appropriate
remedy for their failing to do so, clearly fall within this
Court’s supervisory authority. Cf Young v. United States
ex rel, Vuitton et Fils S.A., 481 U.S. 787, 810 n. 21 (1987
(the Court’s exercise of supervisory authority is
“especially appropriate” in an area that “concerns the
functioning of the Judiciary”); id. (‘we have not hesitated
to find actual prejudice irrelevant when utilizing
supervisory authority.”) This reason justifying review is
interrelated with the other reasons. for what is at stake
a. 55
in this case is not just the proper interpretation of an
important statue, but the proper functioning of the federal
Judiciary — one of three branches of our government — and
the public’s confidence in it.
In Liljeberg, the Supreme Court held that a violation
of 28 U.S.C. § 455(a), far less egregious than the pattern
of misconduct engaged in by the district judge in this case,
required that a final judgment (which had been affirmed
on appeal) be vacated and the case retried. No
requirement of actual bias was imposed. See Lileberg,
486 U.S. at 867-68. The decisions in United States v.
Cooley, 1 F.3d (85 (10 Cir. 1993) and Preston v. United
States, 923 F. 2d 731 (& Cir. 1991) also support
Anderson’s position that disqualification of Judge Jones
as of October 24, 2008 is necessary to remedy the
appearance of partiality created by the district judge’s
Order.
In Preston, the Ninth Circuit disqualified a trial judge
pursuant to 28 U.S.C. § 455(a) because he previously had
been “of counsel” to a law firm that represented a non-
party with an interest in the litigation. Preston, 923 F.2d
at 732. Despite the absence of any claim of actual bias, see
id. at 734, the Ninth Circuit held that there was “no way .
. . to purge the perception of partiality in this case other
than to vacate the judgment and remand the case to the
district court for retrial by a different judge,” fd. at 936.
The Ninth Circuit reached that conclusion despite
acknowledging “that a retrial will involve considerable
additional expense, perhaps with the same result as the
first trial.” Jd.
The imposition of a requirement of actual bias...
presents a clear conflict on an important issue with direct
bearing on maintaining the integrity of the judicial
process.
Resulting in a decision not to vacate district court's
findings of fact and conclusions of law... knowing crimes
were committed against Anderson almost ensures the
de
public may reasonably question whether corrupt district
izdge Orders influenced corrupt...Court of Appeal’s
judgment, Order — not merely his judgments on the issue
of remedy, but this Court’s judgments generally—poses a
“risk of undermining the public's confidence in the judicial
process.” Liljeberg, 486 U.S. at 864. At a minimum, if is
this Court’s requirement of a showing of actual bias to
obtain disqualification under 28 U.S.C. § 455(a) presents
a substantial question that merits review by this Court.
“TAKE JUDICIAL NOTICE: Any judge who does not
comply with his /her oath to the Constitution wars
against our Constitution for the United States of America
and engages in acte in violation of the supreme law of the
land. The judge is engaged in acts of treason. The United
States Supreme Court has stated that “no state legislator
or executive or judicial officer can war against the
Constitution without violating his undertaking to support
it”. See also In Re Sawyer, 124 U.S. 200 (188); U.S. v.
Will, 449 U.S. 200, 216, 101 S. Ct. 471, 66 L. Ed. 2d 392,
406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264,
404, 5 L. Ed 257 (1821). Cooper v. O'Conner, 99 F2d 433.”
(See Exhibit AA — Appellant’s Motion for Reconsideration
— pages 18-19.)
Anderson has stated that “The sole issue is whether
United States Parole Commission had Article III judicial
authority to issue sentence.
Under our constitutional system, the right to impose
punishment provided by law is judicial. The limitation is
therefore of constitutional dimension, deriving from
Article III's grant to the court of power over ‘cases and
controversies’.” (See Exhibit --, page 1).
Neither the District Court nor the Court of Appeals
has addressed this most critical issue which is a
“substantial” question.
Court knows that honest rulings in this case will have
potentially huge financial consequences for the
government. Allowing the mandate to go forth when
a. 57
questions pertaining to fundamental integrity of
proceedings in the district court and court of appeals have
not been finally resolved subjects Anderson to the threat
of severe and unnecessary injury. It also subjects both the
federal judiciary and Anderson to costly and distracting
proceedings that may prove in the end to be of no avail.
Remand in this action will “require significant time
and attention”. The interests of the parties, the judiciary
and the public would best be served by affording
Anderson a full opportunity to seek review by this Court
before going forward. Books, 239 F.3d at 829. Anderson
is arguing issues which should be considered liberally,
and not held to the same standard as if presented by an
attorney even if the cases are off point.
Pro se litigants have a statutory right to self-
representation in civil matters and must be ensured of
meaningful access to the courts See Haines v. Kerner, ,
520-21 (1972) (Pro se leadings are held to less stringent
standards than those required of attorneys.) See Rand v.
Rowland, U.S. Court of Appeals for the # Cir. — August
27, 1998.
Order Summary judgment for Anderson and dismiss
governments case. Anderson presented evidence,
government none, on ground for dismissal for failure to
comply with Rule 56. Federal Rules of Civil Procedure
states that summary judgment must be granted when
there is no genuine issue of material fact that would affect
the outcome of the case. Impartiality can be reasonably
questioned due to judges omissions and acts in
proceedings, and engaging in procedural kidnapping via
refusing to rule on the merits of all claims and issues
presented by plaintiff, and in the covering up of wrongful
exercise of authority under 28 U.S.C. Section 1406 by
transferring case to the United States District Court for
the Western District of Tennessee, where no events had
taken place, in order to conceal repeated and flagrant
United States Constitutional violations and federal
a. 58
crimes. Judges of district court and court of appeals knew
this illegal transfer of case was based on fictional FBI-
created rap sheet (Exhibit G] designed to cover up federal
and state agents crimes. “If a district court offers no
reasons for its dismissal without leave to amend, as the
district court did here, we examine the correctness of that
decision by looking at the ‘five factors used to assess the
propriety of motion for leave to amend: (1) bad faith; (2)
undue delay; (3) prejudice to the opposing party; (4)
futility of amendment; and (5) whether plaintiff has
previously amended his complaint... Futility of
amendment, the most relevant factor here, frequently
means that “it was not factually possible for [plaintiff] to
amend the complaint so as to satisfy the standing
requirement. Allen v. City of Beverly Hills, 911 F. 2d 367,
373 (F* Cir. 1990). “Dismissal without leave to amend is
improper unless it is clear, upon de novo review, that the
complaint could not be saved by any amendment.” Chang
v. Chen, 80 F. 3d 1298, 1296, 1301 (9 Cir. 1996).
Habeas corpus via 2241 is appropriate where United
States Parole Commission knowingly and _ willingly
covered up organized government crime and illegally and
unconstitutionally imposed sentence. Anderson attacks
the execution of sentence by United States Parole
Commission and only cognizable under 28 U.S.C. Section
2241. (See Exhibit D ~ Exhibit 1 — page 3-4.) “A federal
prisoner who is attacking a parole decision must file a
habeas petition under 28 U.S.C. Sec. 2241.” Srown v.
United States, 610 F. 2d 672, 677 (@ Cir. 1980).
CONCLUSION -— “Plaintiffs filings are not frivolous.
It has been shown that this court has jurisdiction to
require Government to respond to Plaintiffs motion.
