IN THE COURT OF APPEALS
OF THE STATE OF NEW MEXICO
New Mexico
Court of Appeals No. 32,326
Second Judicial District Court No. DV-12-234
Rel. DM-12-0610
BARRIE
LEE DERRINGER,
Appellee/Petitioner,
v.
DAVID BRIAN DERRINGER,
Appellant/Respondent,
APPELLANT'S TIMELY MOTION FOR REHEARING UNDER NMRA
12-404 OF THE DENIAL WITHOUT REASONING
OF THE EXTREME EMERGENCY APPELLANT’S MOTION FOR ORDER TO COMPEL ALL
COURT CLERK FILING, DUE PROCESS AND EQUAL PROTECTION AND JURISDICTION
COMES NOW the Appellant/Respondent
Pro-Se with his Motion as stated above.
The issues of the underlying
motion have been denied without explanation, reasons or cited authorities over
underlying egregious act of obstruction
of justice, conspiracy against rights, deprivation of rights under color of
law, violations of jurisdiction and judicial capacity, violations of Judicial
Oath, Canon, the Code of Judicial Conduct, violations of rights to privacy, intimidation and
threats of incarceration for exercise of Constitutional rights, violation of
rights to personal property, destruction and concealment of public records,
tampering with public records of court documents and other associated
outrageous acts performed by underlying trial Judge Hadfield meant to block
appeals, corrupt the court records and deny due process and equal protection. “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). All of these matters are hardy
"frivolous matters" but extreme abuse and acts that should shock the
conscience of any American, and that destroy and disrupt the very foundation of
the legal judicial system of our American government. “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). These same
matters illegally have also been executed by the NM Court of Appeals in this
instant case, wherein justices attempt
to regulate an area of law of "due process" already controlled by
Constitution, without yet jurisdiction by way of pleadings not yet of court
record, by attempting to preview, force submission as to content of pleadings,
force perusal of pleadings prior to filing, disregard for "forma
pauperis" status and selectively persecute a pro-se party to deny or allow
filing prior to taking "jurisdiction" and other outrageous acts of
"obstruction of justice" so as to entirely control the litigation
process without either jurisdiction or judicial capacity with requiring any
pro-se litigant to “present a pleading for ‘approval’ before filing” taking
away rights of due process and equal protection wherein neither the court nor
any particular justice has any “jurisdiction” of the pleading before filing
with the court. Cresswell v. Sullivan
& Cromwell, C.A.2 (N.Y.) 1990, 922 F.2d 60, on remand 771 F. Supp.
580 ; 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. In this instant case illegal order
has been issued to do illegally much of the actions complained of in the above
underlying motion, forcing the Appellant to file a Petition for Writ to the NM Supreme Court
over the actions of the NM Court of Appeal corrupting the due process ability
of Constitution 5th and 14th Amendments; a
Petition that was temporarily
denied due to this action No. 32,326 not being finalized, but actions of
appeals that obviously the Appellant will re-file upon final judgment of this
court. [Exhibit 1].
The
outrageous acts of tyranny attempted to be perfected by some justices of
this system to entirely control the litigation process to a mean end predicted
result, and mis-use of power to control public record court filings, when each
justice has no jurisdiction whatsoever of any pleading or court paper until
filed, renders these actions criminal obstruction of justice and not at all
what the US Congress envisioned in either the Constitution or US Code Title 42
Section 1981 under "rights to file suit" or due process and equal
protection. 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.; US v. Guest,
US Ga. 1966, 86 S.Ct. 1170, 383 US 745, 16 L.Ed.2d 239 this section (Title 18
Section 241) pertaining to conspiracy against rights of citizens encompasses
due process and equal protection clauses of USCA Constitution Amendment 14 and
is not unconstitutionally vague. This court's denial of the Motion without
explanation also does explain the discharge of duties of the court under Canon 3(D)(1) wherein it is
blatantly obvious of outrageous acts by Judge Hadfield that violate every
provision of Oath, Canon, and the Code of Judicial Conduct, where it is
"mandated" for this court to take action against this judge, and the
court instead chooses to deny due process to the Appellant over these issues in protection of the
judiciaries' acts without jurisdiction or judicial capacity of which Judge
Hadfield is entirely liable. Dennis
v. Sparks, 101 S. Ct. 183, 449 US 24, 66 L.Ed.2d 185 “US Tex.
