SupplementalEmergency Motion - Irrep Harm - Fine v USDC

8/14/2019 SupplementalEmergency Motion - Irrep Harm - Fine v USDC

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RICHARD I. FINE, In Pro Per

Prisoner ID # 1824367

c/o Mens Central Jail441 Bauchet Street

Los Angeles, CA 90012

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Appellant (Fine) has been, and continues to be, irreparably injured by

his unlawful incarceration, which began on March 4, 2009.

He was deprived of personal liberty, which forcibly subjected him to

undue and steadily mounting financial hardship and catastrophe as a direct result

of being prevented from earning a living.

RICHARD I. FINE,

Appellant and Petitioner,

vs.

U.S. DISTRICT COURT,

Appellee and Respondent.

SHERIFF OF LOS ANGELES

COUNTY

(Real Party In Interest)

Case No. 09-56073

SUPPLEMENT TO EMERGENCY

MOTION FOR IMMEDIATE

RELEASE FROM UNLAWFULINCARCERATION SHOWING

IRREPARABLE AND

IMMEDIATE INJURY AND

UNDUE FINANCIAL HARDSHIP,

INCLUDING THE LOSS OF HIS

HOME, AND ONGOING

PHYSICAL PAIN AND

SUFFERING

FRAP Rules 23(b)(3) and 23(d)


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He has been prevented from addressing the legal issues in this case

beyond his personal memory of applicable law as a result of his having been

denied access to any useful legal resources while incarcerated.

The expense of retaining counsel to adequately address these matters is

prohibitive, and he cannot avail himself of any assistance as a pauper as that

would entail full financial disclosure, the subject of which is also the thrust of

the underlying contempt order.

His severe financial hardship has led to the imminent loss of his home,

which is now well into foreclosure.

Fines incarceration has also resulted in his needlessly suffering physical

pain arising from medical conditions which were contracted as the result of

incarceration at LA County Mens Central Jail. Fine has developed a staph

infection, back pain, and swelling in his feet, ankles and legs, all in violation of

the Fifth and Fourteenth Amendments, due to his unlawful incarceration and the

deliberate refusal and failure of the District Court to abide by 28 USC 2243 in

proceeding with the Petition for Writ of Habeas Corpus.

These delays have suspended the privilege of the writ of habeas corpus

in violation of Article I, Section 9(2) of the U.S. Constitution.

As this Court is aware from the record, the District Court unlawfully

delayed in ordering Respondent Sheriff to answer, and did not enter the writ

when the respondent Sheriff did not answer. The District Court also unlawfullydirected the LA Superior Court and Judge Yaffe to answer without having

jurisdiction over them, gave each a time period beyond the twenty (20) days

(originally set for the Sheriff) allowed by 28 USC 2243, and did not enter the


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writ when they did not oppose or contest any of the grounds, facts or claims set

forth in the Petition.

Despite the requirement that the District Court have a hearing no later

than twenty-five (25) days after the Petition is filed and summarily decide the

case, or earlier if the grounds or facts in the Petition are undisputed, as in this

case, as set forth in 28 USC 2243, the District Court waited for 103 days to

render its decision (Dkt #30), at which time it denied the unopposed Petition.

The District Courts decision showed that neither it (Judge Walter) nor the

Magistrate Judge (Judge Woehrle) had even read the full Petition. (See

Magistrate Judges Report and Recommendation (Report) Dkt #26, page 10,

line 13, through page 11, line 1, which states the Petition had only five grounds.

The Petition had, in fact, seven grounds. Page 13, line 27, through page 14, line

4, of the Report states Fine was not charged under B&P Code 6126, a criminal

count. The Order to Show Cause, at page 3, paragraph 16, attached to the

Petition shows this charge. At page 23, line 1, through page 24, line 16, the

Report again ignores the criminal contempt charge which was never dismissed.)

The District Court left itself with only Counts One, Two and Five to

decide.

As to Count One, the Report did not cite to Caperton, et al, v. A.T. Massey

Coal Co., et al, 566 U.S. ___ (2009) decided June 8, 2009, which held that a

large contributor to a campaign committee of a judge by a litigant with a

prospective case before him mandated the judges recusal from the case as a

denial of due process. Caperton, supra, mandated the granting of the writ by the

District Court because Judge Yaffe had received an illegal payment from LA

County equal to 28% of his state salary (a substantial sum) and then made an

order in favor of LA County and against Fine without notice to Fine and without


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Fine present at the hearing. He then refused to recuse himself in the contempt

case and thereafter judged his own action, a violation of the holding of In Re

Murchison, 349 U.S. 133, 136 (1955). Thus Fine should have prevailed on

Count One, based upon U.S. Supreme Court precedent.

As to Ground Two, the District Court and the Magistrate Judges Report

made up a false record. Without citation to any record, the Report states at

page 21: The record shows that Judge Yaffe gave Petitioner ample warning

about possible contempt charges and at page 22, lines 23-25: that Judge

Yaffe was patient and professional in dealing with Petitioner while carrying out

his judicial duties and vindicating the property authority of his court.

The writ should therefore have been granted on Ground Two.

The District Court and the Magistrate Judges Report referenced no

review of the last record before the State Court to determine if the decision was

based on an unreasonable determination of the facts in light of the evidence

under 28 USC 2254(d)(2). Neither the Respondent Sheriff, the LA Superior

Court nor Judge Yaffe produced the trial transcripts, the exhibits or any

pleadings of the contempt trial, except that the LA Superior Court produced the

March 4, 2009, trial sentencing transcript, the Remand Order and a duplicate

copy of the March.4, 2009, Judgment, signed by Judge Yaffe on March.24,

2009, twenty days after it was filed (compare the Courts file stamp date, Dkt

#1, pg. 34, to Judge Yaffes signature date, pg. 47).

