richard fine 9th circuit request for certificate of appealability & immediate release

R E (7 E ', M e DMOLLM c Dwvihfx cunxU,s. COIFITOFA/PEALSJUL 2 2 2922

FILEDDQCKEWD DATE INITIAL

RICHARD 1. Flc s In Pro PerPrisoner ID # 1824367c/o Men's Central Jail441 Bauchet StreetLos Angeles, CA 90012

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RIC 1. FINE,Appellant and Petitioner,

VS.

Case No. 09-56073

REQUEST FOR CERTIFICATE OFAPPEALABILIT ,Y RZQLTEST FORORDER IMMEDIATELYGM NTING WRIT OF HABEASCORPUS ON ALL SEVENGROUNDS BASED UPON NOOPPOSITION M D VIOLATIONOF 28 USC j 2243 BY DISTMCTCOURT, Ar REQUEST FQRORDER IMY DIATELYSETTWG APPELLANT FREEFROM LOS ANGELES COUNTYJAIL

U.S. DISTRICT COURT,Appellee and Respondent.

SIIERIFF OF LOS ANGELESCOUNTY

(Real Party ln Interest)

Case: 09-56073 07/23/2009 Page: 1 of 12 DktEntry: 7003921

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31. equest for ertiflcate of ppealabili ........... rror! ookmark not deflned.

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5 1I. equest for rder lmmediately ranting rit of abeas o us on 11 7rounds ased pon o pposition and iolation of 28 S j 2243 ............ 26

111. equest for rder lmmediately Setting Fine Free From 1, oun Jail .......... 7z

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20 STATUTES21

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2 1. Request for Pertificate of Appealability3 Appellant (hereinafter ççFine'') filed a Request for Certificate of4 Appealability on July 1, 2009, in the US District Court. As of the present time,5 the US District Court has done nothing in response other than file the Request as6 a ççNotice of Appeal''7 Given the history of the US District Court of violating statutes in this case,8 is doubtful that the US District Court will act on the Request.9 Fine respectfully requests that thls Court immediately issue the Certificate10 of Appealability.11 If this Court does not immediately act, this case will be unnecessarily12 prolonged as has already occurred by this Court's failure to promptly act in case13 09-71692.14 In such case, Fine filed an Emergency Petition for Writ of Habeas Copus15 in this Court alleging that the US District Court violated 28 USC j 2243. The16 District Court refused to tile the Petition. This Court filed it as a Petition for17 Writ of Mandate/prohibition on June 3, 2009. This Petition was separate from18 the Petition in USDC case no. 90-CV-1914 (Docket #1) as the new Petition19 alleged violations of the District Court. The Petition in USDC case no. 09-CV-20 1914 alleged violations by Judge Yaffe and the LA Superior Court in a contempt21 action, resulting in the incarceration of Fine to tdcoerce'' him to respond to22 questions about his assets. Fine challenged Judge Yaffe's right to preside at the23 contempt trial and judge his own actions, amongst other things.24 In case no. 09-71692, this Court delayed its decision until June 30, 2009,25 which was the day after the District Court approved the Magistrate Judge's26 Report and Recommendation (ttRepolfi) over Fine's Objections (Docket #30).27 This Court mistakenly refen-ed to the Magistrate Judge's Report dated June 18,28 2009 (Docket #25) as the decision of the District Court. This Court never


1 addressed the due process violations of the District Court, violating 28 USC j2 2243. Had this Court acted promptly and addressed the District Court's due3 process violations, the Writ of Mandate would have immediately issued and this4 case would have been over.5 Now, almost 50 days later, the stat'us of USDC case no. 09-CV-1914 is the6 same. The District Court has still violated 28 USC j 2243. Fine is still7 incarcerated. Sheriff Baca did not answer the Petition and the District Court8 denied his iGMotion to Dismiss'' (Docket #12) as moot (Docket #30). Docket9 # 12 was a GtMotion to Dismiss Petition or in the Altemative Direct the Reallo ,, f.ç did notParties in lnterest to Respond. The LA. Superior Court and Judge Ya e11 move to inteNene, did not tile a çWotice of lnterested Parties'' and were not12 named as itinterested parties'' in the çWotice of lnterested Pàrties'' filed by

13 Sheriff Baca (Docket #11).14 The LA Superior Court and Judge Yaffe tileè an ççAnswer'' and15 ççResponse'' but did not oppose or contest any of the grounds, facts or claims set516 forth in the Petition (Docket #15 and 16).17 Thus the Petition was unopposed.18

