dubina-joel-judge-150x100

Watch the Federal Court of Appeals commit Crimes

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William M. Windsor has filed a Petition for Writ of Mandamus with the United States Court of Appeals for the Eleventh Circuit.  This Petition seeks to have the Eleventh Circuit compel Judge Thomas Woodrow Thrash and the Clerk of the United States District Court for the Northern District of Georgia to cease violating the rules and the law.

I expect Judge Joel F. Dubina (shown here) and the other judges of the Eleventh Circuit to commit more crimes.  Unless they break from form, they will ignore all of the wrongdoing of Judge Thomas W. Thrash…

As is explained in narrative form in this July 15, 2011 article about Judge Thrash, Judge Trash has one and only one interest in my cases.  His sole interest and purpose is in making them disappear and blocking me from taking any action in any court anywhere in the country for the rest of my life.  He doesn’t appear to have an honest bone in his body.  He’s a defendant, yet he is acting as the judge in two cases in which I am the plaintiff and he is a defendant.  One of his primary techniques is to conspire with the Clerk of the Court to cause my filings to disappear.  Fortunately, I can prove each and every motion and affidavit and have a signed receipt from the Clerk for each one.  The only problem is that all of the other judges are in on the wrongdoing, so I have no place to turn. 

I have filed a Judicial Misconduct Complaint against Judge Thomas W. Thrash, but I expect his fellow judges will ignore this as they do with all valid complaints.  Judge Thrash has committed postal crimes by having my letters to potential witnesses stolen and destroyed.  But Judge Thrash is blocking me from pressing criminal charges against him by issuing an order that denies my right to file a lawsuit in any court anywhere in the country for the rest of my life…and then claiming that I do not even have the right to communicate criminal charges against him or anyone else without his permisison, which he denies. 

My Petition for Writ of Mandamus only covers a few of the issues because I have appealed the other wrongdoing.

Here is the Petition for Writ of Mandamus against Judge Thomas W. Thrash and the U.S. District Court for the Northern District of Georgia:

INTRODUCTION

Judge Thomas Woodrow Thrash (“Judge Thrash”) has been acting without jurisdiction in Civil Action Nos. 1:11-CV-01923-TWT, 1:11-CV-01922-TWT, 1:11-02027-TWT, and 1:11-02326-TWT (“Underlying Actions”) in the United States District Court for the Northern District of Georgia (“NDGa”). Judge Thrash failed to address the issue of jurisdiction, which the Court clearly lacked.

There are exceptional circumstances amounting to a judicial usurpation of power that require this Court to issue a Writ.

Statement of Relief Sought

  1. Windsor seeks a stay in the Underlying Actions and in all related appeals.  Windsor seeks a stay to prevent irreparable harm as he has been injured, will be further injured, and has no adequate remedy at law.
  2. Windsor seeks a writ of the mandamus to require that all orders in the Underlying Actions are declared void and that the Underlying Actions are remanded to Fulton County Superior Court.
  3. Windsor also seeks a writ of prohibition to restrain Judge Thrash and the United States District Court for the Northern District of Georgia from engaging in any other proceedings in the Underlying Actions.
  4. Windsor seeks a writ of mandamus to disqualify Judge Thrash.

STATEMENT OF FACTS

Civil Action No. 1:11-CV-01922-TWT

  1. On May 19, 2011, Windsor filed a simple Declaratory Judgment Action in the Superior Court of Fulton County asking the court to declare what Georgia’s statute means as to power of attorney agreements.  The civil action was assigned No. 2011CV200857.
  2. On June 13, 2011, U.S. Attorneys filed a NOTICE OF REMOVAL in regard to 2011CV200857, and it became N.D.Ga Civil Action No. 1:11-CV-01922-TWT (“01922”), and was assigned to Judge Thrash.  The Docket shows most of the activity in Civil Action 1:11-CV-01922-TWT. (Exhibit 1 is a true and correct copy of the Docket.)
  3. On June 16, 2011, Judge Thrash began issuing orders without considering jurisdiction. [01922 Docket #17.]
  4. On June 14, 2011, Windsor filed a Motion to Deny Removal and Emergency Motion for Hearing. (01922 Docket #5.)
  5. On July 5, 2011, Windsor filed a Motion For remand. (Exhibit 5 is a true and correct copy of the Motion for Remand.) (Exhibit 6 is a true and correct copy of the cover letter that accompanied the Motion for Remand when it was delivered to the Office of the Clerk and filed.) (Exhibit 7 is a true and correct copy of confirmation of the signed receipt by Deputy Clerk Joyce White.)
  6. On June 23, 2011, Windsor filed a Motion to Recuse Judge Thrash. [01922 Docket #31.]  Judge Thrash never ruled on this motion.
  7. On July 7, 2011, Windsor filed a second motion to disqualify Judge Thrash. (Exhibit 8 is a true and correct copy of the Motion for Remand.) (Exhibit 9 is a true and correct copy of the cover letter that accompanied the Motion for Remand when it was delivered to the Office of the Clerk and filed.) (Exhibit 10 is a true and correct copy of confirmation of the signed receipt by Deputy Clerk Anniva Sanders.)

