IN
THE SUPREME COURT OF THE STATE OF NEW MEXICO
NM
Supreme Court No. 34,244
NM Ct. App. No. 32,587 Order of March 26, 2013
Second Judicial Dist. Ct. Case DV-12-234 rel. DM-12-610
BARRIE LEE
DERRINGER
Petitioner-Appellee, Respondent,
vs.
DAVID BRIAN
DERRINGER,
Respondent-Appellant-Petitioner,
PETITIONER APPELLANT'S TIMELY
MOTION FOR REHEARING UNDER
NMRA 12-309(C) and
12-404 OF THE ORDER OF JULY 22, 2013
COMES
NOW the Petitioner, representing himself Pro-Se with his motion as stated above
regarding the denial of the Petition for Writ of Certiorari as properly applied
for under extreme circumstance regarding the proper motion for extension of
time not granted. Clearly, in this matter of DM-12-610 and NM Ct. App. No.
32,587 it must at the very least be dismissed, without granting any divorce for
Barrie Derringer of fraud, corruption, lack of due process, lack of equal
protection, fundamental error and jurisdictional defects and want of equity. In
Adams v. Adams, 224 Ark. 550, 274 S.W.2d 771 (1955), the trial court
dismissed a divorce complaint “for want of equity”.
The
underlying matter of NM Court of Appeals has denied appeal and affirmed the
lower trial court acting in No. 32,587, without jurisdiction and in severe
public corruption, in 53 different issues coming before that court that were
all “disregarded” which included trial judgments that were in fundamental error
and lack of jurisdiction without service of summons underlying included fraud,
and fraud to the court, as well as abuse of discretion, violations of Oath,
Canon, Code of Judicial Conduct and numerous other outrageous acts that defy
“justice’ wherein this matter can be address under NMRA Rule 1-060
regarding the fraud, as well as the lack of jurisdiction making all Orders and
particularly the Final Judgment of November 15, 2012 “void” as a settlement agreement without the
signatures of either party upon the document. Abarca v. Hanson, 106 NM 25, 738 P.2d 519 (Ct. App. 1987). Service of process
of summons is procedural and Supreme Court rule on service of process
controls.”
These
and other issues are hereby “preserved”, as it will be extremely necessary to
expose and yet protect all issues that the New Mexico Supreme Court will refuse
to address, so as to take this matter of NM Corruption further into the United
States Supreme Court as rights denied and obstructed in both due process and
equal protection as well as blatant violations of the Supremacy Clause of the
Constitution Article VI. Since, in this matter there was severe injustices over
property, due process and wherein a MSA was created without signatures of
either party, and then the separate property and money and community equality
of property, and items on payments were taken from David Derringer illegally,
there are issues to be addressed that are in violation of all laws and
Constitution. Where separate character of property is established, it maintains
that character until contrary has been made to appear by direct and positive
evidence. Since the statute of fraud applies to a MSA, all settlement agreements are contracts and
therefore are subject to contract law, including the statute of frauds and the
mandate for both party signatures which are lacking in the Derringer case. SEE Nicholson
v, Barab, 233 Cal. App.3d 1671, 285 Cal. Rptr. 33441, 447 (1991); Douglas
v. Douglas , 686 P.2d 260, 101 NM 570 Property acquired in New Mexico
by married couple takes its status at time of acquisition and by the manner of
its acquisition.; Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 799-800
(9th cir. 1991); cf. Tellez v. Tellez, 51 NM 416, 419,
186 P.2d 390, 392 (1947) (holding that marriage settlement agreements fall
within statues of frauds) That being so, the MSA was required to be in writing
and signed by the parties in participation. See Nicholson 285
Cal. Rptr. At 447. The part performance of both parties requires that the “acts
which are relied upon {are} unequivocally referable to the contract. At which,
although done in performance of the contract, admit to an explanation other
than the contract, are not generally acts of partial performance which will
take the agreement out of the statute of “frauds”. Since in the Derringer case
the trial was itself held in violation of Discovery by Barrie Derringer, and
lacking such evidence precluded by such violations, in a total prejudice
to David Derringer, no complete ruling
could ever be made regarding any equitable division of property with fundament
jurisdiction issues. Hall v. Hall, 222 Cal.
