judicial extortion

IN THE COURT OF APPEALS

OF THE STATE OF NEW MEXICO

New Mexico Court of Appeals No. __________

Second Judicial District Court No. DM-12-0610

Rel. DV-12-234

BARRIE LEE DERRINGER,                                                              

            Appellee/Petitioner,

v.

DAVID BRIAN DERRINGER,

            Appellant/Respondent,

APPELLANT'S TIMELY MOTION FOR REHEARING UNDER NMRA 12-404 OF THE DENIAL OF AUGUST 27, 2013 OF LEGALLY AUTHORIZED FILING IN FORMA PAUPERIS WITH CONSPIRACY MOTIVES OF BLOCKING APPEAL TO COVER UP PUBLIC CORRUPTION, THAT ENTAIL THE FRAUD OF THE COURTS IN DM-12-610

COMES NOW the Appellant/Respondent Pro-Se with his Motion as stated above.

            The NM Court of Appeals formed an illegal Order on August 27, 2013 to deny “forma pauperis” in violation of Oath ensuring that “poor people are to be granted due process” as well as the rich, and in when David Derringer is in provable forma  pauperis ensuring availability to file appeals without fees  with states in public assistance. [Exhibit 1] The intent here is to deny due process and equal protection in violations of the Supremacy Clause under guidelines of the 4^th, 5^th and 14^th Amendments and under US Code Title 42 Section 1981 in order to cover up the extreme  public corruption of the trial court appeal where acts were done in obstruction of justice, conspiracy against rights and deprivation of rights under color of law, with fraud going on by Judge Hadfield and the court against the Respondent and singling out David Derringer against Constitutional rights by acts of destruction of court records, tainting court records, blocking appeals and persecution without mandated recusal or change of venue in cruel and unusual punishment meant to imprison the Respondent in the corrupt  court and not allow a fair and impartial appeal for redress.

