GRAHAM v. HEAD

Filing 13

ORDER granting 11 Motion to Intervene. Signed by Magistrate Judge G. R. Smith on 6/27/2013. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ALEXANDER GRAHAM,
Petitioner,
v.

Case No. CV413-105

BRIAN OWENS, 1
Respondent.

ORDER
Alexander Graham filed a 28 U.S.C. § 2254 petition, doc. 1, and this
Court granted him leave to proceed in forma pauperis (IFP). Doc. 10. It
then directed the state to supply transcripts and other records in support
of its opposition brief, which was already in the record when this case
was transferred here from another district.

Id . The state, however,

moves to strike that brief as a fraudulent filing -- by Graham. Doc. 12.
The state’s accusation, both unprecedented and surreal, warrants
elaboration: Graham, it says, literally filed a brief opposing his own

1

The Court GRANTS the state’s substitution motion (doc. 11) and has amended the
caption to reflect the fact that the Georgia Commission of Corrections has custody
over the petitioner, who is now housed in a private prison. The Clerk shall amend
the docket caption accordingly, and all subsequent filings shall conform.

petition.

Id. The state had filed that brief in state habeas court to

oppose Graham’s habeas petition there. Id. at 4; see also doc. 12-1 (copy
of that brief). Graham evidently “re-labeled” the top half of that brief’s
first page to make it look like the state was recycling it to respond to his
§ 2254 petition here. 2 Compare doc. 3 at 1, with doc. 12-1 at 1.
As the state explains in moving to strike that filing, Graham
evidently did that to “jumpstart” his case “and attempt to waive any of
the [state’s] defenses. . . .” Doc. 12 at 4. In addition to the strike
sanction, the state also wants a new order directing it to file a responsive
pleading within 30 days. Finally, it seeks “costs and attorney fees, as
well as a public reprimand of Petitioner so that others will not follow
suit.” Id. at 5.
While the state is free to act charitably here, the Court cannot. As
word spreads among convicted criminals that such fraud 3 may be

2

That’s what led this Court to direct the state to file supporting transcripts and
exhibits.
3

Thus far, this Court has been presented with what appears to be “clear and
convincing evidence that a[n opposing] party has sentiently set in motion some
unconscionable scheme calculated to interfere with the judicial system's ability
impartially to adjudicate a matter.” Passlogix, Inc. v. 2FA Tech., LLC , 708 F. Supp.
2

committed with relative impunity (a “reprimand” for a convict will be as
effective as fighting a forest fire with a garden hose), others may well feel
emboldened to follow. Tolerating casually perpetrated fraud thus raises
the risk of additional fraud and waste of judicial resources.
What happened here, then, must be made

unthinkable.

Accordingly, Graham must show why his petition should not be
dismissed with prejudice under Fed. R. Civ. P. 11(c)(3), 4 as well as this

2d 378, 393 (S.D.N.Y. 2010), quoted in Ziemba v. Lynch , 2013 WL 1296258 at * 1 (D.
Conn. Mar. 27, 2013).
4

Fed. R. Civ. P. 11 provides in relevant part:
(b) Representations to the Court. By presenting to the court a pleading,
written motion, or other paper -- whether by signing, filing, submitting, or
later advocating it -- an attorney or unrepresented party certifies that to the
best of the person's knowledge, information and belief, formed after an inquiry
reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by
existing law or by a nonfrivolous argument for extending, modifying, or
reversing the existing law or establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable
opportunity for investigation or discovery; and
3

Court’s inherent power, for perpetrating a fraud upon this Court.

Rindahl v. Daugaard, 2011 WL 4625971 at *5 (D. S.D. Sep. 30, 2011) (“If
the court finds a litigant has manufactured evidence and/or that perjured
testimony has been introduced in an effort to enhance the case through
fraudulent conduct, dismissal is an appropriate sanction.”); id. at * 6
(dismissing inmate’s 42 U.S.C. § 1983 case upon clear and convincing
evidence that he submitted a forged document going to the heart of his
claims); Palmer v. Bracy , 2011 WL 4005887 at * 9 (M.D. Fla. Sep. 9,
2011) (“Plaintiff knowingly, or with reckless disregard for the truth,
brought false information or evidence before this Court. The Court
strongly recommends that Plaintiff be subject to disciplinary procedures
(4) the denials of factual contentions are warranted on the evidence or,
if specifically so identified, are reasonably based on belief or a lack of
information.
(c) Sanctions.
(1) In general. If, after notice and a reasonable opportunity to respond, the
court determines that Rule 11(b) has been violated, the court may impose an
appropriate sanction on any . . . party that violated the rule or is responsible
for the violation.
* * * *
(3) On the Court’s Initiative. On its own, the court may order an attorney, law
firm, or party to show cause why conduct specifically described in the order
has not violated Rule 11(b).
4

pursuant to the rules of the Department of Corrections.”);

Pope v.

Federal Express Corp., 974 F.2d 982, 984 (8th Cir. 1992) (dismissal of
plaintiff's lawsuit as sanction for production and reliance upon
manufactured document was remedy within inherent power of the court
for abuse of judicial process). 5
Graham’s response must be placed in his prison’s mail system
within 21 days of the date this Order is served. And he must affirm,
under penalty of perjury per a 28 U.S.C. § 1746 declaration, all factual

61

See also Ceglia v. Zuckerberg , 2013 WL 1208558 at * 9 (W.D.N.Y. Mar. 26, 2013)
(“The exercise of the court's inherent power to protect the integrity of its processes
and judgments against purposeful fraud is a well-recognized exercise of judicial
power. . . .”); id. at * 73 (advising dismissal of case because it was based on a forged
contract for hire); Shangold v. Walt Disney Co., 275 F. App'x. 72, 73-74 (2nd Cir.
2008) (affirming district court's dismissal of complaint as sanction after finding the
plaintiffs had committed a fraud upon the court by submitting as evidence certain
documents, the fabrication of which was established by the use of certain terms
which did not exist in the English lexicon as of the dates of the documents); REP
MCR Realty, L.L.C. v. Lynch , 363 F. Supp. 2d 984, 1015-16 (N.D. Ill. 2005) (dismissal
of a third-party complaint with prejudice upon finding the documents submitted in
its support were fabricated, and sanctioning the third-party plaintiff for perpetrating
a fraud upon the court); id. at 1012 (when a litigant fabricates critical evidence, the
interests of the judicial system militate strongly in favor of dismissal of the lawsuit so
as to deter all litigants from such misconduct in the future), aff'd , 200 F. App’x 592
(7th Cir. 2006); Ziemba , 2013 WL 1296258 at * 1.
61

assertions he may make. 6 Meanwhile, the Court GRANTS the state’s
substitution motion (doc. 11) and will reach its “Strike” motion (doc. 12)
following Graham’s response.

SO ORDERED this 27th day of June, 2013.

UNITED STATES MAGISTRATE ILJDGE
SOUTHERN DISTRICT OF GEORGIA

6

He is reminded that lying under oath, either live or “on paper,” is a prosecutable
offence . See, e.g., United States v. Dickerson , CR608-36, doc. 1 (S.D. Ga. Dec. 11,
2008) (§ 2255 movant indicted for perjury for knowingly lying in his motion seeking
collateral relief from his conviction); id ., doc. 47 (guilty verdict), cited in Irick v.
United States , 2009 WL 2992562 at * 2 (S.D. Ga. Sept. 17, 2009 (unpublished).
6