19 II. Request for Order Immediately Granting Writ of Habeas Corpus on20 AII Seven Grounds Based Upon No Opposition and Violation of USC j

2243 by District Court21

22 As shown above, Sheriff Baca's Motion was denied as moot. (Docket23 #30) This effectively retroactively removed the Response of the LA Superior24 Court and Judge Yaffe. (Docket #15 and 16) However, even if such are not25 considered to be removed, they do not oppose or contest the grounds, facts or26 claims set forth in the Petition. (Docket #1) As Sheriff Baca did not answer, the27 Pdition's grounds, facts and claims are unopposed.28


1 In an appeal, neither Sheriff Baca nor the LA Superior Court and Judge2 Yaffe could oppose any ground, fact or claim in the Petition as they have waived3 such right by failing to raise such in the District Court. They are effectively4 precluded from filing a brief.5 Nor may they wish to file any briefs as the District Court did not rely on6 any statement in the LA Superior Court's and Judge Yaffe's Response in its7 Magistrate Judge's Report which it approved on June 29, 2009 (Docket #30).8 The Magistrate Judge's Report cited to exhibits ççB'' and tEC'' of the Mccormick9 Declaration which were not part of the tçrecord'' of the contempt proceeding and10 therefore could not be used. lt also cited to various iifacts'' of the tjudgment''11 which were contested in the Petition and which were not subsequently contested12 by Sheriff Baca, who did not answer, or by the LA Superior Court and Judge13 Yaffe. Finally, the Magistrate Judge's Report unlawfully cited sources that were14 not in the contempt trial, and cited to a ttrecord'' which did not exist. The15 M istrate Judge ççmade up the facts'' to suit her argument and called it theag16 çtrecord.'' (See page 21, lines 24-26, page 22, lines 23-25 of Report.)17 The sole içrecord'' before the District Court was:18

1. The 1 1/3/08 Order to Show Cause;19 juoja was not a trial exhibit);2. The Declaration of Joshua Rosen (w20 3. The Trial Transcripts of 12/22/08, 1/22/09 and 3/4/09;

4. The Minute Orders of 12/22/08 and 1/22/09;21 5. The Judgment and Remand Order of 3/4/09;22 6. Trial Exhibits 1A, 9, 14, and 21; and

7. Senate Bill IGSBXZ 1 1''.23

24 Neither Sheriff Baca nor the LA Superior Court and Judge Yaffe produced25 any édrecord'' or pertinent documents 9om the trial except the Remand Order, the26 March 4, 2009, Judgment (which had been attached to the Petition) and the27 March 4, 2009, trial transcript.28


1 Since the ççfacts'' of the Petition were not contested, literally a11 of the2 ççfacts'' in the Magistrate Judge's Report approved by the District Court (Docket3 #30) are invalid and wrong. The èorrect facts are shown in the ççobjections4 Including Memorandum in Support of Objections to Magistrate Judge's Report,5 Demand for lmmediate Release'' (Docket #29) (ttobjections'').6 In addition to the above, the Magistrate Judge's Report states, at page 10,7 line 13 through page 1 1, line 1, that there are only five grounds for relief. The8 Petition states seven grounds. Clearly, neither the Magistrate Judge nor the9 District Court Judge read the entire Petition.10 This ttfailure to attend to basics'' also manifested itself in thè Magistrate11 Judge's and District Court's denial of due process by failing to follow 28 USC j12 zz4g.

13 As shown in the Objections (Docket //29), in appeal case no. 09-71692,14 and in the Emergency Motion in this case, they waited 19 days after the Petition15 was filed before ordering Sheriff Baca to answer, did not order the writ when he16 did not answer, extended the time beyond the original 20 days given to Sheriff17 Baca for the LA Superior Court/ludge Yaffe to answer, and did not immediately18 enter the writ when they did not oppose or contest the grounds, facts and claims19 and, essentially, the Magistrate Judge and the District Court took from20 March 19, 2009, when the Petition was filed, until June 29, 2009, to deny an21 unopposed Petition. Under 28 USC j 2243, such denial had to occur22 immediately if the Court thought that Fine was not entitled to the writ.23 Since the Court ordered the OSC under 28 USC j 2243, it had made the24 decision at the outset that Fine had overcome the barrier of not being entitled to25 the writ. 28 USC j 2243 states in relevant part:26 ççA courq justice or judge entertaining an application for a w'rit ofzy habeas corpus shall forthwith award the writ or issue an order directing the

respondent to show cause why the writ should not be granted, unléss it28


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appears from the application that the applicant or person detained is notentitled thereto.''

t:. . . it shall be returned within tltree days unless for good causeadditional time, not exceeding twenty days, is allowed. The person towhom the writ or order is directed shall make a ret'urn certifying the truecause of detention. When the writ or order is returned, a day shall be setfor hearing, not more than fve days after the ret'urn unless for good causeadditional time is allowed unless the application for the writ and returnpresent only issues of law the person to whom the writ is directed shall berequired to produce at the hearing the body of the person detained. . . . Thecourt shall summarily hear and determine the facts, and dispose of thematter as 1aw and justice require.''

