IN THE COURT OF
APPEALS
OF THE STATE OF
NEW MEXICO
New Mexico Court of Appeals No. 32,587
No. DM-12-610 rel. DV12-2234
BARRIE LEE DERRINGER,
Petitioner/Appellee,
v.
DAVID BRIAN DERRINGER,
Respondent/Appellant,
APPELLANT=S RESPONSE IN OPPOSTION TO THE PROPOSED
SUMMARY
DISPOSITION OF JANUARY 29, 2013
COMES
NOW the Respondent/Appellant David
Derringer with his memorandum in opposition to the proposed summary disposition as stated
above.
From
the onset, this court should immediately reconsider the proposed summary
disposition due to not having the proper court record before the court.
Upon this proposal the NM Ct. App. Only
had the CD of the hearings of DM-12-610. The proper court record to be considered
on this case includes the total court record of DM-12-610 of CD’s of all
hearings including but not limited to the latest hearing of February 8, 2013,
and all exhibits, and pleadings contained in the case; the total court record
of DV-12-234 of CD’s of all hearings and all exhibits, and pleadings contained
in the case: and the “to this date” pleadings and hearings of CV-12-1307 and
CV-12-10816 that all are entirely related to this matter at hand. At the date
that this court made its proposed summary disposition, the court did not have the
information before the court to make a proper ruling in that regard. The court
should also review the two judicial standards complaints against both
Commissioner Cosgrove/Aguilar in
DV-12-234 and Judge Hadfield in DM-12-610 to see both the extreme bias
and prejudice mandating recusal, but the outrageous violations of statutory and
Constitutional rights of depriving the 2nd Amendment without any
standard of proof and without legal service of summons and the upcoming attempt
to deprive the 1st Amendment rights due to exposing the corruption
of the trial courts in this matter. United
Salt Corp. v. McKee 96 N.M. 65, 628 p.2d 310 (1981)“Abuse of discretion
is present which is defined as when the judge has acted arbitrarily or
unreasonably under the particular circumstances.” David Derringer is constantly
subjected to deprivation of both due process and equal protection by being
constantly forced before the bias of the trial courts, of which this NM Court
of Appeals has both knowledge and jurisdiction to Order recusal to stop the
egregious actions against David Derringer of a “conspiracy against rights” and
a “deprivation of rights under color of law” within the meaning of US Code
Title 18 Sections 241 and 242. United
States v. Guest, 383 US 745 (1966); Griffin v. Breckenridge, 403 US 88 (1971) Footnote[
101] 383 US 787 (1966) due process clause, Footnote [102] equal protection
clause, Footnote [103] Sec. 5 empowers Congress to enact laws punishing all
conspiracies to interfere with the exercise of Fourteenth Amendment Rights,
whether or not state officers or others acting under the color of state law are
implicated in the conspiracy.” This court should be extremely interested in the
DM-12-610 hearing of February 8, 2013 wherein the Petitioner/Appellee attempted
to muzzle David Derringer with a request to block all legal appeals and to
obtain an injunction to stop David Derringer’s use of the US Court system
entirely in total violation of US Code Title 42 Section 1981(a) and the 4th,
5th and 14th Amendment, making “slavery” and “involuntary
servitude” of the Appellant without any laws being followed by either the
Petitioner or the trial courts. This obviously entailed not only extreme
violations of an attorney under NMRA 16-804, but attempts to bribe and coerce a
judge to violate Oath and do sedition and treason against the Constitution.
(SEE: 14th Amendment Section 3) What we have here is an underlying
matter that has nothing to do with “law” but simply rulings that occur at the
whim of the justices and their own beliefs, without any concern for “stare
decisis” or precedent of either prior case laws or Constitution. State v. Jones, 44 N.M.
623, 634, 107 P.2d 324, 331 (1940). “The object of stare decisis is to
promote uniformity, certainty, and stability in the law.” This court is well to take “judicial
notice” of the information contained in the Appellants two motions to this
court for “stay” of the proceedings, now disregarding the necessity for “stay”
but to view the contained information of the corruption of the lower courts’
actions. Rozelle v. Barnard, 72 NM 182, 382 P.2d 180 (1963) Rule 11-201B NMRA states that the only
types of facts that may be judicially noticed are facts that are not subject to
reasonable dispute in that they are either generally known within the community
or capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.
Clearly,
the Appellant should be allowed to expand and expose the outrageous acts of the
court in proper due process of all of the issues of 1-50, as each issue is
completely defied by Constitution, case laws and statutory law of the federal
and state, as well as shown defiance of Oath and the Code of Judicial Conduct. Hartford
Accident & Indemnity v. Beevers, 84 NM 159, 500 P.2d 444 (Ct. App. 1972). Simply put, the court is
mandated to “follow the law” and in each ruling and instance of decisions, they
oppose all law and such decisions are not supported by any authorities. Code of Judicial Conduct Canon 3 (D)(1)
Each of the issues cannot be properly presented in this pleading of opposition
and it would be mandated for this court to reassign this matter to the “general
calendar” for full briefing, or under the mandated circumstances once this
court sees the ‘FULL PICTURE’ of what is happening here as well as the lack of
proper jurisdiction and judicial capacity in many instances due to lack of
service, violations of Constitution, and other acts, this matte should be
remanded to the trial court to “dismiss” the entire actions of DV-12-234 and
DM-12-610 with prejudice including not granting any divorce for the Petitioner
under any set of circumstances.
In
each matter, the law was not followed, and basically Barrie Derringer was
simply allowed and endorsed by the court to do outrageous acts, criminal acts
without any redress or lawful ability. At the same time, the justices and
commissioner allowed criminal perjury and fraud time after time in both Petitions, open court and defiance of
discovery, defeating both due process and making a mockery of both the court
and institution of marriage. The Petitioner has been investigate by Bernalillo
Sheriff and such valid investigated precipitated a report to the District
Attorney that could include prosecution of the Petitioner for 4th
degree felonies. This is not a simply divorce here as the various court records
will sustain the reasons for this court to stop the entire matter with
dismissal or certainly to obtain the general calendar.
The
institution of marriage and the lawful upkeep of this part of society if
dutifully performed by the courts attempting to save marriages and keep America
defined as a state of preservation of family and values of which this country
is based. Accordingly, to herd citizens through a family court to defy marriage,
precipitate divorce and to ignore mental and emotional issues in this case that
are well defined by Barrie Derringer’s use of bipolar medication and other past
an likely use of cocaine and codeine abuse, it to defy the mandated protection
of out society. Matter of Lord’s Estate, 602 P.2d 1030, 93 NM 543
“It is policy of state to foster and protect marriage institution.” To grant a
“bifurcated divorce” in direct response to a Petitioner’s seeking to stop the
due process and equal protection use of the courts of a pro-se Respondent in a
bias for the Petition having an attorney defies the very meaning of due
process. US v. Kozminski,
US Mich 1988, 108 S. Ct. 2751, 487 US 931, 101 L.Ed.2d 788, on remand 852 F.2d
1288 “Statute prohibiting conspiracy to interfere with rights secured by
Constitution or laws of the United States created no substantive rights, but
prohibits interference with rights established by Constitution or laws and by
decisions interpreting them.” In this matter, Barrie Derringer was granted a
“bifurcated divorce” not according to any special circumstances as defined by
rule, but simply to stop any opposition and speed up the docket of Judge
Hadfield in defiance of Rule for such a determination in a clear “abuse of
discretion”; with this appeal court having total jurisdiction of abuse of
discretion and reasons to mandate recusal. Clearly, as this court will see the
“large picture” with the proper court records before it, this is not a simply
wife wanting to divorce a husband for no
valid reasons, as in deficiency here, but encompassing mental and emotional
illness of the Petitioner, extreme outside interference from many third parties
with irons in the fire that include bosses Maestas and Ward controlling the
Petitioner and paying her incentives to do likely criminal activities as the
accountant of a multimillion dollar real estate firm of which David Derringer
has already informed activities to the IRS, the FBI and to the Department of
Labor. All manners of actions are involved here by both the court and the
Petitioner to ruin the Respondent, including illegal deprivation of
Constitutional rights, and a total disregard for the rights of “citizenship” of
David Derringer. US v. Ellis
WDSC 1942, 43 F.Supp. 321 “The provision of Title 18 Section 241 covering
offense of conspiracy to injure citizens in exercise of civil rights was
applicable to instances of conspiracy on part of both private individuals and
public officials.”. The “laws” that control each matter are simply disregarded.
