C3
`No.
`
`FILED
`
`OFFICE OF THE CLERK
`SUPREME COURT MR
`
`3fa tfje
`Supreme Court of tfie ©tuteti States;
`
`In re GREGORY CHARLES KAPORDELIS,
`
`Petitioner.
`
`ON PETITION FOR WRIT OF MANDAMUS
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE ELEVENTH CIRCUIT
`
`PETITION FOR WRIT OF MANDAMUS
`
`Gregory C. Kapordelis, Pro Se
`Fed. I.D. No. 63122-053
`P.O. Box 5000
`Oakdale, LA 71463
`
`January 20, 2022
`
`
`No.
`
`FILED
`
`OFFICE OF THE CLERK
`SUPREME COURT MR
`
`3fa tfje
`Supreme Court of tfie ©tuteti States;
`
`In re GREGORY CHARLES KAPORDELIS,
`
`Petitioner.
`
`ON PETITION FOR WRIT OF MANDAMUS
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE ELEVENTH CIRCUIT
`
`PETITION FOR WRIT OF MANDAMUS
`
`Gregory C. Kapordelis, Pro Se
`Fed. I.D. No. 63122-053
`P.O. Box 5000
`Oakdale, LA 71463
`
`January 20, 2022
`
`
`
`■t
`
`>, i
`
`"■■Q
`. 'V*^.
`
`l
`QUESTION PRESENTED
`Whether this Court should issue a writ of
`mandamus directing Eleventh Circuit judges Grant
`and Lagoa to exercise appellate jurisdiction under 28
`U.S.C. § 1291, and to thereby effect a merits review of
`otherwise appealable recusal orders issued by the
`district court in the underlying civil proceeding,
`where (i) appellate jurisdiction under § 1291 is non-
`discretionary! (ii) appellate jurisdiction is not pre
`dicated on the COA requirements set forth at 28
`U.S.C. § 2253(c); (iii) the recusal orders were rendered
`appealable (i.e., ripe) once they were targeted in the
`notice of appeal after entry of a final order disposing
`of all claims in the case; and (iv) this Court has
`deemed it "treason" to the Constitution for a federal
`court to decline the exercise of statutory jurisdiction
`established by Congress.
`
`
`
`11
`
`PARTIES TO THE PROCEEDING
`1. Gregory C. Kapordelis, Petitioner;
`2. Hon. Britt C. Grant, Eleventh Circuit Judge,
`Respondent;
`3. Hon. Barbara Lagoa, Eleventh Circuit Judge,
`Respondent;
`4. United States of America, Respondent.
`
`CORPORATE DISCLOSURE STATEMENT
`Pursuant to Supreme Court Rule 29.6, Peti
`tioner states for the record that no parent or publicly
`held company has any interest in this case.
`
`RELATED CASES
`Kapordelis v. United States, Case No. Ull-CV-00280-
`CAP, U.S. District Court for the Northern District of
`Georgia.
`United States v. Kapordelis, Case No. 2:04-CR-00249-
`CAP-GGB, U.S. District Court for the Northern
`District of Georgia.
`
`
`
`1
`
`11
`
`11
`
`n
`
`in
`v
`
`1 2 3
`
`4
`6
`
`6 7 7
`
`10
`
`10
`
`Ill
`TABLE OF CONTENTS
`QUESTIONS PRESENTED...........
`PARTIES TO THE PROCEEDING
`CORPORATE DISCLOSURE STATEMENT
`RELATED CASES
`TABLE OF CONTENTS
`TABLE OF AUTHORITIES
`RELIEF REQUESTED..................
`ORDERS BELOW...........................
`JURISDICTIONAL STATEMEMT
`CONSTITUTIONAL PROVISIONS, STATUTES
`AND RULES INVOLVED......................................
`STATEMENT OF THE CASE
`A. District Court Proceedings....
`B. Notice of Appeal......................
`C. Eleventh Circuit Proceedings
`REASONS FOR GRANTING THE WRIT,
`
`INTRODUCTION AND RULE 20.1
`STATEMENT....................................
`
`I. THERE IS NO OTHER ADEQUATE
`MEANS TO ATTAIN THE DESIRED
`RELIEF.......................................
`11
`
`
`
`IV
`
`13
`
`15
`
`25
`
`II. THE RIGHT TO RELIEF IS CLEAR
`AND INDISPUTABLE.......................................
`A. Jurisdiction for appellate review of ripe
`recusal orders is established at 28 U.S.C.
`§ 1291................................................................
`13
`B. The COA provisions at 28 U.S.C. § 2253(c) do
`not effect § 129l's appellate jurisdiction to
`review ripe recusal (or similar) orders........
