IN THE COURT OF APPEALS
OF THE STATE OF NEW
MEXICO
New Mexico
Court of Appeals No. 32,982
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 ORDER ON APPLICATION FOR FREE PROCESS; ILLEGALLY LIMITING APPEAL
WITHOUT JURISDICTION OR JUDICIAL CAPACITY UNDER THE PROVISIONS OF NMRA 1-060
COMES NOW the
Appellant/Respondent with his motion as stated above, and under the guidelines
of NMRA 1-060.
Appellant, David Derringer is a United States citizen
within the meaning of the US Constitution 5th and 14th
Amendments and under the legal use of the US Code Title 42 Sections 1981,
allowing David Derringer unlimited and unrestricted pro-se use of the United
States court system in redress issues for justice to be served in egregious
acts of the deprivation of rights under Constitution of the 1st, 2nd,
4th, 5th, 6th, 13th and 14th
Amendments, and under the additional and emphatic rights under the New Mexico
Constitution Article II Bill of Rights 1,4,10,17,18,and 24. David Derringer is
in proven “forma pauperis” with previous actions by this very court in No.
27,127 of Judge Cynthia Fry presiding over the appeal of CV-02-19 wherein the
David Derringer 40 acre solely owned ranch was illegally taken with a
fraudulent claim of lien of only $110,000.00 against a property twice appraised
at $400,000.00, in total violation of NMSA 39-5-5 and without any trial or due
process or equal protection under any “foreclosure”, and wherein at the time of
NM Court of Appeals Judge Fry presiding over the David Derringer case, she was
a Defendant to David Derringer in federal court civil rights suit David Derringer v. Judge Cynthia Fry et
al. CASE No. CIV-03-0804-WPJ/RHS and used her public position for
retaliation, retribution and revenge of such suit to ruin the life of David
Derringer. Monroe v. Pape, 365 U.S.,
at 184 “Misuse of power, possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of state law.” ; In
re Rochkind, 128 B.R. 520 Mich. 1991 “To use power of public
office as judge to ruin another for personal gain plainly violates several
provisions of the Code of Judicial Conduct Canons 1, 2, 3, 5; Such conduct may
also constitute crime Canons 1-3, 5.” Accordingly, David Derringer is not a “newbie”
when it comes to knowledge of public corruption of the New
Mexico court system or this NM Court of Appeals. This
“public corruption” cost David Derringer his entire life and a property that
took hundreds of thousands of dollars and 18 years to create, wherein David
Derringer was driven from his own legal property with the gunpoint of automatic
weapons on January 11, 2006, Ordered by Judge John Pope of cocaine addiction
and connection with the cocaine importer/opponent Mick Chapel of Quemado, New
Mexico, rendering David Derringer in the state of “forma pauperis” on public
assistance in the County of Bernalillo, with the larceny by the courts coupled with the
cocaine use of New Mexico public officials leaving David Derringer without a
penny from his exclusively owned ranch property. US v. Barrera-Moreno, 951 F.2d 1089; Kunkel v. US, 113 S. Ct.
417, 506 US
957, 121 L.Ed.2d 340; Ruis v. US,
113 S. Ct. 985, 506 US
1055, 122 L.Ed.2d 137 “Government’s failure to be aware of and stop use and
distribution of cocaine”. This proof of public assistance mandates this court
to grant free process in the appeal of No. 32,982 without “conditions” of
picking and choosing merits of the appeal, and wherein until the court has
jurisdiction of the case has no ability to deny any merit of the appeal under
NMRA Rule 1-011; such jurisdiction only
obtained after proper filing of all court papers. By this pleading, the
Appellant preserves all issues in his docketing statement for further appeal. Deerman
v. Board of County
Commissioners,
116 NM 501, 864 P.2d 317 (Ct. App. 1993). “The judicial errors of law are
noticed to the court before appeal.”; Mann
v. Conlin, 22 F.3d 100, 1994 Fed App. 122P cert denied 115 S.
Ct. 193, 513 US 870, 130 L.Ed.2d 126 “When Plaintiff alleges that judge acted
in non-judicial capacity court relies on functional analysis to determine
whether acts are protected, meaning that one must determine whether actions are
truly judicial acts, or acts that simply happen to have been done by Judges.”
