Final Draft Of Response To Mandamus Denial-submit

Supreme Court of the United States Office of the Clerk Washington, D.C. 20543-0001

In Re Pro Se

Timothy J. Williams Vs.

No. 08-6220

Home Depot, U.S.A.

Petition for Rehearing of Writ of Mandamus and Writ of Prohibition brief opposing the dismissal/denial of petition. Petitioner seeks to the courts review of the denial of judgment in the petition for Writ of Mandamus and Writ of Prohibition pursuant to 28 U.S.C. 1651. The rehearing petition is timely filed because it was mailed within the 25 days as required from the date of the denial on November 10, 2008 from the clerk of the court. This petitioner has been denied justice as a result of the prejudice and bias demonstrated by the lower court due to abuse of judicial discretion.

Question Presented For Review Should United States District Court Magistrate for the Eastern District of New York, the honorable Cheryl Pollack, who is the vested owner of shares of stock in Home Depot, be disqualified from presiding in cases in which Home Depot is a defendant?

PARTIES Timothy J. Williams Plaintiff-Petitioner Magistrate Cheryl Pollack United States District Court for the Eastern District of New York 1

Respondent Home Depot U.S.A. Defendant-Respondent Steven DiServi Counsel for defendant Lawrence Bailey Counsel for Defendant

Table of Contents Question presented for review

(1)

Parties

(11)

Table of Contents

(111)

Table of Authorities

(1V)

Prior Opinions

(V)

Jurisdiction

(V1)

Constitutional Provisions

(V11)

Statutes Involved

(V111)

Statement of the Case

(1X)

Argument

(X)

Conclusion

(X1)

Certificate

(X11)

Table of Authorities Case Alexander v. Primerica Holdings, Inc., 10 F.3d 155 (3rd Cir. 1993) In Re Antar, 71 F. 3d 97 (3rd Cir. 1995)

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Baran v. Port of Beaumont Navigation District of Jefferson County, 57 F. 3d 444 (5th Cir. 1955) Berger v. U.S., 255 U.S. 22 (1921), 41 S Ct. 230, 65 L.Ed 481 Bradley v. School Board of City of Richmond, Virginia, 324 F. Supp. 439 (E.D Va. 1971) Camero v. United States, 375 F.3d 777 (U.S. Claims 1967) Collins v. Dixie Transport, Inc. 543 So. 2d 160 (1989) Crain v. United States, 162 U.S. 625 (1896), 16 S.Ct 952, 40 L.Ed 1097 D.B. v. Ocean Tp. Bd. of Educ. 985 F Supp 457 (D. N.J. 1997) Davis v. Board of School Commissioners of Mobile County, 517 F. 2d 1044 (5th Cir. 1975) cert. denied, 425 U.S. 944 (1976), 96 S.Ct. 1685. 48 L.Ed 188 Haines v. Liggett Group, Inc., 975 F. 2d 81 (3rd Cir. 1992) In Re IBM Corp., 618 F.2d 923, (2nd Cir 1980) Knapp v. Kinsey, 2322F. 2d 458, (6th Cir. 1956), reh'g. Denied 235 F. 2d 129, cert. denied 352 U.S, 892, 77 S Ct 131, 1 L. Ed 2d 86 Lijeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988) 108 S. Ct. 2194, 100 L. Ed. 2d 855 Liteky v. U.S., 510 U.S. 540 (1944), 114 S. Ct. 1147, 127 L. Ed 2d 474 Michigan Dept. of Social Services v. Shalala, 859 F. Supp 1113 (W.D Mich. 1994 Public Utilities Comm’n. of D.C. v. Pollack, 343 U.S. 451 (1952), 72 S.Ct. 813, 96 L. Ed. 1068 Robert v. Bailar, 625 F. 2d 125, (6th Cir. 1980), on remand 538 F. Supp. 424 Rosen v. Sugarman, 357 F. 2d 125, (6th Cir. 1966) In re Schenck, 870 P.2d 185 (Or. 1994) Union Carbide Corp. v. U.S. Cutting Service, Inc., 782 F. 2d 710 (7th Cir.1986) United States v. Antar, 53 F.3d 568 (3rd Cir. 1995)995) U.S. v. Bertoli, 40 F.3d 1384(3rd Cir. 1994) U.S. v. Townsend, 151 F. Supp. 378 (D.C.D.C 1957 U.S. v. Aviles-Reyes 160 F.3d 258 (5th Cir. 1998)

