IN THE COURT OF APPEALS
OF THE STATE OF NEW MEXICO
New Mexico Court of Appeals No. 32,326
Second Judicial District Court No. CIVIL DV-12-234
Rel. DM-12-0610
BARRIE LEE DERRINGER,
Appellee/Petitioner,
v.
DAVID BRIAN DERRINGER,
Appellant/Respondent,
APPELLANT DAVID DERRINGER’S MOTION FOR RECONSIDERATION UNDER RULE 12-404, OF THE ILLEGAL, UNCONSTITUTIONAL, AND INTIMIDATION ORDER OF MARCH 19, 2013 MEANT TO DENY DUE PROCESS AND EQUAL PROTECTION IN “OBSTRUCTION OF LEGAL APPEAL”
COMES NOW the Appellant/Respondent Pro-Se with his timely Motion as stated above. Serrano v. Williams 383 F.3d 1181 (10th Cir 2004). All issues presented in this Motion are hereby preserved for further appeal, and this pleading will be placed on the Internet as public record for the world to see the tyranny and oppression against any pro-se person that properly uses the court system that also exposes the corruption of same. All issues presented in this motion are of trial origination and thus are properly matters before this court. Pitek v. McGuire, 51 NM 364, 184 P.2d 647 (1947). The lack of jurisdiction of this court to attempt to stop appeal, deny due process and equal protection and to harass, intimidate and bully the Appellant to attempt to stop even “future” appeals and the “criminal persecution” of a poor litigant that under Constitution is allowed “due process” is a matter of fundamental laws, and constitutes “fundamental error” and abuse of discretion and abuse of power. This Order will continue on appeal.
The Motion for Reconsideration Rule 12-404 is presented to this court to expose and define the bullying, intimidation and violations of Oath and Constitution this court is using to single out and persecute a “poor” pro-se Appellant, David Derringer in order to both stop this instant appeal, and attempts to stop forever due process of this citizen as well as trying to find a way not to rule on 32,326 with the mandates of law that require the underlying to be dismissed and the 2nd Amendment upheld by Constitution. This particular case brings to the front the 2nd Amendment rights to own, use and possess firearms, which a bogus and unconstitutional “pre-printed form” of “order of protection” denies to all without any cause, standard of proof or standard of evidence. [1] The Appellant is well aware that this Motion will not stop the outrageous acts by these justices, and that they are unaccountable by the comradery of protection by other justices,[2] even if David Derringer attempted to properly sue them in Federal Court for deprivation of rights and a “1983” action, they are perpetrating well outside of jurisdiction and judicial capacity, but what will occur here is that these vicious acts against a US Citizen will be forever permanently imbedded in the court record and this pleading will “as public record” be spread in “knowledge” throughout the world on the World Wide Web Internet under 1st Amendment rights and all will know what is happening here. Galindo v. Western States Collection Co., 477 p.2d 325, 82 N.M. 149.
The underlying case of a “civil” petition for Order of Protection was brought in proven perjury and fraud by Barrie Lee Derringer after a bipolar episode and PTSD situation where Barrie is no longer rational, and wherein she claimed as a lie that on February 4, 2012 when she and 12 persons had broken into the Derringer storage, that David Derringer had knocked her down, hurt her hip, kept her from leaving, and she is afraid of more physical harm from David Derringer. In facts, with not only her own 12 witnesses but tens of other persons, the 12 persons instigated by Barrie Derringer including two bosses of Debbie Harms and Irwin Harms of NAI Maestas and Ward Commercial Real Estate Corporation, did criminal assault and battery against husband David Derringer just before the APD police arrived by David Derringer’s 911 prior call, and David Derringer never touched his wife Barrie, even when Barrie ran to console her husband after being released by Barrie’s thugs, by putting her hands on David’s cheeks and stating “Calm down, you’re OK”, showing no fear of her husband that would never hurt Barrie under any set of circumstances. In retaliation of the APD shutting down Barrie’s attempt to take all property before filing for divorce, on Monday February 6, 2012 Barrie lied under oath [3], a fourth degree felony NMSA 30-25-1, of false allegations of domestic violence to initiate the civil action DV-12-234. Without any stand of proof, without any legal service of summons, without any standard of evidence, without any witnesses, photographs, expert doctors or other sustenance to the false allegations, Barrie then testified under oath (record proper DV-12-234 February 21, 2012) that “David would not hurt me physically” impeaching her own prior notarized statements that David had and would hurt her physically; proven perjury and fraud. The hearing of February 21, 2012 continued without jurisdiction in fundamental error (Wilson v. Rowan Drilling Co. 55 NM 81, 227 p.2d 365) without legal service of summons, without allowing David Derringer to properly testify and denied cross examination of Barrie Derringer, prevented David Derringer from presentation of evidence documents, and prevented David Derringer from testimony from his witness Bruce Davis. The outrageous acts of the Commissioner Cosgrove/Aguilar, whom is widely known to be biased and prejudiced against men, as exhibited extremely in this matter, was “appealed” to Judge Hadfield, who denied the appeal without hearing held, without any legal authority substantiation or reasoning, and DV-12-234 was illegally used not only to deny and deprive 2nd Amendment rights, but was the entire basis of the divorce action of DM-12-610 making the two cases absolutely intertwined and inseparable; the action thus properly appealed to No. 32,326. This Court is well aware that DV-12-234 (No. 32,326) and DM-12-610 (No. 32,587) are inexplicable intertwined, founded in fundamental error and in deprivation of Constitutional rights, and in which both are on appeal in No. 32,326 and 32,587.