App 3d 578, 271 Cal.Rptr. 773, 778 (1990). Additionally, the existence of the
contract must be proved by “clear, cogent and convincing evidence” which is
lacking in the Derringer case both by contradictory testimony to documents and evidence
of Barrie Derringer and her admitting to domestic violence, giving David Derringer
a venereal disease of STD Herpes HSV Herpes Simplex Virus, suicidal and
depression tendencies and on multiple codeine medications that are linked to
“opium” that are “hallucinogens” that prove both the fraud and contradictory
testimony of Barrie Derringer cannot be used by the court in any regard. With
the lack of discovery deliberately used by both Barrie Derringer and the court
to deprive David Derringer “due process” with lack of evidence that was
available but not properly disclosed in discovery, make a prejudice and
fundamental error so severe as to dismiss both DV-12-234 and DM-12-610 an
absolute mandate in violation of NMRA Rule 1-026, 1-033, and 1-037. Alvarez v. Alverez, 72 NM 336,
341, 383, P.2d 581, 584 (1963) (quoting Paulos
v. Janetakos, 41 NM 534, 539, 72 P.2d 1,3 (1937); Nashan v. Nashan,119 NM 625, 629, 894 P.2d 402, 406 (Ct.
App. 1995). It was pure abuse of discretion bringing mandated review for Judge
Hadfield to ignore the several pleadings of David Derringer’s Motions for Order
to Compel and later the Motions for sanctions of violations of discovery, and
then holding a trial when the NM Ct. App. had jurisdiction of the case already
and with knowing that David Derringer had been denied all discovery, and
knowledge that David Derringer had been denied discovery even in the pre-trial and
Notice in the trial that the trial could not be held by proper discovery; all a
lack of jurisdiction of the trial court to keep moving forward without judicial
capacity.
This
matter defies many areas of law that need to be defined, including issues of
fundamental jurisdiction that this court escapes addressing that included no
service of summons. Clark v. LeBlanc, 92 NM 672, 593 P..2d 1075 (1979)
Two functions are served by service by
personal delivery of the papers within the state: (1) it shows that defendant
has an appropriate relationship to the state and is within the power of the
court generally; and (2) it gives the
defendant notice of the proceeding against him.; Varney v. Taylor, 79 NM 652, 448 P.2d 164
(1968) “This appears to be the total effect of deciding a case in which
jurisdiction is lacking but overlooked on appeal.” The Appellant hereby
preserves all underlying issues for this and further appeals, for also
preserving such issues for not only this appeal but for the entangled other
suits of family court, domestic violence court, civil court and criminal court,
and to the United States Supreme Court. 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.” The
appellant also preserves issues that have ability to be first presented in this
court such as, but not limited to “jurisdiction” and “statutory and constitutional
compliance”. There is also “fraud” that has been saturated in this matter, not
only the underlying fraud of the Petitioner/Appellee and attending attorney
Alain Jackson, but fraud conducted in the court itself by Judge Hadfield and
other justices and the Commissioner Cosgrove/Aguilar, to defeat justice and is a
separate species of fraud from the fraud of Barrie Derringer and
Alain Jackson. As explained later in this document, there has been extreme additional fraud as “new subject matter” by the trial Court of Judge Hadfield destroying court records of both DM-12-610 and DV-12-234, ordering the clerks not to take any legal filings of David Derringer in the Second Judicial District Court, blocking appeals by way of refusal to file “notices of appeals and docketing statements” and Judge Hadfield requiring court papers to be viewed and require “approval before filing” when no judge has any legal jurisdiction to view any pleading until filed of court record; and the NM Court of Appeals trying also to defeat and block appeals by the same illegal requirement of requiring court papers to be viewed and require “approval before filing” when no judge has any legal jurisdiction to view any pleading until filed of court record, and the NM Court of Appeals illegally trying to “pick and choose” what material matters can be appealed after filing in forma pauperis and attempting to block appeals over subject matter that involves public corruption so as to keep such knowledge from any court record in “obstruction of justice”.