Equitable remedies that the court can provide in habeas
cases include an order freeing a plaintiff from penalties
resulting from conviction that persists beyond the end of
detention.
a. 59
This Court should be deeply troubled by the
allegations raised in the habeas petition and various
subsequent filings regarding the level of U.S. Parole
Commission and FBI control over plaintiffs arrests,
convictions, appeals, and confinement. These facts are
alleged in a habeas petition and later statement of fact
and affidavits that have all been verified as true and
correct by petitioners under penalty of perjury.
This Court cannot simply ignore plaintiffs alleged
facts and find that it lacks jurisdiction without any
response to these troubling fact by defendants. In /dema
v. Hice..., respondents invited the Court to seek further
information from defendants regarding the facts in the
case... Government (defendants) demanded that this
matter be tried by motion. And the Court, in concert with
defendants, has compelled Anderson to answer
Governments motion for summary judgment.
Accordingly, the defendants shall respond to plaintiffs
factual allegations and show cause why this Court should
not grant summary judgment...and grant writ of habeas
corpus to Plaintiff.” (See Exhibit D, Exhibit 1 — page 64-
65).
Subsequently court ordered government to respond
according to Rule 56, but government failed to present
any evidence in response to Anderson affidavit claim that
district court had jurisdiction nor to any other evidence
presented.
Purpose of a motion for summary judgment is to head
off a full-scale trial by conducting a trial in miniature, on
affidavits, so that not submitting affidavits is the
equivalent of not presenting any evidence at trial. Rand v.
Rowland, U.S. Court of Appeals for the % Cir. ~ August
27, 1998.
Government never submitted any affidavits with its
motions; therefore, never presented any evidence at trial.”
(See Exhibit D, Exhibit 1 — page 62).
a. 60
When a motion for summary judgment is properly
made and supported, an opposing party may not rely
merely on allegations or denials in its own pleading:
rather its response must, by affidavits or other
documents, set out specific facts showing a genuine issue.
If the opposing party does not so respond, summary
judgment is appropriate, and should be entered against
that party.
Based on the foregoing and attached exhibits,
Appellant moves the Court to combine Appeals Court
cases 09-16311 and 08-17603, order summary judgment
and order maximum relief requested in motions.
Government has shown no evidence opposing summary
judgment, and judges’ failure to address all issues raised
in Anderson’s appeals indicates bias and that they have
waived and conceded all arguments raised by Anderson.
Relief sought can be found in Exhibit D, pages 18
through 20.
DATED: December 9, 2009
Respectfully submitted,
s/ Don Benny Anderson
Don Benny Anderson
a. 61
CERTIFICATE OF SERVICE
[, Don Benny Anderson, do swear or declare that on
this 9tb day of December, 2009, I have served this
APPELLANTS MOTION FOR STATE OF THE
MANDATE PENDING, Rule 35, En Banc Determination,
pursunt to 41 (a)} PETITION FOR REHEARING £N
BANC PURSUANT TO RULE 41(a), along with the
following exhibits:
Exhibit AAA — EMERGENCY MOTION
UNDER 9TH CIR. R. 27-3
Exhibit AA — APPELLANT’S MOTION TO
RECONSIDER
Exhibit A- Order, filed July 29, 2009
Exhibit B- Order Denying and Dismissing
Habeas Petition — District Court,
Western District of Tennessee
Exhibit C- DON BENNY ANDERSON'’S “REPLY
TO RESPONSE’ TO RESPONDENT —
APPELLEE’S RESPONSE TO
APPELLANT'S MOTION FOR
CONSOLIDATION AND
J UDGMENT/ORDER AND TO STAY
BRIEFING SCHEDULE DURING
PENDENCY OF MOTION
Exhibit D- APPELLANT’S MOTION FOR
CONSOLIDATION AND
JUDGMENT/ORDER AND TO STAY
BRIEFING SCHEDULE DURING
PENDENCY OF MOTION
Exhibit 1- PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT AND
MOTION TO DISMISS
GOVERNMENT'S MOTION
a. 62
Exhibit E- APPELLANTS
INFORMAL BRIEF
Exhibit F- MANDATE, filed October
26, 2009
Exhibit G- Convicted Persons
Questionnaire — Las Vegas
Metropolitan Police
on the following parties to proceeding, by depositing it is
an parcel containing the above document properly
addressed and with first class postage prepaid.
The name and address of parties served is as
follows:
Clerk, U.S. Court of Appeals For The Ninth Circuit
P.O. Box 193939
San Francisco, California 94119-3939
United States Attorney
333 Las Vegas Blvd. S. #5000
Las Vegas, NV 89101
Signed pursuant to Title 28 U.S.C. Section 1746.
s/ Don Benny Anderson
Don Benny Anderson
2500 Moultrie Avenue
P. O. Box 1156
Mattoon, Illinois 61938-1156
217-246-4999
a. 63
No. 09-16311
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMERGENCY MOTION UNDER 9TH CIR. R. 27-3
DON BENNY ANDERSON, )
)
Petitioner-Appellant, )
) DC No. 2:08-cv-01256-
v. ) RCJ-LRL
) DISTRICT OF NEVADA,
UNITED STATES PAROLE ) LAS VEGAS
COMMISSION, )
)
Respondent-Appellee, )
)
EMERGENCY MOTION UNDER 94% Cif. RB. 27-3
CASE’ NO. 09-16311 FOR RD.
Notice to court! Moving party gives notice APPELLANT'S
INFORMAL
BRIEF is unopposed by Respondent-Appellee. (9t* Cir. R.
27 (Eff. 01/1999)
DON BENNY ANDERSON
Petitioner-Appellant
DON BENNY ANDERSON
2500 Moultrie Avenue
P. O. Box 1166
Mattoon, IL 61938-1156
217-246-4999
a. 64
Don Benny Anderson v. United States Parole Commission
No. 09-16311
9t Cir. R. 27-3 Certificate
Movant Don Benny Anderson certifies that, to
avoid irreparable harm, relief is needed in less than 21
days, pursuant to Title 18 Section 1621 and Title 28
U.S.C. Section 1746.
Telephone Numbers and Office Addresses Of
Attorneys:
Counsel for appellants:
Don Benny Anderson Mailing Address:
Tel: (217) 246-4999
Pro Se Don Benny Anderson
2500 Moultrie Avenue
P. O. Box 1156
Mattoon, IL 61938-1156
Counsel for appellee:
Robert L. Ellman Robert L. Ellman
Tel: (702) 388-6546 Appellate Chief and
Assistant U.S. Attorney
333 Las Vegas Blvd., S.
Suite 5000
Las Vegas, Nevada 89101
When and how counsel for the other parties were notified:
(1) Before filing of this motion, movant has made ever
practicable effort to notify the Clerk and opposing
counsel, and to serve the motion, at the earliest
possible time.