In #1 of the Order of March 19, 2013, this court denies “concern” for intertwined DM-12-610 (No. 32,587) when the two cases cannot be separated under law; both being in perjury, fraud and fundamental error and both intertwining deprivation of Constitutional rights of due process, equal protection, deprivation of 2nd Amendment rights, deprivation of 1st Amendment rights, and attempts to “obstruct justice”, deny appeals and stop future due process in a persecution of David Derringer both by the Petitioner and her unethical attorney Alain Jackson and this court itself working against Oath and in sedition and treason against America. Dennis v. Sparks, 101 S. Ct. 183, 449 US 24, 66 L.Ed.2d 185 “US Tex. 1980; (SEE: 14th Amendment Section 3).
At all times, the Petitioner has sought in the lower courts of both DV-12-234 and DM-12-610 to “stop due process” of David Derringer, which has already been accomplished in both cases. The notable first criminal deprivation of rights was DV-12-234 where 2nd Amendment rights and due process and equal protection were entirely denied and David Derringer’s firearms were ordered not to be in possession, which also denies US Code Title 42 Section 1982 in both ‘possession’ rights to personal property and a right to a profession necessitating use of firearms. The second notable criminal act of “deprivation of rights” came with Judge Hadfield in DM-12-610 granting a “bifurcated divorce” for Barrie Derringer based solely and in direct response to the “Petitioner’s Motion for Equitable Relief from Frivolous Filings by Respondent and Request for Sanctions”. In short, the Petitioner did not want to respond to legal pleadings seeking necessary counseling, rights of due process, and protection of 2nd Amendment Constitutional rights, and sought to stop further due process against a pro-se Respondent. The “Court” responded with the idea that if it grants a “divorce” there will be no further reason for pleadings to be filed, and granted a “bifurcated divorce” without legal cause and without the “extreme circumstances” defined by Rule, in order specifically stated to stop David Derringer from due process (April 10, 2012 DM-12-610). Many times, thereafter the Petitioner and her attorney blatantly asked the court to “stop David Derringer from appeals”, and to stop David Derringer from filing any further motions, pleadings or any other court papers, in both DV-12-234, and DM-12-610. The record will show specifically on February 8, 2013 that Alain Jackson repeatedly asked Judge Hadfield to violate her Oath to support the Constitution and Order an “injunction” prohibiting David Derringer from any further use of the United States judicial system of the courts; due to the past record that David Derringer indeed “defends” himself pro-se against those that attack his Constitutional rights and is proven to appeal unjust decisions to higher courts as “the United States Congress intended, under the Constitution 4th, 5th and 14th Amendments, as well as under US Code Title 42 Section 1981”. It is “objectionable” both to the Petitioner and to the courts that a US citizen pro-se would even have the capability or education to utilize the higher court system in attempts to gain “justice”. Rather than enter the appeals of DV-12-234 or DM-12-610 legally in No. 32,326 and No. 32,587, Petitioner Barrie Derringer attempts to coerce, and circumvent the legal system in extortion against David Derringer and clearly there have now been “ex-parte” communications between the Petitioner and counsel and the NM Court of Appeals to find some way of “stopping” David Derringer’s legal appeals, which brings us to the Order of March 19, 2013 attempting to stop this instant appeal without jurisdiction of ordered persecution and attempts illegally to even stop “future appeals” including attempting to stop any appeal of the outrageous acts of sedition of the Order of March 19, 2013 of No. 32,326. The underlying is that this court does not want to make the mandated decisions under law dismissing both DV-12-234 and DM-12-610 that law necessitates and to enforce the 2nd Amendment rights that also mandates dissolution of the unconstitutional pre-formed Order of Protection that denies 2nd Amendment right without cause or due process to all that come before the NM family court system. The easy way to do this is to persecute “poor” pro-se David Derringer appellant and attempt to dismiss his appeal so that such decisions can be circumvented.
