Supplementalemergency Motion - Irrep Harm - Fine V Usdc

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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, Appellant and Petitioner,

Case No. 09-56073 SUPPLEMENT TO EMERGENCY MOTION FOR IMMEDIATE RELEASE FROM UNLAWFUL INCARCERATION SHOWING IRREPARABLE AND IMMEDIATE INJURY AND UNDUE FINANCIAL HARDSHIP, INCLUDING THE LOSS OF HIS HOME, AND ONGOING PHYSICAL PAIN AND SUFFERING

vs.

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U.S. DISTRICT COURT, Appellee and Respondent.

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SHERIFF OF LOS ANGELES COUNTY (Real Party In Interest)

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FRAP Rules 23(b)(3) and 23(d)

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Appellant (“Fine”) has been, and continues to be, irreparably injured by his unlawful incarceration, which began on March 4, 2009.

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He was deprived of personal liberty, which forcibly subjected him to undue and steadily mounting financial hardship and catastrophe as a direct result of being prevented from earning a living.

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He has been prevented from addressing the legal issues in this case

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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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The expense of retaining counsel to adequately address these matters is

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prohibitive, and he cannot avail himself of any assistance as a pauper as that

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would entail full financial disclosure, the subject of which is also the thrust of

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the underlying contempt order.

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His severe financial hardship has led to the imminent loss of his home, which is now well into foreclosure.

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Fine’s incarceration has also resulted in his needlessly suffering physical

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pain arising from medical conditions which were contracted as the result of

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incarceration at LA County Men’s Central Jail. Fine has developed a staph

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infection, back pain, and swelling in his feet, ankles and legs, all in violation of

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the Fifth and Fourteenth Amendments, due to his unlawful incarceration and the

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deliberate refusal and failure of the District Court to abide by 28 USC § 2243 in

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proceeding with the Petition for Writ of Habeas Corpus.

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These delays have suspended the “privilege of the writ of habeas corpus” in violation of Article I, Section 9(2) of the U.S. Constitution.

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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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writ when they did not oppose or contest any of the grounds, facts or claims set

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forth in the Petition.

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Despite the requirement that the District Court have a hearing no later

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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

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case, as set forth in 28 USC § 2243, the District Court waited for 103 days to

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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 Magistrate Judge (Judge Woehrle) had even read the full Petition.

(See

Magistrate Judge’s Report and Recommendation (“Report”) Dkt #26, page 10, line 13, through page 11, line 1, which states the Petition had only five grounds. The Petition had, in fact, seven grounds. Page 13, line 27, through page 14, line 4, of the Report states Fine was not charged under B&P Code § 6126, a criminal count. The Order to Show Cause, at page 3, paragraph 16, attached to the Petition shows this charge. At page 23, line 1, through page 24, line 16, the Report again ignores the criminal contempt charge which was never dismissed.)

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The District Court left itself with only Counts One, Two and Five to decide.

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As to Count One, the Report did not cite to Caperton, et al, v. A.T. Massey 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 prospective case before him mandated the judge’s recusal from the case as a denial of due process. Caperton, supra, mandated the granting of the writ by the 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 order in favor of LA County and against Fine without notice to Fine and without

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Fine present at the hearing. He then refused to recuse himself in the contempt

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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

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“made up a false record”. Without citation to any record, the Report states at

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page 21: “The record shows that Judge Yaffe gave Petitioner ample warning

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about possible contempt charges” and at page 22, lines 23-25: “… that Judge

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Yaffe was patient and professional in dealing with Petitioner while carrying out

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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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The District Court and the Magistrate Judge’s Report referenced no

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review of the last record before the State Court to determine if the “decision was

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based on an unreasonable determination of the facts in light of the evidence

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under 28 USC § 2254(d)(2).” Neither the Respondent Sheriff, the LA Superior

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Court nor Judge Yaffe produced the trial transcripts, the exhibits or any

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pleadings of the contempt trial, except that the LA Superior Court produced the

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March 4, 2009, trial sentencing transcript, the Remand Order and a duplicate

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copy of the March.4, 2009, Judgment, signed by Judge Yaffe on March.24,

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2009, twenty days after it was filed (compare the Court’s file stamp date, Dkt

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#1, pg. 34, to Judge Yaffe’s signature date, pg. 47).