11 As shown herein and in the referenced documents, the Magistrate Judge

13and the District JudgeSheriff, who did notrepresentativeFurther, the Magistrate Judge's Report stated at page 10, lines 6-10:

did not obey 28 USC j 2243. Nor, for that matter, did theGtcertifylingj the true cause of detention''. Neither a

of the LA Superior Court nor Judge Yaffe's did so either.

<&At the sentencing hearing Petitioner indicated that he would go onrefusing to answer Commissioner Gross's questions until his habeascorpus actions (including the present case) were tçentirely finished,'' butwould answer questions if he lost in the habeas proceedings. (Sentencingtranscript at 9-1 11 To date, Petitioner has not complied with the contemptorder and remains in custody at Los Angeles County Jail for civilcontempf'.

Since (jailing'' Fine was not going to ilcoerce'' him to answerCommissioner Gross' questions as Judge Yaffe knew that Fine would answersuch if he lost the habeas corpus proceedings, there must have been anotherreason to incarcerate Fine.

Fine submits that the reason is that Fine was the first lawyer to challengethe now illegal and unconstitutional payments from LA County to the LASuperior Court judges.The LA Superior Court has been retaliating ag>inst Finefor such continuous challenges.Through its judicial officers it has gone to the


1 California State Bar and sought his disbarment for his bringing substantivelycorrect Federal civil rights cases challenging the payments and disqualifyingjudicial officers who receive the payments. The State Bar disbarred Fine. APetition for Writ of Certiorari is presently before the US Supreme Court in caseno. 08-1573. The questions presented relate to whether California SupremeCourt justices who received unconstitutional payments from counties whilesuperior court judges and have received retroactive immunity from criminalprosecution, civil liability and disciplinary action should recuse themselves frompresiding over the same issue in the disbarment case and the First Amendmentright to file truthful pleadings, among other things.

The contempt proceeding and the incarceration of Fine is the latestretaliation as Fine showed in the contempt proceeding that, in the underlyingcase, the vote of the LA County Board of Supervisors was illegal due tocontributions by the developer to two Board members within twelve months ofthe vote. Fine then showed the illegal payments to Judge Yaffe from the Countyand Judge Yaffe's making illegal orders in favor of LA County.

The documents submitted for judicial notice herein show that the rulings ofthe LA Superior Court judges in favor of LA Cotmty as an effect of thepayments from LA County is rampant and has denied 10 million residents of LACounty meaningful access to the courts and a fair judicial system.

ln a normal situation, a judge would have stayed the execution of sentencein this case to allow the writ procedure to proceed. Judge Yaffe knew that aPetition for Writ of Habeas Corpus was before the California Supreme Court onMarch 4, 2009, and that also a challenge as to their ability to hear the Petitionwas before them. He also knew that Fine would go into the Federal system. Thesole reason to incarcerate Fine was retaliation. Judge Yaffe had been ççexposed''favoring LA County as an effect of the illegal and unconstitutional LA Countypayments to him. He retaliated and incarcerated Fine.


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111. Request for Order lmmediately Setting Fine Free from LA CountyJail

Fine has been unlawfully incarcerated since March 4, 2009.Judge Yaffe could not judge his own unlawful criticized conduct. lt is well

established that tçno man can be a judge in his own case''. Caperton. et a1. v.W.T: Massev Coal Co.. et al, 566 U.S. (2009), decided June 8, 2009, SlipOpinion page 10 citing In Re Murchison, 349 U.S. 133, 136 (1955).

ln this case, Judge Yaffe refused to recuse himself and sat in judgment ofhis criticized unlawful conduct of taldng illegal and unconstitutional paymentsfrom LA County and then making decisions and orders in favor of LA County(See trial transcript of Decembèr 22, 2008) which included the January 8, 2008Order for Fine to pay attorney's fees and costs to LA County and its co-applicantfor an E1R in violation of the Califomia Public Rçsources Code and withoutnotice to fine and without Fine being present at the hearing. (See Trial Exhibit14). Judge Yaffe was later disqualifed on April 8, 2008, from the underlyingcase (See Trial Exhibit 21) and could no longer act.