In #2 and #3 of the Order of March 19, 2013, this court contends that their pathetic main concern for “justice” is not the proven deprivation of 1st, 2nd, 4th, 5th 13th and 14th Amendment Constitutional rights at issue here, or even the proven perjury, fraud and falsification of court records by Barrie Derringer, but a priority concern of type face and pleading size adding to the “persecution” of the 13th Amendment of “cruel and unusual punishment” against a pro-se litigant that is “poor” and has to use public library computers to type his pleadings with whatever program and printing capabilities that encompasses. Although, the Appellant will submit timely an “amended Brief in Chief” in compliance with such illegal demands, the US Constitution grants no legal ability to stop and deny due process and equal protection by misuse of power to deny appeal based on clerical errors or font. In point of fact, the US Constitution was derived long before typewriters and computer word processing programs, and David Derringer is allowed by Constitution rights to present a pleading to any United States Court of law even if hand written in print or cursory long hand, and cannot be denied “due process”. US v. McDermott, CA2 (N.Y.) 1990, 918 F.2d 319 cert. denied 111 S. Ct. 1681, 500 US 904, 114 L.Ed.2d 76 “Statute prohibiting conspiracy to injure, oppress, threaten or intimidate any inhabitant of a state in free exercise or enjoyment of a right or privilege secured under Constitution or laws of United States applied to alleged Fourteenth Amendment violations.” Without doubt, the actions of this court in this Order of March 19, 2013 directly correlate with the demands of the Petitioner and her attorney on February 8, 2013 to “stop David Derringer from appeals”. There is clearly a “conspiracy against rights” under US Code Title 18 Section 241 that is at play here to “stop the instant” appeal and to try to stop any further use of any US Court by David Derringer in the future so that the Petitioner can win and so that 2nd Amendment rights, as in national scrutiny don’t have to be decided in this case by the New Mexico Courts, and the extreme issue can be circumvented and ignored by the State of New Mexico.
In #4, #5, and #6, the Court repeatedly states that in fact David Derringer refers to “factual assertions of testimony, pleadings, an other matters that are of court record not perused as legally demanded by this court, but that do “preserve” issues and emphatically prove that the issues were before the trial court at all times of which none are “new points”. State v. Curlee, 98 NM 576, 651 P.2d 111 (Ct. App. 1982). Despite reference each time after time of “court record” the Court continues to contend that no issues were “preserved” and that despite a “guarantee” by Constitutional mandates and charter, the Constitutional issues in here of 1st, 2nd, 4th, 5th , 13th and 14th Amendment rights are not “preserved”, which they are by the same Charter of this court’s own legal existence; the US Constitution. Despite continual references to the court record not completely reviewed by this court and the “exhibits” that were presented both in DV-12-234 and DM-12-610 including, but not limited to the actual copy of the NM Game and Fish registration of David Derringer as professional outfitter/hunter #32 in New Mexico that mandates the use of “firearms” as a Profession, this court ignores and denies the “evidence” and court record in a deprivation of due process and equal protection against the rights on appeal of David Derringer Appellant with the idea of dismissing the appeal without due process to circumvent the law. Muckleroy v. Muckleroy, 498 P.2d 1357 N.M.,1972. At all times there is obvious “preservation” of all issues before this court, with the “fundamental error” of lack of due process do to lack of legal service of summons defeating the entire DV-12-234 not even considered by this court. This court is legally bound to “dismiss with prejudice” the entire matters of both intertwined cases of DV-12-234 and DM-12-610 based entirely on “fundamental error” of deprivations of due process and equal protection as well as deprivations of 2nd Amendment rights. This court is mandated to “consider the issues” as each issue is invoked in oral rulings of DV-12-234 on February 21, 2012 to take away firearms, and “upheld” illegally with the oral ruling of Judge Hadfield to “keep the Order of Protection in place” on August 23, 2012, but this court illegally chooses not to listen to the court record of oral hearings and decisions, despite this court record by “CD” properly presented to this court in records of the trial court on appeal.
