How bad is Obama judicial nominee Abdul Kallon? 11th Cir. ignored 3 SCOTUS cases to help him cheat my wife out of rights to home she co-owned for 20 years

U.S. Eleventh Circuit Court of Appeals in Atlanta

Republicans stalling on President Obama's nomination of Merrick Garland to the U.S. Supreme Court are committing a grave injustice. That's because, by pretty much all published accounts, Garland is qualified to sit on the nation's highest court.

If Republicans also are stalling on Obama's nomination of Abdul Kallon to the U.S. Eleventh Circuit Court of Appeals -- and that appears to be the case -- they are doing us a favor. That's because Kallon is a dreadful judge, and I've seen his sorry act with mine own eyes multiple times.

Why is Kallon so bad? Well, let's consider the following question that many Americans surely have asked themselves: Why is it so frustrating to deal with judges and courts? Answer: Even when you are right about a key issue, and the court admits you are right, judges still find a way to make it look like you are wrong--and to deny you justice. Abdul Kallon taught me that one.

My wife, Carol, and I experienced a classic example of this phenomenon in Roger Shuler and Carol Shuler v. William E. Swatek, et al, a case that involved an unlawful sheriff's sale that cheated us out of full rights to property we had owned for more than 20 years at the time.

We've shown that  Kallon, who currently sits on the federal bench in the Northern District of Alabama, botched his ruling on a simple issue involving Carol's rights to her own home. Given that Obama has nominated Kallon to a seat on the U.S. Eleventh Circuit Court of Appeals, this should concern every American. It certainly should concern the some 33 million people who live in Alabama, Georgia, and Florida--the three states covered by the Eleventh Circuit.

Kallon found that he could not consider Carol's claims because he lacked subject-matter jurisdiction under the Rooker-Feldman Doctrine. We argued, in a Motion to Alter or Amend Judgment and in our appellate brief, that Carol was not a party to the underlying state case, so Rooker-Feldman did not apply to her. In other words, Kallon was wrong, and he had to hear her claims. (Note: For purposes of this post, we will assume Kallon correctly excluded my claims because of Rooker-Feldman. That's not the case, but by focusing only on Carol's claims, we hope to simplify matters and make this post easier to understand. I was, at least, a party to the underlying state action, but Carol was not.)

What happened next was astounding. The Eleventh Circuit found that we were right, and Kallon was wrong -- that Carol's claims were not precluded by Rooker-Feldman and had to be heard by the district court. But the Eleventh Circuit cheated Carol anyway, by borrowing a point Kallon had ruled on (incorrectly) and applying it to Carol's claims -- even though her claims had not been heard in the district court, as the appellate court found they must.

That probably sounds like a mind-twister to many readers, but it's a classic example of how convoluted court corruption can be. Let's see if I can provide a little clarity: The Eleventh Circuit essentially found that Carol had wrongly been deprived of a hearing on her claims in the trial court, but then threw out her claims on grounds that the trial court had not heard--it could not have adequately heard those grounds, of course, because it had not heard Carol's claims at all.

Here is a fundamental holding of law: An appellate court is supposed to rule only on issues adequately heard and raised in the trial court. But that's not what happened in Shuler, et al v. Swatek, et al. It's a sign, in my view, that the Eleventh Circuit was more interested in protecting Kallon than it was in dispensing justice. The law required, as the Eleventh Circuit admitted, that Carol's claims be heard by the trial court. But they never were.

On what did the Eleventh Circuit hang its flimsy ruling? It found that Carol's claims against our troublesome neighbor (the criminally inclined Mike McGarity) and his sleazy lawyer, Bill Swatek, must fail because McGarity and Swatek were not "state actors" for purposes of a civil-rights claim under 42 U.S.C. 1983. Specifically, here is what the appellate panel found:

Finally, Carol Shuler contends that the district court erred in dismissing her claims under 42 U.S.C. §§ 1983, 1985 against William Swatek and Mike McGarity for failure to state a claim. Section 1983 provides a right of action only against "a person acting under color of state law." Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir. 2005). Although neither Swatek nor McGarity are state officials, Carol Shuler argues that they can be held liable under § 1983 because they obtained a writ of execution against the Shulers' property and caused the writ to be enforced. However, this contention is insufficient to state a violation of § 1983, because "one who has obtained a state court order or judgment is not engaged in state action merely because [he] used the state court legal process." Cobb v. Ga. Power Co., 757 F.2d 1248, 1251 (11th Cir. 1985).

Where did the Eleventh Circuit judges come up with Cobb v. Ga. Power Co. and one of its findings? They borrowed it from Kallon; it's right there on page 31 of his memorandum opinion in our case.

Abdul Kallon

There's a slight problem with borrowing material from Kallon -- he's likely to get it wrong, and that's exactly what he did in this instance. Most of us learn this lesson in third grade -- if you are going to copy off someone's paper, copy from one of the smart kids, not one of the dummies. The Eleventh Circuit copied from a bad judge and -- surprise, surprise -- they got it wrong.

What's the correct law? We cited it in our appellate brief. (See full appellate brief at the end of this post.)

The district court found that Swatek and McGarity were protected from the Shulers‟ 1983 claims because they were not acting under color of state law. The U.S. Supreme Court, however, has held that private individuals who act jointly with state officials are deemed to be acting under color of state law. In Lugar v. Edmondson, 457 U.S. 922 (1982), our nation’s highest court found: “As is clear from the discussion in Part II, we have consistently held that a private party's joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a "state actor‟ for purposes of the Fourteenth Amendment. The rule in these cases is the same as that articulated in Adickes v. S.H. Kress and Co., supra, at 152, in the context of an equal protection deprivation: "Private persons, jointly engaged with state officials in the prohibited action, are acting "under color‟ of law for purposes of the statute. To act "under color‟ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents," quoting United States v. Price, 383 U.S., at 794.”

How badly did the Eleventh Circuit, likely in conjunction with Kallon, want to make sure Carol's claims were not heard. As you can see above, the appellate court was willing to ignore clear findings from three U.S. Supreme Court cases. That tells me the fix was firmly locked in place.

Is there much a citizen can do in such situations? Not really. The only realistic option is to file a Petition for an En Banc hearing, which we did. (See petition at the end of this post.) Those, however, are rarely granted, and ours was denied.

The only other option is to seek review from the U.S. Supreme Court. For most citizens, the chances of getting hit by a piece of space debris probably is greater than the chance of having a case heard by SCOTUS.. On top of that, the expense of seeking Supreme Court review is prohibitive for many regular folks.

And so, Abdul Kallon (with help from the Eleventh Circuit) made sure that my wife had no chance at justice. This is the kind of judge Barack Obama wants to promote?

If you are a Democrat, that notion should make you want to vomit.

Swatek--Appellate Brief by Roger Shuler

Swatek Petition for En Banc Rehearing by Roger Shuler