STATE OF NEW MEXICO
COUNTY OF BERNALILLO
IN THE SECOND JUDICIAL DISTRICT COURT
DAVID DERRINGER
Plaintiff,
No. CV-12-1307
consolidated with CV-2012-10816
v.
DEBBIE HARMS, IRWIN HARMS, BARRIE
CROWE AKA
BARRIE
DERRINGER AKA BARRIE BEVERLEY,
ALAIN JACKSON,
GERALDINE (JERRY) CROWE, AND
WARREN
CROWE; ALL AS INDIVIDUALS,
Defendants,
MOTION UNDER NMRA RULE 1-060 FOR RECONSIDERATION OF
THE ORDER OF July 2, 2013 DENYING PLAINTIFF’S MOTION FOR
CHANGE OF VENUE
FROM THE INJUSTICE AND PREJUDICE OF THE SECOND JUDICIAL DISTRICT COURT WITH
LEGAL REQUEST FOR THIS MOTION TO BE HEARD BY A DISINTERESTED JUDGE FROM A
DIFFERENT DIVISION
COME NOW the Plaintiff of the
consolidated cases with his motion as stated above. The motion comes under NMRA
rule 1-060 under (b)(1) ”mistake”(3) ”fraud”(4)
”the judgment is void”(6) ”other reasons of violations of constitution and all
laws” with acts by Judge Malott of orders well outside of jurisdiction and
judicial capacity in violation of due process and equal protection, with legal
request for this motion to be heard by a disinterested judge from a different
division and request for an investigation of violations of Oath, Canon under
3(d)(1), and criminal facilitation of fraud. A judge has no “jurisdiction” when
knowingly violating the laws, and only does acts as a judge, with said acts not
being “judicial”. 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.” 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.
It has become abundantly clear
that there are personal reasons that Judge Malott is tenaciously determined to
preside over the cases involving NAI Maestas and Ward and Barrie Crowe aka
Barrie Derringer who is the accountant for
Maestas and Ward, and to “enslave” David Derringer to this fraud. Jones
v. Mayer Co., U.S. Supreme Court 392 U.S. 409 No. 645 (1968)
“Neither slavery nor involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction.” ; 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)”. Circumstantial evidence clearly
points without much doubt that Judge Malott is in cahoots with Judge Hadfield
of the matters of Barrie Derringer aka Barrie Crowe of DV-12-234 and DM-12-610,
and that both justices are bribed or on the payroll of this international
Commercial Real Estate firm that owns, leases and controls most of the entire
property in the city of Albuquerque and has tremendous political influence of
“contributions” to many politicians. State
v. Lunn, 1975, 88 N.M. 64, 537 P.2d 672, certiorari denied 88 N.M. 318,
540 P.2d 248, certiorari denied 96 S.Ct. 793, 423 U.S.
1058, 46 L.Ed.2d 648. Terms of statute, which provides in effect that venue in
all civil and criminal cases shall be changed, on motion, to some county free
from exception when party moving for change files affidavit of himself, his
agent or attorney, that he believes “he cannot obtain a fair trial in the
county in which the case is pending because: * * * (c) because [sic] of public
excitement or local prejudice in the county in regard to the case or the
questions involved therein, an impartial jury cannot be obtained in the county
to try the case: * * * ”, are mandatory and require a change of venue when the
prescribed steps have been taken. 1953 Comp. § 21-5-3, subd. A(2)(c). ; 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 “Elements of conspiracy are
agreement with another person to violate law, knowledge of essential objectives
of conspiracy, knowing and voluntary involvement, and interdependence among
alleged co-conspirators.” This entire matter stems likely from and points
directly to both Judge Hadfield and Judge Malott being bribed by either money
or political pressure and influence by the “multi-million” dollar corporation of
“international” NAI Maestas and Ward Commercial Real Estate. Deats v. State, 1969, 80 N.M.
77, 451 P.2d 981.When proper uncontroverted motion for change of venue is
presented by defendant and no evidence to support it is presented or required
by trial court, court has no discretion but must grant change of venue. 1953
Comp. § 21-5-3.
