Petition for Writ of Certiorari — Charles Kinney, Petitioner v. Michele R. Clark

hm

IN THE

SUPREME COURT OF THE

UNITED STATES

A

CHARLES KINNEY,

Petitioner,

V.

MICHELLE R. CLARK,

Respondent,

On Petition For Writ Of Certiorari To The

California Supreme Court

Cal. Supreme Court #S246379 (2/14/18

En Banc)

Calif. Court of Appeal, #B272408 and

#B276290 (11/30/17 Sanctions Order)

Calif. Superior Court, Case #BC354136

A

PETITION AND APPENDIX FOR A

WRIT OF CERTIORARI

A

CHARLES KINNEY

Petitioner in pro se

5826 Presley Way

Oakland, CA 94618

charleskinney@hotmail.com

Phone: 510-654-5133; FAX 594-0883

M

QUESTIONS PRESENTED

Federal Rights

When will this Court

address Kinney's 42 U.S.C. Secs. 1983 and

1985 claims against state court judges

who for years have acted as "prosecutors"

under color of authority to deny Kinney

his federal civil rights (all without subject

matter jurisdiction due to Clark's 2010

Chapter 7 bankruptcy/2012 discharge)?

-

Bankruptcy Fraud When will this Court

put a stop to ongoing bankruptcy fraud by

discharged 2010 Chapter 7 debtor Michele

Clark and her own unsecured creditor

attorneys Marcus et a! (and by state court

judges who enable this fraud); and start

enforcing 18 U.S.C. Secs. 152 [false oath

or account] and 157 [false representation]?

-

Enablers

When will this Court put a

stop to state court judges who have been

for years enabling a scheme whereby any

"difficult" attorney or litigant is punished

[e.g. by making them lose all cases or

appeals; by labeling them as a vexatious

litigant or as the "puppet" of a vexatious

litigant; by disbarring them if they are

attorneys; by creating false charges to get

them sanctioned; and/or by awarding

attorney's fees against them based on now

unenforceable pre-petition contracts] as

more fully described in In re Kinney, 201

Cal.App.41h 951 (Cal. 2011) and/or Kinney

v. Clark, 12 Cal.App.5th 724 (Cal. 2017)?

-

1

PARTIES TO THE PROCEEDINGS

The parties to this proceeding are those

specified and appearing in the caption to this

petition.

11

TABLE OF CONTENTS

QUESTIONS PRESENTED ............i

PARTIES TO THE PROCEEDINGS .....ii

TABLE OF CONTENTS ..............iii

INDEX TO APPENDIX ...............iv

TABLE OF AUTHORITIES .............v

PETITION FOR WRIT OF CERTIORARI.. 1

OPINIONS BELOW ...................17

JURISDICTION ......................19

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .............24

STATEMENT OF THE CASE ...........24

SUMMARY OF LOWER COURT

PROCEEDINGS .....................25

STATEMENT OF FACTS ...............25

REASONS FOR GRANTING THE

WRIT OF CERTIORARI ...............26

Certiorari Should Be Granted Because the State

Courts Will Continue to Act As Prosecutors

Under Color of Authority To Deny Kinney All of

His Federal Civil And Constitutional Rights;

111

And The Method and Application of This Opinion

Severely Impairs Meaningful Review of

Important Questions of Law; And Severely

Impairs Petitioner's Rights Guaranteed Under

the First, Fifth, and Fourteenth Amendments;

and Is In conflict with the Decisions of This

Court and Other United States Court Of

Appeals .............................26

CONCLUSION .......................30

APPENDIX

iv

INDEX TO APPENDIX

Page numbers at top of page:

Sequential No.

In Document

Appendix A: Feb. 14, 2018 "final" decision by the

Cal. Supreme Court denying Kinney's petition

for review of the Nov. 30, 2017 sanction order in

Cal. Court of Appeal Nos. B272408 and B276290

[e.g. appeal of attorney's fee "cost" order based on

unenforceable pre-petition contracts in favor of

debtor Michele Clark for Kemton v. Clark, Los

Angeles County Superior Court No. BC354136

after Clark's Chapter 7 bankruptcy in 2010 and

discharge in 2012]; see Cal. Supreme Court No.