Alain Jackson. As explained later in this document, there has been extreme additional fraud as “new subject matter” by the trial Court of Judge Hadfield destroying court records of both DM-12-610 and DV-12-234, ordering the clerks not to take any legal filings of David Derringer in the Second Judicial District Court, blocking appeals by way of refusal to file “notices of appeals and docketing statements” and Judge Hadfield requiring court papers to be viewed and require “approval before filing” when no judge has any legal jurisdiction to view any pleading until filed of court record; and the NM Court of Appeals trying also to defeat and block appeals by the same illegal requirement of requiring court papers to be viewed and require “approval before filing” when no judge has any legal jurisdiction to view any pleading until filed of court record, and the NM Court of Appeals illegally trying to “pick and choose” what material matters can be appealed after filing in forma pauperis and attempting to block appeals over subject matter that involves public corruption so as to keep such knowledge from any court record in “obstruction of justice”.
Certainly,
under the very extreme circumstances indicated in the David Derringer’s Motion
for extension of time indicating that Judge Hadfield has facilitated stealing
the transportation vehicle as well as monies and the NM Supreme Court “refusing
to file” the Petition for Writ of Certiorari only a few days after the deadline
with such motion and requiring the Petitioner David Derringer to file yet a
motion for legal filing indicate again that the courts are trying to cover up
these issues that are judicially outrageous,
rather than address serious problems within the judicial system itself
that indeed have ruined the life of the Petitioner David Derringer. Obviously,
the New Mexico Supreme Court cannot allow this matter of fraud of DV-12-234 and
all attending Constitutional violations and totally intertwined DM-12-610 with
NM Ct. App. No. 32,587 and all indiscretions of jurisdiction, fundamental
errors, and violations against the laws by both Barrie Derringer and Judge
Hadfield to stand in blatant injustices; particularly when David Derringer has
filed 7 judicial standards complaints, motioned 6 times for recusal for cause
and filed a proper motion and affidavit for change of venue and all have been
denied in total violation of statutory laws by the underlying justices involved,
“imprisoning” David Derringer in the public corruption and even threatening
David Derringer with “incarceration” if he does not stop defending his
Constitutional rights, and even “sentencing” David Derringer to 30 days in jail
for “criminal harassment” that did not occur, without any criminal complaint,
without any trial, without any Miranda rights, without any attorney or jury and
various other violations attending. Judge Hadfield has defied and violated NMSA
38-3-3 and refused to change the venue with motion filed with attending
affidavit by David Derringer and without any mandated hearing. When the court
itself violates state laws and Constitution, there is no law and David
Derringer does not have to honor any
Judgments of DM-12-610 or DV-12-234 under such outrageous circumstances. 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). David Derringer
has now also filed two separate Petition for Writ of Superintending Control
over these matters against Judge Hadfield and others involved in
this conspiracy against rights and deprivations of rights under color of law,
and obstruction of justice, and has talked to the FBI and to the Police about the
severe fraud occurring here, with everyone in the courts covering up the
problems, rather than address the issues. “since the Law of the Case
doctrine is merely one of practice or court policy, and not of inflexible law,
so that court are not absolutely bound thereby”Advance Opinions, New
Mexico Supreme Court, Vol. 37, No. 44, October 29, 1998 ; “the law of
the case considers justness of applying a particular rule to the parties”,
Advance Opinions, New Mexico Supreme Court, Vol. 37, No. 44, October
29, 1998, ; “The Law of the Case
should not be used to accomplish an obvious injustice, or applied where a
previous decision clearly, palpably or manifestly was erroneous or unjust.”
“Where there is manifest injustice to one party, with an erroneous decision, it
should be disregarded and set aside.”
New Mexico Supreme Court Opinion No. 1998-NMSC-031 No. 18,296
consolidated with: No. 19,118 (Sept 8th, 1998).; “law of the case won’t be used to uphold a
clearly erroneous decision”. Advance Opinions, New Mexico Supreme Court,
Vol. 37, No. 44, October 29, 1998.
