9th Circuit Appeal - Dkt 45 - Emergency Petition For Writ Of Mandate Vs. Usdc In Habeas Ii

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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

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UNITED STATES COURT OF APPEALS

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FOR THE NINTH CIRCUIT

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RICHARD I. FINE, Petitioner,

Case No. 09-56073 D.C. No. 2:09-cv-01914 JFW (CW) D.C. No. 2:09-cv-07943 JFW (CW)

vs. SHERIFF OF LOS ANGELES COUNTY, et al, Respondents

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EMERGENCY PETITION FOR WRIT OF MANDATE TO IMMEDIATELY ORDER TRIAL COURT TO ENTER WRIT OF HABEAS CORPUS IN USDC CASE NO. CV-09-07943 OR ISSUE ORDER TO SHOW CAUSE

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Petitioner (hereinafter “Fine”) has been incarcerated since March 4, 2009 in the Los Angeles County Jail under "coercive incarceration" pursuant to a March.4, 2009 contempt order issued by LA Superior Court Judge David P. Yaffe. That contempt order is presently on appeal before this Court in the instant case. The issue certified for appeal is "whether the trial court judge

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[Judge Yaffe] should have recused himself". Oral argument is set for the week of December 7-11, 2009.

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During the District Court proceeding and the appeal proceeding, the Respondent Sheriff, the LA Superior Court and Judge Yaffe (the latter two of whom are not respondents) in CV-09-1914 JFW (CW) made false statements to the Court. These statements showed that Fine's "coercive incarceration" was limited to 5 days under CCP §1218, and should not have been "unlimited".

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This was particularly true as Fine was refusing to answer questions on "moral" grounds such as contesting the jurisdiction of Judge Yaffe to preside

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over the case and demanding his recusal. The Court will note that this is the issue on appeal. The LA Superior Court, Judge Yaffe and Sheriff Leroy Baca knew that they

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could not hold Fine for more than 5 days under In Re Farr, 36 Cal.App.3d 577 (1974) and In Re William T. Farr, 64 Cal.App.3d 605 (1976). This created an independent

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violation of the taking of Fine's liberty without due process of law. Additionally, the LA Superior Court and Judge Yaffe admitted in their appeal brief for the first time that the contempt was both "criminal" and "civil". This admission proved that Fine was denied his Sixth Amendment right to a jury trial pursuant to the B&P Code § 6126 criminal charge of practicing law without

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a license or holding himself out to practice law. Finally, District Court Magistrate Judge Carla M. Woehrle and Judge John

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F. Walter violated 28 USC § 2243, thereby denying Fine due process and

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causing his incarceration on grounds separate from those of the contempt proceeding. On October 30, 2009, Fine filed a Petition for Writ of Habeas Corpus for setting forth those new and different grounds, USDC case no. CV-09-7943 JFW (CW).

The Petition named the U.S. District Court (referring to actions of

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Magistrate Judge Woehrle and Judge Walter), the Sheriff of Los Angeles County, the LA Superior Court and Judge Yaffe as respondents. A true and

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correct copy of the Petition, marked as Exhibit “1”, is attached hereto and incorporated herein by this reference as if set forth in full. The Petition was assigned to Judge Walter and Magistrate Judge

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Woehrle. Each of them should have recused themselves. See In Re Murchison, 349 v. U.S. 135 (1955) - “No man can be a judge in his own case” and “no man

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is permitted to try cases where he has an interest in the outcome”, cited in Caperton v. A.T. Massey Coal Co., Inc., 566 US ___ (2009) decided June 8, 2009, Slip Opinion page 10. Judge Walter and Magistrate Judge Woehrle were made aware of the Caperton precedent in case no. CV-09-1914 JFW (CW) but ignored it.

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Judge Walter and Magistrate Judge Woehrle violated due process when they denied the Petition as "successive" absent a writ of mandate from the Ninth

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Circuit. A true and correct copy of Judge Walter’s Order denying the Petition

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without prejudice is attached hereto as Exhibit “2” and incorporated herein by this reference as if set forth in full. On October 6, 2009, Fine attempted to file a motion to recuse Judge Walter, a motion to recuse Magistrate Judge Woehrle, a notice of non-consent to any magistrate judge hearing the case, and an ex parte application for immediate

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release and to grant the writ. All of those documents were "received" by the Court but not "filed". True and correct copies of these documents are attached

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hereto, marked collectively as Exhibit “3”, and incorporated herein by this reference as if set forth in full. Given the direct violations of due process of Judge Walter and Magistrate

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Judge Woehrle of deciding their own case, the writ of mandate must issue. Further, since the grounds of the Petition are not "successive" but separate and

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distinct and the result of the fraud on the Court by the LA Superior Court and Judge Yaffe, and the violations of Section 2243 of Judge Walter and Magistrate Judge Woehrle, the writ must issue or, at a minimum, an order to show cause must issue with the Ex Parte Application set fort in Exhibit “3”. Emergency action is needed as Fine is now in his ninth month of

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incarceration, when the limit was 5 days under CCP § 1218 and the Farr cases. Each additional day that Fine remains in incarceration is a new violation of his

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constitutional rights.

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Dated this _____ day of November, 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 address is 2601 E. Victoria Street, # 108, Rancho Dominguez, CA 90220. On November ___, 2009, I served the foregoing document described as EMERGENCY

PETITION

FOR

WRIT

OF

MANDATE

TO

IMMEDIATELY ORDER TRIAL COURT TO ENTER WRIT OF HABEAS CORPUS IN USDC CASE NO. CV-09-7943 OR ISSUE ORDER TO SHOW CAUSE 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

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 November, 2009, at Rancho Dominguez, California. ____________________________________

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FRED SOTTILE

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