Professional Documents
Culture Documents
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FOR THE NINTH CIRCUIT
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RICHARD I. FINE, Case No. 09-56073
9 Appellant and Petitioner,
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SUPPLEMENT TO EMERGENCY
vs. MOTION FOR IMMEDIATE
11 RELEASE FROM UNLAWFUL
12 INCARCERATION SHOWING
U.S. DISTRICT COURT, IRREPARABLE AND
13 Appellee and Respondent. IMMEDIATE INJURY AND
14 UNDUE FINANCIAL HARDSHIP,
SHERIFF OF LOS ANGELES INCLUDING THE LOSS OF HIS
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COUNTY HOME, AND ONGOING
16 (Real Party In Interest) PHYSICAL PAIN AND
17 SUFFERING
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FRAP Rules 23(b)(3) and 23(d)
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1 He has been prevented from addressing the legal issues in this case
2 beyond his personal memory of applicable law as a result of his having been
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denied access to any useful legal resources while incarcerated.
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As this Court is aware from the record, the District Court unlawfully
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delayed in ordering Respondent Sheriff to answer, and did not enter the writ
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when the respondent Sheriff did not answer. The District Court also unlawfully
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“directed” the LA Superior Court and Judge Yaffe to answer without having
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jurisdiction over them, gave each a time period beyond the twenty (20) days
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(originally set for the Sheriff) allowed by 28 USC § 2243, and did not enter the
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1 writ when they did not oppose or contest any of the grounds, facts or claims set
2 forth in the Petition.
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4 Despite the requirement that the District Court have a hearing no later
5 than twenty-five (25) days after the Petition is filed and summarily decide the
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case, or earlier if the grounds or facts in the Petition are undisputed, as in this
7 case, as set forth in 28 USC § 2243, the District Court waited for 103 days to
8 render its decision (Dkt #30), at which time it denied the unopposed Petition.
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The District Court’s decision showed that neither it (Judge Walter) nor the
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Magistrate Judge (Judge Woehrle) had even read the full Petition. (See
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Magistrate Judge’s Report and Recommendation (“Report”) Dkt #26, page 10,
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line 13, through page 11, line 1, which states the Petition had only five grounds.
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The Petition had, in fact, seven grounds. Page 13, line 27, through page 14, line
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4, of the Report states Fine was not charged under B&P Code § 6126, a criminal
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count. The Order to Show Cause, at page 3, paragraph 16, attached to the
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Petition shows this charge. At page 23, line 1, through page 24, line 16, the
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Report again ignores the criminal contempt charge which was never dismissed.)
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19 The District Court left itself with only Counts One, Two and Five to
20 decide.
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As to Count One, the Report did not cite to Caperton, et al, v. A.T. Massey
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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
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prospective case before him mandated the judge’s recusal from the case as a
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denial of due process. Caperton, supra, mandated the granting of the writ by the
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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
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order in favor of LA County and against Fine without notice to Fine and without
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1 Fine present at the hearing. He then refused to recuse himself in the contempt
2 case and thereafter “judged his own action,” a violation of the holding of In Re
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Murchison, 349 U.S. 133, 136 (1955). Thus Fine should have prevailed on
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Count One, based upon U.S. Supreme Court precedent.
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As to Ground Two, the District Court and the Magistrate Judge’s Report
7 “made up a false record”. Without citation to any record, the Report states at
8 page 21: “The record shows that Judge Yaffe gave Petitioner ample warning
9 about possible contempt charges” and at page 22, lines 23-25: “… that Judge
10 Yaffe was patient and professional in dealing with Petitioner while carrying out
11 his judicial duties and vindicating the property authority of his court.”
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The writ should therefore have been granted on Ground Two.
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Declaration of Joshua L. Rosen, trial exhibits 1A, 9, 14, 21, and Senate Bill
“SBX2 11” enacted February 20, 2009.
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1 Based upon the above, Fine was denied constitutional rights which
2 supported the Petition and granting of the writ.
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4 Lastly, the Ninth Circuit violated the Fifth and Fourteenth Amendments
5 and Article I, Section 9(2), of the U.S. Constitution when it accepted Fine’s
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Emergency Petition for Habeas Corpus filed June 3, 2009, renaming it a Petition
7 for Writ of Mandate/Prohibition in case no. 09-71692, and delayed its decision
8 until June.30, 2009. The Ninth Circuit ignored the fact that the District Court
9 had refused to file the Petition (See Ninth Circuit Decision, page 1, paragraph 1),
10 and the Ninth Circuit erroneously claimed that the Magistrate Judge’s June 12,
11 2009, Report was the decision of the District Court. (See Decision, page 1,
12 paragraph 2). The District Court, however, did not issue its decision until
13 June.29, 2009 (Dkt #30).
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As occurred with the District Court, it appears that the Ninth Circuit panel
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also had not fully reviewed the Emergency Petition, which plainly showed that
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the District Court had violated 28 USC § 2243 and denied Fine due process.
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Had it reviewed the entire document, it would have issued the writ of mandate
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immediately. Instead, it denied the writ, causing further unlawful incarceration
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and unique and irreparable financial and physical hardship.
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21 In summary, Fine has been denied liberty and the right to earn a living
22 since March 4, 2009, resulting in severe financial and physical hardship in
23 violation of the Fifth and Fourteenth Amendments, and Article 1, Section 9(2) of
24 the U.S. Constitutional. The District Court knew at all times that the Petition
25 had merit and was unopposed, yet it unlawfully delayed and denied Fine due
26 process and the writ. And the Ninth Circuit knew at all times of the District
27 Court’s unlawful actions in case no. 09-71692, yet it delayed and denied Fine
28 due process and denied the Petition.
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1 Now, the unlawful incarceration has extended to almost five months due
2 solely to the refusal of the Federal Courts to act appropriately.
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4 The instant Motion has not been opposed. The Petition, as shown, was
5 also not opposed.
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The actions of the District Court in this case are identical to the actions of
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the same Magistrate Judge and District Court Judge in case no. CV-08-29056
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JFW (CW), Fine v. State Bar, et al, in which they delayed deciding a Motion to
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Dismiss for ten months, then decided to abstain, and then denied an unopposed
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Motion to Set Aside the Judgment which showed that the California Supreme
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Court justices were biased inasmuch as they had also received illegal payments
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from counties while they were superior court judges and had received retroactive
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immunity for criminal acts under Senate Bill “SBX2 11”.
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15 It appears that the barrier to granting the writ is either an unwritten “code
16 of protection” within the judiciary to insulate judges receiving illegal payments
17 despite U.S. Supreme Court holdings to the contrary, or that no judge is reading
18 the Emergency Petitions in their entirety. Neither option speaks well of the
19 Courts’ ability to follow the Constitution and law.
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In the meantime, Fine has been made to suffer greatly because he honored
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his oath and acted as an officer of the court in objecting to judges who had
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received monies from LA county who refused to disqualify themselves from
deciding cases in which the County was a party. Yet Fine’s injuries of the past
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five months would have been entirely avoided if Supreme Court precedent had
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been followed.
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Further delay is unconscionable. Fine should be set free and the writ
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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
depositing a true copy thereof, which was enclosed in a sealed envelope, with postage fully
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