`III. THE EXCEPTIONAL CIRCUMSTANCES
`HERE JUSTIFY THE SUPREME COURT'S
`USE OF THE EXTRAORDINARY WRIT OF
`MANDAMUS.........................................................
`IV. AN ALTERNATIVE REQUEST FOR
`RELIEF OUT OF AN ABUNDANCE
`OF CAUTION.........................................
`CONCLUSION................................................
`APPENDIX
`Appendix A: Order of the Eleventh Circuit Court of
`Appeals Denying a COA (Aug. 12, 2021)
`.............................................................. App.l
`Appendix B: Order of the Eleventh Circuit Court of
`Appeals Denying re-hearing (Sept. 24,
`App.2
`2021)
`Appendix C; Order of the Supreme Court granting a
`filing-time extension (December 9,
`2021)
`App.3
`Appendix D: Kapordelis’s Notice of Appeal to the
`App.4
`Eleventh Circuit
`
`28
`30
`
`
`
`V
`TABLE OF AUTHORITIES
`
`13, 16
`
`Cases:
`Aquamar S.A. v. Del Monte Fresh Produce, Inc., 179
`F.3d 1279 (Uth Cir. 1999).............
`21
`Ankenbrandt v. Richards,
`504 U.S. 689 (1992)...........................
`Bankers Life & Casualty Co. v. Holland,
`346 U.S. 379 (1953)...........................
`Bracy v. Superintendent, Rockview SCI,
`986 F.3d 274 (3d Cir. 2021).............
`Campbell v. Sec'y Dept, of Corn, 2021 U.S. App.
`LEXIS 7813 (11th Cir. 1999)
`20, 23-24
`Cary v. Curtis,
`44 U.S. 236 (1945).................
`Castro v. United States,
`540 U.S. 375 (2003)..............
`Cheney v. U.S. Dist. Ct. for D.C.,
`542 U.S. 367 (2004)..............
`Cohens v. Virginia,
`19 (6 Wheat) U.S. 264 (1821)
`Greenlaw v. United States,
`554 U.S. 237 (2008)....... .......
`Evitts v. Lucey,
`469 U.S. 387 (1985)..............
`
`25-27
`
`25
`
`17
`
`14
`
`29
`
`11
`
`29
`
`26
`
`
`
`VI
`
`Harbison v. Bell,
`556 U.S. 180 (2009).
`Iacullo v. United States,
`463 Fed. App'x 896 (llth Cir. 2012)
`In re Collins, 2018 U.S. App. LEXIS
`13421 (llth Cir. 2018)......................
`Jackson v. Motel 6Multipurpose, Inc.,
`130 F.3d 999 (llth Cir. 1997)..........
`Johnson v. Steele,
`999 F.3d 584 (8th Cir. 2020)...........
`Kemp v. United States,
`52 Fed. App'x 731 (6th Cir. 2002)...
`Kirkland v. Nat'lMortg. Network, Inc.,
`884 F.2d 1367 (llth Cir. 1989)......
`Kontrick v. Ryan,
`540 U.S. 443 (2004)...........................
`Liteky v. United States,
`510 U.S. 540 (1994)...........................
`Marshall v. Jerrico,
`446 U.S. 238 (1980)...........................
`Marshall v. Marshall,
`547 U.S. 293 (2006)...........................
`Mixon v. United States,
`620 F.2d 486 (5th Cir. 1980)............
`Nelson v. United States,
`297 Fed. App'x 563 (8th Cir. 2008).
`
`17-19, 23, 28-29
`
`19-24
`
`14
`
`14
`
`19
`
`18
`
`14
`
`13
`
`22
`
`11
`
`25
`
`21
`
`19
`
`
`
`Vll
`
`New Orleans Pub. Serv. Inc. v Council of City
`of New Orleans, 491 U.S. 350 (1989).....
`Ohle v. United States, 2018 U.S. App.
`LEXIS 24190 (3d Cir. 2016)....................
`Osterneck v. E.T. Barwick Ind. Inc.,
`825 F.2d 1521 (llth Cir. 1987)...............
`Procup v. Strickland,
`792 F.2d 1069 (llth Cir. 1986)(an banc).
`Rice v. McKenzie,
`581 F.2d 1114 (4th Cir. 1978)..................
`Roche v. Evaporated Milk,
`87 LED 1185 (1943)..................................
`Russell v. Lane,
`890 F.2d 947 (7th Cir. 1989)....................
`Slack v. McDaniel,
`529 U.S. 473 (2000)...................................
`Steering Comm. v. Mead Corp.,
`614 F.2d 958 (5th Cir. 1980)...................
`Trevino v. Johnson,
`168 F.3d 173 (5th Cir. 1999)....................
`United States v. McIntosh, 2018 U.S. App.