1980 State Judge may be found criminally liable for violation of civil rights
even though judge may be immune from damages under Civil Rights statute Title
18 U.S.C. 242, Title 42 U.S.C. Section 1983" This has required additional
complaints from the Appellant to the NM Judicial Standards Commission against
Judge Hadfield (there have now been 7) as well as multiple motions to recuse
for cause that have been denied or ignored, as well as a new Petition with the
higher court [Exhibit 2]; all
due to non-performance of the jurisdiction of this court to both entertain the
matter and to take action to prevent further interference with court records
and to punish Judge Hadfield for the
obstruction of justice and blocking legal appeals that has already transpired. Tyus v. Martinez, 106 Supreme
Court 1787, 475 US 1138, 90 L.Ed.2d 333 on remand 800 F.2d 230 ; 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.
Judge Hadfield's acts to distort the court record and impede justice by denying
legal filing was meant to tamper with the court public records. US v. Craft, 105 F.3d 1123 “CA6
(Ky.) 1997.
What
transpired here is that Judge Hadfield worked outside of both jurisdiction and
judicial capacity to intercede, confiscate, appropriate and read papers and
pleadings intended first for the Court Clerk filing under law. Ennis v. Kmart Corp., 131 N.M.
32, 33 P.3d 32, 2001 -NMCA- 068, N.M.App., June 21, 2001 (NO. 20,977). This
entails many felonies on both a state and federal level. At the onset, all of
David Derringer's papers constructed and printed are "personal
property" protected from illegal seizure under the 4th Amendment and
personal property under the US Code Title 42 Section 1982 that cannot be taken by
Judge Hadfield without agreement of David Derringer which is not given. What
Judge Hadfield did was criminal fraud to give orders to the clerks not to file
the David Derringer court pleadings, but to confiscate them entirely with all
copies meant for filing and distribution to other parties, and to keep them
from the further possession of David Derringer. This constitutes a "tort"
and a criminal act under the New Mexico's Abuse of
Privacy Act. Section 30–12–1(C). The Abuse of Privacy Act, among other things, prohibits interference with certain
types of electronic communications, including “reading, interrupting, taking or copying any message,
communication or report intended for another by telegraph or telephone
without the consent of a sender or intended recipient thereof.” Molina v. Gonzales, 994
F.2d 1121 rehearing denied 1F.3d 304 on remand 1993 WL 534, 163. Privacy and
Publicity 379IV(A) In General 379 k329 k. Types of Invasions or Wrongs
Recognized. Under New Mexico law, tort of invasion of privacy has four
categories: false light, intrusion, publication of private facts, and
appropriation. In this matter, a "citizen" deemed a judge was acting
not in a judicial capacity without any jurisdiction prior to the papers being
filed of court record, to steal in larceny the David Derringer personal
property meant for another, the court clerk, and to do so without due process
in violation of "seizure" laws of the 4th Amendment, and to do so in
adversely influence the court record and taint and corrupt the content of the
legal court case so as to corruptly affect the appeal, in "obstruction of
justice"; all in a complete lack of jurisdiction to misuse power to effect
control of a particular litigant. Mireless
v. Waco, 502 U.S. 9, 116 S. Ct. 286, 112 L. Ed.2d 9 (1991). “A
judge only has jurisdiction over any
pleading after a proper filing with the court clerk.” Wilson & Co. v. Banque Francaise du Mexique, 124 Misc. 690, 208 N.Y.S. 213, N.Y.Sup., June 11, 192 Filing or court record. Filing of papers with court clerk is condition precedent to jurisdiction of court, and court cannot make order nunc pro tunc to cure
such jurisdictional defect. ; Robinson
v. Sawyer, 23 N.M. 688, 170 P. 881, N.M., January 07, 1918 (NO. 2007).