State ex rel. Callaway v. Axtell,
74 N.M. 339, 343 393 p.2d 451, 454 (1964).“Stare Decisis is the judicial
obligation to follow precedent, and it lies at the very core of the judicial
process of interpreting and announcing law.”
It
is well defined in “stare decisis” that both precedent and standards are to be
applied to each similar case. In accessing the very “idea” of divorce and legal
division of property, there are standards already for “community property”,
“community income”, “community debt” and “community assets” as well as separate
and distinct property of each individual prior to marriage whether that be real
property, personal property of monies that are separate and distinct. The
“conflict” and “contradictory” “Final Judgment” is very apparent in numerous
respects of wording and substantive discrepancies as to entirely void the Order;
all of which voids final judgment under NMRA rule 1-060. Although the Appellant
is not allowed to go in full proper depth here, and a full brief is required,
this court can easily see the problem with David Derringer paying $7,000.00 of
his sole and separate inheritance monies to bail out Barrie Derringer’s
pre-marriage IRS debt, as “a good faith husband” and to use community income to
make monthly payment in excess of $100.00 per month for over two years during
the marriage to pay off other pre-marriage IRS debt of Barrie Derringer, while
then having a court Final Judgment of November 15, 2012 that specifically
states that all pre-marriage debt of Barrie Derringer has to be paid and fully
accountable by Barrie Derringer; thus mandating an order for Barrie Derringer
to repay David Derringer his inheritance $7,000.00 as well as to repay David
Derringer his share of community income of the payments to IRS of Barrie
Derringer’s pre-marriage IRS debt; an order non existent, but mandated under
law; this being only one of many conflicts of the Final Judgment and mis use of
law that voids not only the final order but the entire matters of both
DV-12-234 and DM-12-610. In issues 1-50 cannot be summarily affirmed as they
are diametrically opposed to the laws involving “community income”, “community
debt” and separation of private and community assets. Issue 1 is of great
importance to stop violations of Martinez v. Lucero, 1 NM 208, 1
Gild, 208. Issue 2 must preserve the law of Matter of Morrow’s Estate, 570 P.2d 912, 91 NM 81. Issue 3 must sustain
the law of the statutory laws of NMSA 30-18-1. Issue 4 must keep the sanctity
of NMSA 45-2-804. Issue 5 has to be controlled by Portillo v. Shappie,
636 P.2D 878, 97 NM 59. Issue 6 is mandated reversal by Douglas v.
Douglas, 686 P.2d 260, 101 NM 570. Issue 7 is a violation of the NMRA
of discovery 1-026 – 1-033 that mandated dismissal of the entire matter with
sanctions. Lowe v. Bloom, 112 NM 203, 813 P.2d 480 (1991). “The Law of the Case should not be used to
accomplish an obvious injustice, or applied where a previous decision clearly,
palpably or manifestly was erroneous or unjust.” “Where there is manifest
injustice to one party, with an erroneous decision, it should be disregarded
and set aside.” New Mexico Supreme
Court Opinion No. 1998-NMSC-031 No. 18,296 consolidated with: No. 19,118 (Sept
8th, 1998).; “law of the
case won’t be used to uphold a clearly erroneous decision”. Advance
Opinions, New Mexico Supreme Court, Vol. 37, No. 44, October 29, 1998.
Issue 8 should be considered in light of both Moreau v. Detchemendy,
18 Mo. 522, 1853 WL 4638 Mo. 1853, and Eaves v. US, 433 F.2d 1296
and Schley v. Andrews, 225 NY 110, 121 NE 812. Issue 9 and 10 are
both controlled by the rules of discovery and the criminal and tort codes of
New Mexico. Issue 11 is defined by Martinez
v. Block, 858 P.2d 429, 115 NM 762. Issue 12 is a violation of Oath,
persecution of exercise of rights and a way to clear a docket with mis use of
power. Title 18 Section 241-Conspiracy against rights Title 18 Section 241 provides: “If two or more persons conspire to injure,
oppress, threaten, or intimidate any person in any State, Territory,
Commonwealth, Possession, or District in the free exercise or enjoyment of any
right or privilege secured to him by the Constitution or laws of the United
States, or because of his having so exercised same”. Issue 13 involved Barrie Derringer violating
the actual court order of July 3, 2012, with not paying any vehicle insurance and
registrations and the trial court ignoring their own order to defeat David
Derringer with additional oppressions; again noted to the trial court on February
8, 2013. When the
orders of the court are not in compliance by one party that is then “excused”
while enforcing an order against the opposition, not only is the inequity of
the court of question, but there simply is not justice. Issues 14-18 involve
the misuse of power of a justice abusing the Respondent not in compliance with
any law and yet leaving the Respondent force to be before this bias in denial
of due process; this court having a duty to stop and remand this matter back
for either dismissal or a complete retrial of everything with a fair and
impartial justice. Issues 19 and 20 involves the dishonesty of the judge,
violations of Constitution without any standard of proof, and a disgusting mis
use of position as a public representative of the judicial system to even allow
criminal acts in the courtroom and by the justice herself. U.S.
v. Brenson, 104 F.3d 1267, rehearing denied 113 F.3d 1253, cert.
denied 118 Supreme Court 214, 139 L.Ed.2d 148.; Mapp V. Ohio, 367
U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (June 19, 1961); Olmstead v. United States, 277
U.S. 438, 485 (1928); Phelps v.
Hamilton, 122 F.3d 1309, 1323 (10th Cir. 1997). Issue 21,
spousal support necessities due to income, age and illnesses, and issues of
“herpes” infections by one party damaging the other party are genuine issues
for both spousal support and restitution and consideration of any marital
settlement agreements that were disregarded by the court, with the issue 22 of
allowing one party to exceed authority over the other marriage partner, and
with issues 23 and 24 intertwined with abuse of discretion and bias for one
party make a profit and come out ahead, when in fact that party is the one that
does the serious damages to the marriage and underlying assets and liabilities.
Flores v. Flores, 506 P.2d 345, 84 NM 601, cert denied 506 P.2d
336, 84 NM 592; Martinez v. Block, 858 P.2d 429, 115 NM 762; Irwin
v. Irwin, 910 P.2d 342, 121 NM 266, 1996. Issue 25 not only involves
criminal perjury and fraud by NMSA 30-25-1, but persecutes and allows one party
to be “enslaved” in violation of the 13th Amendment, while that
party doing the crime escapes redress. Issue 26 is a most serious issue that
insures unequal protection of tortuous acts by a partner, going unaddressed by
the liability of Barrie Derringer giving David Derringer an STD of herpes and then
not making any restitution in the final decree settlement of which it is
mandated for compensation by the Petitioner party as a part of the marital
settlement agreement for actually large amounts of money. Issue 27 involves an
inequity of funds of not only illegal retaining and mis using community income,
but subjection of the inferior parties’ ability for income to further suffer,
simply due to a divorce that allowed the primary bread winner to take not only
all community income, but to steal all bank account money and to retain that
money for personal reasons while still being married and obtain an extreme
profit from doing a “divorce” under the disproportion of “unjust enrichment”. Bustos
v. Bustos, 673 P.2d 1289, 100 NM 556. It is simply immaterial as to
which party brings in the most income, both parties share equally in the
marriage income, assets and obtaining tangible goods. Issue 28-30 involves a
penchant to persecute the Respondent with allowance of hiding goods, property
and monies, and using a “bifurcated divorce” to shut up a Respondent that
complains legally in pleadings about the injustices of the court. This entire
matter has been an entire miscarriage of justice that the higher court is
mandated to set right. New Mexico Supreme Court Opinion No. 1998-NMSC-031 No.