`LEXIS 3095 (10th Cir.2018).....................
`United States v. Schwartz, 2016 U.S. App.
`LEXIS 24190 (3d Cir. 2016)....................
`Wilcox v. Consolidated Gas Co. of New York,
`212 U.S. 19 (1909)....................................
`
`25
`
`18
`
`14
`
`26
`
`18
`
`11
`
`18
`
`16
`
`14
`
`18
`
`19
`
`18
`
`27
`
`
`
`vm
`
`Wilkinson v. Dotson,
`544 U.S. 180 (2009)
`Constitutional Provisions:
`U.S. Const, amend. V.
`Statutes:
`28 U.S.C. § 455........ ..............
`28 U.S.C. § 1254(1)...............
`28 U.S.C. § 1291....................
`28 U.S.C. § 1651(a)................
`28 U.S.C. § 2253(c)................
`28 U.S.C. § 2255....................
`Rules:
`Sup.Ct.R. 10...........................
`Sup.Ct.R. 20.1........................
`Fed.R.Civ.P. 60(b) or 60(b)(4)
`11th Cir.R. 31.1......................
`11th Cir.R. 41-1......................
`
`16
`
`4, 13, 25-29
`
`2, 4, 6, 12, 18-22
`............ 3, 12, 13
`passim
`3, 4, 10
`passim
`2, 5-6, 14, 16, 18-20, 28
`
`30
`10, 11
`passim
`9, 15
`5, 9
`
`
`
`1
`RELIEF REQUESTED
`Petitioner Kapordelis respectfully urges this
`Court to issue a writ of mandamus directing Eleventh
`Circuit Judges Grant and Lagoa to exercise non
`discretionary jurisdiction under 28 U.S.C. § 1291 and
`on this basis order a merits review of the ripe recusal
`orders in the underlying habeas proceeding.
`If this Court reaches the unlikely conclusion
`that the Eleventh Circuit orders on review actually
`reflect a sub silentio holding that the aforementioned
`recusal arguments are not re viewable under § 1291
`because a COA was not granted under § 2253(c) to
`review the final order in the proceeding, Petitioner
`Kapordelis urges in the alternative that this Court
`issue a writ of certiorari to the Eleventh Circuit Court
`of Appeals in order to review the "circuit split" which
`results from that conclusion, where every U.S. Court
`of Appeals to have considered this issue---to include
`the Eleventh Circuit Court of Appeals-"has concluded
`that a COA is not required to appeal from otherwise
`ripe recusal orders in habeas proceedings.
`
`
`
`2
`
`ORDERS BELOW
`
`On August 12, 2021, Circuit Judge Grant issued
`an order denying a Certificate of Appealability
`("COA") to proceed on review of the district court's
`final order denying Rule 60(b)(4) relief in this 28
`U.S.C. § 2255 proceeding. There is no reference in this
`order to Kapordelis's request to appeal from the
`district court's recusal orders. This unpublished order
`is reprinted and presented at App.l. On September
`24, 2021, Circuit Judges Grant and Lagoa issued an
`order denying reconsideration of Judge Grant's order
`denying a COA. There is no reference in this order to
`Kapordelis's request to appeal from the district
`court's recusal orders. This unpublished order is
`reprinted and presented at App.2. On December 8,
`2021, Circuit Judges Grant and Lagoa issued an order
`denying Kapordelis's motion to recall the
`improvidently issued mandate. This unpublished
`order is reprinted and presented at App.3. On May 13,
`2020, the district court entered a final judgment
`denying Rule 60(b)(4) relief and denying a COA to
`appeal from that judgment. (See Criminal Record,
`"CR", Case No. 04-cr-00249-CAP, N.D.GA)(CR-653).
`On April 1, 2021, the district court entered an order
`denying Kapordelis's motion to reconsider the final
`judgment. (CR-658). On January 18, 2019, the district
`court denied Kapordelis's 28 U.S.C. § 455 recusal
`motion (CR-640). (CR-643).
`
`On May 13, 2020, the district court denied
`Kapordelis's motion for reconsideration of the order
`denying recusal. (CR-653). On June 1, 2021,
`
`
`
`3
`Kapordelis filed a Notice of Appeal which targeted
`both the final order disposing of the Rule 60(b)(4)
`claims and the order denying recusal. (CR-660). This
`motion is reprinted and presented at App.4.
`JURISDICTIONAL STATEMENT
`This Court has jurisdiction under 28 U.S.C. §
`1651(a) and Supreme Court Rule 20 to issue an
`extraordinary writ compelling Circuit Judges Grant
`and Lagoa to exercise non-discretionary appellate
`jurisdiction set forth by Congress at 28 U.S.C. § 1291.