The Appellant comes with
the Motion for rehearing in accordance with NMRA Rule 12-309. The Appellee
Barrie Derringer, the court will note, has never entered any appearance nor
been represented by any attorney in NM Court of Appeals No. 32,587 and yet also
the Ct. App. acted as her advocate 9rather than a finder of facts) without the
Appellant having any opposition for justice not to be served in any regard,
wherein without any opposition and in proven legal errors, the NM Ct. App.
affirmed the lower courts’ illegal and unconstitutional actions without David
Derringer’s due process or equal protection with proven fraud of Barrie
Derringer and that of the court’s themselves in 53 different provable issues
ignored and non-addressed by No. 32,587.
There are new grounds for
this reconsideration including court fraud uncovered as well as statutory laws
conflicting with the authority decisions of case law conflicting with statutory
authority cited by this court in the Memorandum Opinion that conflicts with
statutory authority both state and federal. Additionally, there is both perjury
and fraud in the matter by attorney Alain Jackson that this court is aware of,
confirmed “misrepresentation” to a court of law known and disregarded by the NM
Disciplinary Board that are now also of issue with the NM Supreme Court in the
latest Petition for Writ of Superintending Control. Because of the underlying
lack of service of summons, coupled with the fraud and judicial fraud, as well
as no signatures on the Final Judgment of November 15, 2012 of any “settlement
agreement”, the appeal No. 32,587 cannot be “affirming the lower court” for any
legal matters and justice is not served. Simply put, the family court had no jurisdiction and judicial
capacity to even hear the cases DV-12-234 or DM-12-610, let alone the atrocious
acts without law of Constitutional deprivations against David Derringer and
illegally granting Barrie Derringer a divorce. 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.
There has been extreme violence and deprivations against the case laws and
statutory laws governing the distribution of both personal property , monies,
and debt of the parties before any marriage was performed as well as outrageous
acts by the unlawful court, granting Barrie Derringer exemption and conversion
of separate David Derringer personal property and monies and community property
in the interim of claimed divorce and division and distribution thereafter. The
law is in grievous legal error in fact totally contrary to New Mexico statutes and
case laws, including violations having occurred in violation of “criminal codes
of both NM and federal” rendering the NM Legislature moot and in total
disregard for any Statutory laws; effectively allowing justices to tailor the
law in their personal beliefs rather than to render enforcement of the statutes
as enacted by the Legislature. 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.” In this instance, the court believes in error that the Legislature did
not intend to have legal effect for their own wording in multiple statutes and
that case laws also upholding those
statutes presented time after time in all David Derringer’s pleadings are in
grievous error to be disregarded by the courts that can then over-rule and
second guess the entire Legislature; rendering the whole US idea of a
separation of power mute, and the court can then think they can ignore and
revamp the laws as they see fit without “jurisdiction” to do so. Stoneking
v. Bank of America, 132 NM 79, 43 P. 3d 1089; State ex rel. Rodriquez v. American Lefion Post No. 99,
106 N.M. 784, 788, 750 P.2d 1110, 1114 (Ct. App. ) “Act may be changed through
legislative therapy, not judicial surgery., cert denied, 106 N.M.
588, 746 P.2d 1120 (1987) and 107 N.M. 16, 751 P.2d 700 (1988). This court must take “judicial notice” of the
entire records of DV-12-234, DM-12-610, NM Ct. App. No. 32,113, No. 32,326, No.
