UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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ALTON H. MADDOX, JR.,
Appellant,

-against-

Docket No. -07-0187CV
A. GAIL PRUDENTI as Presiding Justice
of the APPELLATE DIVISION, SECOND PETITION FOR REHEARING
JUDICIAL DEPARTMENT; DAVID S. UNDER RULE 40 OF THE
RITTER, MYRIAM J. ALTMAN; NANCY FRAP
E. SMITH, FRED T. SANTUCCI, ANITA
R. FLORIO; HOWARD MILLER; STEPHEN
G. CRANE; THOMAS A. ADAMS; DANIEL
F. LUCIANO; GABRIEL M. KRAUSMAN;
SONDRA MILLER; GLORIA GOLDSTEIN;
ROBERT W. SCHMIDT; STEVEN W.
FISHER; ROBERT A. SPOLZINO; WILLIAM
F. MASTRO; BARRY A. COZIER; REINALDO
E. RIVERA; PETER B. SKELOS; ROBERT
A. LIFSON as Associate Justices of the
Appellate Division, Second Judicial Department,

Appellees.
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Appellant, Alton H. Maddox, Jr., petitions for a rehearing UNDER Rule 40 of the FRAP to reconsider the summary order entered in this action on December 23, 2008 affirming the judgment of the United States District for the Eastern District of New York (Ross. J)
1. This petition is based on the denial of petitioner’s right to enjoy an impartial and independent fact-finder as envisioned by Rule 50.2 of the Southern and Eastern Districts; the disbarment of petitioner without any semblance of due process of law during this federal litigation in the District Court as not constituting standing; the failure to give deference to the doctrine of stare decisis in the resolution of this civil litigation; and the overlooking of critical facts.
2. Contrary to the assertions in the Opinion and Order of this Court dated December 23, 2008, New York refuses to apply either NYCRLR § 5015 (a)(2) or CPLR 103(b) to attorney disciplinary proceedings. This petition, which was overlooked, arises out of the affidavit of Diana Maxfield Kearse, Chief Counsel for the Grievance Committee for the Second and Eleventh Judicial Districts. In it, deponent asserts:
Reinstatement is governed by Section 691.11 of this Court’s rules. However, it appears from respondent’s motion, as well as from his letter of August 5, 2003, addressed to the Clerk of this Court, with a copy to the Grievance Committee, that Respondent is not seeking reinstatement pursuant to Section 691.11

As such, respondent’s application does not include the requisite questionnaire, tax returns, or passing score on the Multistate Professional Responsibility Examination, required for all attorneys seeking reinstatement. (App.* at 183-184)

3. This admission of the Chief Counsel makes it clear that an attorney who
has been denied process or equal protection of the laws has no mechanism to
redress a grievance or collaterally attack a disciplinary sanction. New York

