9th Circuit Appeal - Dkt 49 - Motion For Reconsideration
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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)
9 10
vs.
11 12 13
Case No. 09-56073
SHERIFF OF LOS ANGELES COUNTY, et al, Appellees and Respondents
MOTION FOR RECONSIDERATION OF DENIAL OF EMERGENCY PETITION FOR WRIT OF MANDATE
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On November 23, 2009, a deputy clerk signed an Order denying
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Petitioner’s Emergency Petition for Writ of Mandate on behalf of the Court. This motion seeks reconsideration of that Order. The grounds for this motion are: 1.
The panel is violating Supreme Court precedent, which it is mandated
to follow, and state court precedent, which it is also mandated to follow;
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-1-
1 2 3 4 5 6
2.
There are not any grounds upon which the Emergency Petition can be
denied as the “defendants” in the Petition for Writ of Habeas Corpus are Magistrate Judge Woehrle and Judge Walter. These judicial officers did not recuse themselves and unlawfully judged their own actions by denying the Petition for Writ of Habeas Corpus. It is this
7 8 9
denial upon which the Emergency Petition for Writ of Mandate is based. (See In Re Murchison, 399 U.S. 133, 136 (1955), wherein the Court recited the
10 11 12 13
general rule that “no man can be a judge in his own case”, adding that “no man is permitted to try cases where he has an interest in the outcome”. Cited in Caperton v. A.T. Massey Coal Col, Inc., 566 U.S. ___ (2009) decided 6/8/09,
14 15 16
Slip Opinion page 10). 3.
The Petition for Writ of Habeas Corpus shows that both the LA
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Superior Court [Judge Yaffe] and the LA County Sheriff [Leroy D. Baca] violated CCP § 1218 by holding Fine in “coercive confinement” in the LA County Jail for greater than five days. The limit for contempt of court is five days under CCP § 1218 for “coercive confinement” when Fine has a “moral reason” such as following due process, as occurred in this case. (See In Re Farr,
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64 CalApp.3d 605, 611-612 (1976) – coercive confinement becomes punitive after the five-day statutory limitation when it is shown that there is no
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substantial likelihood that the contempt order would serve its coercive purpose.)
-2-
1 2 3 4 5 6
In this case, since a Federal writ of habeas corpus was filed on March 20, 2009 challenging Judge Yaffe’s right to preside over both the Marina Strand case and contempt proceeding, and previously state court writs of habeas corpus had been filed, there obviously was no substantial likelihood that the contempt order would serve its coercive purpose, thus subjecting it to the statutory five-day
7 8 9
limitation. 4.
The Ninth Circuit is violating Murchison, supra, by denying the
10 11 12 13
Emergency Petition for Writ of Mandate. The Ninth Circuit is denying Fine due process as it is upholding the violation of “judging their own case” by Magistrate Judge Woehrle and Judge Walter.
14 15 16
5.
Under Murchison, supra, and Farr, supra, the Ninth Circuit is mandated
to grant the writ.
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6.
these violations occurred after commencement of the recusal action.
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These are separate violations from the present recusal action on appeal:
7.
The action of the Court in denying the Emergency Petition indicates a
bias of the Ninth Circuit in this case. Such action further gives weight to the reasons for the House Judiciary Committee hearings on judicial recusals to enact
24 25 26
laws to require recusals.
It is clear from the actions of Magistrate Judge
Woehrle and Judge Walter, and from the action of the Ninth Circuit panel, that
27 28
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judges do not obey Supreme Court precedent which require them to recuse themselves in cases where they are “judging their own actions.” For the foregoing reasons, the Emergency Petition must be granted or an order to show cause issued as to why the Writ of Habeas Corpus should not be granted.
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Dated this _____ day of November, 2009
Respectfully submitted,
10
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 MOTION FOR RECONSIDERATION OF DENIAL OF EMERGENCY PETITION FOR WRIT OF MANDATE 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.
1 2
____________________________________ FRED SOTTILE
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-6-
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
5 6
FOR THE NINTH CIRCUIT
7 8
RICHARD I. FINE, Appellant and Petitioner,
D.C. No. 2:09-cv-01914 JFW (CW)
9 10
vs.