(2) Motion is being filed with the Clerk in San
Francisco and the opposing counsel in Las Vegas by
telephone on Thursday, September 10, 2009, and
by overnight delivery of the documents by priority
mail on Thursday, September 10, 2009.
a. 65
Facts showing the existence and nature of the claimed
emergency:
Notice to court! Moving party gives notice APPELLANT'S
INFORMAL BRIEF is unopposed by Respondent-
Appellee. (9 Cir. R. 27 (Eff. 01/1999)
The following facts, are based on federal and state
agents violation the Supreme Law: Constitution for the
United States of America, violation of the laws of the land
facts found in Exhibit AA - APPELLANTS MOTION TO
RECONSIDER ORDER, Exhibit A —- ORDER, filed July
29, 2009-U.S. Court of Appeals, Exhibit B — ORDER
DENYING AND DISMISSING HABEAS PETITION,
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD
FAITH, AND ORDER RESTRICTING’ FILING
PRIVILEGES IN THIS DISTRICT-U.S. DISTRICT
COURT FOR THE WESTERN DISTRICT OF
TENNESSEE WESTERN DIVISION, Exhibit C —DON
BENNY ANDERSON’S “REPLY TO RESPONDENT TO
RESPONDENT — Filed June 9, 2009, Exhibit D —
APPELLANTS MOTION FOR CONSOLIDATION AND
JUDGMENT/ORDER AND TO STAY BRIEFING
SCHEDULE DURING PENDENCY OF MOTION
includes EXHIBIT 1 -— ORIGINAL MOTION FOR
SUMMARY JUDGMENT AND TO DISMISS (Note:
Respondent is correctly identified as United States Parole
Commission), and Exhibit E - APPELLANTS
INFORMAL BRIEF show the existence and nature of the
claimed emergency.
1. Fact - Since the Respondent-Appellee has not refuted
any claims or issues, writ of habeas corpus should be
granted immediately.
. Fact — Anderson’s ORIGINAL MOTION FOR
SUMMARY JUDGEMENT AND TO DISMISS (Note:
Respondent is correctly identified as United States
Parole Commission), (See Exhibit D, Exhibit 1, page
1);
. Fact - PETITIONER-PLAINTIFFS REBUTTAL TO
GOVERNMENTS DELIBERATELY COMBINED
MOTION TO DISMISS NOS. 2:08-cv-01256-JCM-LRL,
2:08-cv-01486-RCJ-PAL, 2:08-cv-01501-KJD-GWF,
2:08-cv-01514-JCM-GWF PETITIONS FOR WRIT OF
HABEAS CORPUS, AND TO PROHIBIT
PETITIONER FROM FILING ANY FURTHER
PETITIONS FOR HABEAS CORPUS IN THE
DISTRICT OF NEVADA AND PLAINTIFFS
MOTION FOR SUMMARY JUDGMENT AND
MOTION TO DISMISS WAS TIMELY SENT- CLERK
RETURNED IT STATING “YOU MUST HAVE AN
ORIGINAL MOTION FOR EACH CASE YOU HAVE.”
(See Exhibit D, Exhibit 1, page 1);
. Fact - the clerk of the court instructed Anderson to
amend his motion. (See Exhibit D, Exhibit 1, page 1);
. Fact - Anderson, in compliance with the clerk’s
directive, filed ORIGINAL MOTION FOR SUMMARY
JUDGMENT AND TO DISMISS NO: 2:08-cv-01256-
JCM-LRL. (See Exhibit D, Exhibit 1, page 1);
. Fact — A party may amend its pleading once within 20
days after a responsive pleading has been served, or if
that period has passed, then by leave of the court or by
consent of the other party. Fed R. Civ. P. 15(a). Courts
may freely grant leave when justice so requires, and
public policy strongly encourages courts to permit
amendments. Fed. R. Civ. P. 15(a); Outdoor Sys., Inc.
v. City of Mesa, 997 F.2d 604, 614 (9% Cir. 1993). The
policy of allowing amendments “is to be applied with
extreme liberality.” Owens v. Kaiser Found. Health
Plan, Inc., 244 F.3d 708, 712 (9% Cir. 2001). (See
Waldrip v. Hall);
. Court’s Clerk granted Anderson leave to amend. (See
number #3 above.)
. Fact — Anderson filed PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT AND MOTION TO
a. 67
DISMISS GOVERNMENT’S MOTION. (See Exhibit D,
Exhibit 1,
page 1);
9. Fact — Anderson in Affidavit at page 2 (#6)
“Affiant/Plaintiff is serving a United States Parole
Commission sentence;” page 3 (#7) “Therefore,
Respondent is the United States Parole Commission ;”
(See Exhibit D, Exhibit 1, pages 2 and 3);
10. Fact - Gregory A. Brower, United States Attorney and
Robert L. Ellman, Appellate Chief and Assistant U.S.
Attorney, Counsel for Appellee, - fraudulently claim
that the Respondent is the Federal Bureau of
Investigation and fatal to jurisdiction of district court.
This issue must be resolved immediately so that
Anderson can obtain relief. (See Exhibit D, Exhibit 1,
pages 60 - 63) and see the following:
“I. Petitioner's decision to treat the FBI as his
“warden” by naming the FBI as respondent is also
fatal to jurisdiction.” (See page 3 of Government’s
motion).
Response made by Affidavit: “Anderson
never claimed to be in the custody of the FBI.
Since Anderson claimed that he was in custody
and filed a PETITION FOR A WRIT OF
HABEAS CORPUS PURSUANT TO 28 U.S.C.
2241 by a person in custody, Government
should have looked to the facts of the case to
determine who the Respondent would truly be.
Ground 1 in Petitioner's PETITION FOR A
WRIT OF HABEAS CORPUS clearly reveals
that U.S. Parole Commission would be the
Respondent because they claim they have
jurisdiction over Anderson and as result he had
to report to Las Vegas Metropolitan Police and
make reports to Parole Officer. Respondent
argues that he is in the actual custody and
a. 68
control of the U.S. Parole Commission.
There exists a genuine issue necessary to be
litigated because of the fraudulent claim
above.
J. “Because the petitioner in Padilla filed his petition
in a different district that of his actual “warden,”
the Court held that the district court lacked
jurisdiction to hear it. Jd” (See page 3 of
Government's motion).
Response made by Affidavit: “Anderson does
not claim to be confined with a warden.
Anderson relies on Jdema v. Rice, 478 £Supp.2d
47 (D.D.C 2007) This Court has jurisdiction to
hear this Writ. The issue is relevant and there
exists a genuine issue necessary to be og
Prohibited _See page 3 of Gocamuaania pont
“As demonstrated above, plain defects in
jurisdiction and venue make clear that no post-
conviction relief petition filed by Petitioner is this
district can ever progress to an adjudication on the
merits.” (See page 3 of Government’s motion).
Response made by Affidavit: “At the time
original writ of habeas corpus was filed in this
court, Don Benny Anderson was residing with
Kay Dahlgren at 8724 Litchfield Ave., Las
Vegas, NV 89134, with intentions of
establishing a permanent residence there and
opening a business. This court had jurisdiction
because the Convicted Persons Questionnaire
(See Exhibit C), was presented for signature
when registering with Las Vegas Metropolitan
Police, since he was on parole, and because the
court had not yet ruled on Case 2:08-cv-01239-
RCL-LRL. Petitioner would still be residing in
Las Vegas if he had not been forced to return to
a. 69
Illinois, and plans to live in Nevada with Ms.
Dahlgren and establish a gun sales business, as
plainly stated in all petitions. Anderson
requested an immediately decision in order to
remain in Nevada so that he would not be
compelled to return to Illinois.