Civil Action No. 1:11-CV-01923-TWT

  1. On May 20, 2011, Windsor filed a Verified Complaint in the Superior Court of Fulton County. The civil action was assigned No. 2011CV200971.
  2. On June 13, 2011, U.S. Attorneys filed a NOTICE OF REMOVAL in regard to Fulton County Superior Court Action 2011CV200971. 2011CV200971 became NDGa Civil Action No. 1:11-CV-01923-TWT (“01923”), and was assigned to Judge Thrash. (01923 Docket #1.) The Docket shows most of the activity in Civil Action 1:11-CV-01923-TWT. (Exhibit 2 is a true and correct copy of the Docket.)
  3. On June 16, 2011, Judge Thrash began issuing orders without considering jurisdiction. [01923 Docket #9.]
  4. On June 14, 2011, Windsor filed a Motion to Deny Removal and Emergency Motion for Hearing. (01923 Docket #7.)
  5. On July 5, 2011, Windsor filed a Motion For Remand. (Exhibit 11 is a true and correct copy of the Motion for Remand.) (Exhibit 12 is a true and correct copy of the cover letter that accompanied the Motion for Remand when it was delivered to the Office of the Clerk and filed.) (Exhibit 13 is a true and correct copy of confirmation of the signed receipt by Deputy Clerk Joyce White.)
  6. On June 23, 2011, Windsor filed a Motion to Recuse Judge Thrash. [01923 Docket #43.] Judge Thrash never ruled on this motion.
  7. On July 7, 2011, Windsor filed a second motion to disqualify Judge Thrash. (Exhibit 14 is a true and correct copy of the Motion to Disqualify.) (Exhibit 15 is a true and correct copy of the cover letter that accompanied the Motion to Disqualify when it was delivered to the Office of the Clerk and filed.) (Exhibit 16 is a true and correct copy of confirmation of the signed receipt by Deputy Clerk Anniva Sanders.)

Civil Action No. 1:11-CV-02027-TWT

  1. On June 20, 2011, Windsor filed a Verified Complaint pursuant to Georgia RICO in Fulton County Superior Court. It was assigned Civil Action No. 2011CV202263.
  2. On June 22, 2011, U.S. Attorneys filed a Notice of Removal to remove the case to federal court. Judge Thrash was the lead Defendant, and the case was assigned to Judge Thrash — Civil Action 1:11-CV-02027-TWT (“2011-02027”). The Docket shows most of the activity in Civil Action 1:11-CV-02027-TWT. (Exhibit 3 is a true and correct copy of the Docket.)
  3. On June 23, 2011, Judge Thrash began issuing orders without considering jurisdiction. [2011-02027 Docket #5.]
  4. On June 24, 2011, Windsor filed a Motion to Deny Removal and Emergency Motion for Hearing. (Exhibit 17 is a true and correct copy of the Motion to Deny Removal.) (Exhibit 18 is a true and correct copy of the cover letter that accompanied the Motion to Deny Removal when it was delivered to the Office of the Clerk and filed.) (Exhibit 19 is a true and correct copy of confirmation of the signed receipt by Deputy Clerk Beverly Gutting.)
  5. On July 5, 2011, Windsor filed a Motion For Remand. (Exhibit 20 is a true and correct copy of the Motion for Remand.) (Exhibit 21 is a true and correct copy of the cover letter that accompanied the Motion for Remand when it was delivered to the Office of the Clerk and filed.) (Exhibit 22 is a true and correct copy of confirmation of the signed receipt by Deputy Clerk Joyce White.)
  6. On June 23, 2011, Windsor filed a Motion to Disqualify Judge Thrash. [2011-02027 Docket #4.] Judge Thrash never ruled on this motion.