32,587, and No. 32,982; all regarding the injustices, fraud, and Constitutional
deprivations and lack of jurisdiction and fundamental error that underlie all
of these matters. Rozelle v. Barnard, 72 NM 182, 382 P.2d
180 (1963). Judge Hadfield had no
jurisdiction in the family court for either an order of protection or any
divorce due to the fraud that had to be addressed only in the civil and
criminal courts. NMRA 40-13-6(H) State v. Gonzales,
1997-NMCA-039, 123 NM 337, 940 P.2d 185. Because of this the
Appellee/Petitioner Barrie could also not expect any ruling from the court’s
appeal process that would relieve any actions of CV-12-1307 or CV-12-10816
consolidated, over some of these issues and further obligations and would have
to answer in both civil and criminal courts, without the NM Court of Appeals
having no jurisdiction to over-ride both Constitutional laws, case laws and
statutory laws to confirm a Final Judgment and settlement agreement without
even the signatures of the parties. Cresswell
v. Sullivan & Cromwell, C.A.2 (N.Y.) 1990, 922 F.2d 60, on
remand 771 F. Supp. 580. Solely
“circumstantial evidence” is far lacking in documentation to provide any of the
rulings of the trial courts of DV-12-234 or DM-12-610. David Derringer
was denied service of summons in DV-12-234 making it jurisdictionally defective
and in fundamental error, mandating entire dismissal. David Derringer came to
the hearing of February 21, 2012 due to his own filing of Petition for
Psychiatric Evaluation of Barrie Derringer, not due to Petition for Order of
Protection, and instantly notified the court of no jurisdiction of Petition for
Order of Protection in fundamental error and that hearing could not be held.
Commissioner Cosgrove/Aguilar, in abuse of law continued with the Petition for
Order of Protection and disregarded and dismissed David Derringer’s Petition
for Psychiatric Evaluation of Barrie Derringer; such does not grant waiver by
David Derringer for lack of service of summons. Abarca v. Hanson, 106 NM 25, 738 P.2d 519 (Ct. App. 1987). In judicial abuse
of discretion, Judge Hadfield has upheld this illegal DV-12-234 as the
underlying foundation of DM-12-610; all with blatant Constitutional
deprivations of the 1st, 2nd, 4th, 5th,
6th, 13th and 14th Amendments. Trujillo
v. Goodwin, 2005-NMCA-095, 138 NM 48, 116 P.3d 839 “service of
summons-the District Court has no jurisdiction
to issue binding judgment against a party not served summons in accordance
with the rule who does not waive the defects of service.” The general rules of evidence NMRA 11-103
reputes and defeats both the trial court and the NM Ct. App.s’ rulings, and
with particularity that non-service of summons can simply be ignored as it
violates the very premise of “due process and equal protection” and itself
defeats both DV-12-234 and DM-12-610. “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 April
1986 deposition testimony of defendant and his wife reveals not mere perjury
but a deliberate scheme to defraud the court; they committed fraud upon the
court. This issue by Appellant alone defeats any ruling by the trial court and
mandates the remand by this court to the trial court for immediate dismissal of
all rulings by Judge Hadfield. Moya
v. Catholic Archdiocese of New Mexico
107 N.M. 245, 247, 755 P.2d 583, 585 (N.M.,1988). Notwithstanding the
arguments raised on appeal by each party, we believe that it is the record of
this case that demands our attention. All judgments in both DV-12-234 and
DM-12-610 were procured by “fraud”. 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). 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 No. 32,326 an illegal order has
been issued to do illegally much of the actions complained of in the trial
court of Judge Hadfield; forcing the Appellant to file a Petition for Writ to the NM Supreme Court
over the actions of the NM Court of Appeal that was denied interlocutory
address, 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 the NM Court of Appeals.
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 for
Extension of Time for the Petition for Writ or Certiorari with this court’s
already knowledge of the outrageous acts in the underlying courts and denial of
the extension without explanation so as to stop any further issues of No.
32,587, 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
New Mexico Supreme Court for “superintending control”; 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. The NM
Court of Appeals was 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 in the appeal No. 32,587. This New Mexico
Supreme Court also knows that DV-12-234
and DM-12-610 are inexplicably and totally inseparable as totally intertwined, as
are No. 32,325, 32,587 and 32,982, 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, No. 32,587
and No. 32, 982, and not tied exclusively to matters of simply only DV-12-234
or 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 and DM-12-610, 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 for
Extension of Time to further expose this in No. 32,587, 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). 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.”
.