In effect, by Judge Hadfield keeping the clerk from filing the pleadings of
David Derringer, she willfully corrupts and disturbs the court record in acts
of obstruction of justice, effectively “destroying” a document that should be
filed in an instant manner. US v.
Kanchanalak, 37 F. Supp.2d 1.
David Derringer properly sought to be able to file his court pleading
without interference or obstruction so as to perfect appeals and have in the
court record trial court the necessary information on issues to preserve them
for review of the future appeal pursuant
to the "scope of review" NMRA 12-216(A). Judge Hadfield bullied the
court clerks by mis-use of power to intercede and steal the David Derringer
documents prior to filing so as to invade David Derringer's privacy to see what
David Derringer had written so as to block such information of
"truth" under NMRA Rule 1-090 and "written information"
under NMRA Rule 11-504 from the court record, due to such information
disclosing and exposing the Constitutional violations and public corruption of
the judge herself. Smith v. City of
Artesia, 108 N.M. 339, 772 P.2d 373, N.M.App., March 02, 1989 (NO.
10,094) ...invasion of privacy can be maintained only by a living individual
whose privacy is invaded. The right protected by the action for invasion of
privacy is a personal right, peculiar to the individual whose privacy is
invaded. In this matter, the information was
for the court record only, not the personal view of Alisa Hadfield, but
only for view of Judge Hadfield working in Judicial capacity once the
information became of court public record. This is highly offensive to the
Respondent for the Judge to attack David Derringer's court pleadings with
criminal acts, for a proven corrupt judge that Respondent David Derringer has
sought to recuse for cause 6 times and filed 7 Judicial Standards complaints about, and who instead has
violated NMRA Rule 1-088.1. refused to
step down. and refused to obey NMSA
38-3-3 to refuse to change the venue and keeps David Derringer "imprisoned"
in her court. Jones v. Mayer Co.,
U.S. Supreme Court 392 U.S. 409 (1968) No. 645.; Lee
v. Calhoun, 948 F.2d 1162, C.A.10 (Okla.), November 06, 1991 (NO.
90-6013) ...invasion of his privacy, if the intrusion would be highly offensive
to a reasonable person. Section 652B liability does not require publication of
private matters. The invasion may
consist of forced entry into a person's home, eavesdropping or spying upon
a person's private affairs, or tampering
with a person's private papers or mail. Jones ET UX v. Alfred H. Mayer Co. ET AL, certiorari
to the United States Court of Appeals for the Eighth Circuit, No. 645.
This NM Court of Appeals is well
aware that No. 32,326 is based upon jurisdictionally defective and fundament
error of DV-12-234, (without service of summons and with Constitutional
deprivations) but also knows that it is the foundation of the illegal acts and
Constitutional deprivations entailed in DM-12-610 making both Constitutionally
defective. This court also knows that DV-12-234 and DM-12-610 are inexplicably
and totally inseparable as totally intertwined, but also knows that after the
initial hearing of DV-12-234 before a "Commissioner Cosgrove/Aguilar, and
upon "appeal" of Objection to
the Commissioner's Findings, the matter is entirely in the jurisdiction of Judge Hadfield on both matters, and the
Respondent is forced to file with the clerks in any event, so the affect of
obstruction of filing is of direct concern of No. 32,326, and not tied
exclusively to matters of DM-12-610 even if in legal error this court chooses
to untie these totally intertwined matters. Chavez v. County of Valencia, 86 N.M. 205, 521 P.2d
1154 (1974). Therefore, the "tampering" with records of Judge
Hadfield are directed against DV-12-234 as well as any other including the
recent obstruction of filing the "docketing statement" of another yet
forced appeal regarding DV-12-234 that now has to be docketed as NM Ct. App.