Because Affiant, who is currently serving a
sentence that was enhanced on the basis of a
prior conviction is still in custody, he may
challenge the enhancing conviction § as
constitutionally invalid even though the prior
conviction’s original custodial term has expired:
Affiant can collaterally attack the validity of
a previous conviction used to enhance United
States Parole Commission sentence obtained in
violation of right to self-representation or right
to counsel;
Court cannot grant summary judgment for
Governments motions because summary
judgment is improper where the slightest doubt
remains about the facts. See Rand v. Rowland,
U.S. Court of Appeals for the 9% Cir. — August
27, 1998;
Purpose of a motion for summary judgment
is to head off a full-scale trial conducting a
trial in miniature, on affidavits, so that not
submitting affidavits is the equivalent of not
presenting any evidence at trial. See Rand v
Rowland, U.S. Court of Appeals for the 9% Cir. —
August 27, 1998;
Government never submitted any affidavits
with its motions; therefore, never presented any
evidence at trial;
Plaintiff disagrees with this statement.
There exists a genuine issue necessary to be
a. 70
litigated. (See Exhibit D, Exhibit 1, pages 60 -
63);
11. Fact - Affiiant respectfully moved the court to dismiss
Government's motions and for summary judgment in
all of his following cases mentioned herein in his favor.
(See Exhibit D, Exhibit 1, page 2);
12.Fact - Affiant seeking summary judgment bears the
initial responsibility of informing the Court of the
basis of his motion, and identifying those portions of
pleadings on file, together with the affidavits, which
Plaintiff has done herein within Affidavit that he
believes demonstrates the “absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett, 477 U.S.
325 (1986) (quoting Fed. R. Civ. P. 56 (c)) (See Exhibit
D, Exhibit 1, page 5);
13.Fact - Respondent is being informed of its right to file
counter-affidavits or other
responsive evidentiary materials and failure to do so
might result in summary judgment against
respondent; (Exhibit D, Exhibit 1, page 5);
14. Fact - If the record taken as a whole could not lead a
rational trier of fact to find for the
nonmoving party, there is no ‘genuine issue for trial.’
(Exhibit D, Exhibit 1, page 5);
15.Fact - A party opposing a motion for summary
judgment shall file a concise statement,
and the source thereof in the record, of all material
facts as to which there is a genuine issue precluding
summary judgment (Exhibit D, Exhibit 1, page 5);
16.Fact - Respondent has failed to file an appropriate
answer or motion together with transcripts of all
federal and state court proceedings, including federal
and state prosecutors records and prosecutors notes,
grand jury transcripts, appeal records and transcripts
and totality of federal and state court records and
investigative reports (Exhibit D, Exhibit 1, page 3);
a. 7]
17.Fact - Court cannot grant summary judgment for
Government’s motions because summary judgment is
improper where the slightest doubt remains about the
facts. See Rand v. Rowland, U.S.
Court of Appeals for the 9» Cir. — August 27, 1998
(Exhibit D, Exhibit 1, page 5);
18. Fact - Purpose of a motion for summary judgment is to
head off a full-scale trial by
conducting a trial in miniature, or affidavits, so that
not submitting affidavits is
the equivalent of not presenting any evidence at trial.
See Rand v Rowland, U.S.
Court of Appeals for the 9% Cir. — August 27, 1998
(Exhibit D, Exhibit 1, page 5);
19.Fact - Government never submitted any affidavits
with its motions; therefore, never presented any
evidence at trial (Exhibit D, Exhibit 1, page 6);
20.Fact - Don Benny Anderson is constitutionally,
statutorily, legally, factually and actually innocent of
all federal and state charges as alleged in the charging
instruments (Exhibit D, Exhibit 1, page 49, #37);
21.Fact — No Federal or state prosecutor can give
Anderson full discovery of all federal and state records
because nationwide conspirators will not expose a
national conspiracy to frame him on bogus offenses
(Exhibit D, Exhibit 1, page 48, #29);
22.Fact — No evidentiary hearing can be held with any
prosecutor presenting proof beyond a reasonable doubt
every fact that constitutes the offense charged (Exhibit
D, Exhibit 1, page 48. #30);
23.Fact — Anderson was convicted for non-offenses and
illegally sentenced and imprisoned. (Exhibit D,
Exhibit 1, page 48. #31);
24.Fact - Petitioner wanted to stay in Nevada and open a
business but was forced to return to Illinois. He wishes
a. 72
to return to Nevada immediately to continue with his
plans for establishing a business.
25. Fact - In this case one of the issues is whether United
States Parole Commission had Article III judicial
authority to issue sentence. This question must be
answered immediately by this court before Anderson’s
liberty can be restored.
26. Fact - In DC No. 2:08-cv-01256-JCM-LRL, petitioner
was required to register with Las Vegas Metropolitan
Police because on parole on Sept. 18, 2008. While
Anderson remains on parole, he is unable to establish
his business in Nevada;
27.Fact - petitioner's travel is restricted and he was
required to return to Illinois after a week. Anderson
wishes to establish a permanent residence in Nevada
and cannot do so due to travel restrictions.
28. Fact - petitioner is unable to establish a residence and
gun sales business in Nevada. This cannot be
accomplished unless this court immediately grants
relief requested;
29. Fact - petitioner is required to report to Parole Officer
when contacted by any law enforcement, when
changing employment or other causes as well as
reporting monthly. The 13% Amendment requires that
there will be no involuntary servitude unless duly
convicted;
30. Fact - petitioner cannot possess firearms. As a result,
Anderson is being denied his Second Amendment right
to bear arms or to open his gun sales business;
31. Fact - petitioner cannot have any contact with other
convicted felons and must report same, should it occur.
Anderson also wishes to run for Public Office
immediately and is unable to do so as long as
convictions remain on his record. These are denials of
Anderson’s First Amendment right of association,
freedom of speech, freedom of assembly, and freedom
of religion.
32.Fact - Anderson may suffer another possible false
arrest, conviction and sentence in the future on
fictional charges as in this case at bar which has been
used against him by kidnapping conspirators in
United States District Courts, United States Courts of
Appeals and United States Parole Commission:
33.Fact - Anderson has already suffered consequences in
that Government has created false convictions in
absentia while he was already incarcerated;
34. Fact - Anderson was coerced by Bureau of Prisons and
the U.S. Parole Commission to sign parole papers;
35. Fact - Anderson is not legally on federal parole since
only a lawful Article III court with judicial authority
can issue sentence;
36.Fact - Under our constitutional system, the right to
impose punishment provided by law is judicial;
37. Fact - No court ever ordered probation or other
conditions nor delegated that authority.