S246379 [En Banc] ....................... 1

Appendix B: Nov. 30, 2017 order re sanctions by

the Justices of the Calif. Court of Appeal, Second

Appellate District, Division One, after it had

dismissed Kinney's appeal and had improperly

expanded the vexatious litigant law [e.g. to

include Kinney's attorney], which is contrary to

Cal. Code .of Civil Procedure ("CCP") Secs. 391 et

seq. and to Cal. Supreme Court decisions; and

contrary to discharged debtor Clark's 2010

Chapter 7 bankruptcy and her now-extinguished

contractual obligations under now-unenforceable

pre-petition contracts (e.g. the 2005 real estate

purchase contract between "seller" Michele Clark

and "buyers" Kinney and Kempton) .........2

V

CASES

TABLE OF AUTHORITIES

American Ry. Express Co. v. Levee,

263 U.S. 19 (1923). .................23

BE & K Constr. Co. v. NLRB,

536 U.S. 516 (2002) ................28

Bivens v. Six Unknown Named Agents,

403 U.S. .388 (1971) ..............17

Bosse v. Oklahoma,

580 U.S.

137 S.Ct. 1 (2016) ......20

,

Bostanian v. Liberty Savings Bank,

52 Cal.App.4th 1075 (Cal. 1997)......11

Canatella v. State of California

304 F.3d 843 (9th Cir. 2001) .........24

Cen-Pen Corp. v. Hanson,

58 F.3d 89 (4th Cir. 1995) ...........16

Cohen v. California,

403 U.S. 15 (1971) .................23

Evans v. Fraught,

231 Cal.App.2d 698 (Cal. 1965) .......10

Fitzpatrick v. Bitzer,

427 U.S. 445 (1976) ................20

Fladeboe v. American Isuza Motors,

150 CalApp.4th 42(Cal. 2007) .......22

A

4

F.T.C. v. Ticor Title Ins.,

504 U.S. 621 (1992) .................21

Giset v. Fair Political Practices Comm..

25 Cal.App.4th 658 (Cal. 2001) .......22

Grannis v. Ordean,

234 U.S. 385 (1914) ................29

Greenfield v. Mather,

32 Cal.2d 23 (Cal. 1948) ............10

Griffin v. Illinois,

351 U.S. 12 (1956) .................30

Hawaii v. HSBC Bank Nevada,

761 F.3d 1027 (9th Cir. 2014) ........21

Hawkins v. KPMG LLP,

423 F.Supp.2d 1038 (N.D. Cal. 2006). 22

.

Hooten v. H Jenne III,

786 F.2d 692 (5th Cir. 1986) .........27

In re Gonzales,

830 F.2d 1033 (9th Cir. 1987)........21

In re Hamilton,

540 F.3d 367 (6th Cir. 2008) ........21

In re Justices of Supreme Ct. of Puerto Rico

695 F.2d 17 (18t Cir. 1982) ..........17

In re Kinney,

201 Ca1.App.4tI 951 (Cal. 2011) .....i, 7

vi'

In re Miles1

430 F.3d 1083 (9th Cir. 2005)

.

21

In re Murchison,

349 U.S. 133 (1955) ................30

Johnson v. Home State Bank,

501 U.S. 78 (1991) ..................16

Kinney v. Clark

12 Cal.App.5th 724 (2017)

..

i, 1, 14, 25, 16

Lacey v. Maricopa County,

693 F.3d 896 (9th Cir 2012) ..........27

Maritime Electric Co. v. United Jersey Bank

959 F.2d 1194 (3rd Cir. 1991) .........21

Michigan-Wisconsin Pipe Line Co. v. Calvert

347 U.S. 157 (1954) ................23

Mojtahedi v. Vargas.

228 Cal.App.4th 974 (Cal. 2014) .......22

Moore v. Kaufman.

189 Cal.App.4th 604 (Cal. 2010) .......10

Mov v. United States,

906 F.2d 467 (9th Cir. 1990) ...........23

NAACP v. Alabama ex rel. Flowers,

377 U.S. 288 (1964) ................29

Olson v. Cory.

35 Cal.3d 390 (Cal. 1983) ...........23

viii

Patrick v. Burget,

486 U.S. 94 (1988) .................20

Pennhurst State Sch & Hosp v. Halderman

465 U.S. 89 (1984) ................20

Pennsylvania v. Union Gas Co.