18,296 consolidated with: No. 19,118 (Sept 8th, 1998).; “law of the case won’t be used to uphold a
clearly erroneous decision”. Advance Opinions, New Mexico Supreme Court,
Vol. 37, No. 44, October 29, 1998. Issues 31 and 32 allow an abuse of the
system to indicate pro-se persons don’t have equal use of respect from the
courts, while attorney are allowed to abuse party litigants and wherein the
judge fully controls the testimony of a pro-se person so that the record is
biased and corrupted to only contain what the judge deems necessary for her own
agenda. US v. Craft,
105 F.3d 1123 “CA6 (Ky.) 1997. Issue
32-36 makes David Derringer a “targeted individual” wherein he was already
abused in the court proceedings to allow the Petitioner to keep illegal money
and assets stolen and changed in character for her own use and then no
compensation in redress after the marriage is dissolved. Drewes v.
Ilnicki, 863F.2d 469, CA6 (Ohio)
1988; Astor v. Astor, 120 So. 2d 176 Fla.
1960; Hernandez v. Robles, 7 Misc.3d 459, 794 NYS.2d 579 NY Sup.
2005. Issues 37-38 simply defeats both justice and the rules of discovery by
keeping needed information of income, material objects and medical records that
sustain the underlying problems of the marriage dissolution by fraud and
misconceptions by the Petitioner. Smith
v Schlesinger, (1975) 168 US App DC 204, 513 F2d, 462, 20 FR
Serv 2d 473; Griego v. Griego,
90 N.M. 174, 561 P.2d 36 (Ct. App. 1977) “As to all issues made by the
pleadings in the case, plaintiff had the right to examine defendant fully and
exhaustively; such a right is basically fundamental to our system of
jurisprudence, and no court has the power to restrict or limit it.”. What
occurs here is that one party states that the other party had taken things that
she took herself and with 12 other persons in three break-ins to storage and
then demands the return of things that are already in possession. This “fraud”
cannot seep into the judicial system by way of nonchalance of the courts. Pizza Hut of Santa Fe, Inc. v. Branch,
89 N.M. 325, 552 P.2d 227 (Ct. App.
1976). Issues 39-41 involve deliberate inequities and then persecution of the
Respondent to pay the attorney fees of the Petitioner just for defending
himself in a lawful manner, so as to keep the bias in full charge of the
divorce, and pass the debt to the defending party without the court in
compliance of law in an abuse of process made to subjugate the Respondent. Pizza Hut of Santa Fe, Inc. v. Branch,
89 N.M. 325, 552 P.2d 227 (Ct. App.
1976). Issue 42 involves corruption of the court record by not being current in
assessment of values in a deliberate attempt to mislead the record to sustain
known biases and prejudices not openly seen by the uninitiated. Issues 43 and
44 take to mitigate community debt and place that debt and liability to force
the Respondent to use sole and separate inheritance to get by when the proper
community income is deprived and then granted in its entirety to the
Petitioner. Matter of Shadden’s Estate, 599 P.2d 1071, 93 NM 274,
cert denied 598 P.2d 215, 93 NM 172 cert denied Shadden v. Shadden,
598 P.2d 215, 93 NM 172; Maynard v. Hill, 125 US 190, 8 S. Ct.
723, 31 L.Ed.654 (1888). Once formed, the law steps in to hold the parties to
certain protections, liabilities and obligations, wherein the Supreme Court
recognized the secular nature of civil marriage as early as 1888. In issues 45-48
the court simply manipulates the record and the parties for its own agendas
having nothing to do with any law, and then abuse the Respondent in false
claims to not only prevent opposition but to then set the stage for later
sanctions against a party simply using his rights to due process. Issue 49 is
totally reviewable in abuse of discretion to allow Barrie Derringer to keep
community income, bank accounts and defeat justice and then gain “interest” by
way of her previous fraud. In issues 50 and 51 the court ignores issues to
protect one Petitioner at the physical, mental and financial expense of the
Respondent without any sound reason except the bias and prejudice of the court.
Surely a physical disease is a part of the justice of this court to consider in
any settlement and divorce agreement. This court has to take “judicial notice”
of the acts of the trial justice under the Code
of Judicial Conduct Canon 3 (D)(1) Disciplinary responsibilities. in
issues 52 and 53 for the judicial system to operate. Canon: “Our legal system
is based on the principle that an independent, fair, and competent judiciary
will interpret and apply the laws that govern us. The role of the judiciary is
central to American concepts of justice and the rule of law. Intrinsic to all
sections of this Code are the precepts that judges, individually and
collectively, must respect and honor the judicial office as a public trust and
strive to enhance and maintain confidence in our legal system. The judge is an
arbiter of facts and law for the resolution of disputes and a highly visible
symbol of government under the rule of law.” Federalist No. 78 by Alexander
Hamilton, “To avoid an arbitrary discretion in the courts, it is indispensable
that they should be bound down by strict rules and precedents, which serve to
define and point out their duty in every particular case that comes before
them..”
The trial court failed to consider the relevant
statutory factors for an award of spousal support, in that the facts are the
age, cancer, and disability of the Respondent Spouse, in comparison with the 7
year younger age of the Petitioner in the work force at this time with a job income
that supports the differentiation of incomes with full ability to contribute.
Couple that with the abuse of the Petitioner actually giving the Respondent a
STD venereal disease that was a tort that now has to be lived with the rest of
the life, the facts support an award of spousal support. That is not a matter
of “sound discretion” but arbitrary and capricious decisions of the court that
should be reversed. Indeed the trial court did not consider the “facts” as
presented and tried continuously to taint the court record so as to only allow
information into record to bias the decisions of the court. At no time did the
court quote any legal authority sustain its position, but simply used the power
of the court and disregarded all prior case laws. Affirmation of such an
erratic and spontaneous decision that is both biased and capricious is not in
the best interest of justice and serves no purpose to give equity to the
parties. With all other issues raised by the Respondent, this court has not had
the proper records before it to fully investigate and see the corruption of the
courts, nor the proper evidence and testimony of any party or the underlying
full picture of what is actually happening here, so as to simply give the
marriage institution no credibility and the law no authority. When a Petition
can simply go to a court on a whim, to destroy a good marriage, and then take
all assets, money, and leave the Respondent with the dregs of debt, emotional
distress and confusion of ulterior motives by
both perjury and fraud and gain this advantage, there is no reason for
the idea or institution of marriage or the justice system as both have failed.
