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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