491 U.S. 1 (1989) .................20

Peralta v. Heights Medical Center, Inc.,

485 U.S. 80 (1988) ................29

Plaza Hollister Ltd. Ptsp v Cty of San Benito

72 Cal.App.4th 1 (Cal. 1999) .........21

PLCM Group. Inc. v. Drexler,

22 Ca1.4th 1084 (Cal. 2000)...........16

Reynolds Metals Co. v. Alperson,

25 Cal.3d 124 (Cal. 1979)............16

Saltarelli & Steponovich v. Douglas,

40 Cal.App.4th 1 (Cal .1995) ..........22

Sloman v. Tadlock,

21 F.3d 1462 (9th Cir. 1994) ..........27

Smith v. Bennett,

365 U.S. 708 (1961) .................30

Soranno's Gasco, Inc. v. Morgan,

874 F.2d 1310 (9th Cir. 1989) .........27

Supreme Court of Virg. v. Consumers Union

446 U.S. 719 (1980) ..............5, 17

Ix

Thomas v. Collins,

323 U.S. 516 (1945) .................23

Trope v. Katz,

11 Ca1.4' 274 (Cal. 1995) ............16

United Mine Workers v. Illinois Bar Assn.,

389 U.S. 217 (1967) .............23, 28

United States v. Murphy,

768 F.2d 1518 (7th Cir. 1985) .......5, 17

U.S. v. Ron Pair Enterprises, Inc.,

489 U.S. 235 (1989) ...............22

Young v. Tr-City Healthcare Dist.,

210 Cal.App.4th 35 (Cal. 2010) ......21

Zarcone v. Perry,

572 F.2d 52 (2nd Cir. 1978) ......5, 17

CONSTITUTIONAL PROVISIONS,

STATUTES AND MISC

U.S. Const., amendment I.. 26, 27, 28

.

U.S. Const., amendment V ........26

U.S. Const., amendment XIV ......26

11 U.S.C. Sec. 506 ...............22

28 U.S.0 § 1254(1) ..............19

28 U.S.0 § 1257(a) ..............19

x

28 U.S.0 § 2101(c)

42 U.S.C. Sec. 1983

. 19

..

2, 3, 5, 17, 19, 24

42 U.S.C. Sec. 1985 ..............24

Cal. civil code Sec. 1717 ......16, 27

Cal. code of civil Proc. Secs. 391 etc v, 19

.

Cal. CCP Sec. 1033.5(a)(10).... 16,27

xl

PETITION FOR A WRIT OF CERTIORARI

Petitioner Charles Kinney requests a "writ

of certiorari" issue to review the "final" judgment

(i.e. denial of review) by the Cal. Supreme Court

in No. S246379 on 2/14/18 [App. A]. That ruling

denied review of the 11/30/17 "order re sanctions"

issued by the Cal. Court of Appeal, Second

Appellate District, Division One ("CON') [App. B].

These same COA justices wrote Kinney v.

Clark, 12 Cal.App.5th 724 [App. B, 3-6]; wrote the

Nov. 1, 2017 decision; and then wrote the Nov. 30,

2017 sanction order. The 2017 rulings were no

surprise, but each add more insight into the "dirty

little secret" ("DLS") which started 10 years ago.

By now, the DLS is not so "little", and not

so "secret". The 2017 ruling(s) continue to violate

bankruptcy law and are part of ongoing efforts by

the courts to prosecute Kinney and his attorneys.

1

Many "dirty" scandals have plagued sports,

politics, and the film industry, but the state and

federal judiciary should be "clean". Here, it is not.

When will this Court put a stop to it?

In all matters judicial, "the buck stops

here" in this Court. This Court has tools to clean

up "abuse-of-power" problems. These may get

worse as more details emerge (compare Weinstein,

Nasser, Cosby, Spacey, Scalia and Kozinski).

Given the immediate access to news and a

video recorder (aka smart phone) in everyone's

pocket, many "secrets" don't last very long.

Here, the events are similar and all involve

an "abuse of power under color of authority".

If

other courts were not also abusing power, Kinney

could have continued with his civil rights claims

under 42 U.S.C. Secs. 1983 etc, but federal courts

have precluded Kinney's use of that statute(s).

2

For example, 3 Circuit Judges of the Ninth

Circuit (Wallace, Silverman and Bybee) suddenly

and without justification dismissed 8 of Kinney's

pending appeals (e.g. for violations of bankruptcy

law; for 42 U.S.C. Sec. 1983 claims) on the same

day (Dec. 28, 2017), a few days after Ninth Circuit

Judge Alex Kozinski suddenly retired.

This global dismissal violated Kinney's civil

rights and gives rise to Bivens claim(s). Some of

these appeals involved certain claims which could

only be filed in US district court (e.g. 42 U.S.C.

Sec. 1983 claims; bankruptcy law violations).

The preclusion of Kinney's access to state

and federal courts is an abuse of power an d is a

violation of Kinney's First Amendment rights.

The abuse of power (aka abuse of discretion)

can be done by "overt act" or by "omission". Here,

COA overtly acted by issuing the Nov. 30, 2017

3

sanction order which was contrary to state and

federal law. Then, the Cal. Supreme Court acted

by omission by refusing to grant review.

The abuse of power in state court is shown

by: (1) the myth that Kinney was not a "creditor"

in Clark's 2010 bankruptcy [when Clark specially

listed Kinney as a creditor in her schedules]; (2)

the myth that Kinney has had his "day in court"

[when the COA has made directly-inconsistent

rulings from 2008 onward with contrary facts and

misapplied law in favor of Clark which they refuse

to correct]; and (3) the continuing prosecution of

Kinney [e.g. to rescue the career of LASC Judge

Elizabeth Grimes from 2007 to 2010, and protect

her 2010 promotion to the Cal. Court of Appeal].