In DV-12-234 there was never
served a summons on Respondent David Derringer and yet this matter has been
ongoing for 1 1//2 years with taking all 1st, 2nd, 4th,
5th, 6th, 13th and 14th Amendment
right from David Derringer, illegally sentencing David Derringer under criminal
“harassment”, without any criminal complaint, trial, attorney, jury, Miranda
rights to 30 days in jail for David’s legal exercise of his 1st
Amendment rights to place public record court pleadings on the Internet in
Google blogs; distasteful to all because they expose to the world the public
corruption of the Second Judicial District court, and lies of Maestas and Ward
and Barrie Derringer. Morris v. Dodge
Country Inc. 513 P.2d
1273, 85 N.M. 491 Cert. Denied 513 P.2d 1265, 85 N.M. 483 “N.M. App. 1973
Conspiracy may be established by circumstantial evidence; generally, the
agreement is a matter of inference from the facts and circumstances, including
acts of persons alleged to be conspirators.”
Apparently, Barrie Derringer
sold out her marriage for a mere $2,000.00 raise from Maestas and Ward in
January, 2012, and then filed for divorce in action DM-12-610. DM-12-610 has
been inexplicably tied to both the
fundamental errors of no service and lack of jurisdiction of DV-12-234 and ties
by both “employer” and cult to CV-12-1307 and CV-12-10816. Because of first
hand knowledge of being married to
Barrie Derringer for about three years, Plaintiff David Derringer knows that
Barrie Derringer aka Barrie Crowe is involved in “accounting’ for the Maestas
firm that is not entirely legal and believed also under a threat to not leave
or “whistleblow” on some matters in this corporation; with the Plaintiff’s
direct knowledge of violations of US Department of Labor laws. State v. Ross, 521 P.2d
1161, 86 N.M. 212 “In order for a conspiracy to exist there must be a common
design or mutually implied understanding.” Despite the law suit against the
employer of CV-12-1307 Barrie still works in “accounting” with access to all
financial records of Maestas, at the least showing a more than unusual behavior
of any normal corporation. There have been extreme violations of law,
deprivation of Constitutional rights and deprivation of due process and equal
protection in DM-12-610 that granted Barrie a “bifurcated divorce” as a direct
means in response to a motion to attempt to stop the due process of David
Derringer and with several oral motions and requests in court record by Barrie
Derringer and her attorney Alain Jackson to “stop Respondent David Derringer’s
legal appeals; a matter that would normally disbar attorneys and remove justices from the bench.
Attorney Alain Jackson is instrumental in the insurance fraud with GEICO; bad
advise to Barrie and is buried in
the overall fraud as attorney for Barrie
in DV-12-234 and DM-12-610, and as a Defendant in CV-12-10816. This case also involves criminal perjury, fraud and
falsification of the court record by Barrie
and now encompasses criminal insurance fraud to GEICO of $8542.01. Judge
Hadfield makes Orders on June 17, 2013 to attempt to try to cover the date of February 4, 2012 when the CEO’s of
Maestas and Ward and 10 other persons that both Judges refuse to allow the
Plaintiff to gain identity by discovery, conducted criminal assault and battery
and conversion against David Derringer; a time when Judge Hadfield did not
achieve any jurisdiction over either DV-12-234 or DM-12-610 until February 8, 2012. Hedrick v. Perry, 102 F.2d 802 “Evidence is
sufficient to establish a conspiracy to cheat and defraud if the facts and
circumstances pieced together and considered as a whole convince the judicial
mind that the parties united in an understanding way to accomplish the
fraudulent scheme.”This clearly is to affirm and protect both criminal torts of Maestas CEO’s of that date and other
employees and friends of Barrie from prosecution and to protect and attempt to
facilitate and verify Barrie’s stealing of all community property before ever a
divorce action was filed as advised by her employer Debbie Harms. Respondent
David Derringer in DV-12-234 and DM-12-610 has motioned over 6 times for Judge Hadfield to recuse for cause, has
filed a Petition for Writ of
Superintending Control with the New Mexico Supreme Court to expose the public
corruption and has filed 7 Judicial Standards Complaints against Judge Hadfield
as well as motion for change of venue, and Judge Hadfield rules on the motions
to recuse herself despite case law contrary, and thus refused to step
down, and has violated New Mexico State
law NMSA 38-3-3 with denial of change of venue without hearing, and now has destroyed
and denied filing of many of the Respondent David Derringer’s pleadings including blocking appeals with prevention of
filing docketing statements and notices of appeal. Durant v. Black River Elec. Co-op., Inc., 271 S.C. 466, 248
S.E.2d 264, S.C., October 11, 1978 (NO. 20777)
Change of venue granted unless it appears that manifest legal error was
committed. Venue or Place of Trial for the Promotion of Justice. Change of
Venue or Place of Trial Party moving for a change of venue has the obligation of
showing that the ends of justice will be promoted by changing the venue. With
affidavit and other evidence defendant has met its burden of establishing that
justice will be served by a change of venue.