In #7, the Court disregards the forced necessity of the “poor” pro-se Appellant to use the public library computers and printers to formulate the pleadings with whatever system of word processing they have, not giving the Appellant total control over the type and printout format. As mentioned in #2, this court has no jurisdictional legal ability to deny due process and equal protection of the law under the US Constitution by denying “justice” or opportunity to be heard due to a preferred type style. Working outside of jurisdiction and judicial capacity in violation of Constitution violates the “Supremacy Clause” of the Constitution wherein the US laws prevail over any lesser law or “rules” conjured up by any court or particular justice in attempts to defeat the Constitutional mandates. This court is bound by the “supremacy clause” that defeats dismissal of this appeal due to any claim of a wrong type style by a local court rule to punish exercise of Derringer’s Constitutional rights and statutory rights “for appeal” under Title 42 Section 1981, the 5th and 14th Amendments, and prohibits the exercise of abuse of discretion to dismiss an appeal due to clerical errors for use of vindictive persecution of the Appellant. Clearly, as more defined in #9, the Appellant David Derringer has been “singled out” in persecution both as a pro-se litigant and a litigant that has the education to appeal in the higher courts, and has become a “targeted individual” that the courts cannot bully, intimidate and use cruel and unusual punishment to stop legal appeals, so that they have resorted to gang tactics to stop due process and equal protection by subversive means rather than allow David Derringer his legal rights to due process and to rule “with the laws” and authorities constantly presented to this court by the Appellant. It takes no rocket scientist intelligence to realize that if the NM trial courts would only rule by the laws and Constitution in New Mexico instead of the pay-offs, bias, abuse of discretion and corruption of the New Mexico Courts, the NM Court of Appeals would have little if anything to do. On June 6, 2005, the United States Supreme Court ruled that.. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail...” in Gonzales v. Raich, No. 03-1454 SEE United States v. Colorado Supreme Court, No. 98-1081, 10th USCA, where the court upheld that “ the [rule] violated the Supremacy Clause by attempting to regulate an area of federal law controlled. David Derringer has a Constitutional rights to “due process and equal protection” under law, regardless of how or what means he uses to write his pleadings to any United States Court of law and his appeal cannot be dismissed due to a particular type font. Dismissing the need to characterize the rule as either procedural or ethical, the court stated, ‘for purposes of determining whether [the rule] violates the Supremacy Clause, it matters not at all what the Board or Baylson choose to call it. What matters is whether the substance of [the rule] actually conflicts or is incompatible with federal law.’ The [rule] “does not suddenly become consistent with Fed. R. Civ. P. 17 as a local rule of “procedure”. “The Court held that the rule’s judicial approval requirement violated the Supremacy Clause because it was incompatible with the federal rules of criminal procedure”. In the same manner, for this court to mis-use ‘rules of type face” to persecute the Appellant and to threaten the Appellant dismissal of his legal appeal due to same violates absolutely the “due process and equal protection” clauses of the 5th and 14th Amendments and violates federal law US Code Title 42 Section 1981. The Appellant has a Constitutional right for “appeal” of both DV-12-234 and DM-12-610 that cannot be denied by the unscrupulous actions of justices planning in conspiracy to defeat David Derringer for the Petitioner’s ”unjust enrichment”, or to circumvent necessary legal decisions in this matter of substance of Constitutional rights deprivations working themselves outside of jurisdiction by mis use of power in violations of their own Oath to uphold the Constitution. Cartello v. US CCA8 (Mo) 1937, 93 F.2d 412 “A conspiracy is the gist of the offense of conspiring to injure citizens in exercise of right secured by federal constitution or laws.” The Appellant has properly exercised his Constitutional right for appeal and will try his best to conform to the illegal demands of this court of type print for their own convenience, although that does not hold priority over the US Constitution. Trying to threaten, intimidate and to bully a litigant to prevent appeal is not in the jurisdiction of any justice that signed this Order of March 19, 2013, when the Appellant is legally exercising due process to obtain “justice” of equal protection of the laws and wherein the “fundamental error” of this entire matter already mandated this court to dismiss both DV-12-234 and DM-12-610 with prejudice as a matter of law. This court draws out this matter to the detriment of the public tax payer trying to circumvent the mandates that this court must obey the US Constitution whatever their personal opinion. With the clear documented “conspiracy” of the Petitioner and this court working “in concert” for the same goal of deprivation of David Derringer’s Constitutional rights and to keep David Derringer from legal use of the courts in the future has been “exposed” in this pleading and will be exposed to the world on the Internet. Justice Jonathan Sutin and Judge Linda Vanzi have no possible jurisdiction to persecute David Derringer in a “conspiracy against rights” and a “depravation of rights under meaning of criminal acts of US Code Title 18 Sections 241 and 242. See also the parameters set forth in mis-use of a rule in Stoneking v. Bank of America, 132 NM 79, 43 P. 3d 1089. “Under Article VI of the Constitution, the laws of the United States “shall be the supreme law of the land..any thing in the Constitution or laws of any State to the contrary notwithstanding”. US Constitution Article VI Cl.2 “The Supremacy Clause prohibits the application of state laws which conflict with federal laws.” Home Mortgage Bank v. Ryan, 986 F.2d 372, 375 (10th Cir. 1993).”