The US was established with a certain morality and code of ethics that seeped
into the judicial system by a standard of conduct, and enforcement and
accountability of those making marriage contracts, vows and promises that
should be enforced by the courts. If the Petitioner in any such action is
allowed to not only escape the vows and promises with a childish lack of responsibility
and ethics, and then to also be allowed to escape all debt, take all community
income and property without redress, the United States has failed and society
as we have known it no longer exists. Case laws are have set precedent for all
issues in this matter for both the enforcement and accountability of the
Petitioner as well as the behavior and liability of those attorneys and
justices involved. In this case and related Order of Protection case, all laws
were defiled with a Petitioner keeping the playing field disrupted and
containment and blockage of the Respondent, as well then as further persecution
and punishment of the Respondent at the end. The court did not consider the
arguments, disregarded the pleading and authorities cited and controlled and
muzzled the Respondent to not be able to present his issues and preserve that
should be of record. In the case of the “herpes” that is an extreme and viable
part of the settlement of such a marriage, Judge Hadfield attempted many time
to keep David Derringer from talking about that issue as well as a total
disregard of it in the Final Judgment. This manifest error of law, by itself
precipitated the necessity of a new law civil suit against the Petitioner
wasting the time and resources of a judicial system due to the legal errors of
the marital courts. The “torts” needed to be addressed and the trial court
failed in all regards of due process and equal protection. The “detailed”
findings were both inaccurate, fabricated by the justice herself and in both
legal and factual error, imbedded into a final judgment that is totally against
all laws and contradictory to itself. It was not a matter of
”thinking” that the Respondent’s testimony was more credible, but a matter of clear and convincing facts and evidence of the Petitioner’s contradictory testimony, proven lies, perjury and fraud that was supported by third party testimony, documents and evidence. When the Petitioner was allowed to provably “lie” with no action to stem this activity taken by the court, justice was not served and the bias was used to destroy the Respondent without evidence or standard of proof. It is the duty of the appeal court to review the record and when the perjury and fraud is blatant, action must be taken to correct the injustices. The Petitioner disregarded discovery twice and was not punished or sanctioned. Then when ordered to comply disregarded discovery request as “irrelevant” so as to keep needed information from the Respondent before, and during trial making the trial a “joke” to have a Respondent kept without information and in the dark over issues that were mandated to be heard. As this court reviews now “all” of the court records including the related DV and CV cases involving actions by the Petitioner, it will be clear that a summary affirmance is way off base legally and must be reversed and that there is an abuse of discretion that cannot be ignored. Estate pf Romero v. City of Santa Fe, 6, 139 NM 671, 137 P.3d 611 2006.Although the discovery motions for compliance were heard, and order was issued, but not complied with in either a timely fashion and with no continuance of a trial, the Respondent was placed in a position of the biased judge presiding over a trial with jurisdiction in the NM Court of Appeals and not enough discovery for such a trial. All manner of both law and judicial standards were breached. The discovery issues were never resolved, but simply the power of the judge forced the Respondent into submission of no due process and moved forward on August 23, 2012 illegally when the jurisdiction of all matters was still in the NM Court of Appeals under 32,113 without yet remand. The trial and forced subjugation of the trial court is a mockery of justice. This issue of both discovery violations and the disregard of “jurisdiction” of the trial court is far from moot as there is “fundamental error” here that mandates the entire proceeding of both DV-12-234 and DM-12-610 to be dismissed in its entirety, or at the very least to start de novo with a fair and impartial justice. There is tremendous controversy here and the Respondent tried repeatedly to gain proper discovery before a trial in a timely manner and was defeated by court corruption. This matter needs to be both addressed and reversed. At the least the Respondent was due “sanctions” and discipline that did not occur. All issued of the discovery was relevant to the claims, and the court sidestepped the discovery by awarding a “bifurcated divorce” in error of rule with no value or substantiation, and did so to stop due process. The Court then proceeded to ignore issues so as to protect the Petitioner from discovery, including negation of needed medical records of bipolar mental and emotional disorders of the Petitioner and the herpes STD that had every effect of the financial remaining issues. The Respondent was never provided sufficient information for any trial, and discovery should not be limited. Crowe v. Chesapeake & OR Co., (1961 ED Mich) 29 FRD 148, 5 FR Serv 2d 586 “ In view of liberal spirit of these rules, court should be disposed to grant such discovery as will accomplish full disclosure of fact, eliminate surprise, and promote settlement.”; Condry v. Bucheye, SS Co., (1945 DC Pa.) 4 FRD 310 “This rule (relevancy) is not available for discovery purposes..” The Respondent was not provided discovery and certainly not well in advance of any trial. Salitan v. Carrillo, 69 N.M. 476, 368 P.2d 149 (1961); Marchiando v. Brown, 98 N.M. 394, 649 P.2d 462 (1982). The purpose of SCRA, 1986, 1-126, 1-033, and 1-034 is a liberal discovery policy, and to permit discovery well in advance of trial for adequate trial preparation. This defeated due process for the Respondent making the entire matter of DM-12-610 jurisdictionally defective. Griego v. Griego, 90 N.M. 174, 561 P.2d 36 (Ct. App. 1977) “As to all issues made by the pleadings in the case, plaintiff had the right to examine defendant fully and exhaustively; such a right is basically fundamental to our system of jurisprudence, and no court has the power to restrict or limit it.” This court is in legal error to attempt to deny discovery and due process to the Respondent, and that issue alone defeats the DV-12-234 and DM-12-610 mandating dismissal with no available divorce for the Petitioner. Herbert v. Lando, 1979 441 US 153, 60 L.Ed2d 115, 99 S. Ct. 1635 4 Media LR 2575, 3 Fed Rules Evid SERV 822, 27 FR Serv 2d 1 “The deposition-discovery rules of the Federal Rules of Civil Procedure (Rules 26 et seq.) are to be accorded a broad and liberal treatment to effect their purpose of adequately informing the litigants in civil trials.”
”thinking” that the Respondent’s testimony was more credible, but a matter of clear and convincing facts and evidence of the Petitioner’s contradictory testimony, proven lies, perjury and fraud that was supported by third party testimony, documents and evidence. When the Petitioner was allowed to provably “lie” with no action to stem this activity taken by the court, justice was not served and the bias was used to destroy the Respondent without evidence or standard of proof. It is the duty of the appeal court to review the record and when the perjury and fraud is blatant, action must be taken to correct the injustices. The Petitioner disregarded discovery twice and was not punished or sanctioned. Then when ordered to comply disregarded discovery request as “irrelevant” so as to keep needed information from the Respondent before, and during trial making the trial a “joke” to have a Respondent kept without information and in the dark over issues that were mandated to be heard. As this court reviews now “all” of the court records including the related DV and CV cases involving actions by the Petitioner, it will be clear that a summary affirmance is way off base legally and must be reversed and that there is an abuse of discretion that cannot be ignored. Estate pf Romero v. City of Santa Fe, 6, 139 NM 671, 137 P.3d 611 2006.Although the discovery motions for compliance were heard, and order was issued, but not complied with in either a timely fashion and with no continuance of a trial, the Respondent was placed in a position of the biased judge presiding over a trial with jurisdiction in the NM Court of Appeals and not enough discovery for such a trial. All manner of both law and judicial standards were breached. The discovery issues were never resolved, but simply the power of the judge forced the Respondent into submission of no due process and moved forward on August 23, 2012 illegally when the jurisdiction of all matters was still in the NM Court of Appeals under 32,113 without yet remand. The trial and forced subjugation of the trial court is a mockery of justice. This issue of both discovery violations and the disregard of “jurisdiction” of the trial court is far from moot as there is “fundamental error” here that mandates the entire proceeding of both DV-12-234 and DM-12-610 to be dismissed in its entirety, or at the very least to start de novo with a fair and impartial justice. There is tremendous controversy here and the Respondent tried repeatedly to gain proper discovery before a trial in a timely manner and was defeated by court corruption. This matter needs to be both addressed and reversed. At the least the Respondent was due “sanctions” and discipline that did not occur. All issued of the discovery was relevant to the claims, and the court sidestepped the discovery by awarding a “bifurcated divorce” in error of rule with no value or substantiation, and did so to stop due process. The Court then proceeded to ignore issues so as to protect the Petitioner from discovery, including negation of needed medical records of bipolar mental and emotional disorders of the Petitioner and the herpes STD that had every effect of the financial remaining issues. The Respondent was never provided sufficient information for any trial, and discovery should not be limited. Crowe v. Chesapeake & OR Co., (1961 ED Mich) 29 FRD 148, 5 FR Serv 2d 586 “ In view of liberal spirit of these rules, court should be disposed to grant such discovery as will accomplish full disclosure of fact, eliminate surprise, and promote settlement.”; Condry v. Bucheye, SS Co., (1945 DC Pa.) 4 FRD 310 “This rule (relevancy) is not available for discovery purposes..” The Respondent was not provided discovery and certainly not well in advance of any trial. Salitan v. Carrillo, 69 N.M. 476, 368 P.2d 149 (1961); Marchiando v. Brown, 98 N.M. 394, 649 P.2d 462 (1982). The purpose of SCRA, 1986, 1-126, 1-033, and 1-034 is a liberal discovery policy, and to permit discovery well in advance of trial for adequate trial preparation. This defeated due process for the Respondent making the entire matter of DM-12-610 jurisdictionally defective. Griego v. Griego, 90 N.M. 174, 561 P.2d 36 (Ct. App. 1977) “As to all issues made by the pleadings in the case, plaintiff had the right to examine defendant fully and exhaustively; such a right is basically fundamental to our system of jurisprudence, and no court has the power to restrict or limit it.” This court is in legal error to attempt to deny discovery and due process to the Respondent, and that issue alone defeats the DV-12-234 and DM-12-610 mandating dismissal with no available divorce for the Petitioner. Herbert v. Lando, 1979 441 US 153, 60 L.Ed2d 115, 99 S. Ct. 1635 4 Media LR 2575, 3 Fed Rules Evid SERV 822, 27 FR Serv 2d 1 “The deposition-discovery rules of the Federal Rules of Civil Procedure (Rules 26 et seq.) are to be accorded a broad and liberal treatment to effect their purpose of adequately informing the litigants in civil trials.”