`The order on review was issued by Eleventh Circuit
`Judge Grant on August 12, 2021. App.l. The order
`denying rehearing of the order on review was issued
`by Eleventh Circuit Judges Grant and Lagoa on
`September 24, 2021. App.2. On December 9, 2021,
`this Court issued an order granting an extension of
`time to file until January 24, 2022. App.3.
`
`Should the Court construe the instant pro se
`petition as a request for a writ of certiorari as opposed
`to a writ of mandamus (See REASONS WHY, § IV,
`infra), jurisdiction is provided at 28 U.S.C. § 1254(1)
`and Supreme Court Rule 12.
`
`
`
`4
`
`CONSTITUTIONAL PROVISIONS, STATUTES
`AND RULES
`
`Amendment V to the Constitution-
`
`"No person...shall be compelled in any
`criminal case to be a witness against
`himself, nor deprived of life, liberty, or
`property, without due process of law...."
`
`28 U.S.C. $ 1651:
`
`"The Supreme Court and all courts
`established by Act of Congress may use
`all writs necessary or appropriate in
`aid of their respective jurisdictions and
`agreeable to the usages and principles
`of law."
`
`28 U.S.C. § 1291, in relevant part:
`
`"The courts of appeal (other than the
`United States Court of Appeals for the
`Federal Circuit) shall have jurisdiction
`of appeals from all final decisions of the
`district courts of the United States...,
`except where a direct review may be
`had by the Supreme Court."
`
`28 U.S.C. $ 455(a) and (b)(1):
`
`"(a) Any justice, judge, or magistrate
`[magistrate judge] of the United States
`shall disqualify himself in any pro-
`
`
`
`5
`ceeding in which his impartiality might
`reasonably be questioned, (b) He shall
`also disqualify himself in the following
`circumstances- (l) Where he has a per
`sonal bias or prejudice concerning a
`party."
`
`28 U.S.C. $ 2253(c):
`
`"Unless a circuit justice or judge issues
`a certificate of appealability, an appeal
`may not be taken to the Court of
`Appeals from---(A) the final order in a
`habeas corpus proceeding in which the
`detention complained of arises out of
`process issued by a State court; or (B)
`the final order in a proceeding under §
`2255."
`
`Fed. Rules of Civil Procedure 60(b)(4)-
`
`"(b) Grounds for Relief From a Final
`Judgment, Order, or proceeding. On
`motion and just terms, the court may
`relieve a party or its legal repre
`sentative from a final judgment, order,
`or proceeding for the following reasons^
`D (4) the judgment is void>‘D."
`Eleventh Circuit Rule 41~l(b)-
`
`"(b) A mandate once issued shall not be
`recalled except to prevent injustice.”
`
`
`
`6
`
`STATEMENT OF THE CASE
`
`A. District Court Proceedings
`
`Kapordelis filed the underlying civil action in
`the district court pursuant to Rule 60(b)(4), Federal
`Rules of Civil Procedure. Kapordelis v. United States,
`Civil Case No. l:ll-cv-280-CAP / Crim. Case No. 2^04-
`cr-249-CAP (Criminal Record, "CR"), Northern Dis
`trict of Georgia. (CR-650, amended motion). Rule
`60(b)(4) allows a prisoner to reopen his 28 U.S.C. §
`2255 proceedings if "the final judgment is void."
`Fed.R.Civ.P. 60(b)(4). In his motion, Kapordelis
`argued that his 2255 judgment was void as a result of
`three due process defects in the integrity of the 2255
`proceedings. Also before the district court was
`Kapordelis's motion to recuse the district judge from
`the Rule 60(b)(4) proceedings (CR-640/645) for
`reasons of extrajudicial and pervasive bias. Statutory
`law requires a district judge's disqualification "in any
`proceeding" where his impartiality "might reasonably
`be questioned," or where the judge "has a personal
`bias or prejudice concerning a party." See 28 U.S.C.
`§§ 455(a) and (b)(l). (Note: Because the merit of the
`underlying Rule 60(b) arguments and recusal
`arguments are irrelevant for purposes of justifying
`this petition for writ of mandamus, they will not be
`addressed here.)
`
`The district judge issued an order denying his
`recusal from the Rule 60(b)(4) proceedings (CR-643),
`and he subsequently issued a final judgment denying
`the Rule 60(b) motion and denying Kapordelis's mo-
`
`
`
`7
`tion to reconsider the previous order denying recusal.
`(CR-653). The district judge also denied Kapordelis's
`Fed.R.Civ.P. 59(e) motion to amend, vacate or modify
`the final judgment in the Rule 60(b)(4) proceeding,
`and he denied a COA with respect to all Rule 60(b)(4)
`claims. (CR-658).
