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,
PLAINTIFF'S RESPONSE IN OPPOSITION TO RESPONSE OF
DEBBIE HARMS, IRWIN HARMS AND BARRIE CROWE
TO PLAINTIFF'S 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; AND REQUEST FOR LAW ENFORCEMENT INVOLVEMENT BOTH STATE AND
FEDERAL
COMES NOW the Plaintiff
with his legal response as stated above.
The
Attorney Floyd Wilson in violation of NMRA Rule 16-804 and Rule 11, comes to
this court with his clients of Debbie Harms, Irwin Harms and Barrie Crowe,
knowingly with "unclean hands" [1]
wherein with this and the attending Motion for Sanctions by Defendants as the latest
filings proving circumstantial evidence so severe as to prove without
much doubt the likely bribery and coercion or extreme motives well outside of
"judicial ability" of the Defendant's "own judge" that
there can be no doubt that all acts are taken to keep Plaintiff David Derringer
"imprisoned" in the court with the Defendant's Judge Malott, unable
to escape despite the NM law for recusal, Rules for recusal and statutory law
to change the venue for justice to be served; all denied and law violated by
Judge Malott for the protection of the Defendants; with no "available justice in the system" able to withstand
the violent actions by this court to deny due process and equal protection
against the Plaintiff. United States
v. Guest, 383 US 745 (1966); Griffin v. Breckenridge, 403 US
88 (1971) ; Federalist No. 78 by
Alexander Hamilton ; Nixon v.
Fitzgerald, 457 US
731, 763 (1981). Simply put, all Defendants are "terrified"
that this matter might be moved to a court of equity without "their
judge" as mandated under NMSA 38-3-3. [2] Before
all judicial remedies and law enforcement remedies can be perfected by the
Plaintiff, the Defendants seek the abuse of process to defeat the law suits in
the short remaining interim by coercing Judge Malott to issue
"sanctions" to dismiss the cases. In abuse of process a perversion of
court processes is used to accomplish some end which the process was never
intended to accomplish, or which compels the party against whom it has been
used to do some collateral thing which he could not do legally and regularly be
compelled to do, or to keep the party against whom it has been used to stop
doing some collateral thing in which he has rights to do. Geier v. Jordan
DC Mun. App. 107 A.2d 440. The Defendants also fear the upcoming hearings in
September, 2013 of the Plaintiff's Motion to Recuse for Cause and Change of
Venue against Judge Malott, wherein Judge Malott already has violated the NM
Statute of 38-3-9 and NMSA 38-3-3 to deny a change of venue, proven actually in
court record documents, and already denied a hearing by recorded Order, and
then "after the fact" of statutory violation comes through with a hearing on the Motion for
Change of Venue in September, 2013, obviously attempting to cover up the
already proven statutory violation, which does not remove the liability of same
in "fraud to the court", and denied all case laws and Constitution, and
wherein Plaintiff David Derringer has both legal documents and plenty of
circumstantial evidence to present at
such hearings, with also his own testimony under oath. Cruz v. U.S. 106 F.2d 828.
"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. It is easily seen here that despite legal actions
taken against Judge Malott to stop the corruption, he ignores both statute and
Canon and the Rules of Civil Procedure to continue, and now coming to Judge
Malott's aid are the Defendants and their attorneys seeking to "dismiss
the cases under sanctions" so as to
stop any further disclosure of corruption. SCRA
1986, 1-088.1(D) “No district judge shall sit in any action in which
his impartiality may reasonably be questioned under the provisions of the
Constitution of New Mexico or the Code of Judicial Conduct, and shall recuse
himself in any such action.”; Flagg Bros., Inc V Brooks, (1978)
436 US 149, 56 L.Ed.2d 185, 98 S. Ct 1729, 23 UCCRS 1105 “Involvement of state
official may provide state actions essential to show direct violation of
petitioner’s 14th Amendment rights, whether or not official’s
actions were officially authorized or lawful.”
The
Plaintiff has already established the existence of a "conspiracy
against rights" and "deprivation of rights under color of law"
including "obstruction of justice" and the Defendants further impale
Judge Malott into this with their pleadings in desperation; fully solidifying
the conspiracy existence and members involved. Hedrick v. Perry, 102 F.2d 802; U.S. v. Troutman, 814 F.2d 1428 “Once conspiracy is
established, only slight evidence is required to connect co-conspirator, and
acts attributable to any member of conspiracy are attributable to all members.”