Civil Action No. 1:11-CV-02326-TWT

  1. On June 23, 2011, Windsor filed a Verified Complaint pursuant to Georgia RICO in Fulton County Superior Court.  It was assigned Civil Action No. 2011CV202457.
  2. Windsor attempted to obtain an ex parte TRO to block the illegal removal. Judge Constance C. Russell denied the request for an ex parte TRO hearing, so Windsor filed an appeal to the Georgia Court of Appeals on July 14, 2011.
  3. On July 15, 2011, after being told the case was on appeal, U.S. Attorneys filed a Notice of Removal to remove the case to federal court.  Judge Thrash was a Defendant, and the case was assigned to Judge Thrash — Civil Action 1:11-CV-02326-TWT (“02326”). The Docket shows most of the activity in Civil Action 1:11-CV-02326-TWT. (Exhibit 4 is a true and correct copy of the Docket.)
  4. On July 18, 2011, Judge Thrash began issuing orders without considering jurisdiction. [02326 Docket #2.]
  5. On July 28, 2011, Windsor filed a Motion to Vacate Notice of Removal. (02326 Docket #15.)
  6. On August 8, 2011, Windsor filed a Motion For Remand. (Exhibit 23 is a true and correct copy of the Motion for Remand.) (Exhibit 24 is a true and correct copy of the cover letter that accompanied the Motion for Remand when it was delivered to the Office of the Clerk and filed.) (Exhibit 25 is a true and correct copy of confirmation of the signed receipt by Deputy Clerk Anniva Sanders.) (Exhibit 30 is a true and correct copy of the letter that was delivered to Judge Thrash when the Motion for Remand was delivered to the Office of the Clerk and filed.)
  7. On July 21, 2011, Windsor filed a Motion to Disqualify Judge Thrash. (Exhibit 26 is a true and correct copy of the Motion to Disqualify.) (Exhibit 27 is a true and correct copy of the cover letter that accompanied the Motion to Disqualify when it was delivered to the Office of the Clerk and filed.) (Exhibit 28 is a true and correct copy of confirmation of the signed receipt by Deputy Clerk Anniva Sanders.) Judge Thrash never ruled on this motion.
  8. On July 21, 2011, Windsor filed a Motion for Certificate of Necessity pursuant to 28 U.S.C. § 292. (Exhibit 29 is a true and correct copy of the Motion for Certificate of Necessity.)  Should Judge Thrash be claiming that the so-called “Rule of Necessity” enables him to act as the judge in cases where he is a defendant, this is false and malicious.  U.S. v. Will clearly provides that if there is any judge anywhere in America who can hear the case, the Rule of Necessity does not apply. ( , 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980).)  U.S. v. Will notes that 28 U.S.C. § 292 should apply first:

“However, in the highly unusual setting of these cases, even with the authority to assign other federal judges to sit temporarily under 28 U. S. C. §§ 291-296 (1976 ed. and Supp. III), it is not possible to convene a division of the Court of Appeals with judges who are not subject to the disqualification provisions of § 455. … “The true rule unquestionably is that wherever it becomes necessary for a judge to sit even where he has an interest — where no provision is made for calling another in, or where no one else can take his place — it is his duty to hear and decide, however disagreeable it may be.” Philadelphia v. Fox, 64 Pa. 169, 185 (1870).

REASONS A WRIT SHOULD BE ISSUED:

THE DISTRICT COURT HAS NO JURISDICTION, AND ALL ORDERS ARE VOID.

  1. Neither Judge Trash nor the NDGa have jurisdiction in the Underlying Actions. A review of the Dockets (Exhibit 1, Exhibit 2, Exhibit 3, and Exhibit 4) shows that Judge Thrash never made a determination as to whether he had jurisdiction in these removed actions. Not only did Judge Thrash fail to meet this requirement, but he ignored Windsor’s motions to deny removal and refused to allow Windsor’s four motions for remand to be docketed.