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Valley et al. v. Rapides Parish School Board, 118 F.3d 1047 (5th Cir 1997) Withrow v. Larkin, 421 U.S. 35 (1975), 95 S.Ct. 1456, 43 L.Ed. 2d 712

Table of Authorities Article V, U.S. Constitution Article XlV, Section 1, U.S. Constitution Title 28 U.S.C. Section 144 Title 28, U.S.C. Section 455 (a) Title 28, U.S.C. Section 455 (b) (5) (i) Title 28 U.S.C. Section 1651 Title 28 U.S.C. Section 2106

Constitutional Provisions Article V, United States Constitution in part provides; no person shall be deprived of life liberty or property, without due process of law. Article XIV, section 1 U.S. Constitution in pertinent part provides; no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S.; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.

Statutes Involved Title 28 U.S.C., Section 455 (a) states; any justice, judge or magistrate of the U.S. shall disqualify him/herself In any proceedings in which impartiality might reasonably be questioned. Title 28 U.S.C. Section 455 (b) (5) in pertinent part states; he/she shall also disqualify himself/herself where he/she is a party to the proceedings.

Statement of the Case Petitioner, Timothy J. Williams, was a plaintiff in a lawsuit against defendant{s}, Home Depot, in which the magistrate in the Eastern District presided. Civil Action No. 04-2037 filed in the District Court in 2000. The petitioner alleges that Reckless Negligence was the cause of the immediate personal pain and suffering, permanent physical disability by defendants to the plaintiff in their place of business, while shopping for construction materials for a school project in the community. Petitioner has been denied the ability to work and earn income to provide for his family. Petitioner lost his business, lost wages, corporate losses, scarring, mental stress etc., where life savings had been invested in the business and purchase of construction equipment for the success of the business. Petitioner was directed to demonstrate loss of wages and loss of 4

corporate income only to be denied the accountants explanation of the loss wages and corporate losses. The business was lost and all construction equipment was lost to the warehouse owners because of the inability to pay rent, petitioner lost his home, lost his dog and last but not least his physical ability to earn a living due to the disability. When seeking compensation for the intentional forklift injury as a result of the defendants’ negligence. The petitioner alleges discrimination under 42 U.S.C. that the court and defendants did deny equal treatment under the law of the U.S. and discrimination because of the disability of the petitioner did deny him the equal treatment under the law.

Facts Introduction: While shopping in the defendant’s place of business for construction materials defendant employees did cause the injury/disability to the plaintiff with a forklift. The laws of the State of New York were egregiously misapplied, when the defendant’ owns a duty of care to the plaintiff/petitioner was all but lost in this case. There is a specific unsafe condition in the defendants place of business which existed at the time this petitioner was shopping unaware of the forklift in the vicinity of the petitioner. That the court egregiously with abuse of judicial authority did deny the plaintiff equal treatment under the law in this case; resulting from the fiduciary relations the court has with the defendants businesses. The evidence clearly indicates that the defendants knew about the significant shares of stock the magistrate and family owned in the defendant’s business and the plaintiff was ignorant of the relations. Correspondence from the Albany Office to the magistrate confirms this relationship. That there existed an unsafe condition where plaintiff was injured there presented a high degree of risk and strong probability of serious injury or death. The defendant had a subjective realization of the danger and an appreciation of the existence of the specific unsafe condition and a high degree of risk and a strong probability of serious injury presented by the unsafe condition. That not withstanding these facts the court ignored the basic evidence and ruled in a bias and prejudicial manner denying the plaintiff equal treatment under the laws of the United States as provided in the Constitution. The specific unsafe condition at issue before the court in this petition is the lack of legally required training and the ineligibility by the driver of the forklift to receive training of such a vehicle by the OSHA statues because of the age of the driver, of the vehicle. The youth driving this vehicle in the defendant’s place of business was 17 years of age at the time of the injury, causing permanent disability to the plaintiff. The OSHA statutes requires that at a minimum the driver must be at least 21 years for such training; these prerequisites leaves moot any issue of shared responsibility. The age of the driver of the forklift and the manifest state of mind of the driver, is clearly demonstrated by the evidence of the facts and after the injury to the plaintiff by Mr. Novak’s deposition where proximate responsibility is established for the injury as a spotter, for the driver excluded by the court. The flagrant disregard for the laws and the facts of this case in the state court was permeated by the bias and prejudice of the court, explicitly disregarded issue of significant responsibility in this judicial process. The court manifestly demonstrated bias and prejudice with each and every ruling regarding the submission of pre-trial evidence, depositions not in play and missing witnesses throughout the pre-trial process ultimately denying the plaintiff equal treatment under the law. The dilatory and contumacious conduct by the legal counsels in this process was disregarded/excluded when the court allowed to stand the disregard for subpoena for witnesses and evidence in pre-trial and ultimately excluded in the trial as described in the petition. The court did manifestly accept input from the initial law firm representing the defendant’s after the counsel was terminated by defendants, the defendants counsel(s) proffered a settlement offer and the bias and prejudice plaintiff’s counsel was extremely disturbed by the offer and stormed out of the magistrates’ chambers. Months later this same defendants