The marriage contract is a legally efficacious document and not to be discharged
in any divorce with use of “fraud”, the attempts to end a marriage with fraud
are severe and the legal efficacy of the original “marriage contract” must be
upheld for the preservation of the foundation of out own society, or the
falsification thereof is intent of injury or to defraud. Koch v. Koch,
95 NJ Super, 546, 232 A.2d 157 NJ Super AD 1967.; Maynard v. Hill,
125 US 190, 8 S.
Ct. 723, 31 L.Ed.654 (1888). As both the Petitioner/Appellee and
the then verification and validation by the court defeat all intent of the
Legislature. State v. Martinez,
2008-NMCA-058; State v. Wasson,
1997-NMCA-037, 15. In this matter, there was requisite intent to damage David
Derringer in loss of consortium, alienation of affection, conversion of
property both personal and community, and conversion of monies and extortion of
payments of pre-marriage debts by David Derringer for Barrie Derringer that are
not properly reimbursed; in short a “divorce” allowed by Judge Hadfield to make
“unjust enrichment” by Barrie Derringer. Hernandez v. Robles, 7
Misc.3d 459, 794 NYS.2d 579 NY Sup. 2005. The NM Supreme Court has a duty to
repair this mis-use of the courts in “extortion”. Matter of Lord’s
Estate, 602 P.2d 1030, 93 NM 543. Maynard v. Hill, 125 US
190, 8 United State Supreme Court 723, 31 L.Ed.654
(1888)“Marriage” is viewed as the ‘preeminent basis for civil institutions’
which gives character to our whole civil polity.” Mis-use of the courts in
fraud to end a marriage in “bad faith” and without cause, with then extortion
and inequality both in the separation of persons and assets and the attending
fraud by the courts to stop any due process over appeals of the matter do not
render any equity with Barrie deserting David Derringer in adverse
circumstances for personal gain. Hernandez v. Robles, 7 Misc.3d
459, 794 NYS.2d 579 NY Sup. 2005. ; Astor v. Astor, 120 So. 2d
176 Fla. 1960; Brown v.
Robertson, 120 Ind. App.
434, 92 NE.2d 856; Lucas v. Lucas, 621 P.2d 1289, 100 NM 556. The
court should examine the distribution of property whether or not the court
takes a stand on the parties married or unmarried as in this matter of improper
distribution of property that was acquired in marriage, pre-existing debt of
Barrie Derringer forced to be paid by David Derringer with inheritance sole and
separate monies during and after the marriage and other egregious acts of
inequality. United Salt Corp. v.
McKee 96 N.M. 65, 628 p.2d 310 (1981). As far as a ruling of
requirement of Barrie to pay all pre-marriage IRS debt and then disregarding
that David Derringer paid all that debt with personal separate inheritance and
community income during and after the marriage without any reimbursement, alone
voids any “settlement agreement”; of which there is no signing of any such
agreement by David Derringer, making all rulings of DM-12-610 void. Under both
the marriage and any settlement agreement of any dissolution of marriage such
issues as this is a contract and tort matter that only the civil District Court
could entertain. Board of Education
of City of Albuquerque v. American National Bank of Oklahoma City, Okl. 294 F. 14. The contract
between the parties prior to the marriage was enforceable as a civil contract, and
the contract of the marriage is also a contract.
Allsups
Convenience Stores, Inc. v. North River Insurance, Co., 976 P.2d 1, 127
NM 1, 1999 NMSC 006 rehearing denied.