1.      In the deprivation of the legal mandate to award David Derringer forma pauperis, this court has previously issued an illegal and fraudulent Order that cannot be sustained under Constitutional parameters  that the Appellant is to be “pre-screened” and any pleading or petition is to be perused by the court prior to filing. This clearly not only violates the due process and equal protection clauses of the Constitution, but would grant dictatorship of  any particular justice  to be enabled to pick and choose what particular litigant can use the courts, without any jurisdiction to see or read such petition or pleading before  filing of court record. Federalist No. 78 by Alexander Hamilton ; Nixon v. Fitzgerald, 457 US 731, 763 (1981). This creates  an “abuse” and tyranny over  a litigant  with no jurisdiction to do so in “cruel and unusual punishment”   and to be used in this particular matter to cover  up and for other NM judges that are publically corrupt and in bribery. Jones v. Mayer Co., U.S. Supreme Court 392 U.S. 409 No. 645 (1968). In the particular Order referenced by this court being illegally brought in No. 32, 326, but not yet enabled for further appeal by David Derringer, but is so void by the fraud encompassed with the deprivations of Constitution, as to be totally unenforceable under the guidelines of “Rule 1-060”. The Order referenced in No, 32,326 used to deny legal forma pauperis is in total violation of the Supremacy Clause of the Constitution Article VI. 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. This has the total effect to stop all due process and equal protection against David Derringer, in violation of all provisions of Constitution, which supersede the illegal Order of No. 32,326 of March 19, 2013, and ensure that such judges issuing such sedition are in violation of Oath by “perjury”. In re Aquinda, 241 F.3d 194 ; In re Williamson, 43 BR 813.;  United States v. Guest, 383 US 745 (1966); Griffin v. Breckenridge, 403 US 88 (1971) Footnote[ 101] 383 US 787 (1966) due process clause, Footnote [102] equal protection clause, Footnote [103] Sec. 5 empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amendment Rights, whether or not state officers or others acting under the color of state law are implicated in the conspiracy.” It is easily seen here that the underlying motives of the justices are to cover up the public corruption of the judicial system of New Mexico and underlying fraud by fraud themselves and deprivation of legal forma pauperis in order to bock an appeal. 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. This is clearly illustrated in this matter by deliberately not assigning an appeal case number of this appeal even though filed with the clerk under the notice of appeal so as to attempt to block this matter from ever reaching the NM Supreme Court to go on to the US Supreme Court. This deceit and fraud is
“willful” for obstruction of justice, just as the violations of the Supremacy Clause to intend that a particular judge can control all litigation as to whether it is file dor not. In the United States of America there can be no greater atrocity performed by a judge, outside of jurisdiction and judicial capacity, but executing egregious acts on the bench against the Respondent, of the destruction and concealment of court public records, and blocking appeals. Anderson v. Martin, (1964) 375 US 399, 11 L.Ed.2d 430, 84 S Ct 454 “In determining whether state action violates equal protection clause of 14^th Amendment where private action is also involved, crucial factor is interplay of governmental and private action.” The NM Court of Appeals errant justices are simply protecting corruption  by not making rulings that can be appealed and willfully keeping a case number from the record  to block further appeal so that the matter will be skewed.[1] The blocking of the court filings of DV-12-610 and appeal of same are to keep from public court record the egregious acts in April 2013 of violating and denying the 1^st Amendment against David Derringer due to David Derringer posting the public court records showing blatant public corruption of Judge Hadfield on the Internet (an entirely legal act under the 1^st Amendment) ; the threats and intimidation to prevent such exercise of 1^st Amendment rights by Judge Hadfield destruction and concealment of court documents and violations of all case laws and Constitution in persecution of a particular litigant in violation of rulings of the New Mexico Court of Appeals in cases (NO. 24,101), (NO. 27,959), (NO. 30,380), (NO. 30,591), (NO. 31,303), and (NO. 32,271) and other “obstruction of justice”. “Where the state is not in compliance with the federal regulations because of judicial constructions that circumvent or undermine the legislative intentions of the act, a new question arises as to the legitimacy of the state’s participation in the federal program. Because federal regulations and laws cannot infringe upon the Constitutional rights of United States Citizens, it can be presumed that those rights are protected under the federal mandates. If the state is going to make rules or practice procedures, which deny those rights, then the state actions become void, and this issue prevails over any other under consideration. And where the Constitution of the state or the state statutory laws are subverted through similar means, the people have no duty to perform unless under threat or coercion by further illegitimate means in order to protect their very lives.”  In this matter, the illegal and unconstitutional order of March 19, 2013 is void and there is no legal way that David Derringer can be forced in coercion or ransom for attaining appeal to file any pre pleading for consideration or perusal by a judge that does not have any jurisdiction to view that pleading until file of court record and granted a docketing number. This court is bound by the “supremacy clause” that defeats the March 19. 2-013 order as any ransom predisposition ability to appeal from the trial court of DM-12-610 or from any other court order or case. Error in quoting and mis-use of “Rule 11" to punish exercise of Derringer’s Constitutional rights and statutory rights “to sue” under Title 42 Section 1981(a) is entailed here for no judge can even use “Rule 11” until he has jurisdiction of the case upon legal filing of court record, and certainly cannot abuse discretion by persecuting any particular litigant by fraudulent claims of “frivolity” of pleadings when the motive is to stop exposure of public corruption of the courts themselves. 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, 10^th 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 exposing the public judicial corruption of New Mexico and for exercising his Constitutional and statutory rights to prop0erly appeal and to use his authorized “forma pauperis” under guidelines of public assistance that mandates same is defined as an “abuse or discretion” and “abuse of power” of any justice that attempts to block an appeal by mandating representation by an attorney when it has been shown that the litigant cannot procure an attorney due to destitution and no law mandates  representation by a licensed attorney in any US Court; with pro-se representation allowed at any time. The NM Court of Appeals illegal Order of March 19, 2013 is meant for “cruel and unusual punishment” and “oppression” and “tyranny” against David Derringer and to cover up illegal acts by justices  exposed that should be investigated by the FBI and Department of Justice. 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 notwithstanding”. US Constitution Article VI Cl.2 “The Supremacy Clause prohibits the application of state laws which conflict with federal laws.” Home Mortgage Bank v. Ryan, 986 F.2d 372, 375 (10^th Cir. 1993).”

2.       The Appellant David Derringer has properly and timely filed his Notice of Appeal, has conformed to Rule by eventually filing a copy of the Second Judicial District Court’s  stamped copy of such filing and also copied the filing to the NM Court of Appeals with proper date stamp. David Derringer has properly filed his notarized  statement allowing by mandate of forma pauperis by proof of public assistance [Exhibit 1], and the denial of such forma pauperis is highly illegal by the cover up of the underlying corruption by the NM Court of Appeals. Judge Hadfield has done criminal acts of conspiracy against rights, deprivation of rights under color of law, and obstruction of justice and Constitutional deprivations and court fraud and conspiracy of insurance fraud to GEICO that this court does not want exposed any further, so blocking an appeal by denying due process available by forma pauperis is simply a vehicle for corruption. 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 “Federal obstruction-of-justice statute reaches all corrupt conduct capable of producing effect that prevents justice from being duly administered, regardless of the means employed. 18 U.CA 1503.”