The abuse of power in federal court is

shown by refusals to allow civil rights claims to

proceed and to rule on bankruptcy counter-claims.

4

Clean-up tools exist. 42 U.S.C. Secs. 1983

and 1985 apply here, but Kinney has been denied

that remedy for years. The Consumers Union case

applies when judges act as prosecutors, but that

case has never been cited for Kinney's benefit (and

the US district courts and Ninth Circuit ignore it).

All state courts have had their share of

scandals [e.g. the Murphy case with bribes paid by

"miracle worker" attorneys; and the Zarcone case

about abusing an outside coffee vendor].

Here, this abuse is different because: (1)

anyone can fact check the history [e.g. online with

a Pacer account], and (2) it has some unique

elements [e.g. ongoing bankruptcy violations after

Clark's 2010 Ch. 7 bankruptcy; ongoing violations

of the CWA in Laguna Beach; ongoing violations

of ADA law in LA; and ongoing judicial expansion

of vexatious litigant law to include attorneys].

5

Here, Kinney was forced to protect his real

and personal property rights, so he had no choice

but to become a whistleblower. Unlike other

scandals [e.g. WikiLeaks], Kinney has broken no

laws, but he cannot be silent when state and

federal law gets ignored, misused or abused (and

his property keeps being taken or devalued).

In this abuse-of-power situation, Kinney v.

Clark provides several clear admissions of guilt by

the state courts, and a few false facts. That case

is cited by the COA [App. B, 3-6]. That case does

not fully explain the "how" or "why" (or who is the

kingmaker), but that will be known soon.

Everyone knows that a bankruptcy results

in unenforceable prepetition contracts; that debts

will be discharged; and that creditors get listed by

the debtor. They might not know that obligations

under prepetition contracts are eliminated (which

means a prevailing-party-gets-attorney-fee clause

in a prepetition 2005 real estate purchase contract

between "seller" Clark and "buyer" Kinney cannot

be enforced), but a judge should know.

Here, the state courts don't want to admit

Kinney was listed as a "creditor" by Clark, but

Kinney's status as a "listed" bankruptcy creditor

can never be changed [e.g. by the US Bankruptcy

Court's 10/18/12 abandonment order issued after

Clark's 8/13/12 discharge]. [App. B, 3-6]

This is part of a pattern of abuse by the

state courts. For example, In re Kinney, 201

Cal.App.4th 951 (Cal. 2011) was also a prosecution

of Kinney even though he was only the attorney

for appellant Kempton. That Dec. 2011 opinion

was issued after the state trial court's Oct. 2011

refusal to follow the law of the case in Kempton

and Kinney v. City of Los Angeles, 165 Cal.App.4th

WA

1344 (Cal. 2008) about obstructing rights of way.

In addition, the Cal. Court of Appeal transferred

the "second" appeal of that case (with the Aug.

2008 opinion by Division 4) to Division 3, contrary

to its Internal Operating Procedures (aka Local

Rules); and the Cal. Supreme Court ignored the

writ which challenged that unauthorized transfer.

The Aug. 2008 opinion embarrassed LASC

Judge Elizabeth Grimes (and other LASC Judges)

who ignored that neighbors of Kinney could not

obstruct public rights-of-way with their fences or

trees; and that any such obstruction was a public

nuisance per Se. By Oct. 2008, the state court had

embarked on the abuse of Kinney by: (1) making

him a vexatious litigant; (2) dismissing all of his

appeals; (3) issuing directly-inconsistent rulings

as to seller Clark and neighbor Cooper; and (4)

awarding fees based on unenforceable contracts.

8

All of this was an abuse of power because it

penalized Kinney for things he had never done.

Kinney was a sole practitioner with a decadeslong discipline-free record who was in the wrong

place at the wrong time (e.g. since Judge Grimes

wanted a promotion and was assigned his case).

Here, LASC Judge Grimes made directlyinconsistent rulings against Kinney in favor of

seller Clark and next-door neighbor Cooper from

2007-2008 by misapplying the Evans case.

Next, the COA justices created a no-win

situation by affirming those directly-inconsistent

rulings by Judge Grimes from 2008 to 2010. That

was done so the "win/loss" record of Judge Grimes

would improve, and then she could be promoted to

the COA. [Judge Grimes is now Justice Grimes.]

In the 2017 opinion, this inconsistency was

vaguely noted. Kinney was unable to pursue lack-

of-merchantable -title claims against seller Clark

and unable to stop neighbor Cooper's encroaching

fence due to an unrecorded lease by Clark to

Cooper. This is a blatant misapplication of Evans

v. Fraught, 231 Cal.App.2d 698, 705 (Cal. 1965).