In this matter, illegally the court chooses to deny
appeal on the merits of deprivation of 1st Amendment rights and
fraud of the lower courts, and destruction of court records in order to
preserve the public corruption and protect both the Commissioner
Cosgrove/Aguilar and Judge Hadfield, and yet will entertain the criminal acts
of “sentencing” David Derringer in a civil matter arbitrarily turned into a
criminal conviction of “harassment” under NMSA 30-3A without a criminal
complaint, without a trial, without Miranda rights, without an attorney or
jury, and in blatant violations of evidence; such “conviction” claimed that
David Derringer invoked and exercised his 1st Amendment rights to
place public documents of court pleadings on the Internet in Google blogs that
exposed the public corruption of Commissioner Cosgrove/Aguilar and Judge
Hadfield, and the “conviction” was in persecution and threats and intimidation
for David Derringer to “shut up” and not further expose such corruption “or
else” In essence, the court will entertain the retaliation and revenge of the
public corruption individuals without entertaining the reasons that they
threatened and intimidated the Appellant, being deprivation of Constitutional
rights deemed “frivolous” by the justices covering up the underlying public
corruption of DV-12-234; all of which of DV-12-234 in both lack of jurisdiction
and fundament error without service of summons, without any waiver of service
and in Constitutional deprivations.
In the underlying actions of
DV-12-234, Judge Hadfield obstructs justice to conceal public corruption by
destruction of court records, deprivation of legal filing of court papers, and
blocking appeals and looking illegally at the pleadings to see what is written
before she has any jurisdiction to do so. In the NM Court of Appeals in this
case the justices conceal the underlying public corruption by blocking appeals
in the same manner of denying filings, and attempting to be able to look
illegally at the pleadings to see what is written before they have any
jurisdiction to do so to force the litigant to have filings “pre-approved”, and
manipulation of the “forma pauperis” status in acts of extortion and ransom for
taking appeal; all in obstruction of justice and denial of due process and
equal protection. US v. Anderson,
798 F.2d 919 CA7 (Ind.) 1986 “Word should in Canon..of Judicial Conduct which
states that judge “should” accord to every interested person a full right to be
heard, imposes mandatory standard of conduct upon judges and
requires presence of both prosecuting attorneys and defendant at any proceeding
which bears on outcome of pending..case.” Code of Judicial Conduct Canon 3,
Subd. A(4) and C(1)(a). In this case No. 32,982, the unethical justices of the
NM Court of Appeals attempt the same procedure in illegal and unconstitutional
Order in April 2013 of No. 32,326 to force David Derringer to present pleadings
before filing and before they have jurisdiction so as to do the same outrageous
acts of deprivation of due process against David Derringer, “without
jurisdiction”, and yet deny exposure of this action in No. 32,326, of the underlying
court, while they conduct the same, exact acts of illegal distortion of court
records, with a new twist of also attempting to stop David Derringer’s legal
appeals by denying “forma pauperis” or selectively limiting the forma pauperis
so as to stop most legal appeals; an act of criminal nature of “obstruction of
justice” since David Derringer has been shown to totally qualify for forma
pauperis under public assistance, which means that “all” appeals can be
continued without payment of process fees, not only those appeals that the NM
Court of Appeals will allow to continue, while stopping all other appeals that
expose underlying public corruption. 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.”; Martinez v. Carmona, 624 P.2d 54, 95 N.M. 545 writ
quashed 624 P.2d 535, 95 N.M. 593 “N.M. Court of Appeals 1980 Judge may be
disqualified for statutory, constitutional, or ethical cause-Code of Judicial
Conduct, Canon 3 Subd. A, Constitution Article 6, Section 18.”. In this matter,
the court selectively uses forma pauperis for a part of the appeal and hold the
underlying merits in ransom and uses extortion to attempt to block the appeal
without payment of fees that the court knows are impossible under the forma
pauperis conditions. 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 form of “ransom” and “criminal
extortion” of legal appeal constitutes “fraud” of the courts. “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, not simply a
judgment obtained with the aid of a witness whose perjury is revealed by
after-discovered evidence”. See Hazel–Atlas
Glass Co. v. Hartford–Empire Co., 322 U.S.
at 246, 64 S.Ct. at 1001. The attempt to limit an appeal and selectively apply
forma pauperis, while holding the main appeal in ransom and extortion is “fraud
upon the courts” and criminal obstruction of justice within the meaning of US
Code Title 18 Section 1503, as well as a “conspiracy against rights” and
“deprivation of rights under color of law” as of US Code Title 18 Sections 241
and 242. US v. Kozmisnski,
U.S. Mich 1988 108 S. Ct. 2751 487 U.S. 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 United States incorporates prohibition of involuntary
servitude contained in Thirteenth Amendment.” Since the New Mexico Constitution
Bill of Rights II states implicitly under (1) that the State of New
Mexico is an inseparable part of the Federal Union
and the United States Constitution is the law of the land, these justices have
no legal ability to limit David Derringer’s appeal process or issues. As this
NM Court of Appeals intends to circumvent the US Constitution Article VI and
control an area of law already controlled by Constitution; that being rights to
use the United States courts under the parameters of due process and equal
protection and under the US Code Title 42 Section 1981 with “restrictions” and
required “approval” prior to legal filing of pleadings and other court papers,
the Oath of such justices has been violated and sedition and treason has
occurred attempting to limit the David Derringer appeal and to pick and choose
what issues that David Derringer can appeal from under a forma pauperis status.