`B. Kapordelis's Notice of Appeal
`Kapordelis filed a timely notice of appeal (CR-
`660) which targeted both the final order denying the
`Rule 60(b)(4) claims and the order denying the district
`judge's recusal. Kapordelis made clear in his notice
`that "^jurisdiction for appellate review from recusal
`orders is authorized, as a matter of right, under 28
`U.S.C. § 1291! as such, a COA is not required." App.4.
`In support of his position on jurisdiction, Kapordelis
`advanced in his notice of appeal many of the same
`arguments presented {infra) in this petition for writ
`of mandamus. Id.
`C. Eleventh Circuit Proceedings
`The instant appeal was docketed as Kapordelis
`v. United States, Appeal No. 21-11921 (llth Cir.
`2021). (Docket Entry, "DE", 06/02/21). Kapordelis
`subsequently filed a pro se Application for Certificate
`of Appealability, explaining in detail why his Rule
`60(b)(4) claims deserved to be reviewed on their merit.
`(DE-06/14/21, at 1-53). In his application, Kapordelis
`advised the Court that, "[njotwithstanding whether a
`COA issues, [he] has a right pursuant to 28 U.S.C. §
`1291 to appellate review of recusal orders in the
`
`
`
`8
`instant Rule 60(b)(4) proceeding, and he awaits a
`briefing schedule in this regard." {Id. at 53).
`
`On August 12, 2021, Circuit Judge Grant issued
`a single-judge order denying a COA with respect to
`the Rule 60(b)(4) claims. App.l. This order neither
`mentions nor addresses Kapordelis's request to
`appeal from the ripe recusal orders, nor does it refer
`the recusal matter to a three-judge panel for the
`requisite review on the merits. Attached to Judge
`Grant's order was a notice from the Clerk of Court
`informing Kapordelis that the order "is issued as the
`mandate of the court."
`
`In response, and through pro bono counsel,
`Kapordelis filed a motion to reconsider Judge Grant's
`administrative order, pursuant to 11th Cir. Rule 27-
`2. (DE-09/02/21). In this motion, Kapordelis again
`informed the court that appellate review of recusal
`orders is authorized under 28 U.S.C. § 1291 and does
`not require a COA, and he requested either "a briefing
`schedule" or "a delay in issuance of the mandate in
`this appeal until after the parties have fully briefed
`the recusal arguments 0 and a three-judge panel has
`considered these arguments on the merits." {Id. at 6-
`7). On September 24, 2021, Circuit Judges Grant and
`Lagoa issued an order summarily denying recon
`sideration. This order neither mentions nor addresses
`Kapordelis's request to appeal from the ripe recusal
`orders based on jurisdiction set forth at 28 U.S.C. §
`1291. App.2
`
`
`
`9
`On November 2, 2021, Kapordelis filed two pro
`se motions with the Eleventh Circuit: a Motion to
`Recall the Mandate in order to Prevent Injustice,
`pursuant to 11th Cir. Rule 41- 1(b) and (c); and, an
`Opening Appellant Brief addressing the recusal
`arguments, pursuant to 11th Cir. Rule 31.1. In his
`motion to recall the mandate, Kapordelis argued that
`he had a statutory and constitutional right to appeal
`from the ripe recusal orders notwithstanding whether
`a COA was issued to appeal from the final order
`denying the Rule 60(b)(4) claims. Once again,
`Kapordelis offered in support many of the same
`arguments presented {infra) in this petition for writ
`of mandamus. (Note: a copy of the recall motion can
`be found at Appendix E to Kapordelis’s Supreme
`Court application for an extension of time to file,
`Application No. 21A214).
`
`Rather than properly file the motion to recall the
`mandate and thereby trigger judicial review, as
`required under Eleventh Circuit rules, the Clerk of
`Court instead issued a notice informing Kapordelis
`that "[t]he Court has received your motion to 'Recall
`Mandate,"' and that "no further actions will be taken
`in this case." (DE-11/02/21). In response to this notice,
`Kapordelis urged Chief Circuit Judge Pryor to
`investigate what appeared to be a failure by the clerk
`to comply with Eleventh Circuit rules. (DE-11/15/21).
`Two days later, and perhaps due to Judge Pryor's
`intervention, the clerk filed (backdated to November
`2, 2021) Kapordelis's motion to recall the mandate,
`and he acknowledged the earlier notice as having
`been issued in error. The recall motion was then
`
`
`
`10
`summarily denied by Circuit Judges Grant and
`Lagoa. (DE-12/08/21).
`Kapordelis's petition for writ of mandamus
`timely follows this Court's order granting an ex
`tension of time to file until January 24, 2022. App.3.