3.      The Appellant has no duty and this court has no jurisdiction to order the Appellant to submit any written explanation as to why he wishes to appeal or the grounds upon which he is challenging the various orders entered by the district court prior to the proper filing and sustained  furtherance of the appeal, as that is the purpose and intent of the “docketing statement” which cannot be filed until the appeal has been taken and perfected by docketing by the Appellant and in which this court has no jurisdiction to pre-peruse such issues until the docketing statement is filed of court record. This court cannot use issues or consideration of any merits of any appeal to be used illegally to grant or deny forma pauperis, as forma pauperis is not determined by the issues of any appeal, but only the financial status of public assistance granting the availability of such free filing. The abuse here is that the NM Court of Appeals is attempting to block appeal when they don’t like the issues underling of public  corruption and to mis use power to cover up such issues by use of ransom and extortion to block the filing of appeal. Rogers v. City of Little Rock, 152 F.3d 790, 797 (8th Cir. 1998).

4.      Until this court has jurisdiction after a proper filing of court record of the appeal of the trial court only does this court have any ability to make any decision regarding the explanation of the docketing statement and timely appeal taken or the merits of the appeal itself. Goradia v. Hahn Co., 111 N.M. 779, 810 P.2d 798 (1991); Gardner- Zemke Co. v. State, 109 N.M. 729, 790, P.2d 1010 (1990). (“Plaintiff has genuine issues which are but not limited to:) There is simply fraud  going on in the court for the justice to screen an appeal before filing. .  "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. ; 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.”; 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. The NM Court of Appeals has no jurisdiction over David Derringer until an appeal is taken, docketed and perfected.  NMRA 12-102; 12-201; 12-202;  12-208; and in no rules are there requirement for any justice to have any ability to block such appeal by deprivation of authorized and mandated forma pauperis by public assistance, nor any ability  of any justice  to see any documents  prior to the docketing   of the appeal.

5.      The Court of Appeals is legally running out-of-control with illegal Constitutional deprivations to block “due process and equal protection” use of the United States Court system. There are Constitutional rights under the 4^th, 5^th and 14^th Amendments and under US Code Title 42 Section 1981 that “guarantee” David Derringer’s right to appeal. In this matter, David Derringer timely filed his Notice of Appeal, with the proper attachments of all order appealed from with such wording in those orders that the trial court produced a final determination designating that a appeal further was not “interlocutory” in nature, an in which such Notice of Appeal was filed both with the trial court and the copy to the NM Court of Appeals. Therefore the appeal was “perfected” under the meaning of Williams v. Stewart, 2005-NMCA-061, 137 NM 420, 112 p..3D 281 Cert denied 2005-NMCERT-005.  This appeal and the forma pauperis cannot be blocked from either a proper docketing number or denial by abuse of power and abuse of discretion of Judge Timothy Garcia. The Appellant’ s filings cannot be blocked by public corruption or deprivation of rights of due  process and equal protection. This court creates errors in law to presume that case laws overpower the Constitution to enable a court to deprive appeal or due process with illegal claims that “The right of access   to the courts  is neither absolute  nor unconditional, and there is no constitutional right or access to the courts to prosecute an action that is frivolous or malicious”. Firstly, the Constitution “DOES” grant an absolute right to access to the courts by the very definition of “due process”. Defined by the Black’s Legal Dictionary: due process of lawn. a fundamental principle of fairness in all legal matters, both civil and criminal, especially in the courts. All legal procedures set by statute and court practice, including notice of rights, must be followed for each individual so that no prejudicial or unequal treatment will result. While somewhat indefinite, the term can be gauged by its aim to safeguard both private and public rights against unfairness. The universal guarantee of due process is in the Fifth Amendment to the U.S. Constitution, which provides "No person shall…be deprived of life, liberty, or property, without due process of law," and is applied to all states by the 14th Amendment. From this basic principle flows many legal decisions determining both procedural and substantive rights. Nownot adhering  to the mandates of “due process” it would be only ignorance and arrogance to presume that Rule 11  would apply without yet any jurisdiction to render a decision before any legal filing of court record that any particular  pleading or appeal would be “frivolous” or “malicious” when no justice has any right to see such pleading or legal filing until he has jurisdiction after such filing is of  court record. Hence forth, thus, David Derringer does not have to “re-submit” any Notice of Appeal or docketing statement for which it is mandated that this  NM Court of Appeals immediately upon the original filing of the Notice of Appeal grant a docketing number and consider such appeal “perfected”. Only after the appeal has been taken, does Judge Garcia have any right to make a judgment as to whether or not such appeal is “frivolous” or in “malicious prosecution” and Rule 11  neither can supersede the filing, nor be used to deny the filing of appeal. The actions of Judge Garcia in #5 consist of violations  of Constitution and Oath, entailing sedition and treason against the United States in a tyranny and oppression of the very meaning of “due process and equal  protection”.