FRCP Rule 5(d)(2): “A paper is filed by delivering it: (A) to the clerk….”

it is settled law that delivery of a pleading to a proper official is sufficient to constitute filing thereof. United States v. Lombardo, 241 U.S. 73, 36 S. Ct. 508, 60 L. Ed. 897 (1916); Milton v. United States, 105 F.2d 253, 255 (5th Cir. 1939).

  1. A review of the four motions for remand make it clear that the Underlying Actions required remand. (Exhibit 5, Exhibit 11, Exhibit 20, and Exhibit 23 are true and correct copies of the motions for remand.)
  2. It is clear and well established law that a judge must first determine whether the judge has jurisdiction before hearing and ruling in any case Judge Thrash failed to do so, and the court’s so-called orders are void.

“…when an action is removed from state court, the district court first must determine whether it has original jurisdiction over the plaintiff’s claims.” See Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1556-57 (11th Cir.1989). (University of South Alabama v. American Tobacco Co., 168 F.3d 405 (11th Cir. 02/22/1999)

(United States v. Mayer, 35 S. Ct. 16, 235 U.S. 55 (U.S. 11/16/1914); see also Adams v. State, No. 1:07-cv-2924-WSD-CCH (N.D.Ga. 03/05/2008); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998); University of S. Ala. v. The Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999); Jean Dean v. Wells Fargo Home Mortgage, No. 2:10-cv-564-FtM-29SPC (M.D.Fla. 04/21/2011); Taylor v. Appleton, 30 F.3d 1365, 1366 (11th Cir. 1994).)

“It is by now axiomatic that the inferior federal courts are courts of limited jurisdiction. They are ‘empowered to hear only those cases within the judicial power of the United States as defined by Article III of the Constitution,’ and which have been entrusted to them by a jurisdictional grant authorized by Congress.” Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir.1994). …because the Constitution unambiguously confers this jurisdictional power to the sound discretion of Congress, federal courts “should proceed with caution in construing constitutional and statutory provisions dealing with [their] jurisdiction.’ ” Marathon Oil Co. v. Ruhrgas, 145 F.3d 211, 215 at 216 (5th Cir.1998) (en banc) (quoting Victory Carriers, Inc. v. Law, 404 U.S. 202, 212, 92 S.Ct. 418, 425, 30 L.Ed.2d 383 (1971)).

Accordingly, “[w]hen a federal court acts outside its statutory subject-matter jurisdiction, it violates the fundamental constitutional precept of limited federal power.” Id. (citing Oliver v. Trunkline Gas Co., 789 F.2d 341, 343 (5th Cir.1986)). Indeed, such an action unconstitutionally invades the powers reserved to the states to determine controversies in their own courts, see Victory Carriers, 404 U.S. at 212, 92 S.Ct. at 425 (quoting Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248 (1934)), as well as “offends fundamental principles of separation of powers,” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998). … As the Supreme Court long ago held in Ex parte McCardle, 74 U.S. (7 Wall.) 506, 19 L.Ed. 264 (1868), “[w]ithout jurisdiction the court cannot proceed at all in any cause.” Id. at 514; see also Wernick v. Mathews, 524 F.2d 543, 545 (5th Cir.1975) (“[W]e are not free to disregard the jurisdictional issue, for without jurisdiction we are powerless to consider the merits.”).

A necessary corollary to the concept that a federal court is powerless to act without jurisdiction is the equally unremarkable principle that a court should inquire into whether it has subject matter jurisdiction at the earliest possible stage in the proceedings. Indeed, it is well settled that a federal court is obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking. See Fitzgerald v. Seaboard Sys. R.R., 760 F.2d 1249, 1251 (11th Cir.1985) (per curiam); Wernick, 524 F.2d at 545; see also Save the Bay, Inc. v. United States Army, 639 F.2d 1100, 1102 (5th Cir.1981) (per curiam) (holding that courts must constantly examine the basis of their jurisdiction before proceeding to the merits). [emphasis added.]