These facts and trial exhibits are uncontested. Neither Caperton, supra,nor these facts were addressed in the Magistrate Judge's Report or the DistrictCourt's approval even though they were aware of such.

Additionally, under Caperton, supra, the $46,300 per year payment toJudge Yaffe from LA County, which is approximately 28 % of hisapproximately $1 79,000 per year State salary, would mandate his recusal as LACounty's itsignificant and disproportionate influence -- coupled with thetemporal relationship . . . lofl the pending case'' kçoffer a possible temptation tothe average . . . judge to . . . lead him not to hold the balance nice, clear and true''.Lavoie, 475 U.S. at 825; Tumev, l73 U.S. at 532. (Caperton, supra, at 16.)

Finally, based upon the retroactive immunity given to Judge Yaffe fromcriminal prosecution under Senate Bill EESBXZ 1 1'' based upon tEthe ground that7


1 those benefits were not authorized by law'', it is clear that the act of receiving the2 payments was criminal, as was the act of payment.3 The Magistrate Judge's Reporq while quoting the immunity pa14 of Senate4 Bill CtSBXZ 1 1'' at page 17, did not discuss the criminal aspect of the LA County5 payments to Judge Yaffe and the LA Superior Court.6 Given the clear precedent of Caperton, supra, and the cases cited therein,7 and the criminal actions of the LA County payments to Judge Yaffe and the LA8 Superior Court judges, as shown by Senate Bill CCSBXZ 1 1'' due process. 5

9 required that Judge Yaffe recuse himself from the contempt trial.10 The OSC also charged Fine with ilattacking the integrity of the court11 (Judge Yaffel'' and tfattacking the integrity of the LA Superior Court'' based12 upon the LA County payments to Judge Yaffe and the LA County Superior13 Court judges. Fine claimed the actions violated 18 UCS jj 1341, 1343, and14 1346 (the intangible right to honest services), Fine was found itNot Guilty'' on15 these charges.16 This is in addition to the six other unopposed grounds in the Petition:17 Ground Two - The Report and Recommepdation made a itfalse18 record''. It did flot show that embroilment did not exist.

Grounds Three and Four - The OSC showed at page 3, paragraph 16,19 that a criminal charge under B&P Code j 6126 was brought, thereby20 showing that the right to a july trial was violated and that due process is

violated when the lawyer for a party prosecutes a criminal contempt.21Grotmd Five - the District Court was bound to review the last record

22 before the State court. lt did not do such. lt referred to items outside of theca record as a basis for its decision.

Grounds Six and Seven - The District Court did not consider such, as24 it denied such grounds existed.25

26 Based upon the above, an order immediately setting Fine free from the LA27 County Jail is respectfully requested.28


5Fi J day of July, 2009Dated this Respectfully submitted,

BY:RICHARD 1. FINE,ln Pro Per


PROOF OF SERVICESTATE OF CALIFORNIA,COUNTY OF LOS ANGELES

I am Greg Mcphee. My business address is 2450 N. Lake Avenue, PMB 227,Altadena, CA 91001.z,o. ; . -$- p

On Julyz, / , 2009, I served the foregoing document described as REQUEST FOR

CERTIFICATE OF APPEALABILITY, REQUEST FOR ORDER IMMEDIATELYGM NTING WRIT OF HABEAS CORPUS ON ALL SEVEN GROUNDS BASED UPON

NO OPPOSITION AND WOLATION OF 28 USC j 2243 BY DISTRICT COURT, ANDREQUEST FOR ORDER IMMEDIATELY SETTING APPELLANT FREE FROM LOSANGELES COUNTY JML on interested partiesin 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 FontanaPaul B. BeachLAWRENCE BEACH ALLEN & CHOI, PC100 West Broadway, Ste. 1200Glendale, CA 91210-1219

Kevin M. MccormickBENTON, ORR, DUVAL & BUCKINGHAM39 N. California StreetP.O. Box 1178Ventura, CA 93002

Judge John F. WalterUS District Court, Courtroom 16312 N. Spring StreetLos Angeles, CA 90012

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

Magistrate Judge Carla M. WoehrleUS District Court, Roybal Bldg, Crtrm 640255 East Temple StreetLos Angeles, CA 90012

America and the State of Califomia, that the foregoing is tnze and correct..5 /'

.7 / day of July, 2009, at Altadena, California.Executed on this.v

.3-.r>Q ,.j'' .x:e-. . . c..-,, ...- z...&..v?' ysr

lGREG CPHEE/


richard fine 9th circuit request for certificate of appealability & immediate release

Documents