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counsel did proffer to the court after having been terminated, a request to deny loss of wages evidence for the plaintiff, searching for a "Maya Coupe". The defendant{s} counsel proffered evidence of the initial settlement and these defendants has the determination to terminate one of the largest firms on wall street then hired one of the nations largest law firm all to deny justice. This process was inflicted with bias and prejudice from the inception and the manifest determination by the defendants to hire one firm after another to represent the illegal conduct denying this plaintiff/petitioner equal treatment under the law. The age of the driver makes moot the question of liability, if the question of whether the training existed or not would have prevented the injury to the plaintiff, the court avoided these issues, petitioner stands on firm ground in this instance the burden is for the defendants to reconcile. The intentional reckless negligence caused the injury/disability to the petitioner.

Abuse of Judicial Discretion Petitioner’s due process and equal treatment rights under the 5th and 14th Amendments were, and continue to be, severely abridged in this civil suit against Home Depot. The magistrate’s failure to disclose her financial relationship with the defendants deprived petitioner of the opportunity to bring this association to the attention of the higher courts. Had the district courts strong appearance of impropriety been timely addressed, the impartiality might reasonably have been questioned and affected the outcome of the case. The petitioner complained about deceptive prejudice and untruthful statements were employed by the defendants and the court to deny equal treatment under the law, making mention of the birth name which is different from the name in this case, irrelevant but part and partial throughout the pre-trial and trial and during oral arguments where the cause and facts surrounding the injury were excluded. When these falsehoods and the financial relationship the court has with the defendants in a brief to the appeals court for rehearing were denied, had the appellate court been aware of the financial dealings, the magistrates’ association with the defendants and willful concealment of this association, it may have been more inclined to examine those strongly disputed material facts. The U.S. Supreme Court may also have been more receptive to the appeal had it been appraised that the magistrate was disqualified under 28 U.S.C. at the she made her rulings and entered in favor of the defendant. At every critical juncture the magistrates’ reasoning appeared to be guided along a path that led to the defendant{s} goal of denying the petitioner a trial on the merits of his case. In some instances, the process involved treating as “undisputed facts” facts that were sharply disputed by documentary evidence, witnesses’ testimony and petitioner sworn testimony along with the deposition of the spotter for the driver of the vehicle. The failure to produce evidence or a witness in this case has not offered the plaintiff the testimony of the driver of the vehicle or the spotter; as this evidence was under the control of the court. And could have been produced the respondents in this case has not offered the testimony of the driver and the spotter. You can infer that the evidence would have been adverse to the defendant. There is no reasonable excuse for the magistrate for denying and failure to produce the evidence that would have been material. In many courts around the nation it has been determined that any person is competent to be a witness. An egregious example of the Districts Courts abuse of judicial authority’ was its treatment of loss wages, directed the petitioner to provide an accurate account of cost for replacement workers for the petitioner as a result of the injury; which was provided and certified by plaintiffs’ accountant and then did disregarded the replacement wages for plaintiff’ as evidence in the process. Petitioner was denied the real loss of corporate earnings predicated on slight of hand judicial rulings denying petitioner equal treatment under the law. During the course of the abusive process the Court repeatedly dismissed and ignored her own rulings and subpoena instructions to plaintiff counsel and defendants counsel. The contumacious conduct by counsel(s) were a reflection of the bias and prejudice exhibited by the court in this case, the defendants’ counsel even makes reference to this conduct in correspondence to the court allowing this same firm to offer dilatory

