OPINIONS BELOW
The opinion of the Court of Appeals is reported at Appendix A to the Petition (Pet. App. A) and is unpublished. The opinion
of the Court of Appeals' regarding petitioner's motion for reconsideration for preliminary injunction and temporary restraining
order is reported at Pet. App. B and is unpublished. The opinion of the Court of Appeals regarding petitioner's motion
for preliminary injunction and temporary restraining order is reported at Pet. App. C and is unpublished. The District
Court's opinion is reported at Pet. App. D and is unpublished.
JURISDICTION
The date on which the United States Court of Appeals decided petitioner's case was June 22, 2009.
No petition for rehearing was filed in petitioner's case.
The jurisdiction of this Court is invoked under 28 U.S.C. §1254(1).
CONSTITUTIONAL, STATUTORY
AND CASE LAW PROVISIONS INVOLVED
The constitutional provisions
upon which this Petition are as follows: Fifth Amendment and Fourteenth Amendment.
The statutory provision upon which this Petition is based is as follows: 18 U.S.C. §4 and 28 U.S.C. §455.
The case law provisions on which this Petition is
based are as follows: Liteky v. U.S., 114 S.Ct. 1147, Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988), United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985), Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989), Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972), 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), United States v. Sciuto, 521 F.2d 842, 845 (7th Cir. 1996) and Bivens
v. Six Unknown Fed. Narcotics Agents, 403 US 388.
STATEMENT OF THE CASE
A. Factual Background
This petition has its basis in several acts
of judicial corruption petitioner alleges are still aimed to prevent petitioner from reporting respondent Allen E. Kaye's,
Harvey Shapiro's and respondent Bernard J. Rostanski's falsification of an I-130 immediate relative sponsorship form, pursuant
to 18 U.S.C. §4.
On November 20,
1979, New York City marriage license clerk respondent Joseph Visceglia fraudulently signed his name on petitioner's marriage
affidavit, while allowing Allen Kaye's client Ehigie Edobor Uzamere to place the fictitious name Godwin Uzamere on the marriage
affidavit without requiring him to verify his identity and date of birth. The marriage affidavit is reported at Pet.
App. E.
On November 21, 1979,
believing that the name “Godwin E. Uzamere” and birthday “June 1, 1955” were true and correct,
petitioner unwittingly contracted a marriage with Allen Kaye's client, whose real name is Ehigie Edobor Uzamere, and whose
real birthday is December 31, 1960.
On or around November 30, 1979, petitioner accompanied Allen Kaye's client to the aforesaid attorney's
law office to sign the 1-130 immediate relative sponsorship form, after which Allen Kaye's client abandoned petitioner
while petitioner was pregnant with their daughter Tara. Fraudulent I-130 immediate relative sponsorship form is reported
at Pet. App. F.
During ensuing years,
the petitioner filed complaints against Allen Kaye's client and against Allen Kaye with the former U.S. Immigration and Naturalization
Service and other federal, state and municipal agencies.
No governmental agency has ever prosecuted Allen Kaye's client Ehigie Edobor Uzamere or Allen Kaye as a result of petitioner's
complaints.
Petitioner filed
her divorce action on or around July 13, 2007.
On page 5, paragraph 2 of petitioner's Verified Complaint, petitioner stated that “Allen Kaye, Mr. Shapiro or someone
in the law firm’s employ presented the marriage license, in its entirety, to the United States Immigration and Naturalization
Service as true and correct for the purpose of the Defendant obtaining
permanent residence through sponsorship by the Plaintiff.” Page 5 of petitioner's Verified Complaint is reported
at Pet. App. G.
That by November 11,
2007, Allen Kaye's client Ehigie Edobor Uzamere did not interpose an answer and has defaulted, pursuant to New York State
Civil Practice Law and Rules §3215 and New York Codes, Rules and Regulations §202.27.
Petitioner first appeared before the Honorable Eric I. Prus on December
5, 2007.
Justice Prus is an adherent
of the religion that promulgates the Abodah Zarah's “Law of the Moser, the Talmudic doctrine that prohibits its adherents
from reporting the crimes of fellow adherents to secular authorities. Rabbi Michael J. Broyde's Informing on Jews Who Commit
Crimes is reported at Pet. App. H.
From December 5, 2007, the date of Judge Prus' first scheduled preliminary conference until September 2, 2008, the date of
Judge Prus' second preliminary conference, Judge Prus adjourned petitioner's divorce action eight (8) times, and Allen
Kaye's client Senator Ehigie Edobor Uzamere failed to appear for all of them. New York State Unified Court System's
appearance schedule is reported at Pet. App. I.
That on September 2, 2008, the eighth time petitioner's divorce action was adjourned, respondent Eugene O. Uzamere, claiming
to be Allen Kaye's client's attorney, signed the preliminary conference stipulation in place of Allen Kaye's client. Page
2 of preliminary conference stipulation is reported at Pet. App. J.
That pursuant to New York Codes, Rules and Regulations 202.16(f)(vi), “all parties must personally be present at the
time of the conference.”
That on September 2, 2008, Allen Kaye's client failed to appear.