The “collusion” is shown with
Judge Malott before the cases CV-12-1307 and CV-12-10816 were consolidated, only
as of May 30, 2013, there existed Case CV-12-1307 under Judge Malott, and the
judge defied all case laws “with knowledge” of unlawfulness to exempt and
protect Maestas from prosecution over loss of consortium, alienation of
affection and interference of a legal marriage contract despite all laws to the
contrary, thus depriving Plaintiff his legal rights for redress under
Constitution “due process and equal protection”. 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.”; Canon 3 (B)(2): A judge shall be
faithful to the law and maintain professional competence in it.; US v. Pedreza 27 F.3d 1515 cert
denied 115 Supreme Court 347, 513 US 941 130 L.Ed.2d 303 cert denied “Elements
of conspiracy are agreement with another person to violate law, knowledge of
essential objectives of conspiracy, knowing and voluntary involvement, and
interdependence among alleged co-conspirators.”Judge Malott then violated NMRA
Rule 1-088.1 (B)(1)(a) and NM State law NMSA 38-3-9 “refusing” to honor the law
for peremptory excusal allowed by the Plaintiff when the case CV-12-10816 was
“reassigned” to Judge Malott from Judge Brickhouse, and lied in fraud to the
court record that the Plaintiff had motioned Judge Malott for a Motion to
Strike, when the testimony and court record clearly show that Plaintiff David
Derringer had properly motioned Judge Brickhouse legally presiding over
CV-12-10816 (SEE court record “request for hearing” Motion to Strike) before
consolidation only as of May 30, 2013. The Plaintiff then motioned Judge Malott
to recuse for cause of Constitutional, statutory and case law violations and
for the motion to be heard by a disinterested justice and the motion has been
ignored wherein Judge Malott tenaciously holds on to now both cases of CV-12-13007 and
CV-12-10816 “imprisoning” the Plaintiff in a court where the justice violates
all Oath and Canon to rule without
jurisdiction well outside of all laws for only the benefit of the Defendants in
all matters. Telman v. US 67
F.2d 716 cert denied 54 Supreme Court 860, 292 U.S. 650, 78 L.Ed 1500
“Conspiracy may be established by showing that minds of the parties met in an
understanding way so as to bring about intelligent and deliberate agreement to
do acts charged, although such agreement is not manifested by formal words.”
The Plaintiff then properly with affidavit motions the court
under NMSA 38-3-3 for a change of venue with much proof that the matters are
in a biased court in a county with favoritism for the Maestas corporation and
with a justice that will not obey the law and has already done case law
violations, Constitutional violations, and statutory violations against the
Plaintiff. State v. House,
1999, 127 N.M. 151, 978 P.2d 967, certiorari denied 120 S.Ct. 222, 528 U.S.
894, 145 L.Ed.2d 186. In a case in which there have been no preceding changes
of venue, right to a venue change is generally mandatory and must be granted by
the trial court, provided that the moving party has filed an affidavit as
prescribed by venue statute. Const. Art. 2, §§ 14, 18; NMSA 1978, § 38-3-3,
subd. A.
