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08-16174-CC Petition For en Banc Rehearing
08-16174-CC Petition For en Banc Rehearing
The panel decision conflicts with decision(s) of the United States Supreme
Court, of this Court, and of sister Courts, and consideration by the full court is
Fed. R. App. P., fraud upon the court, both the State of Georgia Constitution and
The United States Constitution and concern violations of due process of law,
violations of Georgia and United States Laws and Rules and the doctrine of stare
decisis.
Ruling on a timely filed meritorious Motion to Recuse; when all other Motions had
been Ruled upon within nine (9) days of the Reply being filed. Refusal to reinstate
Court’s own Local Rules concerning Dismissal of Appeals, and violates Due
Process of Law. Because the Rulings of the District Court and this Court were
procured through fraud and fraud upon the Court. There are important questions
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Fed. R. App. P. 35 (b)(1)(A)
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The following shows, with particularity and specificity, that both this Court
and District Court failed to follow precedent concerning: Motion to Recuse as well
Court December 26, 2008 . Appellant filed Motion for Appointment of Counsel
January 7, 2009, which was Denied January 16, 2009; Motion for Reconsideration
Appellant filed Motion to Recuse Judges Hull, Wilson and Marcus February
18, 2009; Georgia Power Appellees filed Objection February 23, 2009 to which
Appellant received, a copy of the Clerk to Clerk communication stating Appeal had
the Court April 13, 2009 per April 6, 2009 conversation with clerk2. April 18,
2009 Appellant received letter from Clerk stating Appellant failed to Motion to
May 8, 2009 letter from Clerk that the Court did not receive Order/judgment
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Doesnot show filed until April 16, 2009.
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appealed from, Certificate of Service for Record Excerpts.3
Letter dated May 22, 2009 stating “if the corrections for the record excerpts
were not received within fourteen days, the motion to reinstate will be returned
unfiled”. Appellant called the clerk, was told she was out of town for a week.
July 09, 2009 received Order Denying Motion to Reinstate which cites no
authority or caselaw. For all Appellant knows, the Clerk made the Ruling.
results in the Order being vacated. A Ruling against Reinstatement results in denial
to appellant to have the appeal decided on the merits, causing a denial of right to
appeal.
Court’s own Local Rules and Due Process of Law. Because the Rulings of the
District Court and this Court were procured through fraud and fraud upon the
This Court held on August 26, 2008, in James B Stegeman v. State of Georgia,
Further, Judges Edmondson, Hell and Forrester in Nadler v. Harvey, No. 06-
12692 (11thCir. 2007) held that “disparate treatment occurs when a disabled
U.S.C. §12112(b).”
FRAP 42. Voluntary Dismissal There is no FRAP for dismissal for failure to
prosecute. The Local Rules of the Court determine the procedures. FRAP 47
states any local rules “must not be enforced in a manner that causes a party to lose
rights”; and “no sanction of other disadvantage may be imposed for noncompliance
with any requirement” it becomes obviously apparent that Mr. Stegeman’s cause
should not have been dismissed for failure to prosecute. The dismissal caused Mr.
Stegeman to lose rights, he was disadvantaged causing injury to him. The clerk
violated this Court’s Local Rules by not affording Mr. Stegeman the opportunity to
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remedy before dismissing by the Clerk,5 resulting in disparate treatment.
Further, the Appeal was Dismissed for Failure to Prosecute while Motion to
Recuse remained pending, the Court refused to Rule, allowing the Clerk to dismiss
Georgia Power appellees responded that only certain Motions stay the time for
filing a brief, but Motion to Recuse has a definite impact on the outcome of an
Appeal, any Rulings made by the Recused Judge would be reviewed and possibly
overturned by a different Judge. If Motion to Recuse does not stay briefing, surely
Stegeman injury and violated his rights. Thereby the dismissal is in direct conflict
The only notice he got was a Clerk to Clerk communication stating that the appeal
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had been dismissed for failure to prosecute and the Motion to Recuse was MOOT.
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FRAP 47 states: “no sanction of other disadvantage may be imposed for
noncompliance with any requirement”
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with FRAP 47, the Appeal should have been reinstated.
The clerk then violated Mr. Stegeman’s rights and the Rules by failing to
notify Mr. Stegeman that he had 14 days to remedy the default.7 Refusing to Rule
on Motion to Recuse before briefing period expired, was improper; any ruling
made before the recusal should be overturned, and Mr. Stegeman shoud have been
"constitutionally entitled to access to the courts and to equal protection of the laws.
'The very essence of civil liberty certainly consists in the right of every individual
Madison, 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 60 (1803)." Jones v. Clinton, 72 F3d
1354 (8th Cir. 1996), rehearing en banc den., 81 F3d 78; cert. granted, 116 S.Ct.
2545.
“The United States Supreme Court has made clear that ‘a fair
trial in a fair tribunal is a basic requirement of due process’ in
administrative adjudicatory proceedings as well as in courts”
Michigan Dept. of Soc. Sercs. V. Shalala, 859 F. Supp. 1113,
1123 (W.D. Mich. 1999) (quoting Withorow v. Larkin, 421 U.S.