That Judge Prus recused himself after petitioner filed appellate division petition Uzamere vs. Prus. New York State Appellate
Division's decision is reported at Pet. App. K.
That respondent the Honorable Jeffrey S. Sunshine was the next justice to be assigned to preside over petitioner's divorce
action.
That Justice Sunshine
is an adherent of the religion that promulgates the Abodah Zarah's “Law of the Moser, the Talmudic doctrine that prohibits
its adherents from reporting the crimes of fellow adherents to secular authorities.
That on October 7, 2008, the ninth time petitioner's divorce action was adjourned, the respondent Eugene O. Uzamere appeared
before respondent Justice Sunshine to move the court to dismiss petitioner's divorce action against respondent Allen
E. Kaye's former client Senator Ehigie Edobor Uzamere, based on Mr. Uzamere's submission of a fraudulent
counter-affidavit emanating from Nigeria that was not authenticated by the U.S. Embassy in Nigeria;
said counter-affidavit alleging that petitioner is married, not to Allen Kaye's client, but to Allen Kaye's client's
cousin; and that Allen Kaye's client and the alleged cousin bear the same name. Respondent Eugene O. Uzamere's Affirmation
and counter-affidavit are reported at Pet. App. L.
On or November 13, 2008, the eleventh time that petitioner appeared before Respondent Justice to determine the status of her
motion, respondent Allen E. Kaye's client Senator Ehigie Edobor Uzamere failed to appear.
That on November 17, 2008, four (4) days after petitioner's divorce action
was adjourned for the eleventh time without an appearance from Allen Kaye's client, petitioner filed a Bivens action based
on, inter alia, violation of petitioner's constitutional rights.
On January 13, 2009, the twelfth time that petitioner appeared before respondent Justice Sunshine, respondent Allen E. Kaye's
client Senator Ehigie Edobor Uzamere did not appear.
On the aforesaid date, respondent Justice Sunshine adjourned petitioner's divorce action pursuant to his Decision and Order
dated January 12, 2009, that states, inter alia that “...although defendant has failed
to interpose an answer, he has submitted opposition to plaintiff's motion for spousal and child support, has filed his
own motion to dismiss, and has participated (through his attorney) in a preliminary conference.
As noted above, such actions weigh against a finding of default in matrimonial actions. Moreover, the opposition submitted
by defendant raises a genuine issue as to whether or not plaintiff and defendant were married in the first instance...those
branches of plaintiff's motion which seek retroactive, present, and future spousal support,
injunctive relief, and discovery materials, as well as defendant's motion to dismiss plaintiff's action are hereby held in
abeyance pending an evidentiary hearing on the threshold issue of whether plaintiff and defendant were in fact married...Any
requested trial subpoenas shall be submitted no later than January 20, 2009.” Pages 9 and 12 of respondent Justice
Sunshine's Decision and Order dated January 12, 2009 are reported at Pet. App. M1 and M2.
On January 22, 2009 respondent Justice Sunshine signed subpoenas for,
among other individuals, respondent Allen E. Kaye and Harvey Shapiro. Subpoenas for Allen E. Kaye and Harvey Shapiro
are report at Pet. App. N1 and N2.
On February 17, 2009, petitioner filed an order to show cause to appeal respondent Justice Sunshine's Decision
and Order dated January 12, 2009. New York State Supreme Court Appellate Division 2nd Judicial
Department's Order to Show Cause is reported at Pet. App. O1 and O2.
That respondent Allen Kaye's client did not respond. Appellate Division's decision dated April 6, 2009 is reported at
Pet. App. P.
That in the affidavit
accompanying petitioner's Order to Show Cause, petitioner submitted the following documents as evidence of Allen Kaye's client's
identity:
(a)
Defendant-Appellee Allen E. Kaye's letter in which he refers to petitioner's husband as “Ehigie E. Uzamere” and
“her husband.” Allen Kaye's letter is reported at Pet. App. Q;
(b) I-130 immigration form that was falsified by and bears the falsified name of petitioner's husband
and the names of Allen E. Kaye, Esq., Harvey Shapiro, Esq. and Bernard J. Rostanski (Pet. App. F);
(c) Report by Rachel McCarthy, Bar Counsel, USCIS
regarding Defendant/husband's two identities. USCIS' report is report at Pet. App. R;
(d) Rachel McCarthy's letter dated January 6, 2009 in
which she states that “The acts that you allege...occurred in the course of representation by an attorney associated
with Mr. Kaye in connection with a petition for an immediate relative filed by you with the Immigration
and Naturalization Service” Letter from Rachel McCarthy is reported at Pet. App. S.
On or around March 24, 2009 petitioner received correspondence from respondent
Allen E. Kaye that was addressed to respondent Judge Sunshine in which Mr. Kaye stated his refusal to appear in court.
Allen Kaye's refusal letter is reported at Pet. App. T.
On March 26, 2009, the thirteenth time the petitioner appeared before respondent Judge Sunshine, respondent Eugene O. Uzamere
moved the court to be relieved as counsel for Allen Kaye's client's Senator Uzamere. Eugene Uzamere's motion is reported
at Pet. App. U.