This matter was also to be heard by a
disinterested justice in another venue, and instead, notably, Judge Malott
entertained the motion himself with blatant violations of New Mexico State Law
NMSA 38-3-3 with denial of a change of venue without any opposition from the
Defendants against Plaintiff’s claims that both conditions had been met for
substantial evidence that a fair hearing cannot be obtained in the venue or
before this justice and that the move of venue
was for “justice to be served”. Schultz
v. Young, 1933, 37 N.M. 427, 24 P.2d 276.Affidavit stating that movant
believes that fair trial cannot be had in county where case is pending, because
of local prejudice, held sufficient to entitle movant to require court to
determine whether ultimate fact alleged is true. Comp.St.1929, §§ 147-105,
147-106. ; Blake v. Cavins,
185 P. 374, 25 N.M. 574 “Changing of venue mandatory upon motion filed.” Under NMSA 38-3-3 a justice cannot deny a
motion for a change of venue without any reasoning or authority support and has
no “jurisdiction” to deny this motion as statutory law, without a hearing on
the evidence for a change of venue, which was denied also. State v. Lindsey, 1969, 81 N.M. 173, 464 P.2d 903, certiorari
denied 81 N.M. 140, 464 P.2d 559, certiorari denied 90 S.Ct. 1692, 398 U.S.
904, 26 L.Ed.2d 62. If motion for change of venue in proper form and properly
supported is timely filed, trial judge must either grant motion or conduct
hearing thereon. 1953 Comp. §§ 21-5-3,
21-5-4. “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). Since Judge Malott “swore to
God” under Oath to obey the law, which encompasses case law, statutory law, and
Constitutional law, and the judge has violated all law, he is not working
within “jurisdiction” and must be removed from the bench under Canon 3(D)(1) as
well as is mandated to recuse for cause and to change the venue of both
consolidated cases of CV-12-1307 and CV-12-10816. All of the acts of Judge
Malott support the circumstantial evidence that he has been bribed by the
international multi-million dollar corporation NAI Maestas and Ward. Barrie Derringer aka Barrie Crowe is either
too afraid to leave or to contest her employer or sold out her husband without
any loyalty to the wolves for her own monetary rewards to stay with her
employer instead of her marriage for a pittance of $2,000.00 increase in salary
of January 2012. Lewis v. Samson,
1999, 128 N.M. 269, 992 P.2d 282, certiorari granted 128 N.M. 150, 990 P.2d
824, reversed 131 N.M. 317, 35 P.3d 972. If a party moves for a change of venue
and submits an affidavit in support of the motion stating that a fair trial
cannot be held on account of local prejudice, the court shall allow the movant
to present evidence in support of this allegation and then determine the merits
of such allegations. NMSA 1978, §§ 38-3-3, 38-3-5.
Judge Malott simply denied
statutory law for a mandated hearing with only “Further hearing on this matter is not necessary for an appropriate
determination of the issues presented”.
For “reasoning” of deprivation of statutory rights under NMSA 38-3-3 the judge
simply put “Plaintiff’s motion is not
well taken and should be denied”. “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). The circumstantial evidence that
Judge Malott intends to preside over the cases for the protection of Maestas
and the defiance of all laws make this matter obvious as to bribery and
collusion with Defendants and Judge Hadfield over all matters to defeat
Plaintiff David Derringer at all costs. Lewis
v. Samson, 1999, 128 N.M. 269, 992 P.2d 282, certiorari granted 128
N.M. 150, 990 P.2d 824, reversed 131 N.M. 317, 35 P.3d 972. Denial of a motion
to change venue is reviewed for an abuse of discretion. NMSA 1978, § 38-3-3.
The
decision of the trial court to deny a change in venue is clearly to keep the
Plaintiff within the realm of the power
of the Defendants in the Albuquerque area with justices they personally
know or have provided directly or indirectly through channels notice that the
cases CV-12-1307 and CV-12-10816 are in their best interest to win despite
doing egregious acts of loss of consortium, alienation of affection and
interference with the Derringer marriage contract due to Barrie Derringer aka
Barrie Crowe being their “accountant” and necessary for illegal acts within
their corporation, and when David Derringer “interfered” with the criminal acts
of taking all Derringer personal and community property to gain employee Barrie
set up in one of the Maestas for sale houses to remove David Derringer from the
influence of Barrie, the CEO’s simply conducted assault and battery and
conversion to show power over Barrie and deter and destroy the husband David
Derringer. State v. House,
1999, 127 N.M. 151, 978 P.2d 967, certiorari denied 120 S.Ct. 222, 528 U.S.
894, 145 L.Ed.2d 186. Important factor that would prove abuse of discretion in
a venue determination is a showing by the complainant that he or she has been
prejudiced by the trial court's decision; substantial evidence that a trial in
a particular venue was not fair and impartial would require reversal on appeal.