“[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded” to the state court from whence it came. 28 U.S.C. § 1447(c). This provision is mandatory and may not be disregarded based on speculation about the proceeding’s futility in state court. See International Primate Protection League v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 87-89, 111 S.Ct. 1700, 1709-10, 114 L.Ed.2d 134 (1991); Smith v. Wisconsin Dep’t of Agric., Trade and Consumer Protection, 23 F.3d 1134, 1139 (7th Cir.1994); see also Bruns v. National Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir.1997) (section 1447(c) is mandatory); Bromwell v. Michigan Mut. Ins. Co., 115 F.3d 208, 213 (3d Cir.1997) (same); Maine Ass’n of Interdependent Neighborhoods v. Commissioner, Me. Dep’t of Human Servs., 876 F.2d 1051, 1054 (1st Cir.1989) (same). Moreover, a federal court must remand for lack of subject matter jurisdiction notwithstanding the presence of other motions pending before the court. See, e.g., Marathon Oil, 145 F.3d at 220 (holding that district court should have considered motion to remand for lack of subject matter jurisdiction before it addressed motion to dismiss for want of personal jurisdiction); Toumajian v. Frailey, 135 F.3d 648, 655 (9th Cir.1998) (holding that district court should have remanded for lack of subject matter jurisdiction and should not have dismissed on grounds of ERISA preemption); Avitts v. Amoco Prod. Co., 53 F.3d 690, 693 (5th Cir.1995) (per curiam) (holding that district court had no jurisdiction to order interim costs and attorneys’ fees where action should have been immediately remanded for lack of subject matter jurisdiction); Smith, 23 F.3d at 1139 (holding that district court had no authority to dismiss removed claim without subject matter jurisdiction); In re Bear River Drainage Dist., 267 F.2d 849, 851 (10th Cir.1959) (holding that motion to remand for lack of subject matter jurisdiction necessarily precedes motion to dismiss); Nichols v. Southeast Health Plan of Ala., Inc., 859 F.Supp. 553, 559 (S.D.Ala.1993) (same). [emphasis added.]

Because removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941). Indeed, all doubts about jurisdiction should be resolved in favor of remand to state court. See Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994) (citing Boyer v. Snap-on Tools Corp., 913 F.2d 108 (3d Cir.1990); Coker v. Amoco Oil Co., 709 F.2d 1433 (11th Cir.1983)). A presumption in favor of remand is necessary because if a federal court reaches the merits of a pending motion in a removed case where subject matter jurisdiction may be lacking it deprives a state court of its right under the Constitution to resolve controversies in its own courts. For example, in Marathon Oil, the district court dismissed an action on removal from state court for want of personal jurisdiction before reaching the issue of subject matter jurisdiction. 145 F.3d at 215. On rehearing en banc, the Fifth Circuit held that the district court erred in failing to first examine its subject matter jurisdiction and, because jurisdiction was in fact lacking, in failing to remand to state court. See id. at 220. The court reasoned that such an approach “accords the proper respect to the state courts, as the residual courts of general jurisdiction, to make the personal jurisdiction inquiry when [federal courts] lack either constitutional or statutory subject-matter jurisdiction over a removed case.” Id.; see also Bromwell, 115 F.3d at 214 (noting that justiciability is a matter for the state court to decide where case should have been remanded to state court for lack of subject matter jurisdiction rather than dismissed); Smith, 23 F.3d at 1139 (declining to speculate on issue of state law where case should have been remanded to state court for lack of subject matter jurisdiction rather than dismissed). In the instant case, the district court should have resolved the issue of subject matter jurisdiction before reaching the merits of any other issue…. (University of South Alabama v. American Tobacco Co., 168 F.3d 405 (11th Cir. 02/22/1999).) [emphasis added.]

  1. Judge Thrash’s orders were, and are, void.   The Supreme Court has stated:

[If a court is] “without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers.” (Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828).)

EXCEPTIONAL CIRCUMSTANCES AND JUDICIAL USURPATION OF POWER MANDATE THE WRIT OF MANDAMUS

  1. Judge Thrash has ignored all applicable laws and rules regarding jurisdiction.  He has committed usurpation of power.  Judge Thrash has seized and exercised authority wrongfully.