The
district Court allowed one party of a marriage to steal property prior to a
filing for divorce so as to have the physical advantage of “possession” before
such filing and then by perjury and fraud to gain a “no contact” order to
ensure that the abused and aggrieved party could not seek replevin or amends.
The “tactical advantage” of the fraud was well known to the court, that
accepted a list of claimed items missing from the Petitioner, disregarded
$55,000.00 worth of property stolen by 12 strangers from the Respondent and
allowed criminal assault and battery to be performed against the Respondent.
Again the lack of duty of the trial court to stop the perjury, fraud and
criminal actions and to allow the Respondent to find the perpetrators of
“friends” and “bosses” of the Petitioner orchestrating the acts did “obstruct
justice” and mandate yet another law suit be filed to take the time and
resources of the courts due to the total discharge of duties of Judge Hadfield
protecting Barrie Derringer and her gang of “thugs” that happened to include
two bosses of her employer. The underlying corruption here is very evident in a
cult control mental slavery subjugation situation of Barrie Derringer that in
fact started this action unlawfully. David Derringer had every right to both
know by discovery the persons involved in assault and battery and the larceny
and conversion that occurred before any divorce was filed, and the perjury,
fraud and malicious prosecution enabled by the court for Barrie Derringer
without law enforcement involvement destroyed all rights, privileges and
immunities of the Respondent. Another of multiple reasons of a “fundamental
error” and “jurisdictional issue” that
mandates dismissal entirely of DV-12-234 and DM-12-610. Summary affirmance
cannot be legally applied. The Respondent then filed with the court clear and
convincing evidence of the Petitioner’s fraud of claiming items missing that
she already took and items stolen when finally moving from the unit, and the
court maliciously disregarded the Respondent and yet with “knowledge” of three
consecutive break-ins still insisted that the Respondent produce and return
items claimed in fraud by the Petitioner, wherein she had no evidence
whatsoever of having ever owned these items or that they were in the possession
of the Respondent, which they were not. This miscarriage of justice and bias is
deplorable to defeat due process without any standard of proof. The standard of
review is in gross error of law. Phelps
v. Hamilton,
122 F.3d 1309, 1323 (10th Cir. 1997). “manifest error of law is
clearly present.”
The
Petitioner already used community income illegally kept from the Respondent to
both hire and pay her attorney, by misuse of community funds. Then in abuse of
discretion, while already allowing the Petitioner to illegally keep community
income, punished the Respondent with “sanctions” to stop his due process and
penalize David Derringer for exercising his Constitutional rights to pay an
additional attorney fees for the Petitioner, insuring that Barrie Derringer
escaped attorney fees for bringing a malicious prosecution action, as well as
making a profit from the courts in “unjust enrichment”. The end result is that
Barrie Derringer used the Respondent’s ½ share of community income for attorney
fees and then the court forced the Respondent to pay additional Petitioner’s
attorney fees with his fraction of income after any claim of divorce, or in the
alternative forced to pay even more percentage of community income for fees
that had already been paid with David Derringer’s share of the community
income. The whole matter of sanctions of attorney fees was to show David
Derringer that he should never defend himself in the US Courts pro-se or be
subject to persecution and punishment for exercising his rights, and that a
woman should gain every tactical advantage when in a family court situation.
The underlying reasons that Judge Hadfield also persecuted David Derringer was
that David Derringer has exposed the public corruption of Hadfield to the world
during the past 2012 election against Hadfield and the retaliation, revenge and
retribution was to sanction David Derringer for punishment by mis use of public
and political power. All of the motions
of the Respondent were valid under both facts and law, had all authorities for
support, and were unopposed by the Petitioner. Simply put, as the Respondent
provided facts, evidence, and legal authorities defeating the Petitioner, the
Petitioner had nothing available with which to legally respond and sought a
tactic to defeat the Respondent and gain what deemed needed to actions to stop
due process; in which Judge Hadfield violated her oath in sedition and treason
against the US and mis used power to sanction a pro-se person in retaliation.
There was nothing “frivolous” about David Derringer’s motions, and yet Barrie
Derringer was allowed of court record time and again even to violate a court
order without “sanctions” and to violate discovery three times also without
sanctions. The abuse of discretion is widely known and outrageous.
The
trial justice was mandated to recuse under the cause of violations of laws,
discrimination and egregious factors, and repeatedly worked outside of
jurisdiction even when the Court of Appeals had jurisdiction of the case under
No. 32,113. This outrageous act is what the NMRA Rule 1-088.1(D) is for ousting
justices when justice cannot be served, even in the event that the judge cannot
see her own bias. This court has a duty to remand this for a new trial entirely
or dismiss all of the underlying for denial of due process by not affording a
fair and impartial judiciary. The simple fact that Hadfield denied testimony,
denied evidence and controlled the testimony of David Derringer mandated
recusal. In re Doe,
519 P.2d 133, 86 N.M. 37 “N.M. App. 1974 Failure to hear one party’s evidence,
when offered, establishes a presumption of prejudice.” In this matter the abuse
of discretion and supreme oppressiveness is extreme. Huff v. Standard Life Ins. Co., SD Fla. 1986 “Strict
construction of statute disqualifying trial judge for bias or prejudice is grounded upon sound principle that there is
possibility of substantial abuse since harsh remedy of cessation of trial proceedings
is mandated if allegations purport to state cause for bias. 28 USC 455"
David Derringer has been denied a fair and impartial case in both DV-12-234 and
DM-12-610 with even no legal service in DV-12-234 and both must be entirely
dismissed with prejudice. Beal v. Reidy, 80 N.M.
444, 457 P.2d 376 (1969) “Prejudiced or biased judge would deprive party of due
process of law.” There was extreme abuse of discretion and tyrannical control
of the Respondent by the justice in obstruction of justice that cannot be
ignored by this court, and recusal is for a remand for justice to be served. Petition of Wittrock, 649
A.2d 1053 (Del.) Supra. 1994
“Every litigant is entitled to be heard by a disinterested judge.”; US v. Kanchanalak, 37 F.
Supp.2d 1 “Statute defining “corruptly”, as “acting with an improper purpose,
personally influencing another, including making a false, misleading statement,
or withholding, concealing, altering, or destroying a document or other
information.” In this matter, Judge Hadfield is totally so embroiled in the
case that she lies herself of court record, disregarding the position of the
case in jurisdiction in the NM Court of Appeals and lying to the parties for
her own outrageous agenda in preferential treatment to Barrie Derringer, even
to allowance of Barrie Derringer’s violations of her own court orders without
redress and without sanctions. Tyus
v. Martinez, 106 Supreme Court 1787, 475 US 1138, 90 L.Ed.2d 333 on
remand 800 F.2d 230 “A judge is not only entitled, but also has a duty to take
all lawful measures reasonably necessary to prevent 18 USCA 1503(a). Not only
is the bias seeking unjust enrichment for Barrie Derringer with many thousands
of dollars stolen of inheritance with “facilitation” by the court, but the
Constitutional deprivations are a criminal act under US Code Title 18 Sections
241, 242 and 1503 of which Judge Hadfield has no “immunity”. Pulliam v. Allen, 466 U.S.