No.32,982, and the denial of the Motion by this court has the effect of
ratifying and condoning criminal acts of tampering with records, "having
knowledge". Mehdipour v. Chapel 12 Fed.Appx. 810, 813, 2001 WL 468010, 2
(C.A.10 (Okla. (C.A.10 (Okla.),2001) ..permitting and ratifying the tampering
of public records, including documents submitted..This also falls under the US
Code Title 42 Sections § 1983 and 28 U.S.C. § 1985 for allegedly conspiring to
tampering with and concealing court documents, and submitting false or
misleading documents or lack thereof, and thus denying David Derringer due process
and equal protection of the law. Universal
Oil Prods. Co. v. Root Ref. Co., 328 U.S. 575, 580, 66 S.Ct. 1176,
1179, 90 L.Ed. 1447 (1946); Hazel–Atlas
Glass Co. v. Hartford–Empire Co., 322 U.S. 238, 244, 64 S.Ct. 997,
1000, 88 L.Ed. 1250 (1944), overruled on other grounds, Standard Oil Co. v. United States, 429 U.S. 17, 97 S.Ct. 31,
50 L.Ed.2d 21 (1976); Jemez
Properties, Inc. v. Lucero, 94 N.M. 181, 184 n. 1, 608 P.2d 157, 160 n.
1 (Ct.App.1979), cert. denied, 94 N.M. 628, 614 P.2d 545 (1980). "We believe
that it is the record of this case that demands our attention. The inherent
power of a court to grant equitable relief from a judgment procured by fraud
upon the court is beyond question."
Clearly, the attention of this court
is needed. "Fraud upon the court embraces only that species
of fraud which does or attempts to defile the court itself or which is
perpetrated by officers of the court so that the judicial system cannot
perform in a usual manner. Jemez
Properties, Inc. v. Lucero, 94 N.M. at 184 n. 1, 608 P.2d at 160 n. 1.
"Fraud upon the court occurs where there is a deliberately planned and
carefully executed scheme to defraud the court". See Hazel–Atlas Glass Co. v. Hartford–Empire Co., 322 U.S. at
246, 64 S.Ct. at 1001. The acts here by Judge Hadfield and accomplices under
her direction reveals a deliberate scheme to defraud the court; they committed
fraud upon the court.
There are not only are there federal violations to
Constitutional rights and US code, but violations to the "extra protections"
afforded the Appellant under the New Mexico Constitution Article II Bill of
Rights 1,4,10,17,18,and 24; David Derringer also being a "victim" of
both the larceny of personal property and invasion of privacy and the victim of
fraud, as is the State of New Mexico. Judge Hadfield knows what she is doing
and knows that she has no jurisdiction for such acts, and knows that she is
persecuting and singling out David Derringer in the scheme of fraud of court
records. 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.” David Derringer has been singled out both for persecution
and intimidation. 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 entails singling out David Derringer for
persecution and for unequal protection in violations of law that enable any
citizen to file a complaint or court pleadings with the court clerk in any
court of law in the United States under the provisions of US Code Title 42
Section 1981 and the 4th, 5th and 14th
Amendments. Zanesville v. Rouse,
126 Ohio St.3d 1, 929 N.E.2d
1044, 2010 -Ohio- 2218, Ohio, May 26, 2010 (NO. 2009-1282) “Until a pleading is filed in a case, the trial court
has not obtained jurisdiction over it.” This matter screams out for
"superintending control" of this court under Canon 3(D)(1). This court has jurisdiction to exercise its
power of superintending control to “...prevent irreparable mischief...” State
ex rel. Anaya v. Scarborough, 75 N.M. 702, 706, 410 p.2d 732
(1966). Parratt v. Taylor, 451 U.S. 527, 101 Supreme Court
1908, 68 P.Ed.2d 420 (1981). What is happening here is Judge Hadfield
controlling the court record denying court pleadings to adjust the court record
to her own devices. Civil Rights
13.4(2) “is accountable via 1983 action..in a position of
responsibility, knew or should have known of misconduct and yet failed to
prevent future harm.” The acts involved here by Judge Hadfield defeat justice,
defeat the Constitution, and conduct tyranny, oppression, imprisonment, and
sedition and treason against David Derringer; Constitutional deprivations
against David Derringer; acts so severe in violation that it should shock the
conscience of any judiciary. Rogers v. City of Little Rock, 152 F.3d 790, 797 (8th Cir. 1998) “the
behavior of the governmental officer is so egregious, so outrageous, that it
may fairly be said to shock the contemporary conscience.” ; Beverly Health and Rehabilitation