In #9, the Court step so far outside of jurisdiction and judicial capacity to be in dictatorship of both tyranny and criminal oppressions, condemning the Appellant for being “poor”. What is actually happening here is that this court has realized that it cannot intimidate, bully or continue to violate all laws against the Appellant David Derringer without David Derringer properly using the court system for legal redress. David Derringer has the education to plead properly with supporting case laws, Constitution and statutory authorities for this court to be required to conform to the law, without being able to destroy the Appellant with erroneous decisions. It is this very court corruption that rendered David Derringer in “forma pauperis” by the past 18 years of litigation against cocaine importer Mick Chapel of Quemado, New Mexico; the same cartel importer that provides cocaine, meth and other illegal drugs to the politicians of New Mexico, justices in all courts and many attorneys of New Mexico including but not limited to state attorney DL Sanders and past attorney general Patricia Madrid. David Derringer as a pro-se person exposed the extreme drug ring of the cocaine industry encompassing many justices of New Mexico including but not limited to Judge Brennan, Judge Fitch, and Judge Pope. Due to the corruption of the NM judicial system David Derringer had to sue four state judges in federal court over civil rights deprivations. Although the comradery of justices covered up the corruption and dismissed the Derringer law suits, still while Judge Cynthia Fry was a “defendant” to David Derringer in federal court, is she still allowed in No. 27,127 NM Court of Appeals to not only “preside” over Chapel v. Derringer/Nevitt appeal of CV-02-19, but without any hearing, trial or other legal redress, “gives away” the Derringer 40 acre ranch worth over $400,000.00 to Mick Chapel the cocaine importer and by order of the NM Courts David Derringer is forced from his legal property at the gunpoint of automatic weapons on January 11, 2006. The corrupt justices of New Mexico thought by making David Derringer homeless and destitute, all ability to litigate would stop. It is so easy for the corrupt justices to deem any party or pleading “vexatious or frivolous” but the normal citizen knows that Constitutional rights deprivations of 1st, 2nd, 4th, 5th, 13th and 14th Amendment rights are hardly “frivolous” despite what these justices say to conceal their ulterior motives of dictatorship to stop exposure of the cocaine ring of New Mexico. By Judge Fitch and Judge Pope, David Derringer had past murder hits placed against him due to the exposure of this “racketeering” going on in the court system and this court may consider that next. This court made David Derringer in “forma pauperis” and now attempts to use that predicament against David Derringer against their own oath to stop legal litigation by admonishing David Derringer because of a legal “forma pauperis” status. David Derringer by the corruption of New Mexico has been reduced to a legal status of public assistance, but which despite how distasteful it is to the judges that want to stop David Derringer’s due process and equal protection, still a legal “forma pauperis” situation that no judge can deprive David Derringer use of the courts. The justices here want to find a loophole to stop due process for David Derringer and thought that after they criminally stole the Derringer ranch and rendered David Derringer homeless that David would be unable to even file pleadings, and found that David Derringer is resilient to be able to use libraries and continue his Constitutional rights. The new plan thus is to Order a stop to David Derringer’s rights to due process under forma pauperis and to attempt to force David Derringer by unconstitutional order of this court to have to have an attorney or not be able to file, when of course the court knows that David Derringer cannot afford any attorney and thus keep David Derringer from the courts. The problem here is that no justice has any jurisdiction or legal authority to stop forma pauperis when documents can prove indecency as in this matter, and under Constitution every United States citizen can legally represent himself pro-se in every court in the United States and no justice has the power to restrict or limit the 5th and 14th Amendment for due process and equal protection, nor the ability to restrict or limit the right “to sue” under US Code Title 42 Section 1981(a). Moreover, no justice in America can be an absolute dictatorship and deprive federal Constitution or federal law in sedition and treason and against the Supremacy Clause. Justices Sutin and Vanzi have done criminal conspiracy against rights and deprivation of rights under color of law against David Derringer in the Order of March 19, 2013 as “federal crimes” that also encompass the 4th degree felonies of “perjury” under oath. Both justices “swore to God” to obey the US and NM Constitutions in an Oath that encompassed rights to both the rich and the poor. Title 28 Section 453 -Oaths of justices and judges-“Each justice or judge of the United States shall take the following Oath or affirmation before