38. Fact - Under the United States Constitution, only a
sentencing court having lawful Article III]’s judicial
authority; having been invested under the
Constitution with power over “cases and controversies”
can impose sentence. Bureau of Prisons or United
States Parole Commission agents have no authority to
sentence an offender to parole;
39.Fact - One, the original Constitution was entirely a
statement of government's duties;
40.Fact - Two, A “Constitutional Guarantee” implies a
governmental duty — even if the duty is otherwise
unspecified in the Constitution:
41.Fact - Three, Government is mandated to perform its
clearly-mandated duties;
42.Fact - Four, There is no constitutional power which
allows government to waive its duties;
a. 74
43.Fact - Five, Constitutional duties cannot be waived
because they are not principally obligations of
individual defendants or citizens;
44.Fact - Six, Government agents’ obligation is to
government's true boss: WE THE PEOPLE, ALL
THREE HUNDRED MISSION OF US;
45.Fact - Seven, The only way government can “waive” a
constitutional duty owed to 300 million Americans is
by persuading two-thirds of Congress and three-
quarters of the fifty States to agree to lawfully amend
the Constitution to revoke or modify that duty. See
United States Constitution Article V;
46.Fact - Eight, As a matter of fact, the waiver of a
constitutionally-mandated governmental duty
constitutes an amendment to the Constitution and
cannot be lawfully implemented by any mere
individual defendant, prosecutor or judge or any
combination of them according to the Supreme Law:
Constitution for the United States of America;
47.Fact - The Government provided no affidavits and
authorities in its so-called Government’s Response in
Opposition to Motion For Summary Judgment, sent to
the Affiant on December 23, 2008;
48.Fact - Writ of habeas corpus may be granted where
Affiant is in custody in violation of the Constitution or
lawe or treaties of the United States. Title 28 U.S.C.
Section 2241(c) (3);
49.Fact - Anderson’s petition seeking habeas corpus relief
i8 appropriate under 28 U.S.C. Section 2241 because
he is challenging the fact or duration of his
confinement/custody or restraint;
50.Fact - Title 28 U.S.C. Section 2241 is appropriately
being used to _ challenge’ circumstances of
confinement/custody or restriction to Central District
of Illinois and restraint of liberty;
a. 75
51.Fact - Respondent has failed to file an appropriate
answer or motion together with transcripts of all
federal and state court proceedings, including federal
and state prosecutors records and prosecutors notes,
grand jury transcripts, appeal records and transcripts,
and totality of federal and state court records and
agents notes and agencies records and investigate
reports (See EXHIBIT 1);
52.Fact - Respondent has failed to make a return
certifying the true cause of detention as mandated by
Title 28 Section 2243.
53. Fact - Because Anderson, who is currently serving a
parole sentence that was enhanced on the basis of a
prior conviction, is still in custody, he may chailenge
the enhancing conviction as constitutionally invalid
even though the prior conviction’s original custodial
term has expired;
54. Fact — Anderson can collaterally attack the validity of
a previous conviction used to enhance United States
Parole Commission sentence obtained in violation of
the right to self-representation or right to counse];
56.Fact - Anderson is entitled to collateral review of final
judgments of federal and state courts because he has
made a showing of actual harm that he seeks to avoid
resulting from those judgments. Lane v. Williams,
456 U.S. 624 (1982).
56.Anderson is being affected and has a reasonable
expectation that he will again be affected by
judgments and sentences imposed in the complete
absence of all jurisdiction:
57. Fact - All federal and state counsels failed to prevent
continuing collateral consequences and concrete and
continuing injury from conviction, with above civil
disabilities imposed by operation of law-imposed by
federal or state law:
a. 76
58.Fact - Anderson was informed about other trials and
convictions when required to register with Las Vegas
Metropolitan Police on Sept. 18, 2008;
59.Fact - New conviction created in FBI rap sheet in
Memphis, TN in 1987, creating a trial in absentia,
while Anderson was in prison for fictional federal
crimes, offense: Explosive Property Destruction,
sentence 42 years; [The 42-year sentence in this trial
equals the 12-year sentence imposed in Virginia, and
the 30-year sentence in Alton, IL, both following
Anderson’s arrests in 1982 and with no proof of
jurisdiction in either... Coincidence or conspiracy?
Also the 17-year parole until 2024, following 25 years
served equals the same 42 years total.]
60. Fact - Piper v. Pearson, 2 Gray 120, cited in Bradley v.
Fisher, 13 Wall. 336, 20 L.E-d.646 (1872) “Where there
ig no jurisdiction, there can be no discretion, for
discretion is incident to jurisdiction.”
61.Fact - Basso v. UPL, 495 F. 2d 906; Brook v. Yawkey,
415 U.S. 528 Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S.
328, 340 (1828) Under federal Law, which is
applicable to all states, the U.S. Supreme Court stated
that ‘if a court is without authority, its judgments and
orders are regarded as nullities. They are not
voidable, but simply void, and form no bar to a
recovery sought, even prior to a reversal in opposition
to them. They constitute no justification and all
persons concerned in executing such judgments or
sentences are considered, in law, as trespassers.”
62.Fact - Gregory A. Brower, United States Attorney and
Robert L. Ellman, Appellate Chief and Assistant U.S.
Attorney, Counsel for Appellee, have failed to address
issues raised by Affiant in APPELLANT’S INFORMAL
BRIEF, Case No. 08-17603 and Case No. 09°16311;
63.Fact - In ORIGINAL MOTION FOR SUMMARY
JUDGMENT AND TO DISMISS No. 2:08-cv-01256-
a. 77
JCM-LRL, Don Benny Anderson shows that he is
factually and actually innocent of all Federal and
State crimes;
64. Fact - The U.S. Parole Commission acted in complete
absence of all jurisdiction in sentencing Anderson;
65.Fact - District Court abused power by not ruling on
issues and not granting relief;
66. Fact - Judicial bias by Court has denied Don Benny
Anderson benefits, privileges and rights guaranteed by
law;
67.Fact - Abuse of Power - U.S. Parole Commission
agents and other government agents have illegally and
unconstitutionally made petitioner subject to their
fictional jurisdiction;
68.Fact - In ORIGINAL MOTION FOR SUMMARY
JUDGMENT AND TO DISMISS, No. 2:08-cv-01256-
JCM-LRL, Parole Commission conceded that they
knowingly and willingly covered up organized
government crime and illegally and unconstitutionally
imposed sentence, since they did not challenge any
issues raised point by point.
69. Fact - Habeas corpus via 2241 is appropriate where
United States Parole Commission knowingly and
willingly covered up organized government crime and
illegally and unconstitutionally imposed sentence;
70.Fact - Anderson had an absolute right to be
represented by counsel in all federal and state cases
from conviction on appeal;
71. Fact - The Sixth Amendment right to the effective
assistance of trial counsel has been extended to
guarantee the effective assistance of counsel on the
appeal by right;
72. Fact - Anderson was denied effective assistance of
counsel in all federal and state case and including
appeal (See EXHIBIT D, EXHIBIT 1);
73.Fact - Anderson was IN WANT OF EFFECTIVE
ASSISTANCE OF COUNSEL AT ALL TRIALS AND
ON APPEAL, in violation of his Sixth Amendment
rights;
74. Fact - Anderson never knowingly, willingly and
intelligently waived his constitutional rights;
75. Fact - Anderson is entitled to summary judgment
where the documentary evidence produced by the
parties permits only one conclusion. Anderson v.