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defense, actions to permeate and retard the process, intrusion in the case by this counsel, the terminated law firm, successfully denying loss of wages. The judgment not withstanding the evidence “suggested the influence from extrajudicial source “, and denied plaintiff the ability to meet his claims for loss wages, corporate losses, and physical disability. Petitioner(s) counsel did emerge with a partner of the firm who was deemed unacceptable by plaintiff did present a dilatory defense also, by the intrusive actions unwanted by petitioner yet participated in the pre-trial discussions and conferences, which further denied the petitioner equal treatment under the law. Petitioner a very successful businessman, untrained in law, was astonished at the bias and prejudice that the court allowed to fester, that the court did abandon objective reality to favor defendants disputed claims, even when the bare facts were contradicted by defendant own employees and other sworn testimony by witnesses. Petitioner can cites numerous instances of bias and lack of objectivity, but a full account is seemingly beyond the scope of this petition for rehearing. As exampled with the driver of the vehicle which disabled the plaintiff was permitted to escape examination and the spotter of this vehicle Vince Novak was also missing in this process. The relevant missing documents regarding a record of the injury to the plaintiff was privileged material evidence denied the plaintiff in the claim for liability and restitution. The plaintiff was denied equal treatment under the law as a result of bias and prejudicial conduct unbecoming of an officer of the court. The judgments not withstanding the evidence suggested the extrajudicial source and led petitioner to search for and ultimately discover the association that linked the district court to the defendant. During guar dire prospective jurors were disqualified for any association or related association with the defendant. The conflict of interest applies to all adjudicators based on the appearance of impropriety or bias and prejudice intent. Due process under the Fifth and Fourteenth Amendments, along with the Bill of Rights, when applied by federal courts, does serve as a basic protection of the citizens against unjust federal action. Crain v. United States, 162, U.S. 625 (1896), S. Ct. 952, 40 L. Ed. 1097…In such cases, there is neither an intervening state court system nor an intervening state constitution. It is, therefore, the court’s view that Fifth Amendment due process must be given an even broader connotation than Fourteenth Amendment due process. United States v. Townsend, 151 F. Supp. 378 (D.C.D.C. 1957), at 367. Petitioner prays for the reassignment to a judge who is not associated with defendant so that they may tried on their merits in a manner that will promote public confidence in the integrity and fairness of the federal system and provide the litigants the blessing of equal justice under the law. According to U.S.C. 28 section 455(a), a recusal is required whenever their exist a genuine question concerning magistrates impartiality. No longer is the magistrates’ introspective estimate of her own ability impartiality to hear a case the determinate of disqualification under 455. The standard now is objective. It ask a reasonable person knowing all relevant facts would think about the impartiality of the magistrate. Roberts v. Bailar, 625 F. 2d 125, (6th Cir. 1980)980), at 129, on remand, 538 F. Supp 424. generally reinforced by Liteky. Once the facts of the magistrate’s association with defendant were discovered by petitioner and brought to her attention, the magistrate responded, “There is no basis for the plaintiff(s) suggestion that {my} impartiality might reasonably be question by virtue of these circumstances. Magistrate Pollack’s disregard of disclosure principles are aggravated by the fact that she attempted to conceal the association with defendant by denying the existence of the relations documented by the defendants. Willful Violations of judicial conduct are especially serious. Magistrate Pollack disregarded her own court instructions of the court for subpoenas for the driver of the forklift and the spotter for the driver of the forklift. The damage to the plaintiffs’ ability to find justice was irreparably tied to the judicial abuse. A failure to treat all persons equally where no reasonable distinction can be found between those favored and those not favored; also constitutes racial discrimination in public facilities. The magistrate vilified the plaintiff while testifying and after dismissing the jury, stated that she was in agreement with the verdict and I got what I deserved” In fact the bias and prejudice was even more pronounced when the court began to manipulate the

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unjust’ jury award. The existence of the monetary award also was subject to the courts impartial whims. This process was infected will impropriety and obstruction of justice’ discriminating in the worst way.