This egregious mis-use of power defies the Canon mandates of “opportunity to be
heard” and the Code of Judicial Conduct and is highly illegal under the
“Supremacy Clause” of Article VI. 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. 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 state rule of professional conduct” “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 ‘rule 11' to persecute David Derringer and
require “approval” prior to filing is absolutely in violation of the Supremacy
Clause and persecution for David Derringer exercising his Constitutional and
statutory rights to protect his rights and legal ability to “appeal”. “Rule 11
cannot be used for extortion, ransom and “frivolous” deprivation of rights to appeal,
meant for “cruel and unusual punishment” and “oppression” and “tyranny” against
David Derringer. 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
Unless
it is the position of this court that the instant case possesses such unique
qualities that the US Constitution and the NM Constitution are meaningless and
the Oath of office is merely a ruse to gain a position of justice only to defy
laws and persecute pro-se persons exposing underlying public corruption, and
that the Constitution and Federal law Title 42 Section 1982 providing rights to
Derringer to own, control and possess his personal property of court papers prior to filing have no
purpose, it is clear that the court here has acted maliciously and in abandon
of all Derringer’s rights for proper appeal and redress for underlying issues
of 1st Amendment Constitutional deprivations and the underlying acts
of destruction of court records. 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 federal court is invalid if it conflicts with
constitutional or statutory provisions.” It is then abundantly clear that the
mis-use of a court Rule NMRA Rule 1-011 does not supersede the Constitutions
and cannot be used to claim that deprivation of Constitutional rights is a
“frivolous” matter, or that any justice can use extortion and ransom to prevent
and regulate the right to appeal, nor to punish and vindictively persecute David
Derringer as a targeted individual under violations of the 13th
Amendment. Notwithstanding the arguments raised on appeal by each party, 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. 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).
Since
the NM State Constitution is in congruence with the US Constitution, it is only
the judges here that violate laws for end purposes of singling out a particular
individual to deprive rights. In determining whether federal law preempts state
law, we assess whether the state law actually conflicts with the federal law or
interferes with the purpose of the federal law. See Ray v. Atl.
Richfield Co., 435 U.S.
151, 158, 98 S. Ct. 988, 55 L. Ed. 2d 179 (1978). The
Oath has been rendered meaningless in this instance, for abuse of discretion to
deny an appeal. 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. This court believes that if such an order is not
contested, it can be referred to as “case law” even in egregious error of
Constitutional deprivations and held against David Derringer. However, this
matter is preserved for further appeal to the New Mexico Supreme Court and to
the United States Supreme Court as needed. 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.” Just
because the justices here want to limit David Derringer’s appeals, just as the
Petitioner and attorney asked and received Judge Hadfield to “block and prevent
further appeals” does not give the justices the legal right to do so. Baker v. Horn, 201
Supp.2d 592 “Fact cannot become of record solely by virtue of its inclusion in
trial court’s opinion.” Each justice “swore to God” to uphold the US and New
Mexico Constitutions and clearly those Constitutions do not enable any justice
to force David Derringer to apply for permission to file pleadings or allow any
justice to preview any pleadings before taking jurisdiction upon legal filing,
and such Oath has been blasphemed by the justices involved. 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)”.
The NM Court of Appeals justices involved here have violated the Constitution
and made outrageous demands and attempt to force David Derringer to succumb to
their acts outside of both jurisdiction and judicial capacity. Clearly, David
Derringer can have his appeal of DV-12-234 of all merits of the case since the
last appeal taken, without restrictions or hoops to jump through, just as any
other citizen represented by attorney. 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.”
The
Order on Application for Free Process of July 11, 2013 is “fraudulent” under
Constitution and unenforceable under NMRA Rule 1-060 illegally limiting the
appeal of David Derringer and denying both due process and equal protection and
must be rescinded in its entirety, and Order issue that grants forma pauperis
for the entire appeal of DV-12-234 without restrictions of any kind. In re Williamson, 43 BR
813 “An oath is an
affirmation of truth of a statement, which renders one willfully asserting an
untruth punishable for perjury.” 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).
David Derringer, Box
7431, Albuquerque, New Mexico
87194
CERTIFICATE OF SERVICE July 22, 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 sent a copy of this pleading to:
Attorney Alain Jackson “not of record with this court”
423, 6th, NW, Albuquerque,
New Mexico 87102
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