This inconsistency was explained during

the oral argument, but the COA already knew it

existed. The COA declined to resolve it [App. B, 4

and fn. 2 at 8-9] even though they were supposed

to do that, and even though they had done that

same thing for other inconsistent rulings that

they had previously made. Moore v. Kaufinan, 189

Cal.App.4th 604, 612-614 (Cal. 2010); Greenfield v.

Mather, 32 Ca1.2d 23, 25-35 (Cal. 1948).

In the 2017 opinion, the COA admits they

affirmed a July 10, 2012 attorney fee order even

though, under bankruptcy law, that was improper

because only the trustee could request attorney's

10

fees for debtor Clark before her Aug. 2012

discharge. Bostanian v. Liberty Savings Bank, 52

Cal.App.4th 1075, 1078-1087 (Cal. 1997).

Some of the history on this can be found in

a complaint filed by one of Kinney's attorneys in

US District Court, Central District of Calif., Case

No. 2:18-cv-02136. The p unishment of Kinney

was being done because Kinney was "difficult" and

"embarrassing" to LASC Judge Grimes (even

though Kinney had a right to appeal since the

Evans case held exactly what Kinney had argued).

All of this was known by the Cal. Supreme

Court since as early as late 2011, but they have

refused to stop the ongoing and unjustified "abuse

of power under color of authority" as to Kinney.

The facts and law that apply have been

mentioned to this Court in several prior petitions,

so those will be briefly mentioned here.

11

Kinney bought a house from Clark in 2005.

During contract negotiations, Clark intentionally

concealed material facts. Once Cooper had crosscomplained for more of Kinney's land, Clark was

sued for: (1) lack-of-merchantable-title because

Clark had given Cooper an unrecorded lease to

keep Cooper's encroaching fence: and (2) fraud-inthe-inducement as to the concealed development

restrictions on the detached garage and house.

The former was part of the inconsistent

COA decisions from 2008 to 2010 [e.g. see COA

appeals Nos. B200893 and B208493].

The later was precluded by a vexatious

litigant ("VU) order by Judge Luis Lavin (now a

Justice) when Kinney was not a party in LASC

BC374938; by Justice Roger Boren's unilateral

dismissal of Kinney's 2009 appeal of that 2008 VL

order; and by Clark's 2010 Chapter 7 bankruptcy.

12

Contrary to the COA's sanction order [App.

B, 7], Kinney has never had his "day in court" as

to the lack-of-merchantable-title from Clark; the

fraud-in-the-inducement by seller Clark; the right

to appeal VL orders issued by LASC Judge Lavin,

COA Justice Boren, and others; and his rights as

a "listed" creditor in Clark's 2010 bankruptcy.

Clark's 2010 Chapter 7 bankruptcy case is

U.S. Bankruptcy Court, Case No. 2:10-bk-41323RN (Judge Richard Neiter) in which Kinney and

co-buyer Kempton are clearly listed as "creditors".

Since Kinney would not go away, COA

Adm. Pres. Justice Boren issued In re Kinney, 201

Cal.App.4t11 951 (Cal. 2011) when Kinney was only

the attorney. Justice Boren repeated language

used by LASC Judge Grimes in 2007.

Still Kinney would not go away, so US

Bankruptcy Court Judge Richard Neiter issued

13

the Oct. 18, 2012 abandonment order [at Marcus'

request] to revoke Kinney's status as a "listed"

creditor, but it cannot be done in that manner.

Still Kinney would not go away, so from

2013 to 2016 US District Court Judge Philip S.

Gutierrez started to issue sua sponte remands of

Kinney's removals of Clark's state court motions

for more fees; he refused-to-rule on Kinney's

counterclaim and third-party complaint as to

bankruptcy protections for a "listed" creditor; and

in 2016 he made Kinney a vexatious litigant in

federal court subject to a pre-filing order.

Still Kinney would not go away, so COA

Justices Frances Rothschild, Victoria Chaney and

Jeffrey Johnson then issued Kinney v. Clark, 12

Ca1.App.5t11 724 (Cal. 2017) with their own

admissions against interest (e.g. admissions of

blatant violations of bankruptcy law).

14

Kinney would not go away, so these same

COA justices issued the Nov. 1, 2017 decision

which rewarded discharged debtor Clark (and

again violated bankruptcy law).

Kinney would not go away, so these same

COA justices issued the Nov. 30, 2017 sanction

order against Kinney and his attorney [App. B]

which rewarded discharged debtor Clark and her

attorneys (and again violated bankruptcy law).

The Cal. Supreme Court refused to grant

review [App. A], so this petition is being filed.