35, 36, 95 S.Ct. 1456, 1459, 43 L.E.d.2d 712 (1975)) Thus
stated Justice Kennedy in his concurring opinion in the recent
Supreme Court case construing the analogous federal statute on
judicial disqualification, ‘[i]f through obduracy, honest mistake,
or simple inability to attain self knowledge the judge fails to
acknowledge a disqualifying predisposition or circumstance, an
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11th Cir. R. 42-1
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appellate court must order recusal no matter what the source.’
Liteky v. U.S., 510 U.S. 540, 563, 114 S.Ct.1147, 1161, 127
L.Ed.2d 474 (1994) (Kennedy J. concurring) This is because, as
our court of appeals has declared, ‘litigants ought not have to
face a judge where there is a reasonable question of
impartiality…’ Alexander v. Primerica Holdings, Inc., 10 F.3d
155, (3rd Cir. 1993). D.B. v. Ocean Tp. Bd. Of Educ., 985 F.Supp.
457 (D.N.J. 1997) (Bold emphasis added.)
causing yet another delay to finality. So rather than Rule and chance an appeal,
this Court denied the motion, sub silentio, instructed the Clerk to declare it Moot.
Broward County, 468 So.2d 1035 (Fla. App. 4 Dist. 1985) held “Since the final
judgment was entered after petitioner filed her motion for disqualification, it must
be vacated.” Southern Coatings Inc v. City of Tamarac, 840 So.2d 1109 (Fla App. 4
Dist. 2003); Fifth District Court of Appeal Dura-Stress Inc v. Law, 634 So.2d 769
Courts have repeatedly held that positive proof of the partiality of a judge is
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not a requirement, only the appearance of partiality. Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988) (what matters is not the
reality of bias or prejudice but its appearance); United States v. Balistrieri, 779 F.2d
1191 (7th Cir. 1985) (Section 455(a) "is directed against the appearance of
partiality, whether or not the judge is actually biased.") ("Section 455(a) of the
Judicial Code, 28 U.S.C. §455(a), is not intended to protect litigants from actual
bias in their judge but rather to promote public confidence in the impartiality of the
judicial process.").
That Court also stated that Section 455(a) "requires a judge to recuse himself
Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989). In Pfizer Inc. v. Lord, 456 F.2d
532 (8th Cir. 1972), the Court stated that "It is important that the litigant not only
actually receive justice, but that he believes that he has received justice."
The Supreme Court has ruled and reaffirmed the principle that "justice must
satisfy the appearance of justice", Levine v. United States, 362 U.S. 610, 80 S.Ct.
1038 (1960), citing Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (1954).
A judge receiving a bribe from an interested party over which he is presiding, does
"Recusal under Section 455 is self-executing; a party need not file affidavits
in support of recusal and the judge is obligated to recuse herself sua sponte under
the stated circumstances." Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989).
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Further, the judge has a legal duty to disqualify himself even if there is no
motion asking for his disqualification. The Seventh Circuit Court of Appeals
further stated that "We think that this language [455(a)] imposes a duty on the
judge to act sua sponte, even if no motion or affidavit is filed." Balistrieri, at 1202.
Mr. Stegeman has shown that Georgia Power committed perjury and fraud
when claiming that they didn’t know the easement document did not pertain to the
and this Court; then claiming that as soon as they discovered a problem with the
support of Georgia Power’s Motion for Summary Judgment, prior to the incident
that led to the Superior Court case against Georgia Power, there had been a
professional title examination done, and all easement documents examined. The
same party’s (attorney)Affidavit clearly stated that there was another contact from
Georgia Power to do further study into Land Lots, and the property in November
well before they filed their Verified Answer and Counterclaim in Superior Court.
This information was secreted from Mr. Stegeman in Superior Court and District
Court, and shows that the Verified Answers were fraud upon the Court to obtain a
"Since attorneys are officers of the court, their conduct, if dishonest, would
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constitute fraud on the court." H.K. Porter Co., Inc. v. Goodyear Tire & Rubber
Co., 536 F.2d at 1119”
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ruling in their favor.
Judge Duffey allowed all of the defendants to ignore the mandatory Initial
Persons. In a prior, unrelated case, Judge Duffey gave Mr. Stegeman 15 days to
file the necessary documents, or the case would be dismissed; Judge Duffey proved
Only after Mr. Stegeman filed against the defendants for failing to file the
mandatory documents, which were at that time more than fourteen days overdue,
did any of the defendants file for a Stay of Discovery. A stay of discovery does not
prevent the filing of the mandatory documents. Had Georgia Power been forced to
file the Initial Disclosures, they would have had to file the documents showing that
they knew, prior to trespassing and damaging Mr. Stegeman’s property, that they
had no legal easement documents. District Court participated in fraud upon the
The Georgia Power entity that Verified the Answers to the Complaint is
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Georgia Power’s in-house attorney. "Since attorneys are officers of the court, their
conduct, if dishonest, would constitute fraud on the court." H.K. Porter Co., Inc. v.