522, 541-42 (1984) ; Monroe v. Pape, 365 U.S.,
at 184; Judicial immunity is of issue on
this appeal and mandates Judge Hadfield’s removal from the bench. Dennis v. Sparks,
101 S. Ct. 183, 449 US 24, 66 L.Ed.2d 185. This court
has a duty to act under the Code of Judicial Conduct “Canon”. Code of Judicial
Conduct Canon 3 (D)(1) Disciplinary responsibilities: “A judge who receives
information indicating a substantial likelihood that another judge has
committed a violation of this Code should take appropriate action. A Judge
having “knowledge” that another judge has committed a violation of this Code
that raises a substantial question as to the other judge’s fitness for office
shall inform the appropriate authority.
David
Derringer’s rights under the 2nd Amendment have been denied without
any standard of proof whatsoever, without any evidence and sustained on proven
perjury and fraud of Barrie Derringer. Prior to the Supreme Court's 2008 decision in District of Columbia v. Heller,1 the courts had yet to definitively state
what right the Second Amendment protected. The main contention was an
"individual rights" approach, whereby the Amendment protected
individuals' rights to firearm ownership, possession, and transportation. The
Supreme Court has now definitively held that the Second Amendment protects an
individual's right to possess a firearm unconnected with service in a militia,
and to use that weapon for traditionally lawful purposes, such as self-defense
within the home. Moreover, this right applies not just to the federal
government, but to states and municipalities as well. In Heller, the Court held that (1)
the District of Columbia's total ban on handgun possession in the home amounted
to a prohibition on an entire class of "arms" that Americans
overwhelmingly chose for the lawful purpose of self-defense, and thus violated
the Second Amendment; and (2) the District's requirement that any lawful
firearm in the home be disassembled or bound by a trigger lock also violated
the Second Amendment, because the law made it impossible for citizens to use
arms for the core lawful purpose of self-defense. The Court reasoned that the
Amendment's prefatory clause, i.e., "[a] well regulated Militia,
being necessary to the security of a free State," announced the
Amendment's purpose, but did not limit or expand the scope of the operative
clause, i.e., "the right of the people to keep and bear Arms,
shall not be infringed." Moreover, the prefatory clause's history
comported with the Court's interpretation, because the prefatory clause stemmed
from the Anti-Federalists' concern that the federal government would disarm the
people in order to disable the citizens' militia, enabling a politicized
standing army or a select militia to rule. Further, the Court distinguished United States v.Miller, in
which the Court upheld a statute requiring registration under the National
Firearms Act of sawed-off shotguns, on the ground that Miller
limited the type of weapon to which the Second Amendment right applied to those
in common use for lawful purposes. In McDonald v. Chicago,
the Court struck down laws enacted by Chicago and the village of Oak Park
effectively banning handgun possession by almost all private citizens, holding
that the Fourteenth
Amendment incorporated the Second Amendment right, recognized in Heller, to keep and bear arms
for the purpose of self-defense. The Court reasoned that this right is
fundamental to the nation's scheme of ordered liberty, given that self-defense
was a basic right recognized by many legal systems from ancient times to the
present, and Heller
held that individual self-defense was "the central component" of the
Second Amendment right. Moreover, a survey of the contemporaneous history also
demonstrated clearly that the Fourteenth Amendment's Framers and ratifiers
counted the right to keep and bear arms among those fundamental rights
necessary to the Nation's system of ordered liberty.
THE RIGHT TO ARMS CLAUSE
The Supreme
Court has consistently refused (denied certiorari) to hear cases involving this
clause of the Second Amendment. They have expressed opinions only in a few,
obtusely related cases, and prefer to express themselves by letting Appellate
Court rulings stand. Scholars such as Halbrook
(1986; 1993) consider much of that case law to be unconstitutional, with
academic debates focusing on the meaning of words like "people",
"keep and bear", and "arms." Before we discuss those
debates, let's look at what few Supreme Court rulings there actually are.
- U.S. v. Cruikshank (1876) - involved members of the Ku Klux Klan depriving black victims of their rights to assembly and to bear arms. The court decided that neither the First nor Second Amendments applied.
- U.S. v. Emerson (1999 - 5th Judical Circuit - Texas, Louisiana, and Mississippi) - reversed the conviction of a man prohibited from owing a gun as part of a marital restraining order on grounds that this deprived him of his Second Amendment rights.
Individual rights advocates, like the NRA, interpret the word "people" to
mean citizens as individuals. Collective right advocates, like the HCI, interpret the word
"people" to mean the collective body, as in the American people.
"Keep and bear" are interpreted by individual rights advocates to
mean the retention of personal firearms in the home, the free carrying of them
elsewhere, and learning how to handle them. "Keep and bear" are
interpreted by collective right advocates in the military sense that soldiers
"bear" arms, civilians "carry" them, and society doesn't
need citizen-soldiers since we have arsenals and public barracks in the form of
police. The word "arms" is interpreted by individual rights advocates
as anything suitable for militia or military purposes (the insurrectionist
argument). The word "arms" is interpreted by collective right
advocates as weapons suitable for hunting or self defense only. Each side seems
to pick and choose whatever interpretive approach suits their purposes, but
these are the most common interpretations. Hardy
(1986) presents a nice word-by-word breakdown of the Second Amendment in terms
of collective v. individual approaches, and argues for a hybrid, or dual
purpose, approach.
US Supreme Court No. 10-1521
The case, McDonald v. Chicago, was the logical
follow to the court's 5 to 4 decision in District of Columbia v. Heller.
That 2008 decision established for the first time that the Second Amendment's
"right to keep and bear arms" referred to an individual right, not
one related to military service. But the decision that there is a right to keep
a gun in one's home did not extend beyond the federal government and its enclaves
such as Washington. Chicago and the suburb of Oak Park have a ban on handgun
ownership virtually identical to Washington's law, which was struck down.
Justice Anthony M. Kennedy, one of the five, said Feldman missed the point of
their ruling -- that the right to bear arms was fundamental to liberty.
"If it's not fundamental, then Heller is wrong, it seems to
me," Kennedy said. The court already has incorporated most of the Bill of
Rights through a part of the 14th Amendment that says states may not "deprive
any person of life, liberty, or property, without due process of law." But
in accepting the McDonald case, it said it would also consider reviving
another part of the amendment, mostly dormant since an 1873 court decision,
that forbids laws that abridge "the privileges or immunities of citizens
of the United States."
The
deprivation of 2nd Amendment rights on February 21, 2012 and
included in the final judgment of November 15, 2012 did not occur pursuant to
an official custom or procedure, and was entirely in opposition to any standard
of proof, and in violation of the US Supreme Court No. 10-1521 ruling that
obviously overpowers Judge Hadfield. Judge Hadfield continues to violate the 2nd
Amendment rights in the final judgment of November 15, 2012 and in violation of
federal case law already established. U.S. v. Emerson (1999 - 5th
Judicial Circuit - Texas, Louisiana, and Mississippi) 270 F.3d 203 5th
Cir 2001- reversed the conviction of a
man prohibited from owing a gun as part of a marital restraining order on
grounds that this deprived him of his Second Amendment rights. United States v. Emerson, 270 F.3d
203 (5th Cir. 2001), is a decision by the United States
Court of Appeals for the Fifth Circuit holding that the Second Amendment
to the United States Constitution guarantees
individuals the right to bear arms. The case involved a challenge to the
Constitutionality of 18 U.S.C. § 922(g)(8)(C)(ii),
a federal statute which prohibited the transportation of firearms or ammunition
in interstate commerce by persons subject to a court order that, by its
explicit terms, prohibits the use of physical force against an intimate partner
or child. The Fifth Circuit engaged in an extensive analysis of the
text and history of the Second Amendment and its attendant caselaw (including
many state supreme court decisions), and it ultimately determined that the
Second Amendment does guarantee individuals the right to keep and bear arms. In 2002,
the Ninth Circuit ruled
that the domestic order of protection denied Constitutional rights Silveira v. Lockyer, 312
F.3d 1052 (9th Cir. 2002). In 2008, the D.C.