Writs of prohibition are not issued unless the petitioner shows “exceptional circumstances amounting to a judicial “usurpation of power.’ ” Will v. United States, 389 U.S. 90, 95, 88 S. Ct. 269, 273, 19 L. Ed. 2d 305 (1967) (citation omitted). As the former Fifth Circuit stated in Miller v. Connally, 354 F.2d 206, 208 (5th Cir. 1965). (In re Wainwright, 678 F.2d 951 (11th Cir. 06/14/1982).)

By statute, the power of federal courts to issue extraordinary writs is confined to those “necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U. S. C. § 1651(a). A writ of prohibition is a “‘means of confining an inferior court to a lawful exercise of its prescribed jurisdiction . . . .'” In re Missouri, 664 F.2d 178, 180 (8th Cir. 1981) (quoting Missouri v. United States Bankruptcy Court, 647 F.2d 768, 770 n.3 (8th Cir. 1981)); see also Parr v. United States, 351 U. S. 513, 519 (1956) (stating that writs of prohibition and mandamus “may only go in aid of appellate jurisdiction”). That the function of a writ of prohibition is to correct a lower court’s exercise of jurisdiction is illustrated by our Circuit’s test for granting the writ, which is focused on the actions of lower courts:

“[A] writ of prohibition is a drastic and extraordinary remedy which should be granted only when the petitioner has shown his right to the writ to be clear and undisputable and that the actions of the court were a clear abuse of discretion.” Sangre De Cristo Community Mental Health Serv., Inc. v. United States (In re Vargas), 723 F.2d 1461, 1468 (10th Cir. 1983). (See also University of Texas At Austin v. Vratil, 96 F.3D 1337, 112 Ed. Law Rep. 700 (10th Cir. 09/17/1996).)

  1. Windsor has no other adequate means to secure the relief desired.  Windsor’s motions for remand have disappeared – filed but not docketed. Windsor will be damaged and prejudiced in a way not correctable on appeal. Rulings on remand are not appealable, and in this case, there isn’t even a ruling to appeal. Judge Thrash’s order constitutes more than an abuse of discretion – a true usurpation of power. (Waco v. United States Fidelity & Guaranty Co., 293 U.S. 140, 55 S. Ct. 6, 79 L. Ed. 244 (1934); Calderon v. Colombia, 929 F.2d 599 (11th Cir. 04/19/1991).) Judge Thrash’s orders manifest a persistent disregard of the federal rules.

This court looks to five nonconclusive factors when determining whether to grant the writ: (1) the party seeking the writ must have no other adequate means to secure the relief desired; (2) the petitioning party will be damaged or prejudiced in a way not correctable on appeal; (3) the district court’s order constitutes an abuse of discretion; (4) the district court’s order represents an often-repeated error and manifests a persistent disregard of the federal rules; and (5) the district court’s order raises new and important problems or issues of law of first impression. Univ. of Texas at Austin v. Vratil, 96 F.3d 1337, 1339 (10th Cir. 1996) (Order) (emphasis added) (citation omitted). (O’Connor v. United States, No. 02-2311 (10th Cir. 07/22/2003).)

Frequently the writs are considered to be tools inherent in an appellate court’s power to supervise a lower court. (See 20 AM.JUR.2d Courts §§ 111-117 (1965); United States v. Dooling, 2 Cir., 406 F.2d 192 (1969).) This is so especially when the lower court is felt to be exceeding its jurisdiction. The writ of prohibition in particular often serves this function. Thus “[the writ of prohibition’s] principal purpose at the present time is to prevent an encroachment, excess, usurpation, or assumption of jurisdiction on the part of an inferior court or tribunal….” (42 AM.JUR. Prohibition § 5, pp. 140-141 (1942).)

“The traditional use of the writ [of mandamus] in aid of appellate jurisdiction both at common law and in the federal courts has been to . . . compel [an inferior court] to exercise its authority when it is its duty to do so. . . .” (Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S. Ct. 938, 87 L. Ed. 1185 (1943).)

The writ is appropriately issued when there is a usurpation of judicial power or a clear abuse of discretion. Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 74 S. Ct. 145, 98 L. Ed. 106 (1953).