__________
*App. denotes Appendix in the appeal of Maddox v. Prudenti, et. al.
forecloses any collateral attack by attorneys on their disciplinary proceedings.
No mechanism is available, for example, to clear an
attorney’s name from an adverse decision in an attorney disciplinary proceeding. The affidavit concludes, “It is respectfully submitted that any motion for reinstatement should be made pursuant to Section 691.11.”
4. Hachamovitch v. DeBruno 159 F.3d 678 (2nd Cir. 1998) is factually identical to the instant appeal except for the race and profession of each plaintiff. Chief Judge Dennis Jacobs ruled in favor of the white doctor in Hachamovitch v. DeBruno and ruled against the Black attorney in Maddox v. Prudenti.
5. This Court failed to cite Hachamovitch or to address the due process issue in relation to an absence of a disciplinary mechanism to address the clearing of a blemish or a stigma on a professional’s name. The due process claim was incorporated in the first claim of petitioner’s complaint. It was overlooked.
6. Defendants’ claim that petitioner had been summarily disbarred without any semblance of due process of law was never factored into the standing requirement. It was repeatedly brought to the attention of the District Court to no avail. It had to have been ignored or overlooked. This due process violation certainly gives rise to standing under City of Los Angeles v. Lyons, 461 U.S. 95 (1983); see also Mosby v. Ligon, 418 F.3d 923 (8th Cir. 2005) and Grendell v. Ohio Supreme Court 252 F.3d 828 (6th Cir. 2001).
7. Neither res judicata nor collateral estoppel bars an unsuccessful litigant in an Article 78 proceeding in New York from initiating a 1983 civil rights action to challenge the absence of a name-clearing mechanism as violative of due process according to Hachamovitch. Even if petitioner had failed to challenge the disciplinary proceeding in state court, the federal civil rights litigation would, nonetheless, be viable.
8. This Court erred when it asserted: “And because a procedure for the submission of new evidence exists –a procedure that Maddox has not yet invoked–Maddox cannot allege an injury. The dismissal of the first claim must therefore be affirmed.” [Exhibit “1” Order at p. 3]. The Court overlooked the petitioner’s petition filed with defendants and decided on November 25, 2003. App. at 160. The denial of this petition was the basis of this civil rights litigation.
9. This Court has overlooked the harmful impact of the District Court employing a secret or Star Chamber proceeding to dispose of this litigation even though petitioner is purportedly a citizen of the United States. Petitioner had no knowledge of which judge had been assigned to hear and decide this civil action and, more importantly, petitioner was repeatedly deprived of the right to benefit from the random selection of a judge. Thus, petitioner was deprived of the right to freely raise any legal or factual claims in the District Court.
10. This civil action was filed on December 15, 2004 in the United States District Court for the Eastern District of New York. Judge Carol B Amon was assigned to hear and decide the case without the presence, knowledge nor consent of petitioner. Petitioner objected to this assignment under Rule 50.2(f) of the Southern and Eastern Districts.
11. Judge Nina Gershon, on February 17, 2005, was assigned to decide and hear the case in accordance with Rule 50.2 of the Southern and Eastern Districts. Afterwards, Judge Gershon fashioned a scheduling order. Defendants filed a motion to dismiss under Rule 12(b)(6) of the FRCP. Petitioner served and filed opposing papers.
12. In a letter dated October 27, 2006, Judge Nina Gershon stated “This letter is to advise you that Judge Nina Gershon has recused herself from this case, and Judge Brian N. Cogan has been assigned in her stead.” [App. at 148]. This recusal was made without notice and opportunity to be heard and no explanation.
13. Soon afterward, petitioner informed the Clerk of the Court, Robert C. Heinemann, that “Judge Cogan who was once a law partner of former New York State Attorney General Robert Abrams who is a nominal defendant and potential witness.” Judicial notice should have informed the District Court of the inherent conflict in this judicial assignment.
14. Although petitioner had previously and successfully objected to the assignment of Judge Carol Amon as running afoul of Rule 50.2(b) of the Southern and Eastern Districts, the District Court’s subsequent appointment of Judge Cogan was also a marked departure from said Rule. It raises serious questions of judicial intent.
15. Petitioner received no response from his letter dated November 8, 2006. (App. at 149). Instead, on or after December 19, 2006, petitioner unexpectedly received an “OPINION AND ORDER” dismissing the claims in the original complaint and allowing petitioner to replead his First Amendment retaliation claim within twenty days of the date of this Order (December 14, 2006).
16. In a letter dated January 11, 2007, petitioner wrote a letter to Judge Alleyne Ross stating, among other things, the following:
I never received any correspondence from Mr. Heinemann nor his office. Your order was a surprise since it was made without a random selection process nor were the parties able to enjoy notice and opportunity to be heard before the December 14 Order.

17. The District Court failed to appreciate the nature of petitioner’s retaliation claim. Although the Grievance Committee had issued an admonition “after [petitioner] served his amended and supplemental complaint on May 1, 2006, the complaint obviously omits it.” [A.23]
18. The hearing never occurred until July 2007. This was after petitioner had perfected the instant appeal. The District Court erroneously concluded under 22 NYCRR § 691.6 that the admonition of June 29, 2006 was final. 22NYCRR §691.6 provides in pertinent part:
An admonition is discipline imposed without a hearing... In cases in which an admonition or a letter of caution is issued, the attorney to whom such admonition or letter of caution is directed may, within thirty days after the issuance of the admonition or letter of caution, request a hearing before the committee or a subcommittee thereof, and after such hearing, the committee shall take such steps as it deems advisable.