Judge Malott "swore to God" to uphold all law, and every single
action by Judge Malott in both of these cases defy all law, violate Constitution,
violate state statutory law, and are intended to keep David Derringer
imprisoned before him; all for the protection of Maestas and Ward multimillion
dollar corporation and all intertwined. In
re Aquinda, 241 F.3d 194. Since all "judicial duties, mandates,
Oath, Canon, and Code of Judicial Conduct, and in fact both federal and state
criminal statutes are against the actions of Judge Malott, there is proven
circumstantially that some "non-judicial source" is blatantly
exposed as to why Judge Malott constantly seeks to rule for the Defendants
outside of all laws. U.S. v. Austin, 614 F. Supp. 1208.
All the Defendants do now is suck Judge Malott into this deeper and deeper,
asking to defeat the entire matter by "sanctions" against a Plaintiff
that has a iron-clad case against all Defendants. US
v. Pedreza 27 F.3d 1515 cert denied 115 Supreme Court 347, 513 US 941
130 L.Ed.2d 303 cert denied Defendants involved, while also protecting the
other 10 criminals involved without mandated identification. All the Defendants
really do with this response and their attack on the Plaintiff for sanctions by
the parallel motion, is to confirm and sustain all of the corruption and
conspiracy claimed by the Plaintiff by Defendants knowing that actions have
been taken in judicial standards, the New Mexico Supreme Court and requests for
involvement of law enforcement to stem and stop the actions illegally in
violent detriment to all laws by Judge Malott including violation of NM
statutory laws against David Derringer, and the Defendants seek frantically to
use "their judge" before any legal redress of change of venue and
other remedy can be had legally by the Plaintiff. Bendorf v. Wolkswagenwerd Aktiengeselischaft, 88 N.M. 355,
540P.2d 835 (Ct. App.1977); Anderson
v. Martin, (1964) 375 US
399, 11 L.Ed.2d 430, 84 S Ct 454. As Judge Malott entertains this Defendant's
response and their seeking sanctions to dismiss the entire actions, the Judge
condemns himself to further proof of his conspiracy involvement without denying
the Defendants or changing the venue for "justice to be served", and without
any severe sanctioning the Defendants themselves and their attorneys for this
violation of Rule 11, Judge Malott will cement himself in the circumstances
just further proving the conspiracy "ongoing". Las Luminarias of the New Mexico Council of the Blind v. Isengard
587 p.2d 444, 92 NM 297. Conspiracy is an ongoing crime, and as this
situation gets more exposed, the hysterical acts by the Defendants and the
Judge become more accentuating in the motives and involvement of the
deprivation of due process against the Plaintiff with additional laws being
broken. State v. Clark 3 P.3d 689, 129 N.M. 194 2000-NMCA-052 cert
denied 4 P.3d 35, 129 N.M. 207. The
court record can prove that the "Defendants" never sought to stop the
change of venue by any statements that
"justice would not be served", in their original response to the
original motion, and did not contradict the proof of the Plaintiff's
circumstantial evidence so convincing that a "bribery" or other
motives had occurred to cause this judge
to violate his Oath so severely in violation of all laws against the Plaintiff.
Adamson v. C.I.R. CA9 1984,
745 F.2d 541. Now, in only the latest "Motion for Reconsideration" by
the Plaintiff do the Defendants recklessly respond to seek some immediate action
as this entire matter is already exposed implicating all Defendants, all of the
Defendants' attorneys and the Judge in this conspiracy. The Defendants state
"enough is enough" and clearly the US Congress would agree that this
should only apply to the Plaintiff against the Defendants, as it was never
envisioned that such public corruption could defeat the entire judicial system
of government as is being done by the Defendants, their attorneys and Judge
Malott in this matter. This matter screams out for law enforcement
intervention. This action seeking instant further deprivation of due
process, just exemplifies and emphasizes the Defendants conspiracy connection
with Judge Malott. Simply put, the response to a legal Motion for
Reconsideration of shown violations of state law under NMSA 38-3-3 where Judge
Malott refused to grant a change of venue mandated without hearing held and
refusal to grant a hearing until "after the fact of statutory violation"
and the abuse of process of then seeking "sanctions" to attempt to
dismiss the entire intertwined and consolidated cases just implicate and
reinforce the Plaintiff's former statements and filings with the Judicial
Standards and New Mexico Supreme Court as to the "public corruption" that the Plaintiff is
fighting, with further and extreme "fraud" upon the court system of
our government, and further goading and request that Judge Malott continue to
conspire with the Defendants until the case is dismissed or Judge Malott
removed from the bench. In re Williamson, 43 BR
813. What has happened here is that "public corruption" has been
exposed, and while the Defendants still have "their" judge, they are
desperately scrambling to use "their" judge to render all of the
cases dismissed against all Defendants, to include, but not limited to the
criminal underlying acts of "assault and battery" and conversion. U.S. v. Brenson, 104 F.3d
1267, rehearing denied 113 F.3d 1253, cert. denied 118 Supreme Court 214, 139
L.Ed.2d 148. In effect, by this instant response of the Defendants and their instant
seeking "sanctions" of violations of Rule 11 for dismissal of the entire matter, they are
doing additional "assault and battery" this time instead of the physical actions taken on
February 4, 2012 to hurt and violate David Derringer, they are mis-using
corruption and the power of money of Maestas and Ward to assault and batter the
Plaintiff with illegal filings in violation themselves of Rule 11, and trying
desperately to use "their judge" that clearly will rule for them no
matter what the circumstances to alleviate these law suits by the unscrupulous
seeking of further violations of Oath and Constitution to gain dismissal of all
claims so they do not have to face the Plaintiff and his witnesses and
documents in an open court trial on the merits of the cases involved. US v. Kanchanalak, 37 F.