“[T]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations…. Only exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34-35, 101 S.Ct. 188, 190, 66 L.Ed.2d. 193 (1980); see also In re Temple, 851 F.2d 1269, 1271 (11th Cir. 1988) (mandamus “is to be exercised only in drastic situations, when no other adequate means are available to remedy a clear usurpation of power or abuse of discretion.”); In re Evans, 524 F.2d 1004, 1007 (5th Cir. 1975) (“mandamus lies only to confine a lower court to its jurisdiction or to compel it to perform ministerial functions over which it has no discretion.”).

MANDAMUS IS ALSO NECESSARY TO ORDER JUDGE THRASH TO BE DISQUALIFIED

  1. Judge Thrash was obligated to rule on Windsor’s motions for recusal, and he failed to do so. This requires disqualification. (Exhibit 9, Exhibit 14, Exhibit 26 and 01922 Doc.#31, 01923 Doc.#43, and 2011-02027 Doc.#4 are the motions for recusal.) Judge Thrash never addressed or ruled on these motions.
  2. Judge Thrash has an obligation to recuse himself pursuant to 28 U.S.C. § 455, Canons 1, 2, and 3 of the Code of Judicial Conduct, all other relevant statutory and state and federal case law, as well as the First, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the Due Process Clause of the Fifth Amendment to the U.S. Constitution, the Constitution of the State of Georgia, and the Court’s inherent powers, but he has failed to do so.
  3. The Supreme Court has expressed that Judge Thrash was to proceed no further in the Underlying Actions once the motions for recusal were filed.

“Upon the filing of an affidavit of a party to a case in the district court…averring the affiant’s belief that the judge before whom the case is to be tried has a personal bias or prejudice against him, and stating facts and reasons, substantial in character and which, if true, fairly establish a mental attitude of the judge against the affiant which may prevent impartiality of judgment, it becomes the duty of the judge to retire from the case.” Berger v. United States, 255 U. S. 22 (1921).

  1.  Judge Thrash has demonstrated pervasive bias, and his failure to recuse himself is grounds for disqualification.
  2. A study of pro se cases that Judge Thrash has handled reveals that he has a proven overwhelming bias against pro se plaintiffs. Judge Thrash has an “extra-judicial” bias against pro se parties. According to Windsor’s review of every case Judge Thrash has handled in his career using www.versuslaw.com, no pro se plaintiff has ever won in Judge Thrash’s court; 90% of pro se cases are dismissed, and 10% are defeated at summary judgment; no pro se plaintiff has ever received a jury trial
  3. Failure to follow the mandatory requirements of the law pursuant to 28 U.S.C. § 455 requires disqualification and is a further evidence of the appearance of partiality of Judge Thrash. (Liteky v. U.S., 114 S.Ct. 1147 (1994); Rankin v. Howard (1980) 633 F.2d 844, cert den; Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326; Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall 335, 20 L.Ed. 646(1872).)
  4. Windsor has a clear right to the relief requested. Judges do not have the option of ignoring motions for recusal. Judge Thrash had a clear duty to act. Recusal is not appealable, so mandamus is the only available remedy.

A writ of mandamus is a “drastic and extraordinary remedy reserved for really extraordinary causes” and will issue only in “exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion.” Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380, 124 S.Ct. 2576, 2586–87 (2004) (internal citations and quotations omitted). A writ of mandamus is only appropriate when: (1) the plaintiff has a clear right to the relief requested; (2) the defendant has a clear duty to act; and (3) no other adequate remedy is available. Cash v. Barnhart, 327 F.3d 1252, 1258 (11th Cir. 2003) (per curiam) (internal citation and quotation omitted). Mandamus “lies only to confine a lower court within its jurisdiction or to compel it to perform ministerial, not discretionary, functions.” Weber v. Coney, 642 F.2d 91, 92 (5th Cir. Unit A Mar. 1981). “The party seeking mandamus has the burden of demonstrating that its right to issuance of the writ is clear and indisputable.” In re BellSouth Corp., 334 F.3d 941, 953 (11th Cir. 2003) (citations and quotation omitted). (United States v. Davis, No. 09-12693 (11th Cir. 01/04/2010).) (See also In re Bayshore Ford Trucks Sales, Inc., 471 F.3d 1233 (11th Cir. 12/11/2006).)

The Eleventh Circuit has ordered that district courts act outside their jurisdiction when they fail to remand actions to the state court. They have concluded that mandamus review of the merits of appellants’ claim is appropriate. (In re National Developers Inc., 803 F.2d 616 (11th Cir. 10/30/1986).)