performing the duties of his office; “I, (Judges Vanzi and Sutin), do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as ___under the Constitution and laws of the United States. So help me God.” Now, after deceiving the public to gain office, the perjury of Oath ideas think that they can single out David Derringer for being “poor” and deny him his forma pauperis as a way to shut up David Derringer by forcing him to hire an attorney or not participate in the US judicial system. They are entirely out of jurisdiction and are both civilly and criminally liable both to David Derringer and to the “law”. By swearing an Oath and then deliberately singling out a citizen with a conspiracy plan to keep David Derringer from appeals or “future litigation” is a criminal perjury of their own oath and “obstruction of justice” by public corruption (SEE US Code Title 18 Section 1503). In re Aquinda, 241 F.3d 194 “Presumption exists that a judge will put personal beliefs aside and rule according to the laws as enacted, as required by his or her Oath. 28 USCA 455(a)”. ; Adamson v. C.I.R. CA9 1984, 745 F.2d 541 “Federal Courts cannot countenance deliberate violations of basic Constitutional rights; to do so would violate judicial oath to uphold Constitution of United States.” In re Williamson, 43 BR 813 “In its strict sense, term “oath” refers to attestation coupled with invocation to Supreme Being to witness word of attesting party and to visit him with judgment if the words be false; in its more general sense, the term includes any attestation or affirmation where-by party signifies that he is bound in conscience to perform an act faithfully or speak truly, regardless whether or not that attestation invokes Supreme Being or is accompanied by conditional self-cursing”. “An oath is an affirmation of truth of a statement, which renders one willfully asserting an untruth punishable for perjury.” The conspiracy plan diagramed against all Constitution in this Order is totally unenforceable by both Constitutional law, and David Derringer cannot be singled out to be treated differently than any other pro-se citizen of these United States, and wherewith Judge Vanzi and Sutin have not only violated oath, Canon, the Code of Judicial Conduct and done treason and sedition against the United States but have done both state and federal criminal acts against David Derringer. Since this illegal action is exactly what was requested by the Petitioner Barrie Derringer and attorney Alain Jackson on February 8, 2013 in DM-12-610, how much political influence or money was laundered under the table to produce this illegal and unconstitutional Order of March 19, 2013 that no justice in America has any jurisdiction or legal capability to do, and how in the world can Barrie Derringer look at herself in the mirror each day knowing the damages she is doing to David Derringer; a man that only loved her? U.S. v. Pedreza 27 F.3d 1515 cert denied 115 Supreme Court 347, 513 U.S. 941, 130 L.Ed.2d 303 cert denied ; Hedrick v. Perry, 102 F.2d 802. ; Telman v. US 67 F.2d 716 cert denied 54 Supreme Court 860, 292 U.S. 650, 78 L.Ed 1500; Cameron v. Seitz, 38 F.3d 264, 1994 Fed. App. 356P “Judicial immunity may be overcome in only two sets of circumstances: First, a Judge is not immune from liability for non-judicial actions; ie. Actions not taken in judicial capacity. And, two, Judge is not immune from actions through judicial in nature, taken in the complete absence of all jurisdiction.”; Homan v. City of Reading, ED Pa. 1997 963 F. Supp. 485 “Person need not belong to protected class to sue under 14th Amendment of Federal Civil Rights statute if her claim is that she suffered differential treatment.” Because David Derringer has the intelligence and education to properly use the US courts pro-se, the only way that this court believes that it will stop the Respondent from proper redress is to corruptly break the law by mis use of power and Order David Derringer not to have use of the courts either pro-se or in forma pauperis, neither of which this court or any justice has the power to do by the US Constitution no matter how badly they want to be dictators of absolutism, they are now criminals persecuting a US Citizen without cause or jurisdiction. Owen v. City of Independence, US Supreme Court 445 US 622 (1980) No. 78-1779 “Section 1983 provides a private right of action against “[e]very person” acting under color of state law who imposes or causes to be imposed a deprivation of constitutional rights. Although the statute does not refer to immunities, this Court has held that the law “is to be read in harmony with general principles of tort immunities and defenses rather then in derogation of them”. Clearly, both Judge Sutin and Judge Vanzi must remove themselves from the bench due to the illegal , criminal and unconstitutional attempt by Order of March 19, 2013 to single out, persecute, deprive Constitutional rights and use criminal “extortion”, “bullying” and “intimidation” to prevent David Derringer from his legal rights to use the courts pro-se and his legal standing in forma pauperis to use the courts as an “indigent” and that the “indigency” was already created by the cocaine racketeering corruption of the New Mexico Court system previously. The alternative is that the FBI and US Attorney should be advised and Ordered to investigate and prosecute these justices doing criminal acts against David Derringer as a citizen and criminal acts against America. “US Constitution 14th Amendment Section 3-No person shall be an...elector..or hold any office, under the United States, or under any State, who, having previously taken an oath,... as a judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
