9th Circuit Appeal - Dkt 18 - Motion For Release

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RICHARD I. FINE, In Pro Per Prisoner ID # 1824367 c/o Men’s Central Jail 441 Bauchet Street Los Angeles, CA 90012 UNITED STATES COURT OF APPEALS

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FOR THE NINTH CIRCUIT

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RICHARD I. FINE, Appellant and Petitioner,

D.C. No. 2:09-cv-01914 JFW (CW)

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vs.

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Case No. 09-56073

SHERIFF OF LOS ANGELES COUNTY, et al, Appellees and Respondents

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MOTION FOR IMMEDIATE RELEASE FOR APPELLANT BASED UPON OPENING BRIEF SHOWING THAT SUPREME COURT PRECEDENTS MANDATE RECUSAL OF JUDGE YAFFE FRAP RULE 23 B

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Based upon the opening brief filed herewith which shows that every Supreme Court case mandates that Judge Yaffe should have recused himself from the contempt proceeding and the underlying case of Marina Strand Colony II Homeowners Assn. v. County of Los Angeles, Los Angeles County Superior Court Case No. BS109420, and that no Supreme Court case supports a nonrecusal, the Ninth Circuit is mandated by Supreme Court precedents to order recusal of Judge Yaffe.

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Given such a mandate, appellant Fine will prevail in this appeal and there

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is no reason to further incarcerate appellate Fine. Nor was there any reason for

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the initial incarceration of appellant Fine.

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Appellant Fine respectfully requests that the Court follow the Supreme Court precedents that are set forth in the opening brief and set appellant Fine free immediately. Failure to do so will demonstrate that the Court is refusing to follow and obey clear Supreme Court precedents.

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The Court is again respectfully reminded that the respondent Sheriff did

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not oppose or answer the Petition for Writ of Habeas Corpus. The Court is

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respectfully reminded that the LA County Superior Court and Judge Yaffe did

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not oppose or contest any of the grounds, facts or claims set forth in the Petition

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for Writ of Habeas Corpus. Further, the Court is reminded that the LA County

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Superior Court and Judge Yaffe did not seek to intervene in the Petition for Writ

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of Habeas Corpus and the Sheriff’s motion to have the District Court direct a

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response by the real parties of interest was denied as moot.

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Additionally, the Court is respectfully reminded that the District Court did

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not address all of the grounds of the Petition of Habeas Corpus indicating that

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the District Court did not even read the full Petition of Habeas Corpus and its

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exhibits and Addendum, and in particular did not discuss the recent case of

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Caperton v. A.T. Massey Coal Co., et al, 566 US___ (2009), decided June 8,

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2009, which was specifically brought to their attention by appellant Fine.

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The Caperton case, supra, discussed the relevant Supreme Court cases which mandate the recusal of Judge Yaffe. The Supreme Court held in the Caperton case that due process was denied by a $3-million-dollar contribution to the campaign committee of a successful candidate running for office of Justice

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of the West Virginia Supreme Court by the president of a company who had a

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potential case before the West Virginia Supreme Court.

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In the present case, Judge Yaffe received unconstitutional and illegal criminal payments from LA County, a party before him, amounting to 28% of his annual state salary paid to him in addition to his state salary, and Judge Yaffe made orders in favor of LA County and then presided over a contempt proceeding to enforce those orders.

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Under the Supreme Court precedents of Caperton, supra; Tumey v.

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Ohio, 273 US 510 (1927); Ward v. Monroeville, 409 U.S. 57 (1972) (“would

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offer a possible temptation to the average … judge to … lead him not to hold a

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balance nice, clear and true”; Lavoie at 825, quoting Monroeville at 60, quoting

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Tumey at 532, set forth in Caperton, supra, in Slip Opinion page 9); Gibson v.

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Berryhill, 411 U.S. 564 (1973); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 13

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(1986); In Re Murchison, 349 U.S. 133 (1955) (“no man can be a judge in his

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own case”, “no man is permitted to try cases where he has an interest in the

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outcome”, page 136, set forth in Caperton, supra, at Slip Opinion page 10); and

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Mayberry v. Pennsylvania, 400 U.S. 455, 466 (1971), set forth in Caperton at

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Slip Opinion page 10, and other cases cited in Caperton, supra, such conduct by

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Judge Yaffe is a clear denial of due process.

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Dated this ____ day of August, 2009

Respectfully submitted,

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BY: ____________________________ RICHARD I. FINE, In Pro Per

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PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am Fred Sottile. My mailing address is _________________________. On August ____, 2009, I served the foregoing document described as MOTION FOR IMMEDIATE RELEASE FOR APPELLANT BASED UPON OPENING BRIEF SHOWING THAT SUPREME COURT PRECEDENTS MANDATE RECUSAL OF JUDGE YAFFE 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 Paul B. Beach LAWRENCE BEACH ALLEN & CHOI, PC 100 West Broadway, Ste. 1200 Glendale, CA 91210-1219

Kevin M. McCormick BENTON, ORR, DUVAL & BUCKINGHAM 39 N. California Street P.O. Box 1178 Ventura, CA 93002

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 ____ day of August, 2009, in the city of _____________, California. ____________________________________ FRED SOTTILE