11 12 13
Case No. 09-56073
SHERIFF OF LOS ANGELES COUNTY, et al, Appellees and Respondents
MOTION FOR RECONSIDERATION OF DENIAL OF EMERGENCY PETITION FOR WRIT OF MANDATE
14 15 16 17
On November 23, 2009, a deputy clerk signed an Order denying
18 19 20 21 22 23 24
Petitioner’s Emergency Petition for Writ of Mandate on behalf of the Court. This motion seeks reconsideration of that Order. The grounds for this motion are: 1.
The panel is violating Supreme Court precedent, which it is mandated
to follow, and state court precedent, which it is also mandated to follow;
25 26 27 28
-1-
1 2 3 4 5 6
2.
There are not any grounds upon which the Emergency Petition can be
denied as the “defendants” in the Petition for Writ of Habeas Corpus are Magistrate Judge Woehrle and Judge Walter. These judicial officers did not recuse themselves and unlawfully judged their own actions by denying the Petition for Writ of Habeas Corpus. It is this
7 8 9
denial upon which the Emergency Petition for Writ of Mandate is based. (See In Re Murchison, 399 U.S. 133, 136 (1955), wherein the Court recited the
10 11 12 13
general rule that “no man can be a judge in his own case”, adding that “no man is permitted to try cases where he has an interest in the outcome”. Cited in Caperton v. A.T. Massey Coal Col, Inc., 566 U.S. ___ (2009) decided 6/8/09,
14 15 16
Slip Opinion page 10). 3.
The Petition for Writ of Habeas Corpus shows that both the LA
17 18 19 20 21 22 23
Superior Court [Judge Yaffe] and the LA County Sheriff [Leroy D. Baca] violated CCP § 1218 by holding Fine in “coercive confinement” in the LA County Jail for greater than five days. The limit for contempt of court is five days under CCP § 1218 for “coercive confinement” when Fine has a “moral reason” such as following due process, as occurred in this case. (See In Re Farr,
24 25 26
64 CalApp.3d 605, 611-612 (1976) – coercive confinement becomes punitive after the five-day statutory limitation when it is shown that there is no
27 28
substantial likelihood that the contempt order would serve its coercive purpose.)
-2-
1 2 3 4 5 6
In this case, since a Federal writ of habeas corpus was filed on March 20, 2009 challenging Judge Yaffe’s right to preside over both the Marina Strand case and contempt proceeding, and previously state court writs of habeas corpus had been filed, there obviously was no substantial likelihood that the contempt order would serve its coercive purpose, thus subjecting it to the statutory five-day
7 8 9
limitation. 4.
The Ninth Circuit is violating Murchison, supra, by denying the
10 11 12 13
Emergency Petition for Writ of Mandate. The Ninth Circuit is denying Fine due process as it is upholding the violation of “judging their own case” by Magistrate Judge Woehrle and Judge Walter.
14 15 16
5.
Under Murchison, supra, and Farr, supra, the Ninth Circuit is mandated
to grant the writ.
17 18 19
6.
these violations occurred after commencement of the recusal action.
20 21 22 23
These are separate violations from the present recusal action on appeal:
7.
The action of the Court in denying the Emergency Petition indicates a
bias of the Ninth Circuit in this case. Such action further gives weight to the reasons for the House Judiciary Committee hearings on judicial recusals to enact
24 25 26
laws to require recusals.
It is clear from the actions of Magistrate Judge
Woehrle and Judge Walter, and from the action of the Ninth Circuit panel, that
27 28
-3-
1 2 3 4 5 6
judges do not obey Supreme Court precedent which require them to recuse themselves in cases where they are “judging their own actions.” For the foregoing reasons, the Emergency Petition must be granted or an order to show cause issued as to why the Writ of Habeas Corpus should not be granted.
7 8 9
Dated this _____ day of November, 2009
Respectfully submitted,
10
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 MOTION FOR RECONSIDERATION OF DENIAL OF EMERGENCY PETITION FOR WRIT OF MANDATE 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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