14th Amendment Section 3

“US Constitution 14th Amendment Section 3-No person shall be an...elector..or hold any office, under the United States, or under any State, who, having previously taken an oath,... as a judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

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.”; Phelps v. Hamilton, 122 F.3d 1309, 1323 (10^th Cir. 1997). “manifest error of law is clearly present.”; 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)”.

6.      As a matter of Constitutional law, the Rules of Civil Procedure and the Statutes of NM as well as the mandated granting of “forma pauperis” due to proof of NM public assistance and guarantee  of “due  process” and “equal protection” David Derringer is not required to “re-submit” any “application” for appeal. There is no “application for such appeal” but a Appeal of right and how taken is the Notice of Appeal filed with this court mandating approval for filing under forma pauperis with a docketing number assigned, and thus a “perfected appeal” If Judge Garcia then chooses  to abuse his discretion and commit treason denying a legal appeal by fraudulent schemes  of claims of “frivolity” in order to protect the underlying Judge Hadfield’s obstruction of justice, conspiracy against rights and deprivation of rights under color of law with Constitutional deprivations of public corruption and court fraud proven by violation of Oath [Exhibit 2], he is free to do so  of court record, but not before. Under NMSA 34-6-29 David Derringer  properly filed  his Notice of Appeal in District Court and copy to the NM Court of Appeals with attached appealed Orders. Under NMSA 34-6-30  the court papers filed were mandated to be entered with a date and time  of filing and the court of which filed both of the District Court and the NM Court of Appeals and the appeal filing was mandated to be assigned a docketing number upon such filing. The Oath under NMSA 34-6-22 prescribed by Constitution for State Officers and justices including Judge Timothy Garcia under Chapter 38 Article 3 NMSA 38-3-9 mandates a reversal of the Order of August 27, 2013, a granting of the forma pauperis and assignment of a docketing number to the perfected appeal of Respondent David Derringer or the egregious acts in defiance of law in public corruption of Judge Hadfield in DM-12-610.

WHEREFORE, the Appellant/Respondent David Derringer respectfully  requests the relief that this court conform to Federal law, NM State Law, Constitution and the Rules of Civil Procedure with mandates of performing duties in office  under “jurisdiction”only and that such duties entail giving due process and equal protection to the “poor” upon showing legally that mandates  forma pauperis of waiver of filing fees, and that such forma pauperis status is only defined by financial considerations and not by the merits of any litigation and cannot be abuse and used by Judge Timothy Garcia to effect  a cover-up of underlying public corruption and cannot be used in criminal extortion or ransom to block or prevent a legal appeal and wherein there is no “jurisdiction” to block any appeal by  denial of forma pauperis based on Rule 11, wherein Rule 11 cannot be enacted until the filing is docketed and jurisdiction of achieved by such docketing and perfection of an appeal already taken, before any denieal  of the merits can be assessed to be “frivolous” or “malicious”. Grievous legal error and deprivation of rights under Constitution  has occurred in the Order of August 27, 2013 that needs immediate remedy as a matter of law. 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)

           

Respectfully submitted by: _______________________________

David Derringer, Box 7431, Albuquerque, New Mexico 87194

CERTIFICATE OF SERVICE            September 3, 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, 6^th, NW, Albuquerque, New Mexico 87102

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[1] State v. Reynolds, 111 NM 263, 267, 804 P.2d 1082, 1086 (Ct. App. 1990) “Matters outside the record present no issue for review”.