Services Inc. v. Feinstein, 103 F.3d 151, 322 US App DC 245 Rehearing
denied 118 S. Ct. 65, 139 L.Ed.2d 27 “Courts decide cases within their
jurisdiction rather than asserting jurisdiction because they believe that
substantive claim ought to be considered.” Exposure of these and other unlawful
activities is done until some element of the Government takes corrective
action. Prei, Inc. v. Columbia Pictures
508 U.S. 49, 113 S.Ct. 1920, 1925, 123 L. Ed. 2d 611 (1993). 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).
Judge Hadfield is not allowed under the provisions of the
US Congress to control the court record to pre-filing peruse documents and
court pleadings to decide if and when they can be filed and to deny filing of
any documents that are not to her pleasing in content or intent, and such acts
entail "tampering with public records". Nolte Sheet Metal, Inc. v. Department Of Indus. Relations,
Cal.Rptr.3d, 2010 WL 969628, Cal.App. 5 Dist., March 18, 2010 (NO. F057574). 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.”
WHEREFORE this
court has a duty to "reconsider" what they have knowledge is
happening here to block appeals and disrupt the entire judicial system, and
make Order that any litigant has a Constitutional right to file pleadings not
subject to any justices' approval, and for due process and equal protection not
impeded, by corruption and destruction and concealment of court records and
that until such papers are filed they are in the total control of the
owner as "personal property"
and are protected until filing under rights of privacy. This court must also
take action under law to stem these illegal acts, and enact means to prosecute
those involved in the "tampering" of David Derringer's legal use of
the courts, as these are unruly and exceptional circumstances involving public
corruption entailing felonies and fraud. Jemez
Properties Inc. v . Lucero, 94 N.M. 181, 608 P.2d 157 (Ct. App.
1979) cert denied 94 N.M. 628, 614 P.2d 545 (1980) “Tampering with evidence
constitutes exceptional circumstances. Tampering with evidence in the case and
with public records in the clerk’s office went beyond the common fraud
contemplated in paragraph B(3) of this rule, and constituted exceptional
circumstances to allow a reopening of judgment more than a year after its
entry, under paragraph B(6) of this rule [Rule 1-060] San Juan 1990-A. This court is also well aware that all of
these actions by Judge Hadfield occur outside of jurisdiction and judicial
capacity under the reasons of this instant appeal having exclusive jurisdiction
over all of these matters. Wagner Land
& Investment Co. v. Halderman,83 NM 628, 495 P.2d 1075 (1972).; Davis
v. Westland Development Co., 81 NM 296, 466 P.2d 862 (1970); Mirabal v, McKee,
74 NM 455, 394 P.2d 851 (1964). Clearly, as well, Judge Hadfield cannot
threaten and intimidate David Derringer to comply with her illegal acts or
become incarcerated when simply exercising Constitutional rights. US v. Risken, 788 F.2d
1361 cert denied107 Supreme Court 329, 479 US 923, 93 L.Ed.2d 302 “18USCA 1512,
which prohibits any party from intimidating or harassing another party in order
to influence testimony at official proceeding, does not require that party
harassed or intimidated be witness at proceeding.” ; Phelps v. Hamilton, 122 F.3d 1309, 1323 (10th
Cir. 1997). “manifest error of law is clearly present.”
David Derringer, Box 7431, Albuquerque,
New Mexico 87194
CERTIFICATE OF SERVICE July 18, 2013
I hereby certify that I sent
a copy of this pleading to:
New Mexico Court of Appeals
clerk
P.O. Box 2008
Santa Fe, New
Mexico 87504
I also delivered a copy of this pleading to:
Alain Jackson
423 6th St. NW
Albuquerque, New Mexico 87102
No comments:
Post a Comment