On Dec. 28, 2017, the Ninth Circuit joined

into the fray (possibly due to Kozinski's sudden

"retirement") by summarily dismissing 8 appeals

by Kinney involving "abuses of power under color

of authority" [e.g. violations of bankruptcy law;

denial of honest services, RICO extortion; refusal

to assign an appellate number in state court].

15

Then, 22 days later on Jan. 19, 2018, the

Ninth Circuit issued a prefiling order against

Kinney in the Ninth Circuit [see #17-80256].

Clark's 2010 bankruptcy eliminated all her

2005 purchase contract obligations, so she cannot

get attorneys fees from Kinney. Cal. Civil Code

Sec. 1717 [valid contract required before recovery

of attorney fees as "costs" via Cal. Code of Civil

Procedure Sec. 1033.5(a)(10) can occur]; Cen-Pen

Corp. v. Hanson, 58 F.3d 89, 92-94 (4th Cir. 1995);

Johnson v. Home State Bank, 501 U.S. 78, 84

(1991); Trope v. Katz, 11 Cal.4th 274, 279-289 (Cal.

1995); PLCM Group, Inc. v. Drexler, 22 Cal-4th

1084, 1092-1094 (Cal. 2000); Reynolds Metals Co.

v. Alperson, 25 Cal.3d 124, 127-129 (Cal. 1979).

The state courts (e.g. LASC, COA and Cal.

Supreme Court) cannot act as prosecutors of

Kinney under color of authority (e.g. contrary to

16

his rights as a "listed" creditor in a bankruptcy; by

making directly-inconsistent rulings in the same

case) without creating federal civil rights claims.

Supreme Court of Virginia v. Consumers Union,

446 U.S. 719, 736 and n. 15 (1980); In re Justices

of Supreme Court of Puerto Rico, 695 F.2d 17, 24

(18t Cir. 1982); United States v. Murphy, 768 F.2d

1518, 1523-1539 (7th Cir. 1985); Zarcone v. Perry,

572 F.2d 52, 54-57 (2nd Cir. 1978).

The federal courts (e.g. district courts,

Ninth Circuit, and Bankruptcy Court) cannot act

as prosecutors of Kinney under color of authority

(e.g. contrary to Kinney's rights as a "listed"

creditor in Clark's bankruptcy) without giving rise

to federal tort claims [e.g. similar to a 42 U.S.C.

Sec. 1983 claim against state actors, but against

federal actors under the authority in Bivens v. Six

Unknown Named Agents, 403 U.S. 388 (1971)].

17

OPINIONS BELOW

The final decision(s) sought to be reviewed

(in reverse chronological order) are the:

Feb. 14, 2018 "final" decision by the

Cal. Supreme Court denying Kinney's petition for

review of the Nov. 30, 2017 sanction order in Cal.

Court of Appeal Nos. B272408 and B276290 [e.g.

appeal of attorney's fee "cost" order based on

unenforceable pre-petition contracts in favor of

debtor Michele Clark for Kempton v. Clark, Los

Angeles County Superior Court No. BC354136

after Clark's Chapter 7 bankruptcy in 2010 and

discharge [Appendix A, page 1]'. and

Nov. 30, 2017 order re sanctions by

the Justices of the Calif. Court of Appeal, Second

Appellate District, Division One, after it had

Citation method is Appendix ("App."), exhibit

letter, and sequential page number.

1

18

dismissed Kinney's appeal and had improperly

expanded the vexatious litigant law [e.g. to

include Kinney's attorney], which is contrary to

Cal. CCP Secs. 391 et seq. and to Cal. Supreme

Court decisions; and contrary to discharged

debtor Clark's 2010 Chapter 7 bankruptcy and her

now-extinguished contractual obligations under

now-unenforceable pre-petition contracts (e.g. the

2005 real estate purchase contract between seller

Clark and buyers Kinney/Kempton) [App. B, 2].

JURISDICTION

The jurisdiction of this Court is invoked

under Title 28, United States Code ["U.S.C."],

Secs. 1254(1), 1257(a), and/or 2101(c).

The COA improperly sanctioned Kinney

and his attorney Rubendall (after dismissing

Kinney's state court appeals) [App. B, 2].

19

The Cal. Supreme Court acted as "enablers"

by refusing to grant review [App. A, 1].

As shown by prior petitions to this Court,

the state courts have not followed and are still

not following established law as to Kinney [e.g.

see petitions 15-1035, 15-5260, 15-6896, 15-6897,

15-6916, 15-7133, 16-252, 16-606, 16-1182, and

17-219]. Bosse v. Oklahoma, 580 U.S.

,

137

S.Ct. 1, 196 L.Ed.2d 1 (2016).