Liberty Lobby, In., , 261-62 (1986);
76.Fact - Anderson seeking summary judgment bears the
initial responsibility of informing the Court of the
basis of his motion, and identifying those portions of
pleadings on file, together with the affidavits, which
Anderson has done in Affidavits that he believes
demonstrates the “absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 325
(1986) (quoting Fed. R. Civ. P. 56 (c)) (See EXHIBIT
1);
77.Fact ~ Government never submitted any affidavits
with its motions; therefore, never presented any
evidence at trial;
78.Fact — Pro se litigants have a statutory right to self-
representation in civil matters and must be ensured of
meaningful access to the courts; consequently, we
tolerate informalities from civil pro se litigants. See
Haines v. Kerner, ,520-21 (1972) (Pro se pleadings are
held to less stringent standards than those prepared
by attorneys.) See Rand v. Rowland, U.S. Court of
Appeals for the 9% Circ. ~ August 27, 1998;
79. Fact — Courts have a general duty “to ensure that pro
se litigants do not lose their right to a hearing on the
merits of their claim due to ignorance of technical
procedural requirements” and “develop other
procedural protections for pro se litigants”. See Rand
a. 79
v. Rowland, U.S. Court of Appeals for the 9 Circ. —
August 27, 1998;
80. Fact — With criminal intent, Court and United States
Attorney conspirators have designed ways for this pro
se litigant and others to lose meritorious cases at every
stage of Court's proceedings including requiring
special paperwork “procedural booby traps”.
81. Fact — Due to paperwork that Court required
Affiant/Petitioner/Plaintiff to use, Government was
able to issue boilerplated motions with irrelevant
misleading claims allowing Courts to rule that the
Court had no jurisdiction.
82. Fact — Respondent, party opposing a motion for
judgment, failed to file a concise statement, and the
source thereof in the record, of all material facts as to
which there is a genuine issue precluding judgment.
In Moore v. Czerniak, Court of Appeals No. 04-
15713 (2009), petitions for rehearing and rehearing
en banc, it was observed that a federal appellate
court “lacks the factfinding and record-developing
capabilities of a federal district court”. They simply
decline to base decisions on arguments and theories
that the state has never offered, and which it has
therefore forfeited. In Moore, it was stated thai “It
would work great prejudice to the petitioner were
we to affirm the denial of his habeas petition on the
basis of such speculative arguments and assertions
offered for the first time by a member of this
court—arguments and assertions to which Moore
has had no occasion, opportunity, or reason to
respond. Without any indication from the state as
to what evidence it may have possessed and why
that evidence may have rendered counsel’s failure
to suppress..., it is simply impossible for a
petitioner to respond to the states ‘evidence’ or
‘arguments’.”
a. 80
“Not only did the state forfeit any such
contentions by not raising them on appeal, but it
first forfeited these theories in federal court by
failing to raise them in the district court.” See
Singleton v. Wulff, 428 U.S. 106, 120 (1976)
“The decision to consider an issue not raised
below is discretionary, and such an issue should not
be decided if it would prejudice the other party.”
The Supreme Court has explained that this
forfeiture rule “is essential in order that parties
may have the opportunity to offer all the evidence
they believe relevant to the issues which the trial
tribunal is alone competent to decide” and that “it
is equally essential in order that litigants may not
be surprised on appeal by final decision there of
issues upon which they have had no opportunity to
introduce evidence.” Hormel v. Helvering, 312 U.S.
552, 556 (1941).
Continuing in their opinion re: Moore, the court
cited In Stuard v. Stewart, 401 F. 3d 1064 (& Cir.
2005), “we squarely rejected the notion that this
court could create arguments for the state that it
did not raise on appeal.” They also held that “we
are not going to construct an argument for the state
sua sponte, depriving [the defendant’s] counsel of a
fair chance to respond to it”. “We apply that rule
with some vigor against criminal defendants; we
should be no less vigorous in applying it against the
government.” United States v. Ziegler, 497 F.3d
890, 901 (+ Cir. 2007)
83.Fact — Respondent has conceded, waived response,
thereby admitting all Affidavit/ Declarations are
correct and stand for Truth and Fact.: Fact —
Anderson is victim of political kidnappings and was
kidnapped in violation of Title 18 Section 1201; Fact —
Anderson is a victim of domestic terrorism in violation
a. 8}
of Title 18 Section 2331; Fact — Anderson was/is in
forced labor in violation of Title 18 Section 1589; Fact
— Anderson was/is in involuntary servitude in violation
of Title 18 Section 1584; Fact — Anderson was/is a
victim in respect of peonage, slavery involuntary
servitude, of forced labor in violation of Title 18
Section 1590; Fact — Anderson is a victim of a
conspiracy against rights in violation of Title 18
Section 241; Fact — Anderson is a victim of
deprivation of rights under color of law in violation of
Title 18 Section 242.
84.Fact — Anderson has charged and proved through
matter-of-fact evidence and affidavits presented that
he has been a victim of systematically established,
secret, cruel, abusive and unlawful practice of federal
and state organized crime and that lawyers have
fostered the unlawful and aggressive criminal
practices.
85.Fact — Anderson’s judgments, convictions, sentences,
custody or restraint are in violation of
the Supreme Law: Constitution for the United States
of America:
ituti for the United f i °
Preamble
We the People of the United States, in Order to
form a more perfect Union, establish Justice, insure
domestic Tranquility, provide for the common
defence, promote the general Welfare, and secure
the Blessings of Liberty to ourselves and our
Posterity, do ordain and establish this Constitution
— the United States * America.
onan of the Writ a Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it.
a. 82
Article III, Section 2, Clause 3 - The trial of all
crimes, except in cases of impeachment, shall be by
jury, and such trial shall be held in the State where
the said crimes shall have been committed.
Article V - The Congress whenever two thirds of
both Houses shall deem it necessary, shall propose
Amendments to this Constitution, or, on the
Application of the Legislatures of two thirds of the
several States, shall call a Convention for
proposing Amendments, which, in either Case,
shall be valid to all Intents and Purposes, as Part of
this Constitution, when ratified b y _ the
Legislatures of three fourths of the several States
or by Conventions in three fourths thereof, as the
one or the other Mode of Ratification may be
proposed by the Congress...
First Amendment ~ Congress shall make no law
respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
Second Amendment-—Being necessary to the
security of a free State, the right of the People to
keep and bear Arms, shall not be infringed.
Fourth Amendment — The right of the people to be
secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.
Fifth Amendment —No person shall be held to
answer for any capital, or otherwise infamous
crime, unless on a presentment or indictment of a
a. 83
Grand Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall
any person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall
private property be taken for public use, without
just compensation.
Sixth Amendment -In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district
where in the crime shall have been committed,
which district shall have been previously
ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to
have the Assistance of Counsel for his defense.
Eighth Amendment - Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.
Ninth Amendment- The enumeration in the
Constitution, of certain rights, shall not be
construed to deny or disparage others retained by
the people.
Tenth Amendment - The powers not delegated to
the United States by the Constitution, nor
prohibited by it to the States, are reserved to the
States respectively, or to the people.
Thirteenth Amendment~- Neither slavery nor
involuntary servitude, except as a punishment for
crime whereof the party shall have been duly
a. 84
convicted, shall exist within the United States, or
any place subject to their jurisdiction.
Fourteenth Amendment ~- Citizen rights not to be
abridged - All persons born or naturalized in the
United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty,
or property, without due process of law; nor to deny
to any person within its jurisdiction the equal
protection of the laws.
RELIEF SOUGHT:
Anderson has proven that he has been victimized by
organized predominantly criminal enterprise, and is
entitled to receive compensation as the result of a
sustained pattern of unlawful activities, fraud, breach of
fiduciary duties, breach of assumed duties, inflictions of
emotional distress, invasion of privacy and criminal
conspiracies which arise from the unconscionable conduct
of bar association members and fellow conspirators to
cover up illegal and unconstitutional practices. The
crimes mentioned are so outrageously offensive that they
amount to predatory premeditated criminal acts,
violations of due process, and violations of constitutional
rights. (See Fifth Amendment ~ Just compensation; Title
28 Section 2243 “as law and justice require).
The Supreme Court has instructed and reviewing
court is required to undertake a “searching and careful”
review of the facts. Anderson respectfully submits that
the “searching and careful” review that the Supreme
Court requires has never been performed in this case.