`As noted in Kapordelis's application for an extension,
`more time was required because, among other things,
`
`"[i]f the Eleventh Circuit refuses to
`recall the mandate, and by extension
`refuses to exercise appellate juris
`diction under 28 U.S.C. § 1291 to
`review the ripe recusal orders, Kap-
`ordelis would be in a legitimate
`position to request from the Supreme
`Court a Petition for Writ of Mandamus,
`pursuant to 28 U.S.C. § 1651(a), in
`order to compel the Eleventh Circuit to
`perform as Congress has directed, in
`aid of this Court's appellate jurisdiction
`on the matter of recusal."
`(Supreme Court Application No. 21A214, at 5).
`REASONS FOR GRANTING THIS WRIT
`INTRODUCTION AND RULE 20.1 STATEMENT
`A writ of mandamus is appropriate for excep
`tional circumstances of the kind present here: The
`unlawful repudiation by certain Eleventh Circuit
`judges of their duty to (i) exercise non-discretionary
`appellate jurisdiction set forth by Congress at 28
`
`
`
`11
`U.S.C. § 1291, and (ii) refer this case to a three-judge
`merits panel for review of appealable recusal orders
`issued by the district court judge.
`
`In general, a writ of mandamus may issue in this
`Court's discretion when there are no other adequate
`means to attain the desired relief and when the
`petitioner's right is clear and indisputable. See
`Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 542
`U.S. 367, 380-81 (2004); Sup. Ct. R. 20.1. These hur
`dles, however, "are not insuperable." Cheney, 542
`U.S. at 381. The traditional use of the writ in aid of
`appellate jurisdiction "has been to confine an inferior
`court to a lawful exercise of its prescribed jurisdiction
`or to compel it to exercise its authority when it is its
`duty to do so." Roche v. Evaporated Milk, 81 LED
`1185, 1190 (1943).
`
`Kapordelis contends that his unique circum
`stances justify issuance of a writ of mandamus that
`compels Eleventh Circuit judges Grant and Lagoa to
`exercise the non*discretionary jurisdiction set forth by
`Congress at 28 U.S.C. § 1291. The following argu
`ments inform.
`
`I. THERE IS NO OTHER ADEQUATE MEANS TO
`ATTAIN THE DESIRED RELIEF.
`
`In Marshall v. Jerrico, 446 U.S. 238 (1980), this
`Court held that "[t]he Due Process Clause entitles a
`person to an impartial and disinterested tribunal in
`both civil and criminal cases." Id. at 242. Congress
`clearly appreciated the gravity of this constitutional
`
`
`
`12
`
`right, where it established under 28 U.S.C. § 455 a
`framework to make certain that district court judges
`conflicted by bias or the appearance of bias could be
`disqualified "in any proceeding." Equally important
`here, Congress established at 28 U.S.C. § 1291 the
`jurisdiction for non-discretionary appellate review of
`recusal orders (and other non-final orders) after a
`final order is issued to dispose of all claims/issues in
`a district court proceeding. Finally, Congress estab
`lished at 28 U.S.C. § 1254(1) the jurisdiction for
`discretionary review by this Court through the
`certiorari process.
`
`Kapordelis followed the law when seeking in
`good faith to disqualify the district judge in his Rule
`60(b)(4) proceeding for reasons of extrajudicial and
`pervasive bias. To wit: (i) he promptly filed a motion
`to recuse the judge pursuant to 28 U.S.C. §§ 144 and
`455; (ii) once the final order was issued to dispose of
`all Rule 60(b)(4) claims on their merit, he filed a
`notice of appeal which specifically targeted the
`recusal orders; (iii) he paid in full the filing fee for the
`appeal, thus ensuring under 28 U.S.C. § 1291 that a
`three-judge "merits" panel would review the ripe
`recusal orders notwithstanding whether a COA was
`granted pursuant to 28 U.S.C. § 2253(c) to appeal
`from the final order disposing of the Rule 60(b)(4)
`claims! and, (iv) he filed a motion seeking to recall the
`improvidently issued mandate, i.e., a mandate which
`closed the appeal before a requisite merits review of
`the recusal arguments could take place.
`
`
`
`13
`Where it is clear and indisputable that Judges
`Grant and Lagoa had appellate jurisdiction under §
`1291 to refer the recusal issue to a three-judge merits
`panel for proper review (see Section II, infra),
`Kapordelis is left with no choice but to secure a writ
`of mandamus directing these judges to lawfully
`exercise this prescribed jurisdiction. Indeed, only if
`these judges exercise their non-discretionary juris
`diction under § 1291 can the Supreme Court be asked
`to lawfully exercise its discretionary jurisdiction
`under § 1254(l). Put differently, Kapordelis cannot
`file a legitimate petition for writ of certiorari con
`cerning all arguments in Appeal No. 21-11921-C (to
`include the recusal arguments) unless and until the
`Eleventh Circuit determines whether the district
`judge was actually biased.
