# Appendix — Anderson v. Federal Bureau of Investigation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1511%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2010 - **Citation:** 559 U.S. 973 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1511%3A2. Public record. Not legal advice.