The Court is urged to examine the facts of the case with a
careful and critical eye, including the statements and
a. 85
affidavits of Anderson. Such a review will show that
government's position is completely unsupported by the
evidence presented. (See Exhibit AA, page 14).
Wherefore, Anderson prays this court, based on
foregoing and following, to grant relief. Relief sought in
this motion was available in the district court, and
grounds advanced in this court were submitted, but the
district court has failed to provide the requested relief.
JUDICIAL NOTICE: Therefore, this court should sua
sponte, on its own motion, not remand or deny this
motion, but use its supervisory power to address all issues
herein and in attached exhibits, even if not raised in
district court. “Guided by considerations of justice, a court
may exercise its supervisory powers as necessary to
preserve judicial integrity and deter illegal conduct.”
United States v. Simpson, 927 F. 2d 1088, 1090 (9 Cir.
199V).
Above facts, exhibits show the existence and nature of the
claimed emergency.
Respectfully Submitted,
s/ Don Benny Anderson
Don Benny Anderson
2500 Moultrie Avenue
P. O. Box 1156
Mattoon, Illinois 61938-1156
217 246-4999
a. 86
CERTIFICATE OF SERVICE
I, Don Benny Anderson, do swear or declare that on this
10" day of September, 2009, I have served this EMERGENCY
MOTION UNDER 9™ CIR. R. 27-3, along with the following
Exhibits,
Exhibit AA — APPELLANT’S MOTION TO
RECONSIDER ORDER
ExhibitA- ORDER, filed July 29, 2009 — U.S. Court of
Appeals
ExhibitB- ORDER DENYING AND DISMISSING
HABEAS PETITION, ORDER
CERTIFYING APPEAL NOT TAKEN IN
GOOD FAITH, AND ORDER
RESTRICTING FILING PRIVILEGES IN
THIS DISTRICT — U.S. DISTRICT
COURT FOR THE WESTERN DISTRICT
OF TENNESSEE WESTERN DIVISION
ExhibitC- DON BENNY ANDERSON’S “REPLY TO
RESPONSE’ TO RESPONDENT - Filed
June 9, 2009
Exhibit D- APPELLANT’S MOTION FOR
CONSOLIDATION AND JUDGMENT/
ORDER AND TO STAY BRIEFING
SCHEDULE DURING PENDENCY OF
MOTION - includes EXHIBIT 1 —
ORIGINAL MOTION FOR SUMMARY
JUDGMENT AND TO DISMISS (Note:
Respondent is correctly identified as United
States Parole Commission)
ExhibitE- APPELLANT’S INFORMAL BRIEF
on the following parties to proceeding, by depositing it is an
envelope containing the above document in the United States mail
properly addressed with priority overnight postage prepaid.
a. 87
The name and address of parties served is as follows:
Clerk, U.S. Court of Appeals For The Ninth Circuit
P.O. Box 193939
San Francisco, California 94119-3939
United States Attorney
333 Las Vegas Blvd. S. #5000
Las Vegas, NV 89101
Signed pursuant to Title 28 U.S.C. Section 1746.
s/ Don Benny Anderson
Don Benny Anderson
2500 Moultrie Avenue
P. O. Box 1156
Mattoon, Illinois 61938-1156
217-246-4999
a. 88
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DON BENNY ANDERSON, )
)
Petitioner-Appellant, )
) DC No. 2:08-cv-01256-
Vv. ) RCJ-LRL
) DISTRICT OF NEVADA,
UNITED STATES PAROLE ) LAS VEGAS
COMMISSION )
)
Respondent-Appellee )
APPELLANT'S MOTION TO RECONSIDER ORDER
In accordance with Circuit Rule 27-10, petitioner-
appellant submits this Motion to Reconsider Order in
response to court’s order, filed July 29, 2009.
In an attempt to not rule on issues presented and
further procedural kidnapping, court has mislabeled the
Respondent’s identity as Federal Bureau of Investigation
on its Order, in spite of the fact that APPELLANTS
INFORMAL BRIEF identified UNITED STATES
PAROLE COMMISSION Appellee and Petitioner had
amended this error as explained in Appellant’s Informal
Brief, page 8: “6) Affiant/Plaintiff is serving a United
States Parole Commission sentience: 7) Therefore,
Respondent is the United States Parole Commission:”
‘ORDER Before: CANBY, THOMAS, and IKUTA,
Circuit Judges.
A review of the record demonstrates that this court
lacks jurisdiction over this appeal because the order
challenged in the appeal is not final or appealable See
a.89
Nascimento v. Dummer, 508 F. 34 905, 908 (# Cir. 2007)
(transfer orders are not’ directly appealable).
COnsequetly, this appeal is dismissed for lack of
jurisdiction”
STATEMENT _OF _REASONS SUPPORTED __ BY
PERTINENT AUTHORITY TITLE 18 SECTION 1621
UNSWORN DECLARATIONS OF EVIDENCE OF DON
BENNY ANDERSON; UNSWORN = AFFIDAVIT’
DECLARATIONS OF DON BENNY ANDERSON
UNDER THE PENALTY OF PERJURY PURSUANT TO
TITLE 28 SECTION 1746
1. My name is DON BENNY ANDERSON. I am
sixty-eight (68) years of age, having been born on
December 19, 1940 in Springfield, Illinois;
. I am of sound mind and fully competent to make
this Affidavit/Declarations under the penalty of
perjury;
. This Affidavit/Declarations must stand for Truth
and Fact, unless challenged point-for-point by an
opposing Affidavit/Declarations drawn under the
same terms and conditions as this instrument;
. This Affidavit/Declarations will stand for Truth
and Fact before United States Court of Appeals for
the Ninth Circuit in this MOTION TO
RECONSIDER ORDER;
. This Affidavit/Declarations is made on personal
knowledge and sets forth facts that are admissible
evidence;
. Appellant requested this Court to consolidate the
following co-mingled cases: 1) DC No. 08-cv-01239-
RCJ-LRL, IN THE FURTHERANCE OF JUSTICE
ORDER WRIT OF HABEAS CORPUS’ BE
GRANTED NOW, DISTRICT OF NEVADA, LAS
VEGAS and 2) DC ORIGINAL MOTION FOR
SUMMARY JUDGMENT AND TO DISMISS NO.
2:08-cv-01256-JCM-LRL, and to exercise
supervisory power and rule on both motions:
7. Title 18 Section 4— Misprison of felony:
Whoever, having knowledge of actual commission
of a felony cognizable by a court of the United
States, conceals and does not as soon as possible
make know the same to some judge...shall be
fines...or imprisoned....
8. Anderson has presented irrefutable evidence that
crimes against him had been committed.