Thus, the state courts made rulings that

violated Kinney's federal constitutional rights

(e.g. First Amendment) and civil rights under

color of authority or official right (e.g. 42 U.S.C.

Sec. 1983), so all judicial immunity is eliminated.

Fitzpatrick v. Bitzer, 427 U.S. 445, 448 (1976);

Pennhurst State Sch. & Hosp. v. Halderman, 465

U.S. 89, 102-106, 123 n. 34 (1984); Patrick v.

Burget, 486 U.S. 94, 101-104 (1988); Pennsylvania

20

v. Union Gas Co., 491 U.S. 1, 57 (1989); F.T.C. v.

Ticor Title Ins. Co., 504 U.S. 621, 631-638 (1992).

COA's Nov. 30, 2017 sanction order is void

because bankruptcy law completely preempted all

state court cases filed prior to July 2010 [e.g.

LASC BC354136 and BC374938]. Maritime

Electric Co., Inc. v. United Jersey Bank, 959 F.2d

1194, 1203-1204 (3rd Cir. 1991); In re Hamilton,

540 F.3d 367, 370-376 (6th Cir. 2008); In re Miles,

430 F.3d 1083, 1087-1089 (9th Cir. 2005); In re

Gonzales, 830 F.2d 1033, 1034-1036 (9th Cir.

1987); Hawaii ex rel Louie v. HSBC Bank Nevada,

N.A., 761 F.3d 1027, 1033-1034 (9th Cir. 2014).

The COA justices should have vacated the

"cost" order in favor of discharged debtor Clark,

but didn't. Young v. Tr-City Healthcare Dist.,

210 Ca1.App.4th 35, 41-42 and 49-53 (Cal. 2010);

Plaza Hollister Ltd. Ptsp. v. Cty. of San Benito, 72

21

Cal.App.4th 1, 13-22 (Cal. 1999); Giset v. Fair Pol.

Pract. Comm., 25 Ca1.App.4th 658, 701 (Cal. 2001).

Once Clark declared Chapter 7 bankruptcy

in July 2010, she could not "list" attorney fees

owed to her attorneys Marcus in her schedules

because they never proved their 2007 hourly-fee

retainer or lien were valid, so Clark was not

obligated to pay those bills. Clark could pj "list"

new state court attorney fee orders in amended

schedules since Marcus never proved their lien

was valid (e.g. they all had unclean hands). 11

U.S.C. Secs. 506; U.S. v. Ron Pair Enterprises, Inc,

489 U.S. 235, 238-240 (1989); Moitahedi v. Vargas,

228 Cal.App.4th 974, 976-980 (Cal. 2014); Saltarelli

& Steponovich v. Douglas, 40 Cal.App.4th 1, 3..7

(Cal. 1995); Hawkins v. KPMG LLP, 423 F.Supp.2d

1038, 1052 (ND. Cal. 2006); Fladeboe v. American

Isuza Motors, 150 CalApp.4th 42, 56 (Cal. 2007).

22

Thus, the Cal. Supreme Court's denial of

Kinney's petition was an abuse of discretion as to

that "void" 2017 sanction order [App. B, 2]. Olson

v. Cory, 35 Cal.3d 390, 400-401 (Cal. 1983).

The Cal. Supreme Court's denial of review

also violated Kinney's First Amendment rights.

United Mine Workers v. Illinois State Bar Ass'n,

389 U.S. 217, 222 (1967) [one of "the most precious

of the liberties safeguarded by the Bill of Rights"];

Moy v. United Statest, 906 F.2d 467, 470 (9th Cir.

1990); Thomas v. Collins, 323 U.S. 516, 530 (1945).

Any issues regarding Clark's bankruptcy or

her discharge are still controlled by bankruptcy

law, and all state courts must follow that law.

American Railway Express Co. v. Levee, 263 U.S.

19, 20-21 (1923); Cohen v. California, 403 U.S. 15,

17-18 (1971); Michigan-Wisconsin Pipe Line Co. v.

Calvert, 347 U.S. 157, 159-161 (1954).

*1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

When Kinney's federal rights are violated

by state court judges acting as prosecutors under

color of authority, Kinney has claims against them

under 42 U.S.C. Sees. 1983 and 1985.

The powers of the state appellate court are

limited by explicit limitations in state statutes,

explicit limitations found in state supreme court

decisions, and/or by the civil and constitutional

rights of represented appellants. Canatella v.

State of California, 304 F.3d 843, 847-854 and n.6

and 14 (9th Cir. 2001).

STATEMENT OF THE CASE

This petition involves the "abuse of power

under color of authority" by the state courts

against Kinney, violating his federal civil rights.

24

SUMMARY OF LOWER COURT PROCEEDINGS

See 12 Cal.App.5th 724 and above.