Supp.2d 1. This "fraud" and use of a
judge well outside of the justice's jurisdiction and judicial capacity
comes desperately before any ruling can be made on the "judicial standards
complaint" [Exhibit 1]
or any ruling on the Petition for Writ of Superintending Control filed with the
New Mexico Supreme Court [Exhibit 2] including actions
against the "Defendant's Judge" in a hope that Judge Malott will
continue to mis-use his position to end the lawsuit before some action is taken
by the high court or law enforcement to
remove the "Defendant's judge" from the bench or change the venue for
justice to be served as mandated under NMSA 38-3-3. Mireless v. Waco, 502 U.S.
9, 116 S. Ct. 286, 112 L. Ed.2d 9 (1991).
The
Defendants "lie" to the court that the Plaintiff's "Motion" is without merit either as a
matter of fact or law. US v.
Miller, 161 F.3d 977 cert denied Byrnes v. US 119 Supreme Court 1275,
143 L.Ed.2d 369 “CA6 (Mich.). This perjury is exemplified with the law itself,
for Judge Malott was mandated to provide a hearing for the initial "Motion
for Change of Venue" or immediately grant the change of venue. 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.
Judge Malott specifically both denied the change of venue and denied the
mandated hearing by Order. 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.” Only
after a motion for reconsideration of the violations of NM statutory laws
already performed, did Judge Malott then institute a hearing scheduled for
September, 2013 to attempt to cover up the already performed violations of
state law against David Derringer. Clearly, the "facts" are supported
by court record in this matter for the Plaintiff, and the "law" is
supported entirely, making the response of the Defendants blatant
"fraud", and their own Motion for sanctions should be extremely
issued against themselves and there are no legal sanctions available against
David Derringer for a pleading that is entirely supported by fact, law and the
Rules of Civil Procedure. The
Plaintiff's motion is entirely supported by the Legislature of the State of New
Mexico that mandated performance and duties denied by Judge Malottt; actions in violation of Oath and all other
mandates preferenced to sitting in a
position of power as "justice". Sanctions are to be mandated accessed
against every attorney and every Defendant in this matter for $18,000.00 for
Plaintiff David Derringer and mandated law enforcement actions instituted
against all members of the "conspiracy" against David Derringer. Rivera v.Brazos Lodge Corp.,
111 N.M. 670, (1991). ; Tyus v. Martinez,
106 Supreme Court 1787, 475 US
1138, 90 L.Ed.2d 333 on remand 800 F.2d 230.
Respectfully submitted by
___________________________________________
Plaintiff David Derringer Box 7431 Albuquerque,
New Mexico 87194 no phone
CERTIFICATE OF SERVICE August 1, 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 further certify that I sent a
copy of this pleading to:
Defendant Jackson
at:
423 6th
St. NW. Albuquerque,
New Mexico 87102
Attorney Floyd Wilson for Debbie
and Irwin Harms and Barrie Crowe
Defendants at:
Floyd Wilson
12480 Hwy. 14 North. Ste.
105
Cedar Crest,
NM 87008
and:
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
[1] Romero
v. Sanchez, 83 N.M. 358,492 P.2d 140 (1971)
[2] 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.
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