9. Canby, Thomas, and Ikuta, Circuit Judges, as well
as District Judges, James C. Mahan and Thomas
Anderson, have abused their discretion by failing to
consider the factors relevant to eligibility for relief,
failed to consider evidence in an impartial manner,
and issued order which furthered crime against
Anderson;
10.Appellant believes that these are extremely
substantial issues which do require further
argument, because they reveal that laws of the
land have been violated;
11.United States Constitution, First Amenment:
“Congress shall make no law...abridging...the night
of the people...to petition the government for
Redress of Grievances.” This right was violated by
all the judges and courts by not addressing
Anderson's claims and issues;
12.1It is evident that this court must use its
supervisory powers. The Supreme Court has
recognized three bases for the exercise of a Court’s
supervisory power: (1) to implement a remedy for
violation or recognize3d rights, (2) to preserve
judicial integrity by ensuring that a conviction
rests on appropriate considerations validly before a
jury, and (3) to deter further illegal conduct.
United States v. Hasting, 461 U.S. 499, 505 (1983);
a.91
United States v. Simpson, 927 F.2d 1088, 1090 (9tb
Cir. 1991. All three of these bases apply to
Anderson’s case.
13.MOTIONS ARE NOT MOOT AND COURT OF
APPEALS HAS JURISDICTION AND RELIEF
CAN BE GRANTED.
FURTHER DON BENNY ANDERSON SAYETH
NAUGHT.
Signed under Title 28 U.S.C. Section 1746 on this
7th day of August 2009.
s/ Don Benny Anderson
Don Benny Anderson
2500 Moultrie Avenue
P.O. Box 1156
Mattoon, Ihinois 61938-1156
217 246-4999
“The FBI fraudulently manufactured a conviction in
Memphis, TN for Explosive Property Destruction in 1987
with a sentence of 42 years, while Appellant was
incarcerated since 1982. Jt is Anderson’s contention that
there was no actual trial in absentia, but the conviction
was a ‘paper creation” created by Federal Bureau of
Investigation. At the time of the alleged trial, Anderson
was in prison and was not aware of this conviction until
he was informed of it when required to register with Las
Vegas Metropolitan Police during his visit to Nevada on
September 18, 2008. Assistant U.S. Attorney, Robert L.
Elliman and U.S. Attorney Gregory A. Brower, conspired
with U.S. District Judge, James C. Mahan who, knowing
that no true physical trial took place, engaged in
procedural kidnapping by not addressing claims and
issues and by instead transferring this case to the United
a.92
States District Court for the Western District of
Tennessee in violation of the United States Constitution,
First Amendment, “Congress shall make no law...right of
the people...to petition the government for Redress of
Grievances’ .
The court transferred this petition to Tennessee
during “pendency of motion”, and failed to provide
Appellant with copy of the order. Courts have no
authority to “terminate” appealable and make them un-
appealable motions simply by refusing to adjudicate them
and calling them “moot”. A party asserting that an issue
is moot must demonstrate that there is no reasonable
expectation that the violation will recur”. See County of
Los Angeles v. Davis, 440 U.S. 626, 630 Case No. 09-
16311 (1979): accord In re Campbell, 628 F. #4 1260,
1261 (94 Cir. 1980).
The transfer in this petition was a criminal act in
furtherance of the crimes mention in Appellant's Informal
Brief. Judge Thomas Anderson, District Court in
Tennessee, joined the conspiracies mentioned when he
entered an ORDER DENYING AND DISMISSING
HABEAS PETITION to cover up the kidnapping of
Anderson and to further his kidnapping.
CANBY, THOMAS and IKUTA, Circuit Judges,
have the burden of providing a copy of the probable cause
statement, docket sheet, indictment, court transcripts,
and a pre-sentence report showing that a trial actually
took place. Failure to provide these documents will prove
that Anderson’s allegations of a governmental conspiracy
are true.
ANSWERS TO COURTS OBJECTIONS TO
APPELLATE JURISDICTION
District court has been divested of jurisdiction by
Anderson appeal. Anderson’s case is immediately
appealable under the COLLATERAL ORDER
a.93
DOCTRINE - The collateral order doctrine is a ‘practical
construction’ of the final judgment rule of 28 U.S.C.
section 1291. Digital Equipment Corp. v. Desktop Direct,
Inc., 114 S.Ct. 1992, 1995 (1994). The doctrine allows
appeals from ‘a small class fof orders] which finally
determine claims of right separable from, and collateral
to, rights asserted in the action, too important to be
denied review and too independent of the cause itself to
require that appellate consideration be deferred until the
whole case is adjudicated.' Cohen v. Beneficial Loan
Corp., 337 U.S. 541, 546 (1949).
The Supreme Court of the United States delineated
the test for the availability of interlocutory appeals, called
the collateral order doctrine, for United States federal
courts in the case of Lauro Lines s.r. v. Chasser et al,
490 U.S. 495 (1989), holding that under the relevant
statute (28 U.S.C.§ 1291) such an appeal would be
permitted only if:
1. the outcome of the case would be conclusively
determined by the issue;
2. the matter appealed was collateral to the merits;
and,
3. the matter was effectively unreviewable if
immediate appeal were not allowed.
Because the district court has transferred this petition
to Tennessee, even though they knew that no trial had
ever taken place in that District, this matter has been
made effectively unreviewable in this Circuit. It is then
imperative that CANBY, THOMAS and IKUTA, Circuit
Judges, act to prevent imposition of further irreparable
harm to Anderson and to provide due process which can
be achieved by granting relief.
Anderson has proved collateral order doctrine proof
and evidence and provided grounds for an appeal under
28 U.S.C. Section 1291, in APPELLANTS INFORMAL
BRIEF
a.94
If an improper appeal was taken, the district court
retains its jurisdiction to act on the case, but there is no
improper appeal in case at bar.
CANBY, THOMAS and IKUTA, Circuit Judges,
joining RICO, criminal conspiracy and _ procedural
kidnapping, knew from APPELLANTS INFORMAL
BRIEF that U.S. Attorney Gregory A. Brower, Chief
Appellant and Assistant U.S. Attorney, Robert L. Ellman
and U.S. District Judge, James C. Mahan, were acting in
a criminal conspiracy by allowing both district court and
this court of appeals itself to be made an accomplice in
willful disobedience of law, aiding and abetting organized
crime, in violation of RICO laws. They knew district
court had no authority to “terminate” appealable petition
and make it un-appealable by committing criminal acts
against Anderson, a victim of political kidnapping, who
was kidnapped in violation of Title 18 Section 1201; a
victim of domestic terrorism in violation of Title 18
Section 2331; in forced labor in violation of Title 18
Section 1589, in involuntary servitude in violation of Title
18 Section 1584; and victim in respect of peonage, slavery
involuntary servitude, or forced labor in violation of Title
18 Section 1590; victim of a conspiracy against rights in
violation of Title 18 Section 241. Anderson is also a victim
of deprivation of rights under color of law in violation of
Title 18 Section 242 since court transferred petition for
writ of habeas corpus to Tennessee, knowing the Federal
Bureau of Investigation had created a fictional crime of
Explosive Property Destruction in 1987, with a sentence
of 42 years, appearing in Anderson’s FBI rap sheet. (See
Exhibit G). This was done with the full knowledge that
Anderson had been incarcerated since 1982, that no
actual trial took place in absentia although a fictional
sentence of 42 years was created, and that the United
States District Court for the Western District of
Tennessee, Judge Thomas Anderson engaged in
a.95
procedural kidnapping to cover up that fact. This Court
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