To correct Judge Clemon’s clear violation of Section 455 and the deprivation of BellSouth’s right to counsel of choice, we should grant the writ of mandamus. Mandamus is the appropriate remedy for a judge’s failure to recuse when required to do so by the recusal statute. See In re Corrugated Container Antitrust Litig., 614 F.2d 958, 961 n.4 (5th Cir. 1980) (“We do not deny our authority to review on mandamus the question of disqualification. Courts not infrequently reach the merits of disqualification issues on a consideration of whether mandamus will issue.”); Davis v. Bd. of Sch. Comm’rs, 517 F.2d 1044, 1051 (5th Cir. 1975) (“[Section 455] may… be asserted by a party… by mandamus.”) (citations omitted). Mandamus is a drastic remedy “to be invoked only in extraordinary situations…. Only exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34-35, 101 S. Ct. 188, 190, 66 L. Ed. 2d 193 (1980).

“the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires….” Kerr v. United States Dist. Court, 426 U.S. 394, 403, 96 S. Ct. 2119, 2124, 48 L. Ed. 2d 725 (1976). Petitioners have the burden of showing that their “right to the issuance of the writ is ‘clear and indisputable.’ ” Will v. United States, 389 U.S. at 96, 88 S. Ct. at 274 (quoting Bankers Life and Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S. Ct. 145, 148, 98 L. Ed. 106 (1953)). “The writ of mandamus is an order directing a public official… to perform a duty exacted by law,” United States v. Denson, 603 F.2d at 1146, and “will not issue to correct a duty that is to any degree debatable….” Id. at 1147 n.2. In this case, petitioners have met their burden of showing a clear and indisputable right to relief. They have shown that Judge Clemon had a duty to recuse under Section 455(b) as soon as Price filed his notice of appearance. Judge Clemon’s duty to recuse under Section 455(b) is not debatable; Congress clearly intended that recusal under this section be mandatory and automatic, without exception. Judge Clemon’s failure to recuse and his decision to reassign the motion to disqualify Price to another judge amounted to a judicial usurpation of power which led to the deprivation of BellSouth’s counsel of choice. Judge Smith’s order disqualifying Price and his law firm was a further usurpation of power because Judge Smith had no authority to consider the motion to disqualify, much less grant it. By granting the motion, Judge Smith deprived BellSouth of its counsel of choice. We should issue the writ of mandamus to correct these violations of Section 455 and the deprivation of BellSouth’s counsel of choice. (In re BellSouth Corporation, 334 F.3d 941 (11th Cir. 06/17/2003).)

WHEREFORE, Windsor requests:

  1.  that a stay of all orders issued in the Underlying Actions be ordered without bond pending the decision on this Petition;
  2.  that a stay of all activity be ordered without bond in Appeals of all orders in the Underlying Actions and that the time for filing appeals be frozen pending the decision on this Petition;
  3.  that Judge Thrash and the United States District Court for the Northern District of Georgia be restrained from engaging in any other proceedings in the Underlying Actions;
  4.  that Judge Thrash be ordered disqualified;
  5.  that all orders in the Underlying Actions be declared void;
  6.  that the Underlying Actions are remanded to the Fulton County Superior Court;
  7.  that this Court grant such other and further relief as is appropriate. 

Respectfully submitted this 5th day of September 2011.

I, William M. Windsor, state that I am authorized to make this verification on behalf of myself and that the facts stated above are true and correct. This is based upon my personal knowledge. In accordance with 28 U.S.C. § 1746, I declare under penalty of perjury that this is true and correct.

William M. Windsor

Microsoft Word copy of my Petition for Writ of Mandamus against Judge Thomas W. Thrash

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There is NO QUESTION that Judge Thrash does not have jurisdiction; committed obstruction of justice by causing my motions and affidavits to vanish and by blocking my motions for remand (one of the most basic legal rights that a litigant has); violated the law by refusing to recuse himself and acting as the judge in two cases in which he is a defendant.  But mark my words, the Eleventh Circuit Court of Appeals in Atlanta will become accessories to this criminal activity by letting Judge Thrash get away with it all.

I’ll keep you posted….

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