Appropriateness of Mandamus It is well settled that Mandamus Petition is the proper procedure for the Supreme Court to review a lower court magistrate for disqualification from a case in which her impartiality might reasonably be questioned. A magistrate’s refusal to recuse herself in face of a substantial challenge cast a shadow not only over the individual litigation but over the integrity of the federal judicial process as a whole. The shadow should be dispelled at the earliest opportunity by an authoritative judgment. In recognition of this point petitioner has been liberal in allowing the rise of the extraordinary writ of mandamus to review orders denying motions to disqualify. Union Carbide Corp. v. U.S. Cutting Service Inc. 782 F 2d 710 (7th Cir. 1986 1t 712 references deleted. Although mandamus maybe opposed on the premise that it should not be used as a substitute for appeal, petitioner contends that no party should be required to submit to a presiding magistrate who has a prejudicial bent of mind, expecting that there be another opportunity for justice; after final judgment has been rendered. Due process requires that a magistrate who is otherwise qualified to preside at trial or other proceedings must be sufficiently neutral and free of disposition to be able to render a fair decision. No person should be required to stand trial before a magistrate with a “bent mind”. Callens v. Dixie Transport, Inc. 543 So. 2nd 160 (1989) at citing Bergen v. U.S., 22, 33 41 S.Ct 230, 233, 65 L Ed 481 (1921) Wolfram, Modern Legal Ethics 17.5 Independence and Neutrality p989 (9186) Bold emphasis added

Obligation to Disclose Case law cited to support court’s determination “its obligation of a magistrate to disclose all facts that might be grounds for disqualification. The standard now is objective. It ask what a reasonable person knowing all the relevant facts would think about the impartiality of the judge. Roberts v. Bailar, 625, F. 2d 125, (6th Cir. 1980), at 129. On remand, 538 F.Supp. Ref’s. deleted, bold emphasis. Further Canon 3c of the Code of Judicial Conduct of the American Bar Association, which was codified with modifications as 28 U.S.C. and extensively referred to by courts across the nation “a magistrate should disqualify herself in a proceeding in which her impartiality might reasonably be questioned. Under Canon 3 of the Code of Judicial Conduct, magistrate had a duty to disclose her association with Home Depot U.S.A. before sitting in any case in which Home Depot was a defendant. However from the date of the pre-trial conference onward, the magistrate continually violated this code with respect to the petitioner’s lawsuit against Home Depot, when she sat and failed to make disclosure. More significantly disqualified under 28 U.S.C. sections 455. Magistrate’s actions infringed on ethical principle supported by case law that “It is not the duty of the parties to search out disqualifying facts about the magistrate it is the magistrates’ obligation. Quoting Justice Scalia in Liteky, two paragraphs of the most recent revisions of 455 brought into section 455 elements general “bias and prejudice” recused that had only been addressed by section 144. Specifically, paragraph (b) (1) entirely duplicated the grounds of recusal set froth in 144 sect. 144 (bias and prejudice), but (1) made them applicable to all justices, judges, magistrates and not just District Judges and (2) placed the obligation to identify the existence of these grounds, upon the magistrate herself, rather than requiring recused only on response to affidavits. Liteky v. U.S. 510 U.S. 540 (1994) at 548, 114 S.Ct. 1147, 127 L. Ed 2d 474.

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Because this petitioner seeks to protect the public’s confidence in the judiciary, the inquiry focuses not on whether the magistrate actually harbored subjective bias, but rather on whether the record, viewed objectively, reasonably supports the appearance of her bias and prejudice. U.S. v. Antar, 53 F. 3d 568 (3rd Cir. 1995) at 574; U.S. Bertoli, 40 F. 3d 1384, 1412 (3rd Cir. 1994); Alexander v. Primerica Holdings, Inc. 10 F. 3rd 155 (3rd Cir. 1992). In re Antar, 71 F. #d 97 (3rd Cir. 1995), at 101