THEREFORE, the Order #1, although totally illegal and unconstitutional to both threaten and attempt to deny due process due to a way of typing a brief, when pro-se David Derringer is allowed under Constitution to even hand write a pleading if necessary is abuse of discretion, abuse of power and criminal; but David Derringer will re-write the Brief in Chief within 15 days and re-submit it to this court. #2 is so totally Un-Constitutional and illegal that in no way does David Derringer ever have to hire an attorney to represent him in any court in the United States and has every right under Constitution to use his own intelligence and education and represent himself Pro-Se, and cannot be singled out for persecution with the guise of forcing David Derringer to get an attorney that the court knows he cannot afford as a way to stop due process and equal protection of the laws, and each time David Derringer presents a motion for free process, as David Derringer can prove public assistance and indigency, this court as a matter of law is mandated to approve this free process and cannot keep David Derringer from the use of any United States Court with mandates to pay fees that are waived due to proven legal indigency and David Derringer does not have to file any written explanation any more than any other US Citizen before filing with the court any pleading or law suit. Federalist No. 47 by James Madison, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.. In order to form correct ideas on this important subject it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.” In addition, this court cannot order the clerks of any court not to file pleadings or suits from David Derringer by claiming David Derringer has to get the “permission” of any particular court or any justice, for US Code Title 42 Section 1981(a) gives David Derringer the same rights to file suit and use the courts under the 5th and 14th Amendments and to be treated no differently than any other American citizen under the rights of “equal protection of the laws”. This court has no jurisdiction whatsoever to make any order about future events that have not occurred, because the Constitution grants David Derringer “Constitutional rights” that cannot be infringed for “due process”. Even if this court falsely believes that it can limit David Derringer by mis use of Rule 11 to claim “frivolous filings” the court first has to allow the suit to be filed, has to take legal jurisdiction and only then be assigned to a particular justice and only then can that justice invoke the Rule 11 to attempt to dismiss David Derringer for claims of “frivolity” and cannot make any Order on this basis for future events. Nixon v. Fitzgerald, 457 US 731, 763 (1981) by Chief Justice Burger, “when litigation processes are not tightly controlled-and often they are not-they can be and are used as mechanics of extortion. Ultimate vindication on the merits does not repair the damage.”What is happening here is that the courts mis use their power to try to stop legal action from a pro se party when they realize that the normal attrition of lack of money and lack of knowledge for representation by the normal pro-se person has not defeated or weeded out David Derringer, and so the corruption takes over to violate rights in order to stop what is legal redress, only because David Derringer also exposes the corruption of those in power abusing their positions, getting paid off or involved in the underlying cocaine racketeering of New Mexico which David Derringer also exposes. These unethical justices are seeking some way to corrupt the system by use of power to extort money against David Derringer which in forma pauperis cannot be done. A quote from U.S. Supreme Court Justice Tom C. Clark in Mapp V. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (June 19, 1961), as follows: “Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States, 277 U.S. 438, 485 (1928): "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."” (Emphasis added).; Phelps v. Hamilton, 122 F.3d 1309, 1323 (10th Cir. 1997). “manifest error of law is clearly present.”