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Fine produced the December 22, 2008, and January 22, 2009, trial transcripts and Minute Orders, the November 3, 2008 Order to Show Cause and Declaration of Joshua L. Rosen, trial exhibits 1A, 9, 14, 21, and Senate Bill “SBX2 11” enacted February 20, 2009.

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Based upon the above, Fine was denied constitutional rights which supported the Petition and granting of the writ.

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Lastly, the Ninth Circuit violated the Fifth and Fourteenth Amendments

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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

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for Writ of Mandate/Prohibition in case no. 09-71692, and delayed its decision

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until June.30, 2009. The Ninth Circuit ignored the fact that the District Court

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had refused to file the Petition (See Ninth Circuit Decision, page 1, paragraph 1),

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and the Ninth Circuit erroneously claimed that the Magistrate Judge’s June 12,

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2009, Report was the decision of the District Court. (See Decision, page 1,

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paragraph 2). The District Court, however, did not issue its decision until

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June.29, 2009 (Dkt #30).

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As occurred with the District Court, it appears that the Ninth Circuit panel also had not fully reviewed the Emergency Petition, which plainly showed that the District Court had violated 28 USC § 2243 and denied Fine due process. Had it reviewed the entire document, it would have issued the writ of mandate immediately. Instead, it denied the writ, causing further unlawful incarceration and unique and irreparable financial and physical hardship.

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In summary, Fine has been denied liberty and the right to earn a living

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since March 4, 2009, resulting in severe financial and physical hardship in

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violation of the Fifth and Fourteenth Amendments, and Article 1, Section 9(2) of

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the U.S. Constitutional. The District Court knew at all times that the Petition

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had merit and was unopposed, yet it unlawfully delayed and denied Fine due

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process and the writ. And the Ninth Circuit knew at all times of the District

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Court’s unlawful actions in case no. 09-71692, yet it delayed and denied Fine

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due process and denied the Petition.

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Now, the unlawful incarceration has extended to almost five months due solely to the refusal of the Federal Courts to act appropriately.

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The instant Motion has not been opposed. The Petition, as shown, was also not opposed. The actions of the District Court in this case are identical to the actions of the same Magistrate Judge and District Court Judge in case no. CV-08-29056 JFW (CW), Fine v. State Bar, et al, in which they delayed deciding a Motion to Dismiss for ten months, then decided to abstain, and then denied an unopposed Motion to Set Aside the Judgment which showed that the California Supreme Court justices were biased inasmuch as they had also received illegal payments from counties while they were superior court judges and had received retroactive immunity for criminal acts under Senate Bill “SBX2 11”.

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It appears that the barrier to granting the writ is either an unwritten “code

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of protection” within the judiciary to insulate judges receiving illegal payments

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despite U.S. Supreme Court holdings to the contrary, or that no judge is reading

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the Emergency Petitions in their entirety. Neither option speaks well of the

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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 his oath and acted as an officer of the court in objecting to judges who had 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 five months would have been entirely avoided if Supreme Court precedent had been followed. Further delay is unconscionable. Fine should be set free and the writ 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

I am Greg McPhee.

My business address is 2450 N. Lake Avenue, PMB 227,

Altadena, CA 91001. On July 28th, 2009, I served the foregoing document described as SUPPLEMENT TO EMERGENCY

MOTION

FOR

IMMEDIATE

RELEASE

FROM

UNLAWFUL

INCARCERATION SHOWING IRREPARABLE AND IMMEDIATE INJURY AND UNDUE FINANCIAL HARDSHIP, INCLUDING THE LOSS OF HIS HOME, AND ONGOING PHYSICAL PAIN AND SUFFERING 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

Judge John F. Walter US District Court, Crtrm 16 312 N. Spring Street Los Angeles, CA 90012

Magistrate Judge Carla M. Woehrle US District Court, Roybal Bldg, Crtrm 640 255 East Temple Street Los Angeles, CA 90012

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 28th day of July, 2009, at Altadena, California.

____________________________________ GREG McPHEE