Willful Misrepresentation Magistrate Pollack failure to disclose of her material and continuing association with defendant over the course of four years as presiding magistrate is in controversy. Almanac of Federal Judiciary constitutes a willful misrepresentation designed to thwart discovery of her association with defendant. When confronted with evidence of this action, Magistrate Pollack stated she was unaware that her husband had purchased these significant shares of stock. Her silence is implicating. The violations of 28 U.S.C., goes beyond mere negligence or harmless error and suggest that Magistrate Pollack has an interest in the outcome of the proceedings. Nonetheless the magistrates’ personal agenda should not be allowed to become an impediment to the cause of justice. Magistrate Pollack partisanship infringes on the 5th and 14th Amendments right to due process and equal protection of the laws of the U.S. and should not be tolerated. There are two predicates for willful violation of a rule of Judicial Conduct established by the Supreme Court of Oregon each would on there own merit be sufficient for there to be Willful violation. (1) that the magistrate must intend to cause a result or take an action contrary to the applicable rule of judicial conduct Federal Civil Procedures Rules that the magistrate must be aware of circumstances that in fact make the rule applicable, whether or not she violates the rule. In Re 870 P. 2d 185 (OR. 1994 at 193. Once the facts of her association with the defendant were discovered by petitioner and brought it to her attention, Magistrate Pollack responded “there is no basis for the plaintiffs’ suggestion that impartiality might reasonably be questioned by virtue of these circumstances”. A magistrate will be subject to discipline for incorrectly failing to disqualify herself where the failure is willful. The test is an objective one and therefore a willful failure to disqualify may be present even though the magistrate states on record that she does not believe disqualification is necessary. This approach has the advantage of requiring judges to look to an external standard in addition to their subjective feelings to decide if disqualification is necessary. It thus takes into account that disqualification is required if there is an appearance of partiality to the reasonable observer and it precludes a magistrate from avoiding recusal merely by avoiding her impartiality. See Schenck Id. at 189, 193-195.

Animus toward Petitioner Petitioner is filing a complaint with the U.S. Court of Appeals and the U.S. Congress for Judicial Review of Misconduct documenting Magistrate Pollack’s' activities that would presumably require her disqualification. Given the gravity of the charges brought against her the claim has a genius ring. More likely, Magistrate Pollack’s’ ability to render impartial judgment has been irrevocably injured by petitioner criticism of her judicial conduct, the only purpose of which is to justify her recusal. The basic requirement of constitutional due process is a fair and impartial tribunal, whether at the hands of a court, administrative agency or government hearing officer. The Supreme Court has consistently enforced this basic procedural right and held that decision makers are constitutionally unacceptable in the following circumstances where adjudication has been the target of personal abuse or criticism from parties before her. Valley et al v. Rapides Parish School Board 118 F. 3d 1047 (5th Cir. 1997) at 1052 9

In a situation somewhat analogous to the case under review the Fifth Circuit vacated the sentence of defendant Avilez-Reyes and remanded his case to the district court because defendants’ attorney had participated in a judicial disciplinary proceeding against trial judge a month earlier, who erroneously failed to recuse himself. Petitioner holds that Magistrate Pollack abused her discretion and reversibly erred by failing to recuse herself. Petitioner concluded that a reasonable person, advised of all the circumstances of this case would harbor doubts about Magistrates’ Pollack impartiality. U.S. v. Avilez-Reyes 160 F 3d 258 (5th Cir. 1998) at 259. The Magistrates’ condescending assessment of petitioners’ psychological state of mind is subjective, and prejudicial, when commenting to a request from plaintiff about his state of mind and mental confusion while testifying. More importantly her implication that petitioner difficulties are not evident and they are not the fault of the defendants’ reveals that the magistrate has already formed an opinion while petitioner was testifying in the trial and before completion of discovery or taking of depositions excluded in the this procedure. “Adjudicative decision maker should be disqualified if she has prejudicial disputed adjudicative issues. Valley et al Rapides Parish School Board 118 3d 1047 (5th Cir. 1997) at 1053. Moreover, “prejudgment as to the facts…….or reasons to believe such exist, if fairly supported would in the courts review satisfy section 144. Bradley v. School Board of the City of Richmond, Virginia, 324 F Supp 439 (E.D Va. 1971) at 445. The basic requirement of constitutional due process is a fair and impartial tribunal and the Supreme Court has consistently enforced this basic procedural defect arises when a decision maker has prejudged the facts to such an extent that their minds are irrevocably closed’ before adjudication. Valley et al Citing Baran v. Port of Beaumont Navigation District of Jefferson County, 57 F. 3d, 436 (5th Cir. 1995) at 446. Bias or prejudice on the part of the magistrate may exhibit itself prior to the trial by acts or statements on her part i.e. there was no settlement conference with a proffer by defendant, as stated by magistrate but the record clearly indicates, a settlement conference as confirmed by the defendants counsel. Or it may have appeared during the trial by reason of the actions of the magistrate in the conduct of the trial, denying petitioner opportunity for a coherent response to the cross examination by defendants’ counsel. Plaintiff requested a disability consideration while testifying; court determined plaintiff was adequately responding to questions in an intelligent manner. Such a subjective statement suggest a real impartiality, ignoring the medicated state of the plaintiff suffering in pain while having arrived at the court with difficulty mobilizing on a walker. The courts impartiality was evidenced throughout this trial, subjecting plaintiff to comments that were nefarious in nature in front of the jury and other comments about the testimony from plaintiff. Causing the jury to disbelieve the true and honest attempt to testifying about the facts; plaintiffs counsel intentionally failed the assignment to represent plaintiff. If it is known before the trial it furnishes the basis for disqualification of the magistrate to conduct the trial. Section 144, title 28 U.S.C. Knapp v. Kinsey, 232 F. 2d 458 6th Cir. 1956 at 465. Rehearing 235 F. 2d 129, cert. denied 352 U.S. 892, 77 S Ct. 731 L Ed 2d 86. In the present case, Magistrate Pollack’ predisposition and bent mind, as revealed by her actions and the record of her dispositions satisfies the requirements for disqualifications.