On April 7, Federal
District Judge Leonard B Sand dismissed petitioner's complaint.
On April 8, 2009, petitioner served Allen Kaye's client with petitioner's appellant brief in opposition to Judge Sunshine's
order dated January 12, 2009.
On May
12, 2009, the fifteenth time that petitioner appeared before respondent Justice Sunshine, 19 days after the date of respondent
Allen Kaye's refusal letter, respondent Justice Sunshine adjudged that Allen Kaye's client, Senator Ehigie Edobor Uzamere
is petitioner's husband. Judge Sunshine's Decision and Order dated May 12, 2009 attached as Pet. App. V).
As of May 13, 2009, Allen Kaye's client, Senator
Ehigie Edobor Uzamere failed to interpose a reply in rebuttal to petitioner's brief.
Respondent Justice Sunshine scheduled an adjournment for the sixteenth time to hold a trial to dispose of all issues; and
that petitioner appealed the aforesaid “issues” to New York State Supreme Court's Appellate Division, Second Department.
An oral argument with regard to the appeal in which
respondent A. Gail Prudenti is the presiding justice has not been scheduled.
B. Proceedings in Court of Appeals
On
May 26, 2009, petitioner filed an order to show cause for a preliminary injunction and temporary restraining order to requirement
the disqualification of respondent Justice Sunshine.
On
May 29, 2009, petitioner's motion was dismissed without comment and was not published (see Pet. App. C).
On June 8 and 9, 2009, petitioner filed an order
to show cause and supporting papers for a reconsideration of her preliminary injunction and temporary restraining order.
On June 22, 2009, petitioner's motion was dismissed
without comment and was not published (see Pet. App. B).
REASONS FOR GRANTING WRIT
I. Court of Appeals Erred in Dismissing Petitioner's
Appeal Pursuant To District Court's Violation of 28 U.S.C. §455
Disqualification is Mandatory
The Honorable Leonard B. Sand is listed with the Virtual Jewish Library; and that based on the aforesaid information, the
District Court's judge appears to have a bias as he is an adherent of the religion that promulgates the Talmudic prohibition
preventing its adherents from reporting the crimes of fellow adherents to secular authorities. The Honorable Judge Sand's
biography is reported at Pet. App. W.
Attorney Bob Ballew, author of What Causes The Disqualification of Judges, says the following: “In 1994,
the U.S. Supreme Court held that disqualification is required if an objective observer would entertain reasonable questions
about the judge's impartiality. If a judge's attitude or state of mind leads a detached observer to conclude that a fair and
impartial hearing is unlikely, the judge must be disqualified." Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994)...Courts
have repeatedly held that positive proof of the partiality of a judge is 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 in any proceeding in which her impartiality might reasonably be questioned." 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 has 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).
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).
Should a judge not disqualify himself as required by law, then the judge
has given another example of his "appearance of partiality" which, possibly, further disqualifies the judge.
Should another judge not accept the disqualification of the judge, then the second judge has evidenced an "appearance
of partiality" and has possibly disqualified himself/herself. None of the orders issued by any judge who has been disqualified
by law would appear to be valid. It would appear that they are void as a matter of law, and are of no legal force or effect.”
Refusal To Recuse Violates Due Process
Clause of the U.S. Constitution
Should a judge not disqualify himself, then the judge is violation of the Due Process Clause of the U.S. Constitution. United
States v. Sciuto, 521 F.2d 842, 845 (7th Cir. 1996) ("The right to a tribunal free from bias or prejudice is based, not
on section 144, but on the Due Process Clause.").
II. Court of Appeals Erred in Dismissing Petitioner's Appeal Pursuant To Bivens v. Six
Unknown Fed. Narcotics Agents
The Court of Appeals erred in not questioning the decision of the District Court, in which it failed to recognize petitioner's
lawsuit as a Bivens action.
According
to Wikipedia.org, Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), was a case in which the United States Supreme Court ruled that an implied cause of action existed for an individual
whose Fourth Amendment freedom from unreasonable search and seizures had been
violated by federal agents. The victim of such a deprivation could sue for the violation
of the Amendment itself, despite the lack of any federal statute authorizing such a suit. The existence of a remedy for the
violation was implied from the importance of the right violated. The Court, in an opinion by Justice Brennan, stated
that "For the reasons set forth below, I am of the opinion that federal courts do have the power to award damages for
violation of "constitutionally protected interests" and I agree with the Court that a traditional judicial remedy
such as damages is appropriate to the vindication of the personal interests protected by the Fourth Amendment.”
By that decision, the Court laid down the rule that
it will imply a private right of action for monetary damages where no other federal remedy is provided for the vindication
of a Constitutional right, based on the principle that for every wrong, there is a remedy. The Court reasoned based upon a
presumption that where there is a violation of a right, the plaintiff can recover whatever he could recover under any civil
action, unless Congress has expressly curtailed that right of recovery, or there exist some "special factor counseling
hesitation."
CONCLUSION
For the reasons stated above, petitioner respectfully prays that this Court remands this action to the District Court.
__No 