`II. THE RIGHT TO RELIEF IS CLEAR AND
`INDISPUTABLE.
`A. Jurisdiction for appellate review of ripe
`recusal orders is established at 28 U.S.C. §
`1291.
`"Only Congress may determine a lower court's
`subject-matter jurisdiction." Kontrick v. Ryan, 540
`U.S. 443, 454 (2004). Equally important, Congress
`has "the sole power of creating the [judicial] tribunals
`(inferior to the Supreme Court)...and of investing
`them with jurisdiction either limited, concurrent, or
`exclusive, and of withholding jurisdiction from them
`in the exact degrees and character which to Congress
`may seem proper for the public good." Ankenbrandt v.
`
`
`
`14
`
`Richards, 504 U.S. 689, 698 (l992)(quoting Cary v.
`Curtis, 44 U.S. 236 (1845)).
`
`Under statutory law, U.S. Courts of Appeal
`(other than the Court of Appeals for the Federal
`Circuit) "have jurisdiction of appeals from all final
`decisions of the district courts of the United States...."
`28 U.S.C. § 1291. And, the Eleventh Circuit has made
`clear that an appeal from a final judgment brings up
`for review all preceding non-final orders. Kirkland v.
`NatlMortg. Network, Inc., 884 F.2d 1367, 1370 (llth
`Cir. 1989). Relevant here, recusal decisions will not be
`addressed until the litigation is final. Steering Comm,
`v. Mead Corp., 614 F.2d 958, 960-61 (5th Cir. 1980).
`Also relevant, the general rule in the Eleventh Circuit
`is that "an appellate court has jurisdiction to review
`only the judgments, orders, or portions thereof which
`are specified in an appellant's notice of appeal.”
`Osterneck v. E. T. Barwick Industries, Inc., 825 F.2d
`1521 (llth Cir. 1987).
`
`In a recent case where a 28 U.S.C. § 2255 litigant
`sought mandamus relief from the Eleventh Circuit for
`purposes of disqualifying the district judge before the
`2255 proceeding had concluded, the circuit judge
`denied the writ because "[t]he appellant has the
`adequate remedy of appealing the district court's
`denial of his recusal motion as soon as the court
`enters a final judgment in his § 2255 proceeding." In
`re Collins, 2018 U.S. App. LEXIS 13421 *3, No. 18-
`19724-C (llth Cir. May 2018)(citing to Jackson v.
`Motel 6Multipurpose, Inc., 130 F.3d 999, 1004 (llth
`Cir. 1997)). It is crucial to note the trigger identified
`
`
`
`15
`in Collins for purposes of securing appellate review of
`recusal decisions in a collateral proceeding: the entry
`of final judgment, not the entry of a final judgment
`AND issuance of a COA to appeal from the final order
`denying relief on the merits of the habeas arguments.
`It is clear and indisputable that the recusal
`orders in Kapordelis's case were appealable to the
`Eleventh Circuit based on the non-discretionary
`jurisdiction set forth at 28 U.S.C. § 1291, because (i)
`a final judgment had been issued which settled all the
`pending Rule 60(b)(4) claims
`on
`the merits; (ii)
`Kapordelis specifically targeted the recusal orders in
`his notice of appeal; (iii) Kapordelis paid the filing fee
`required to appeal; (iv) Kapordelis filed an opening
`brief in accordance with Eleventh Circuit rules. See
`11th Cir. R. 31.1 (directing an appellant to file an
`opening brief within 40 days of the issuance of an
`order resolving an application for COA).
`B. The COA provisions at 28 U.S.C. § 2253(c)
`do not effect § 1291's appellate jurisdiction
`to review ripe recusal (or similar) orders.
`It is easy to understand why Circuit Judges
`Grant and Lagoa never posited in their order(s) that
`Kapordelis's recusal arguments could not be reviewed
`pursuant to 28 U.S.C. § 1291 because a COA was
`denied with respect to the Rule 60(b)(4) claims: This
`position would be contrary to (l) Supreme Court
`holdings in similar circumstances; (2) the conclusions
`(some authoritative and some persuasive) reached by
`every U.S. Circuit Court of Appeals to have
`
`
`
`16
`
`specifically addressed this issue; and, (3) persuasive
`Eleventh Circuit case law directly on point.
`
`1. Supreme Court holdings support this
`contention.