Prejudice in Favor of Petitioner The collective evidence of the dilatory and contumacious conduct and questionable rulings and nature of the “subsequent research” revealing the ownership of significant shares of stock in the defendants’ place of business, displays an unequivocal partiality that renders fair judgment impossible. Thus, there is no barrier to her private non-judicial association with Home Depot U.S.A. Magistrate Pollack contact with the defendant is evidences which subject her to the receipt of extrajudicial information that can include rumor, innuendo, and prejudice comments about birth name of petitioner throughout the trial intimating the plaintiff was responsible for the birth name,

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prejudicing the jury with condescending innuendo, with jurors not of his peers, no black males, no businessmen/women, and two college grads. The majority of the jurors were white males susceptible to rumor and innuendo about this Black-Native-American. Racism was the approach and impropriety was the bullet that destroyed the petitioners’ claim for justice. Judges personal business relations must be dignified and of course, must denote respect for and compliance with the law, these being the same restrictions that apply to all of a judges extrajudicial activities whether compensated or not. Magistrates should not sit in cases where the business associates are a party. It is difficult to imagine a non-serious incursion of fairness that permit the representation of one of the parties to privately communicate with the magistrate about fiduciary relations. Camero v. U.S. 375, F. 2d 777 (U.S. Claims 1967, at 781. Vacatur is justified on grounds that the magistrate was disqualified under 28 U.S.C. section 455 and 455 (b)(5)(i) at the time she presided and entered judgment in favor of defendant, that she willfully concealed and later misrepresented the long-term relations with the defendant, when she continues to be materially, associated and in concealment obstructed justice; abridged petitioners due process rights under the Fifth and Fourteenth Amendments, and prevented petitioner from receiving a valid de novo review in appellate court, which was unaware of the strong appearance of impropriety in the state court.

Pervasive Bias and Prejudice Justice Scalia, joined by Justices Rehnquist, O’Connor. Thomas and Ginsberg expressed in Liteky the majority court opinion that a favorable or unfavorable predisposition can also deserve to be characterized as bias or prejudice requiring recusal because, even though it springs from the facts addressed or the events occurring at trial, it is so extreme as to display clear inability to render fair judgment. That explains what some courts have called the “pervasive bias exception” to the extrajudicial source doctrine. See e.g. Davis v. Board of School Commissioners of Mobile County, 517 Ed 2d 1044, 1051 (CAS 1975) cert denied 425 U.S. 944, 961 S Ct 1685, 48 L. Ed 2d 188 (1976) Liteky v. U.S. 510 U.S. 540 (1974) at 551. In Liteky, Justices Kennedy, Blackman, Stevens, and Souter challenged the extrajudicial source rule, arguing that undue emphasis should not be placed on the source of the contested mindset in determining whether disqualification is mandated by 455 (a). In statutes does not refer to the source of the disqualifying partiality and in placing the much emphasis upon whether the source is extrajudicial or intrajudicial distracts from the central inquiry. One of the very objects of law is impartiality of its judges, magistrates in fact and appearance. The relevant considerations under 455 (a) is the appearance of impartiality. See Lijeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988) at 860 108 S.Ct. at 220-03 not where it originated or how it was disclosed Liteky at 558. Justice Kennedy further expressed the opinion that standard for disqualification under 455 during the course of a judicial proceeding is too severe under Liteky and should be modulated to allow its intended protection. Section 455 (a) guarantees not only the partisan judge will not sit but also that no reasonable person would have that suspicion. See Lijeberg at 860, Liteky Id. at 567. Notwithstanding the dichotomy of opinions over the extrajudicial rule, petitioner contends that Magistrate Pollack long standing business relations with Home Depot meets the standards of genuine extrajudicial source factor, it is impossible for Magistrate Pollack to escape the appearance