Circuit held that the Second Amendment protected an individual right, in Parker v. District of Columbia,
478 F.3d 370 (D.C. Cir. 2007) which was reviewed by the US Supreme Court in District of Columbia v. Heller,
554 U.S. (2008). In the District
of Columbia v. Heller decision the Supreme Court ruled that the
Second Amendment "protects an individual right to keep and bear
arms". Moreover, on April 20, 2009, in Nordyke v. King, 229 F.3d 1266 (9th Cir. 2009) a panel of
the 9th Circuit affirmed and further expanded the Supreme Court's District of Columbia v. Heller 2nd amendment
decision. The court stated that the 2nd Amendment is an individual right and is
incorporated against all states. Both Judge O'Scannlain and Judge Gould
concurred that "the right to bear arms is a protection against the
possibility that even our own government could degenerate into tyranny, and
though this may seem unlikely, this possibility should be guarded against with
individual diligence. And while the Second Amendment thus stands as a
protection against both external threat and internal tyranny, the recognition
of the individual’s right in the Second Amendment, and its incorporation by the
Due Process Clause against the states, is not inconsistent with the reasonable
regulation of weaponry." This court
is mandated to remand the issue of 2nd Amendment rights back to both
DV-12-234 and DM-610 with “instructions” to reenstate David Derringer’s rights
with restitution of millions of dollars for depriving Constitutional rights for
a period exceeding one year and two months. Sanctions should also be applied
against Barrie Derringer, Alain Jackson, Commissioner Cosgrove/Aguilar and
Judge Hadfield. The 2nd Amendment was presented at all times with
the district Court, and Constitutional rights are protected without
“preservation” as a matter ofdoctrine. Civil Rights 13.4(4) Conspiracy 7.5 State and federal officers are liable under
US Code Title 42 Sections 1983 and 1985(2) when they conspire based on
fabricated evidence or false, distorted, perjury in testimony presented to
official bodies and use such distortion to take rights from citizens.
At
all times David Derringer preserved his 2nd Amendment rights, as under
Constitution rights are guaranteed and do not have to be protected day by day
or from person to person. Yet at all times from the onset of the hearing of
February 21, 2012 and ongoing in both DV-12-234 and DM-12-610 David Derringer
has continued to state his rights to both firearms, a profession of
professional outfitter/big game hunter No. 32 in New Mexico as registration
with NM Game and Fish, and a right to an occupation by case laws exclaiming
that a "profession" is a property right, which brings it under
jurisdiction of the US Code Title 42 Section 1982. Muckleroy v. Muckleroy,
498 P.2d 1357
N.M.,1972. A constitutional right is a legal right of its citizens (and
possibly others within its jurisdiction) protected by a sovereignty's
constitution. The United States Constitution has several articles and
amendments that establish constitutional rights. Although debated in political
circles, the 2nd Amendment "right to bear arms" establishes a right
to own, possess, and use firearms for lawful purposes, and the fairly recent
ruling by the US Supreme Court No. 10-1521 established the right for firearms
as a "personal right" "not to be infringed", under the
meaning of right to "bear" meaning right to possess and hold. The 2nd
Amendment involving “firearms” includes such tangible items as “personal
property” as defined available for all citizens under US Code Title 42 Section
1982. City of Memphis v. Greene, Tenn. 1981 101 S. Court
1584, 451 US 100, 67 L.Ed.2d 769 rehearing denied 101 S. Ct. 3100, 452 US 955,
69 L.Ed.2d 965 “Private Individuals-This section [Title 42 U.S.C. Section 1982]
guaranteeing all citizens of the US the same right as is enjoyed by white
citizens to inherit, purchase, lease, sell, hold, and convey real and personal
property is directly applicable to private parties.”. Not only can there be “no
infringement” of the right to firearms under the 2nd Amendment, but
under US Code Title 42 Section 1982 there can be no “interference” with owning,
using and possession of “personal property of firearms”. Jones v. Mayer
Co., U.S. Supreme Court 392 U.S. 409 (1968) No. 645 “All
citizens of the United States shall have the same right, in every state and
territory, as is enjoyed by white citizens thereof to inherit, purchase, lease,
sell, hold, and convey real and personal property. Congress provided that the
right to real and personal property was to be enjoyed equally throughout the
United States, and that right was to be secured against interference
from any source whatever, whether governmental or private.”
The
“justice” in New Mexico is somewhere between the Spanish Inquisition and
burning at the stake, having nothing to do with Constitution or law, but only
the egotistical tyranny and oppression of judicial persons in power; New Mexico
known as the “land of entrapment”. David Derringer “protected”
his 2nd Amendment rights from the unlawful DV-12-234 that was held
without due process, equal protection, without legal service of summons, under
provable perjury and fraud, and with a proven bias and prejudiced Commissioner
Cosgrove/Aguilar that hates “men”, and without any standard of proof mandated,
and with no criminal charges of “domestic violence”. The Commissioner stuck an
Order of Protection against David Derringer for a period of two years,
summarily taking Constitutional rights under the 2nd Amendment as a
matter of illegal “regularity” by a standardized “form” blanketed against all
that enter this court. “Order of Protection” 2: Consequences of entry of
order of protection (B) “if you are the spouse or former spouse of the other
party, an individual who cohabitates with or has cohabitated with the other
party, or if you and the other party have had a child together, federal law
prohibits you from possessing or transporting firearms or ammunition, you
should immediately dispose of the firearm or ammunition.” Clearly,
without due process of law, and without any domestic violence violation, and
without any criminal conviction of either a firearms violation or domestic
violence violation, “federal law” does not presume that the citizen is
guilty of any matter to prevent possession, use or ownership of firearms.
US Citizens are innocent until proven guilty. The “standardized”
form of the 2nd Judicial District Court Order of Protection simply,
without due process or cause takes Constitutional rights as a matter of every
citizen that comes before them. In this matter involving David Derringer, there is no evidence whatsoever to
support the order of protection in the record as Barrie Derringer produced no
witnesses, no doctor’s report of injury or bruises, no photographs of bruises
and no evidence of keeping her from leaving; in short here is no evidence
whatsoever to sustain the Order of Protection. On the contrary, David Derringer
has the police report of 2-4-2012 of APD showing no domestic violence, a
witness Bruce Davis testifying later in DM-12-610 that there was no domestic
violence, and pages of Sprint text phone print outs showing Barrie Derringer is
not afraid of David Derringer and Barrie Derringer’s own testimony that she
states that “David Derringer would never hurt me physically” in the
court record of DV-12-234 on February 21, 2012. The trial court “refused” to
allow David Derringer’s witness, Bruce Davis at the hearing of February 21,
2012 proving not only a bias of the court that mandated dismissal of the case,
but deprivation of due process and equal protection that rendered the trial
court without jurisdiction or judicial capacity in “fundamental error”. The trial court sustains an order of
protection without any evidence in the court record and defies the Constitution
2nd amendment and US Supreme Court No. 10-1521 in blatant “judicial terrorism”
against David Derringer. The “federal law”, namely US Code Title 18 Section
922, does not allow David Derringer’s second Amendment rights to be taken by a
“simple civil allegation” of Barrie Derringer that David Derringer did domestic
violence, when she impeaches herself that “David Derringer would never hurt
me physically.”; thus clearly no domestic violence occurred to even apply
or gain any Order of Protection; an act by Barrie Derringer of a 4th
degree felony. [1]
David Derringer immediately “appealed” the findings of the Commissioner to
Judge Hadfield, who disregarded and summarily denied the legal appeal by simply
stating “denied” without any authorities or reasons for the denial, save the
total corruption of the New Mexico family court system. “This Court
previously has recognized–even with respect to another statute the legislative
history of which indicated that courts were to have “wide discretion exercising
their equitable powers,” 118 Cong. Rec. 7168 (1972), quoted in Albemarle
Paper Co. v. Moody, 422 U.S. 405, 421 (1975)–that “discretionary
choices are not left to a court’s ‘inclination, but to its judgment; and its
judgement is to be guided by sound legal principles.’ ” Id.,
at 416, quoting United States v. Burr, 25 F. Cas. 30, 35 (No.