`
`Congress established appellate jurisdiction
`when enacting 28 U.S.C. § 1291, and this jurisdiction
`did not simply evaporate when it enacted § 2253(c)'s
`COA requirements. Instead, § 2253(c) constrains or
`modifies § 1291's jurisdiction to "the exact degree and
`character which to Congress [seemed] for the public
`good." Ankenbrandt (supra). The dispositive question
`begged, is this: To what degree or in what character
`does § 2253(c) constrain or modify § 1291's juris
`diction when it comes to appealable recusal orders?
`
`Sections 2253(c)(1)(A) and (B) of Title 28 provide
`that unless a circuit justice or judge issues a COA, an
`appeal may not be taken from the "final order in a
`habeas corpus proceeding" whether the detention
`complained of arises out of a State court or a 28 U.S.C.
`§ 2255 proceeding. 28 U.S.C. §§ 2253(c)(1)(A) and (B).
`These provisions "govern final orders that dispose of
`the merits of a habeas corpus proceeding---a
`proceeding challenging the lawfulness of the
`prisoner's detention." See, generally, Slack v.
`McDaniel, 529 U.S. 473, 484-85 (2000); Wilkinson v.
`Dotson, 544 U.S. 74, 78-83 (2005).
`
`An appealable order that merely denies a motion
`to recuse a district court judge from a 2255 or 2254
`proceeding, like an appealable order relating to the
`
`
`
`1
`
`17
`appointment of counsel, falls outside the statutory
`requirement for a COA because it has nothing to do
`with the "merits" of the habeas corpus proceeding. In
`Harbison v. Bell, 556 U.S. 180 (2009), this Court held
`that orders relating to appointment of counsel fall
`outside statutory requirement for a COA. Id. at 183.
`Although the predicate for the holding in Bell is not
`relevant under Kapordelis's circumstances (Kapor-
`delis's issue is a collateral recusal decision, not a
`collateral decision relating to the appointment of
`counsel), the Bell holding was based on a strict
`reading of the language in 28 U.S.C. § 2253(c)(1)(A)
`that limits the COA requirement to "final orders that
`dispose of the merits of a habeas corpus proceeding."
`Id. (emphasis added). Thus, by applying Bell to
`Kapordelis's circumstances, it is clear the district
`court's recusal decision is not subject to the juris
`dictional constraints in § 2253(c). See Bracy v.
`Superintendent, RockviewSCI, 986 F.3d 274, 282 (3d
`Cir. 2021)("Harblson used 'the merits' to distinguish
`'final orders' that conclude the habeas corpus
`proceeding itself from those orders that merely
`resolve a collateral issue").
`2. Every U.S. Court of Appeals to have
`considered this issue agrees that a COA is
`not needed to appeal from ripe recusal
`orders.
`Fortunately, one need not rely on the previous
`legal argument to conclude that a COA is not required
`to appeal from recusal orders that have been rendered
`appealable through issuance of a final judgment in a
`
`
`
`18
`
`§ 2255 or § 2254 proceeding, where every U.S. Circuit
`Court of Appeals to have considered this issue has
`reached the same conclusion. See, e.g., Ohle v. United
`States, 2018 U.S. App. LEXIS 28074 (2d Cir. 2018)
`("To the extent a COA may not be required as to the
`decision denying the recusal motion, that aspect of the
`appeal is dismissed for lack of an arguable basis in
`law or fact."); United States v. Schwartz, 2016 U.S.
`App. LEXIS 24190 (3d Cir. 2016)(no COA required in
`a Rule 60(b) habeas corpus proceeding to appeal from
`the denial of a motion to recuse district judge, citing
`to Harbison v. Bell)', Rice v. McKenzie, 581 F.2d 1114,
`1118 (4th Cir. 1978) (vacating district court's denial
`of a habeas petition because the district court abused
`its discretion in denying recusal motion); Trevino v.
`Johnson, 168 F.3d 173, 176-78 (5th Cir. 1999)
`(accepting jurisdiction to hear appeal from recusal
`order under 28 U.S.C. § 455, where the issue did not
`constitute an appeal of the merits of the final order
`denying habeas relief "While we lack jurisdiction to
`consider a district court's order denying habeas relief
`without issuing a COA, we do have jurisdiction to
`consider whether a district court judge properly
`declined to stand recused and therefore had the
`authority to deny a habeas petition."); Kemp v. United
`States, 52 Fed. App'x 731, 732 (6th Cir. 2002)(appeal
`from recusal order not mooted based on decision to not
`issue a COA to review the § 2255 grounds of error);
`Russell v. Lane, 890 F.2d 947, 947 (7th Cir. 1989)
`(finding jurisdiction to consider whether a district
`court abused its discretion in denying recusal motion,
`because "federal procedural law governing recusal
`entitles [the petitioner] to have his habeas corpus
`
`
`
`19
`
`petition heard by a[n] unbiased judge"); Nelson v.
`United St
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