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of partiality posed by the facts presented in this petition and rehearing brief. It may be noted that some courts now admit prior rulings in consideration of bias and prejudice. Because of the public confidence in the judiciary, focus not on whether the magistrate actually harbored subjective bias, but rather on whether the record viewed objectivity, reasonably supports the appearance of prejudice or bias. U.S. v. Antar 53 F 3d 568 (3rd Cir 1995) at 574 U.S. v. Bertoli 40 F. 3d 1384, 1412 (3rd Cir. 1994) Alexander v. Primerica Holdings, Inc. 10 F 3d 155 (3rd Cir. 1993) at 162; Hanes v. Ligget Group, Inc. 972 F 2d 81, 98 (3rd Cir.) 1992) In Re Antar, 71 F 3d 97 (3rd Cir. 1995) at 101.

Determination of Impartiality According to 28 U.S.C. 455, recusal is required whenever there exist a genuine question concerning a judge, magistrate, justice‘s impartiality. It may be argued that the determination of the magistrate should be afforded great weight and should not be disturbed unless clearly erroneous. However, in the matter here under review it is clear that Magistrate Pollack engaged in actions that in the aggregate, constitute serious and erroneous abuse of judicial discretion. Magistrate Pollack impartiality is contraindicated by the facts of her intention to conceal the relations with the defendant. Additionally, Magistrate Pollack deep seated favoritism toward defendant as revealed by impartial rulings and her empathy toward petitioner because petitioner blames others for his disability and he is the victim demonstrates a pervasive bias that is so extreme as to indicate a clear inability to render a fair judgment. The latter circumstance requires recusal. Liteky v. U.S., 510 U.S. 540 (1994). Litigants ought not have to face a magistrate where there is reasonable question of impartiality. Section 455 (a)…guarantees not only that a partisan magistrate will not sit, but also no reasonable person would have that suspicion. See Lijeberg, at 860, Id. at 567

Conclusion To maintain the integrity of the federal judicial system, the court must be concerned whether the parties received fair and impartial treatment of the claim at the risk of undermining the publics confidences in the judicial process, the welfare of the parties must receive priority over other considerations when a violation of 455 (a) occur. In the matter presently under review, justice requires that the District Court’s judgment be vacated and the issues be placed before a new judge.

“The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.” Lijeberg, 486 U.S. 847, at 870 quoting Public Utilities Commission of D.C. v. Pollack, 343 U.S 451, 466-467,72 S.Ct. 813, 822-823, 96 L Ed 1068 (19520 ( Frankfurter, J., in Chambers). Magistrate Pollack’s conduct has cast a long shadow on the litigation that is now before her, and recusal is the only remedy that will renew the public’s faith in the integrity and fairness of the judicial system, prompt other judges to more carefully search for and disclose grounds for disqualifications, and restore impartiality to the litigants in the judicial process. When statutory standards for recusal are met, as has been demonstrated here, the magistrate should step aside and let another adjudicator, who is not associated with the defendant, be assigned.

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In conclusion, petitioner, Timothy J. Williams, respectfully prays that a writ of mandamus be issued by this court directed to respondent, Magistrate Pollack of the Eastern District of Brooklyn, New York, directing her to vacate her order, final judgment denying petitioner’s motion for rehearing and disqualify herself from presiding in the action and to grant all other requested relief as the court may deem proper. Knowing full well that this “racist Instution is not concerned about Justice for the Blackman” Respectfully submitted, Timothy J. Williams, Petitioner Pro Se 708 Hezekiah Way Ellenwood, Ga.30294 678.565.1296

November 29, 2008

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To God Be the Glory

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