The new evidence presented here mandates that the court either dismiss
entirely both DV-12-234 and DM-12-610 or at least peruse the entire court
record and grant a Petition for Writ of Certiorari of NM Ct. App. No. 32,5878. Rule
11-201B NMRA. The family court could not grant Barrie Derringer either the
David Derringer inheritance monies paid to IRS Barrie Derringer pre-marriage debt,
or the inheritance monies placed in the 2005 Chevy Dually Silverado that Barrie
Derringer was given in entirety. Perea
v. Ilfeld, 270 P. 884 33 NM 445. Respondent did not even have to
preserve the issues of property outside of the marriage contract and time frame
of marriage because the family court and the court of Appeals No. 32,587 does
not have jurisdiction over civil matters of separate contracts and torts. Andriola v. Milligan, 191 P.2d
716, 52 NM 65. David Derringer’s personal property before marriage has been
taken by the court in the marriage as well as sole and separate inheritance,
David Derringer’s portion of the community property, and not tied to the
“community property aspect”, and dividing thus the “net gain” was not in
jurisdiction of the “community property” aspect of any conceivable “divorce”. Douglas
v. Douglas, 686 P.2d 260, 101 NM 570. The arguments in summation are that
a order of protection based without service was created for extortion in a
dissolution of marriage to make Barrie Derringer avail “unjust enrichment” and
to be able to desert David Derringer in times of severe adverse conditions
after a house fire, with gaining separate residence, property and a divorce to
achieve a monumental gain in property, money and assets by mis-use of fraud in
the courts and with a bribed Judge by her employer NAI Maestas and Ward who has
extreme powers of pressure, influence and money for most politicians in
Albuqueque, where that real estate corporation owns, leases and controls almost
every square inch of Albuquerque, New Mexico and all power and extortion that
that implies. There are distinct guidelines of separate issues and
jurisdictions under the meaning of NMRA Rule 40-13-6(H).
The
NM Court of Appeals’ merits of the proposed analysis to summarily affirm No.
32,587 are un-sustained both in case laws and statutes and in violation of
Constitution, and don’t allow either the fraud or the mis-use of power and
abuse of discretion that is rampant in DM-12-610 and in No. 32,587. Adams
v. Adams, 224 Ark. 550,
274 S.W.2d 771 (1955). Since the Ct. App. is rejecting the statutes and case
laws and defying Constitution in favor of abuse of discretion and corruption,
this matter has to be reviewed. The Appellant has clarified again the issues in
contention here, and the Appellant has
demonstrated jurisdictional error, abuse of discretion error, fundamental
error, Constitutional equal protection error, New Mexico Statutory error, and
multiple errors in case laws errant in comparison wherein the trial court was
not correct and all cannot be countenanced by the NM Court of Appeals,
especially with the multiple species of “fraud”. Maxey v. Quintana, 84 N.M. 38, 499 P.2d 356 (Ct. App.
1972). ; Nixon v. Fitzgerald, 457 US 731, 763 (1981). The extreme
bias and prejudice exemplified in this matter of denial of the Respondent’s David
Derringer’s discovery before being forced into a trial itself mandates
dismissal of the trial court’s matters. Pizza
Hut of Santa Fe, Inc. v. Branch, 89 N.M. 325, 552 P.2d 227 (Ct. App. 1976).
REQUEST FOR RELIEF
Wherefore the Respondent
respectfully prays for relief to this honorable court of the following:
1.
That the court grant and reconsider the Motion for extension
of time and allow the full Peition for Writ of Certiorari.
2.
To reverse the trial court’s rulings and dismiss
with prejudice both cases of DV-12-234 and DM-12-610 in fundamental error,
Constitutional deprivations, lack of service of summons, lack of due process,
lack of equal protection and lack of jurisdiction and judicial capacity without
any divorce granted for Barrie Derringer.
3.
In the alternative this case No. 32,587 and all
intertwined cases be placed for a full judicial and law enforcement review so
“justice can not be aborted” on grounds of either law of the case or errant
appeals.
4.
All issues presented in all of the trial courts
and the NM Court of Appeals are preserved for further appeals as necessary, beyond
this New Mexico Supreme Court to exposing and review by the United States
Supreme Court, and for the civil and criminal courts of the other issues
presented therein.
Respectfully submitted by:
____________________________________
David Derringer Pro-Se, Box
7431, Albuquerque,
New Mexico 87194
I hereby certify that I caused
seven (7) true and correct originals of the foregoing Motion for Forma Pauperis
with Exhibit to be sent on the 6th day of May, 2013 with the motion for Aforma
pauperis@ in lieu
of filing fees, as granted in this matter by the NM Court of Appeals under No. 32,587
for filing to:
New Mexico Supreme Court
Box 848
Santa Fe, New Mexico 87504
By:_____________________________________________________
David Derringer, Pro-Se, Box 7431,
Albuquerque, New Mexico 87194
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