STATEMENT OF FACTS

A. Summary Of Statutory Provisions

The state courts may not exercise any

jurisdiction inconsistent with the Constitution of

the United States, the Calif. Constitution, or

applicable statutes under state or federal law.

Here, the LASC and COA exceeded their

jurisdiction and acted as prosecutors or enforcers

(rather than neutral arbitrators) against Kinney

by: (1) dismissing Kinney's appeals B272408 and

B276290; (2) expanding state vexatious litigant

law to include Kinney and his attorney; and (3)

sanctioning Kinney and his attorney Rubendall

[App. B, 2] (e.g. all based on 12 Cal.App.5t1 724).

25

The Cal. Supreme Court refused to grant

review, so it also acted as a prosecutor [App. A, 11

That is not allowed under the law.

This is a matter of public concern because

the state courts acted in violation of bankruptcy

law, and acted as prosecutors, to deny Kinney his

First Amendment and civil rights

B. Brief Statement of the Facts

See 12 Cal.App.5th 724 and above.

REASONS FOR GRANTING THE WRIT OF

CERTIORARI

Certiorari Should Be Granted Because the

State Courts Will Continue to Act As

Prosecutors Under Color of Authority To

Deny Kinney All of His Federal Civil And

Constitutional Rights; And The Method and

Application of This Opinion Severely

Impairs Meaningful Review of Important

Questions of Law; And Severely Impairs

Petitioner's Rights Guaranteed Under the

First, Fifth, and Fourteenth Amendments;

and Is In conflict with the Decisions of This

26

Court and Other United States Court Of

Appeals.

The 2017 sanction order was precluded by

state law and by federal law [App. B, 2].

The 2017 sanction order penalized Kinney

and his attorney contrary to state law. Cal. Civil

Code Sec. 1717; CCP Sec. 1033.5(a)(10); Hooten v.

H Jenne III, 786 F.2d 692 (5th Cir. 1986).

The 2017 sanction order retaliated against

Kinney and his attorney (e.g. so no attorney would

represent Kinney), giving rise to new federal

claims. Sloman v. Tadlock, 21 F.3d 1462, 1470 (9th

Cir. 1994); Soranno's Gasco, Inc. v. Morgan, 874

F.2d 1310, 1313.1320 (9th Cir. 1989); Lacey v.

Maricopa County, 693 F.3d 896, 916 (9th Cir. 2012).

Kinney has the right "to petition the

Government for a redress of grievances" which

includes a right to review by appeal. That First

27

Amendment Right is "one of the most precious of

the liberties safeguarded by the Bill of Rights".

BE & K Constr. Co. v. NLRB, 536 U.S. 516, 524

(2002) [quoting United Mine Workers v. Illinois

Bar Assn., 389 U.S. 217, 222 (1967)].

The

dismissals and sanctions denied that right.

Unquestionably, appellate review of

institutional factors that operate in the state

courts which bar the right to an appeal of an

adverse decision, relating to one's status as a

present and future litigant (with or without

counsel) is of national importance.

A standard of strict scrutiny should be

applied to procedural barriers made by rule or

statute, as applied in the state appellate courts,

which chill or penalize the exercise of First

Amendment rights, and act to limit direct review

by a higher court. "The consideration of asserted

28

constitutional rights may not be thwarted by

simple recitation that there has not been

observance of a procedural rule with which there

has been compliance in both substance and form,

in every real sense." NAACP v. Alabama ex rel.

Flowers, 377 U.S. 288, 297 (1964).

There is no question that fundamental to

the Fourteenth Amendment's right to due process

of law is the opportunity to be heard. Grannis v.

Ordean, 234 U.S. 385, 394 (1914).

When a person is deprived of his rights in a

manner contrary to basic tenets of due process,

the slate must be wiped clean in order to restore

the petitioner to a position he would have

occupied if due process had been accorded to him

in the first place. Peralta v. Heights Medical

Center, Inc., 485 U.S. 80, 86-87 (1988).

29

Although a state is not required to provide

a right to appellate review, procedures that

adversely affect access to that process which the

state has chosen to provide, requires close judicial

scrutiny. Griffin v. Illinois, 351 U.S. 12 (1956).

An appeal in state court cannot be granted

to some litigants and capriciously or arbitrarily

denied to others (like Kinney) without violating

the federal Equal Protection Clause. Smith v.

Bennett, 365 U.S. 708 (1961). "A fair trial in a

fair tribunal is a basic requirement of due process.

In re Murchison, 349 U.S. 133, 136 (1955).

This order violated Kinney's federal rights.

CONCLUSION

This petition should be granted.

Dated: May 14, 2018

By:—/S/—Charles Kinney, in pro se_

30