In Bulloch v. United States, 763 F.2d 1115 (10thCir. 1985) held the
following:
Although Mr. Stegeman had repeatedly shownthe Courts that Georgia Power
was using a fraudulent document, not one Court addressed the issue. Georgia
Power knowingly, willingly, and wantonly committed fraud and fraud upon the
wrong against the institutions set up to protect and safeguard the public” and
Co. v. Hartford Co., 322 U.S. 238, 246, 64 S.Ct. 997, 1001, 88 L.Ed. 1250, reh'g
denied, 322 U.S. 772, 64 S.Ct. 1281, 88 L.Ed. 1596 (1944), a case that also
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indisputably shown here involves far more than an injury to a
single litigant. It is a wrong against the institutions set up to
protect and safeguard the public, institutions in which fraud
cannot complacently be tolerated consistently with the good
order of society. Surely it cannot be that preservation of the
integrity of the judicial process must always wait upon the
diligence of litigants. The public welfare demands that the
agencies of public justice be not so impotent that they must
always be mute and helpless victims of deception and fraud.”
“Manifest injustice can result when the denial of motion to reinstate bars an
otherwise meritorious claim.” See Calloway v. Marvel Entm’t. Group, 854 F.2d
1452, 1475 (2d Cir. 1988), rev’d in part on other grounds sub norm Pavelic &
This Court, rather than address District Court’s vicious verbal assault on Mr.
Stegeman; and address District Court’s refusal to Rule on Recusal until the Order
dismissing the case, stayed the course; this Court refused to rule on recusal at all
resulting in violation Mr. Stegeman’s Rights, violations of due process of law and
Forma Pauperis clearly stated that the Appeal was not frivolous, therefore the
something that is not jurisdictional, gives credibility and merit to the Motion to
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Recuse. The Judges obviously wanted assurance the Appeal would not be heard on
Mr. Stegeman’s Appeal was dismissed by the Clerk for Failure to Prosecute
without affording to him what this Court’s own Rules show he was entitled to.
Mr. Stegeman was never notified and given fourteen (14) days to file his Brief.9
Appellees,10was denied as Moot when the Clerk dismissed. The Motion to Recuse
and Reply to Georgia Power Appellees Objection showa long history between
Judge Hull, her husband Mr. Aeck, Georgia Power Company and Troutman
resulting in injury to Mr. Stegeman in the form of denial of rights, and denial of his
E. Motion to Recuse
R. 27-1(c)(20) “to grant moderate extensions of time for filing…not yet assigned
…” and 11th Cir. R. 27(c)(21) “to expedite briefing in a direct appeal of a criminal
conviction…”
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the judicial process” See Liljeberg, v. Health Servs. Acquisition Corp., 486 U.S. at
864, 108 S. Ct. 2194 (public confidence in the judicial process a factor in review of
failure to recuse). “[T]he goal of the judicial disqualification statute is to foster the
1101, 1111 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, L.Ed.2d 22 (1980);
(“any doubts must be resolved in favor of recusal): United States v. Kelly, 888F.2d
Refusing to Rule on the Motion until dismissing the case, causes the issue
not to be reviewable while a matter is still pending. The appellate Courts have
repeatedly frowned upon waiting until a final Order to Rule on timely filed
recusals, see Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988):
“by his silence, Judge Collins deprived respondent of a basis for making a timely
motion for a new trial and also deprived it of an issue on direct appeal” “Court of
Appeals correctly noted, Judge Collins' failure to disqualify himself on March 24,
District Court did much the same by waiting to address Motion to Recuse
when Dismissing the complaint, preventing review of the Ruling while the case
was still before that Court. Further District Court “viciously attacked” Mr.
Stegeman not only for actions in the case at bar, but in every case Stegeman has
been a party in before the court, in both Order dismissing the case and in Order
Denying Reconsideration.
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“Further, when that same judge has unjustifiably refused to
recuse himself, while viciously attacking a party for virtually
every action he took in the case, a reasonable person could
conclude that the judge had denied the motion, sub silentio. This
court, like all other courts, recognizes the concept of judicial
action taken sub silentio”. E.g., Cohen v. Flushing Hospital and
Medical Center, 68 F3d 64, 67, n. 1 (2nd Cir. 1995).
CONCLUSION
Mr. Stegeman has properly shown that his issues reflect the requirement for
En Banc review and Moves this Honorable Court to Grant En Banc Rehearing.
By: __________________________
JAMES B. STEGEMAN, Pro Se
821 Sheppard Rd
Stone Mountain, GA 30083
(404) 300-9782
CERTIFICATE OF SERVICE
James B. Stegeman vs. Superior Court, et., al., Appeal No. 08-16174-C
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I Certify that I have this 9th day of September, 2009 served a true and correct copy
through their attorneys on record by causing to be deposited with the U.S.P.S., First
_______________________________
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