Fine produced the December 22, 2008, and January 22, 2009, trial

transcripts and Minute Orders, the November 3, 2008 Order to Show Cause and

Declaration of Joshua L. Rosen, trial exhibits 1A, 9, 14, 21, and Senate Bill

SBX2 11 enacted February 20, 2009.


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Based upon the above, Fine was denied constitutional rights which

supported the Petition and granting of the writ.

Lastly, the Ninth Circuit violated the Fifth and Fourteenth Amendments

and Article I, Section 9(2), of the U.S. Constitution when it accepted Fines

Emergency Petition for Habeas Corpus filed June 3, 2009, renaming it a Petition

for Writ of Mandate/Prohibition in case no. 09-71692, and delayed its decision

until June.30, 2009. The Ninth Circuit ignored the fact that the District Court

had refused to file the Petition (See Ninth Circuit Decision, page 1, paragraph 1),

and the Ninth Circuit erroneously claimed that the Magistrate Judges June 12,

2009, Report was the decision of the District Court. (See Decision, page 1,paragraph 2). The District Court, however, did not issue its decision until

June.29, 2009 (Dkt #30).

As occurred with the District Court, it appears that the Ninth Circuit panel

also had not fully reviewed the Emergency Petition, which plainly showed that

the District Court had violated 28 USC 2243 and denied Fine due process.

Had it reviewed the entire document, it would have issued the writ of mandate

immediately. Instead, it denied the writ, causing further unlawful incarceration

and unique and irreparable financial and physical hardship.

In summary, Fine has been denied liberty and the right to earn a living

since March 4, 2009, resulting in severe financial and physical hardship in

violation of the Fifth and Fourteenth Amendments, and Article 1, Section 9(2) of

the U.S. Constitutional. The District Court knew at all times that the Petition

had merit and was unopposed, yet it unlawfully delayed and denied Fine due

process and the writ. And the Ninth Circuit knew at all times of the District

Courts unlawful actions in case no. 09-71692, yet it delayed and denied Fine

due process and denied the Petition.


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Now, the unlawful incarceration has extended to almost five months due

solely to the refusal of the Federal Courts to act appropriately.

The instant Motion has not been opposed. The Petition, as shown, was

also not opposed.

The actions of the District Court in this case are identical to the actions of

the same Magistrate Judge and District Court Judge in case no. CV-08-29056

JFW (CW), Fine v. State Bar, et al, in which they delayed deciding a Motion to

Dismiss for ten months, then decided to abstain, and then denied an unopposed

Motion to Set Aside the Judgment which showed that the California Supreme

Court justices were biased inasmuch as they had also received illegal payments

from counties while they were superior court judges and had received retroactive

immunity for criminal acts under Senate Bill SBX2 11.

It appears that the barrier to granting the writ is either an unwritten code

of protection within the judiciary to insulate judges receiving illegal payments

despite U.S. Supreme Court holdings to the contrary, or that no judge is reading

the Emergency Petitions in their entirety. Neither option speaks well of the

Courts ability to follow the Constitution and law.

In the meantime, Fine has been made to suffer greatly because he honored

his oath and acted as an officer of the court in objecting to judges who had

received monies from LA county who refused to disqualify themselves from

deciding cases in which the County was a party. Yet Fines injuries of the past

five months would have been entirely avoided if Supreme Court precedent had

been followed.

Further delay is unconscionable. Fine should be set free and the writ

granted. There should not be any bond, as the Petition was not opposed.


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PROOF OF SERVICE

STATE OF CALIFORNIA,

COUNTY OF LOS ANGELES

I am Greg McPhee. My business address is 2450 N. Lake Avenue, PMB 227,

Altadena, CA 91001.

On July 28th, 2009, I served the foregoing document described as SUPPLEMENT TO

EMERGENCY MOTION FOR IMMEDIATE RELEASE FROM UNLAWFUL

INCARCERATION SHOWING IRREPARABLE AND IMMEDIATE INJURY AND

UNDUE FINANCIAL HARDSHIP, INCLUDING THE LOSS OF HIS HOME, AND

ONGOING PHYSICAL PAIN AND SUFFERING on interested parties in this action by

depositing a true copy thereof, which was enclosed in a sealed envelope, with postage fully

prepaid, in the United States Mail, addressed as follows:

Aaron Mitchell Fontana Kevin M. McCormick

Paul B. Beach BENTON, ORR, DUVAL & BUCKINGHAMLAWRENCE BEACH ALLEN & CHOI, PC 39 N. California Street

100 West Broadway, Ste. 1200 P.O. Box 1178

Glendale, CA 91210-1219 Ventura, CA 93002

Judge John F. Walter Magistrate Judge Carla M. Woehrle

US District Court, Crtrm 16 US District Court, Roybal Bldg, Crtrm 640312 N. Spring Street 255 East Temple Street

Los Angeles, CA 90012 Los Angeles, CA 90012

Clerk, U.S. District Court

312 N. Spring St., Rm G-8

Los Angeles, CA 90012

I certify and declare, under penalty of perjury under the laws of the United States of

America and the State of California, that the foregoing is true and correct.

Executed on this 28th day of July, 2009, at Altadena, California.

____________________________________

GREG McPHEE

SupplementalEmergency Motion - Irrep Harm - Fine v USDC

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