19. The affirmance of the Order of the District Court including the retaliation claim deprives petitioner of the right to intelligently amend the complaint especially given an otherwise right to amend the complaint under Rule 15c of the FRCP. Any attempt before July 2007 to have amended the complaint in order to include a claim of retaliation would have been pure conjecture and speculation.
20. In dismissing petitioner’s complaint for lack of standing and for citing City of Los Angeles v. Lyons, 461 U.S. 95 (1983); Mosby v. Logan, 418 F.3d 927 (8th Cir. 2005); and Grendell v. Ohio Supreme Court, 252 F.3d 828 (6th Cir. 2001), the District Court failed to appreciate the facts relating to the summary disbarment and especially without the benefit of oral argument.
21. There is still a real and immediate threat of repeated injury. Petitioner was suspended from the practice of law in New York for five years. [App. at 34]. There was never a notice of a disbarment proceeding or any hearing. Yet, defendants asserted in a letter to Judged Nina Gershon dated November 9, 2005: “As defendants’ memorandum of law in support of their motion to dismiss makes clear, Mr. Maddox currently cannot practice law and must apply for reinstatement to the bar in accordance with Section 691.11 of the Judiciary Law [sic] before doing so. As such ‘disbarment’ is an accurate description of his status.” (App. at 251)
22. Defendants’ assertion of disbarment absent due process of law is more than conjecture or speculation. It is an admission against interest and a continuing wrong. This is real harm to petitioner since reinstatement following a disbarment is discretionary. Suspension, on the other hand, is automatic once the suspended attorney complies with the order of suspension: this downgrade in legal status impose more burdens on plaintiff without any additional, adverse proof.
23. Moreover, petitioner should be permitted to benefit from Rule 15(c) of the FRCP which allows for relation back to the date of the original complaint. Defendants wrongfully reclassified petitioner’s legal status without due process of law. See In re Ruffalo, 390 U.S. 544 (1968).
24. The District Court was fully aware that petitioner had only been suspended from the practice of law. Yet, defendants openly admitted that petitioner’s legal status was that of a disbarred attorney. This was fifteen years after petitioner had been originally suspended from the practice of law. The definite suspension was only for five years. At the very least, petitioner has been constructively disbarred from the practice of law.
25. Disbarment can be permanent in New York. A disbarred attorney, like an enslaved African, has no rights that a grievance committee is bound to respect. Defendants, in their reference to petitioner, were speaking in code words. This would have also meant, in 1857, that court decisions relating to Blacks would have no precedential value to whites.
26. In addition to defendants’ admissions against interest, petitioner also complained about his suspicion of a downgraded legal status:
Defendants are seeking to change my legal status from suspended attorney to disbarred attorney a sit represented in its initial letter to this Court dated June 16, 2005. This unwarranted reclassification would negatively affect the standard for my reinstatement to the practice of law absent the constitutional violation.

27. It can be said without dispute that plaintiff never enjoyed a fair, impartial and independent fact-finder in the District Court. Three of the four judges were assigned to the above-captioned case by running afoul of Rule 50.2 of the Southern and Eastern Districts. Plaintiff was disallowed to enjoy an assigned judge who was randomly-selected. By Judge Nina Gershon recusing herself from the case, she may have had a conflict ab initio. No effort was made to determine the nature of the conflict or the date of its origin.
28. Judge Alleyne Ross clearly failed to understand New York’s definition of an admonition and the procedural requirements underlying it under 22 NYCRR § 691.6. The District Court strictly defined “admonition” as discipline without hearing. This was error. An attorney may also seek a hearing. Plaintiff did. This fact was unknown to the District Court. On the retaliation claim, an amended complaint would have had to wait until after July 2007 under Rule 15 of the FRCP. Petitioner never was able or allowed to appear before Judge Ross. This was to petitioner’s detriment.
29. The District Court was unaware that defendants had penalized petitioner for exercising rights under the First Amendment after petitioner’s file in local criminal court in Manhattan was inexplicably lost and the stenographic minutes of the criminal trial styled People v. Maddox were unable to be located. This allowed the Grievance Committee to elevate the rambling and ambiguous testimony of a white judge over the uncontradicted testimony of a despised and permanently suspended Black attorney. These circumstances gave rise to a due process violation.
For the reasons stated above, petitioner requests that a rehearing be granted and that on rehearing the judgment of this Court be reversed and the judgment of the United States District Court should also be reversed and the case remanded to the District Court.
Dated: Brooklyn, New York
January 9, 2009


Respectfully submitted,



______________________________
ALTON H. MADDOX, JR.
Pro Se
16 Court Street, Ste. 1901
Brooklyn, New York 11241
718-834-9034