. “Forma pauperis” status can only be denied by any court if David Derringer is not on public assistance or is not indigent. With proof of public assistance and indigency, this court cannot use retaliation, retribution, or revenge as a basis to deny such status, nor can any court legally deny forma pauperis based on the validity of a pleading or case. Clearly the power entrusted in these justices has overwhelmed their integrity and ethics to where criminal acts are being persecuted and deprivations of rights are being ordered without any ability to do so, making these justices no different than any other common criminal. Silva v. Town of Springer, 912, P.2d 304, 121 N.M. 428 1996 NMCA O22 cert denied 911 P.2D 883, 121 N.M. 375 cert denied 913 P.2d 251, 121 N.M. 444 N.M. App. 1996 “Public official have qualified immunity from suit under 1983 as long as (1) at time of alleged conduct there was not clearly established statutory or constitutional right that was claimed to have been violated, and (2) a reasonable person would not have known that his or her conduct was violating that clearly established right.” This court has singled out David Derringer while other US pro-se persons are not under the same orders; such orders all being unconstitutional. State v. Cochran, 112 N.M. 190, 192, 812 P.2d 1338, 1340 (Ct. App. Cert denied 112 N.M. 308, 815 P.2d 161 (1991) “To satisfy a case for violations of equal protection, the matter must include two elements. 1. “Defendant was singled out for prosecution while other similarly situated were not. 2. This was animated by intentional or purposeful discrimination.” This court attempts to taint the court record against David Derringer that David Derringer has had 14 appeals in this court, wherein the Constitution does not have any limits as to use of United States Courts, each case has its own merits, and it does not matter if David Derringer has had 14,000 cases before this court, this court has no legal ability to deny a new appeal based on any former appeals. Matter of Charge of Judicial Misconduct or Disability, 39 F.3d 374, 309, US App. DC 97 “Judge in adversarial judicial proceeding...who reaches outside of record to decide case defiles process.” If this Court was not corrupt, we would not have this problem at all.
For all of the above reasons, this court should “reconsider” violations done here against Constitution, persecuting a US citizen in “cruel and unusual punishment” against the 13th Amendment, doing criminal acts against David Derringer and against targeting David Derringer unlike any other citizen in America. Doe v. Leach, 988 P.2d 1252, 128 N.M. 28, 1999-NMCA-117 cert denied 990 P.2d 822, 128 N.M. 148 “For a right to be clearly established for purposes of qualified immunity, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates the right; the unlawfulness must be apparent in light of preexisting law, although it is not necessary that the very action in question have previously been held to be unlawful.” This Order of March 19, 2013 must be rescinded entirely as a matter of Constitutional and criminal laws. It is simply made for a blatant violation of the Supremacy Clause and meant for “cruel and unusual punishment” and “oppression” and “tyranny” against the Plaintiff where it destroys and is meant to kill the Plaintiff by attrition of deprivation of income and necessities for life itself and to keep David Derringer from legal redress with keeping David Derringer illegally from the courts simply because he exposes justices that are corrupt and will not obey any law. Jones ET UX v. Alfred H. Mayer Co. ET AL, certiorari to the United States Court of Appeals for the Eighth Circuit, No. 645 “Because the Thirteenth Amendment ‘is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States’, Civil Rights Cases, 109 US 3, 20, it has never been doubted ‘that the power vested in Congress to enforce the article by appropriate legislation,’ibid, includes the power to enact laws ‘operating upon the acts of individuals, whether sanctioned by State legislation or not’. Id, at 23. See Clyatt v. United States, 197 US 207 P.438.” This “order” is invalid under fraud, Constitutional violations, and cannot be enforced in the United States of America. Bank of Nova Scotia v. US, 108 S. Ct. 2369, 487 US 250, 101 L.Ed.2d 228 on remand US v. Kilpatrick, 726 F. Supp. 789 “Even a sensible and efficient use of supervisory power by court is invalid if it conflicts with constitutional or statutory provisions.” Jones v. Mayer Co., U.S. Supreme Court 392 U.S. 409 No. 645 (1968) “shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”; 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 is an intent to deprive of equal protection, or equal privileges and immunities.. the conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all”
Respectfully submitted by ____________________________________________
Respondent David Derringer, Box 7431, Albuquerque, New Mexico 87194
CERTIFICATE OF SERVICE March 28, 2013
I hereby certify that I hand delivered a copy of this pleading to the New Mexico Court of Appeals clerk in the Albuquerque office for:
P.O. Box 2008
Santa Fe, New Mexico 87504
Petitioner’s attorney NOT OF RECORD WITH THIS NM COURT OF APPEALS
Alain Jackson, 423 6th St. NW
Albuquerque, New Mexico 87102 505-620-6688 New Mexico 87109.
[1] 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.”
[2] Code of Judicial Conduct Canon 3 (D)(1)
[3] Barrie Derringer has been “investigated” by the Bernalillo County Sheriff Department for the underlying perjury, fraud, falsification of the court records in this matter and there is currently pending State of New Mexico v. Barrie Derringer criminal action in the District Attorney OA #2013-00780-1.
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