Const. Art. 2, §§ 14, 18; NMSA 1978, § 38-3-3, subd. A. The standard of review
required in assessing whether trial court abused its discretion in ruling on
motion for change of venue is whether the trial court's venue determination is
supported by substantial evidence in the record. Judge Malott simply denied the
motion for a change of venue to keep Plaintiff David Derringer imprisoned in
his courtroom wherein he has already defied all law for the Defendants to win
and fully intends to do the same until fruition. State v. Childers, 1967, 78 N.M. 355, 431 P.2d 497.When
motion for change of venue is timely filed in form and substance required by
statute, trial court may require hearing thereon, and if no hearing is held,
denial of motion is reversible error. 1953 Comp. §§ 21-5-3, 21-5-4.
It is the
violation of all laws combined with Judge Malott violating rights under
peremptory excusal and then consolidation of the cases that spotlighted the
corruption of Judge Malott to where escape was mandatory to another venue and
the motion became not only practical but mandated prior to more illegal atrocities performed
against the Plaintiff by the Defendants and their judge. Askew v. Fort Sumner Irr. Dist., 1968, 79 N.M. 671, 448 P.2d
183.To be timely, motion for change of venue must be offered at earliest
practical time. Since Judge Malott violated state law for peremptory excusal
and blatantly hears himself the motion to recuse for cause and ignores it, the
Plaintiff’s only escape for justice to be served is a change of venue. State v. White, 1967, 77 N.M.
488, 424 P.2d 402. Change of venue is effective means of overcoming local bias
and prejudice.
In this
matter, Judge Malott has defied laws and bias and prejudiced himself in some
personal or bribery involvement with the Defendants and all reasons
(A)(B)(1)(2)(3)(4) under New Mexico Statutory laws apply to mandate the change
of venue.
N. M. S. A. 1978, § 38-3-3
Chapter 38. Trials
Article 3. Venue; Change of Judge
§ 38-3-3. Change of venue in civil and criminal cases
The venue in all civil and criminal cases shall be changed, upon motion,
to another county free from exception:
A. whenever the judge is interested in the result of the case or is
related to or has been counsel for any of the parties; or
B. when the party moving for a change files in the case an affidavit of
himself, his agent or attorney, that he believes he cannot obtain a fair trial
in the county in which the case is pending because:
(1) the adverse party has undue influence over the minds of the inhabitants
of the county;
(2) the inhabitants of the county are prejudiced against the party;
(3) of public excitement or local prejudice in the county in regard to
the case or the questions involved in the case, an impartial jury cannot be
obtained in the county to try the case; or
(4) of any other cause stated in the affidavit.
WHEREFORE the
Plaintiff request reconsideration under law NMSA 38-3-3 where with the
Plaintiff’s proper previous motion supported with affidavit to prove that he
cannot gain a fair trial in this venue and that justice would better be served
with a change of venue, and without any hearing that is mandated before any denial can be ruled, that Judge
Malott conform to the statutory laws of New Mexico as enacted by the New Mexico
State Legislature and grant a change of venue for CV-112-1307 consolidated with
CV-12-10816. State v. Southern
Pacific Co., 281 P.29, 34 NM 306 “N.M. 1929 Statutes, though imperfect
in form, should be upheld and sustained by the courts, if they can be construed
as to give sensible effect and to render them of binding force.”
Respectfully submitted by:
____________________________________________
David Derringer Pro-Se Box 7431,
Albuquerque, New Mexico 87194
CERTIFICATION OF SERVICE July 9,
2013
I hereby certify that I hand delivered a copy of this
pleading to:
Second Judicial District Court
400 Lomas NW
Albuquerque, New
Mexico 87102
I hereby further certify that I delivered a copy of this
pleading to:
Defendant Jackson
at:
423 6th
St. NW. Albuquerque,
New Mexico 87102
Attorney Floyd Wilson for Barrie
Crowe Defendant at:
Floyd Wilson
12480 Hwy. 14 North. Ste.
105
Cedar Crest,
NM 87008
Attorney for Geraldine and Warren Crowe:
Alicia
Santos of O’Brien & Padilla P.C.
6000
Indian School Road NE Suite 200
Albuquerque,
New Mexico 87110
No comments:
Post a Comment