14,692d) (CC Va. 1807) (Marshall, C.J.). Thus, a decision calling for the
exercise of judicial discretion “hardly means that it is unfettered by
meaningful standards or shielded from thorough appellate review.” Albemarle
Paper Co., 422 U.S., at 416.”” United
States v. Taylor,
487 U.S.326, 108 S. Ct. 2413, 101 L. Ed. 2d 297,56 U.S.L.W.
4744. (Emphasis added) “At a minimum, the district court must
listen to a party’s arguments and give reasons for its decision.” Schwarz
v. Folloder, 767 F.2d 125 (5th Cir. 08/01/1985). Not only then did the
Respondent appeal this matter to this New Mexico Court of Appeals under No.
32,326, but filed a “Petition for Writ of Superintending Control”
with the New Mexico Supreme Court under No. 33,826, showing the violations of
Constitution, Oath, Code of Judicial Conduct and Canon, exposing the “public
corruption” of Judge Hadfield. Consequently, the entire “judicial circle” of
New Mexico knows of the egregious acts against Constitution by Judge Hadfield
and Commissioner Cosgrove/Aguilar, and will do nothing about the corruption,
with the NM Supreme Court “denying” the Petition for Writ of Superintending
Control. David Derringer has also turned in both the Commissioner and Judge
Hadfield to both head Judge Ted Baca and the 2nd Judicial District
court administrators and to the Commission on judicial standards, with no
action taken to stop a judge violating Constitutional rights without due
process and without any standard of proof whatsoever.
In the meantime, David Derringer
has been denied his Constitutional rights for a year, deprived income by legal
occupation involving firearms, and made homeless and destitute by the public
corruption of New Mexico, mandating this court to legally correct this matter
by reinstating Constitutional rights; sanctions and punishment for all involved
in taking 2nd Amendment rights and profession; Order for law
enforcement criminal prosecution against Barrie Derringer for perjury and
fraud; federal investigation of public corruption including violations of oath
and “conspiracy against rights” and “deprivation of rights under color of law”
that involves removing Commissioner Cosgrove/Aguilar and Judge Hadfield from
the bench; and restitution for David Derringer in extreme amounts of money from
the justices involved and from the State of New Mexico. “When an alleged
constitutional rights is involved, most courts hold that no further showing
of irreparable injury is necessary” (citing 11A Charles Alan Wright,
Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure 2948.1
(2d.ed 1995) see also Suster v. Marshall, 149 F.3d 523, 533
(1998). “...the loss of Amendment freedoms, for even minimal periods of time
constitutes irreparable injury”. Code of Judicial Conduct Canon 3 (D)(1)
Disciplinary responsibilities: “A judge who receives information
indicating a substantial likelihood that another judge has committed a
violation of this Code should take appropriate action. A Judge having
“knowledge” that another judge has committed a violation of this Code that
raises a substantial question as to the other judge’s fitness for office shall
inform the appropriate authority”. Thus, the “corruption” of New Mexico
justices knows no bounds, and is instrumental in taking all rights from a US
citizen without legality. In this matter, David Derringer’s citizenship and
Constitutional rights are taken by a fraudulent “civil allegation” of Barrie
Derringer, with facilitation of public corrupt justices not interested in
seeking to maintain a marriage, and without a rational decision to have both
parties undergo some counseling to save the marriage, with Barrie Derringer
admitting to being suicidal under oath, and while under her bipolar drugs, in
PTSD, and possibly back on cocaine, with her mental state in question and her
emotional state in turmoil. New Mexico is not a functional part of the union, and
a rogue instrument of sedition and tyranny to any that come or reside here.
The
court disregarded the Repondent’s due process and equal protection by
contolling testimony, disregarding evidence and defying law. Specifically, the
court disregarded NMSA 45-2-804 allowing
Barrie Derringer to deny community income for bills and keep all monies
for herself. The list goes on and on of due process and equal protection
violations by defying case laws and deprivation of Constitutional rights.
The
issues of herpes was presented to the court, as Judge Hadfield attempted each
time to shusss the Repondent each time attempt was made to bring this issue.
This matter has entire bearing on the settlement agreement and is a tort in NM
requiring an additional law suit from David Derringer against Barrie Derringer.
This matter was presented to the trial court an can be of legal issue with this
court as this is not a new issue upon appeal. This issue was not just for a
matter of spousal support but in restitution of a tort that had total effect of
the marital settlement agreement. The district court abused its discretion in a
total disregard of the issue and refused to hear the testimony in its entirety.
The
Rule of the Rules of Civil Procedure states emphatically that a bifurcated
divorce is to be granted only in exceptional circumstances, and with the abuse
of discretion, Judge Hadfield’s motive was to deny David Derringer any
possibility of preserving issued of Barrie Derringer’s bipolar and mental and
emotional instability that precipitated the action so as to deny a trial on the
matter and only move on to the settlement agreement of “money”. The Respondent
did not place any “frivolous” pleadings before the court to inhibit the
unethical standard of moving family matter through the courts like cattle. This
deplorable degradation of due process is why the Constitutional deprivations
occur with the form of taking 2nd Amendment rights without cause or
standard of proof.
As
the court listens to the actual hearings, sees the evidence and peruses the
record of DM-12-610 on February 8, 2013 the errors of law, violations of the
Rules of Professional Conduct and the lying, cheating and stealing of Alain
Jackson will become apparent, in correlation of the view of CV-12-10816. This
matter has to be dealt with for the integrity of the system. The violations of
the TRO is the same violations of the Order of Protection, being that David
Derringer has his rights to Constitution without contest. All motions filed
were with merit and the Court had an obligation for ordered counseling due to
the provided facts of the extreme medications that Barrie Derringer is on and
the statements under oath by Barrie Derringer that she is suicidal and has
admitted to doing violent criminal domestic violence to David Derringer by
hitting David Derringer in the face. For the Court to ignore this violence by
confession while depriving David Derringer rights by only accusation is
deplorable.
There
is clear and convincing evidence, factual support, case laws, deprivation of
Constitution and blatant violations of NMSA 45-2-804 amongst the “conspiracy
against rights” and “deprivation of rights under color of law held against
David Derringer mandating this matter remanded for complete dismissal OF
DM-12-610 and DV-12-234. David Derringer is also entitled to extreme amounts of
money for deprivation of rights. Oliver
v. Foster, DC Tes. 1981 524 F. Supp. 927 “Provisions do not limit
amount of punitive damages recoverable.”
Parratt v. Taylor,451
U.S. 527, 101 Supreme Court 1908, 68 P.Ed.2d 420 (1981) “where state employee
negligently deprives an individual of property, individual has no cognizable
section 1983 claim if state makes available an adequate post-deprivation
remedy.”
THEREFORE Summary affirmance is
opposed.
Respectfully
submitted by:________________________________________
David Derringer,
Pro-Se Box 1205 Albuquerque, New Mexico 87103
CERTIFICATE OF
SERVICE 2-19-13
I hereby certify that I hand
delivered a copy of this pleading to:
The New Mexico Court of Appeals
in Albuquerque, New Mexico 87102
New Mexico Court of Appeals clerk
P.O. Box 2008
Santa Fe, New Mexico 87504
I further certify that I sent by
mail only as a courtesy a copy of this pleading to an attorney not representing
this matter:
Petitioner=s
attorney not of record
Alain Jackson, 423 6th
St. NW
Albuquerque,
New Mexico 87102
505-620-6688 New Mexico 87109.
[1] “perjury
consists of making a false statement under oath or affirmation under notary,
material to the issue or matter involved in the course of any judicial,
administrative, legislative or other official proceeding, knowing such a
statement to be untrue. Whoever commits perjury is guilty of a fourth degree
felony” Section 30-25-1 NMSA (1978). “malicious criminal prosecution consists
of maliciously procuring or attempting to procure an indictment or otherwise
causing or attempting to cause criminal charged to be performed or prosecuted
against an innocent person, knowing him to be innocent. Section 30-27-1 NMSA
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