Petition for Writ of Certiorari — Michael Victory, Petitioner v. California Board of Parole Hearings, et al.
Supreme Court briefJan 18, 2019
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ORIiGUN
Supreme Court, U.S
FILED
JAN 182019
OFFICE OF THE CLERK
SUPREME COURT OF THE
UNITED STATES
:
MICHAEL ANTHONY VICTORY,
Plaintiff-Appellant,
V.
HOARD OF PAROLE HEARINGS
and JENNIFER SHAFFER.
Director of Board of
Parole Hearings,
(
CASE NO.
D.C. No. 2:16-cv-00997-WBS-CKD
Eastern District of California,
Sacramento.
USCA No. 17-15953
For the Ninth Circuit.
Defendants-Appellees.
PETITION FOR WRIT OF CERTIORARI
WITH MEMORANDUM OF POINTS AND AUTHORITIES
WITH EXHIBITS IN SUPPORT THEREOF.
MICHAEL VICTORY P-07048
CSP-SOLANO
Fac.-C, Bldg.# 14-13-4-Low
P.O. BOX 4000
VACAVILLE, CA 95696
In Pro Per
O
QUESTIONS PRESENTED FOR REVIEW
DID DEFENDANTS ENGAGE IN A SUB-ROSA POLICY THAT SYSTEMICALLY
AND/OR INDIVIDUALLY IMPOSE PRE-DETERMINED & PRO FORMA DECISIONS
DENYING PAROLE BY A QUASI-JUDICIAL PANEL THAT IS NOT AN IMPARTIAL
NEUTRAL DECISION-MAKER TOWARDS 99.6% OF A CLASS OF PLAINTIFFS
APPEARING AT THEIR INITIAL PAROLE HEARINGS IN CONFLICT WITH
MURCHISON (1955, USSC), LARKIN (1975, USSC), McCLURE (1982, USSC),
BALISOK (1997, USSC), PURSUANT TO THE CALIFORNIA CONST. ARTICLE
1. §§ 7, 151 24 AND THE UNITED STATES CONST. 5TH, 6TH AND 14TH
AMENDMENTS?
DOES CALIFORNIA'S PENAL STATUTE §5011(b) AND CALIFORNIA CODE OF
REGS. §2236 CREATE STATE AND FEDERAL CONSTITUTIONAL RIGHTS THAT
PROHIBIT COMPELLING A LIFE TERM PAROLEE TO ADMIT GUILT AND BE. A
WITNESS AGAINST HIMSELF CONFLICT WITH GRIFFIN (1965, USSC)I
GREENHOLTZ (1979, USSC), MURPHY (1984, USSC),. SWARTFIOUT (2011,
USSC) AND THE CALIFORNIA CONST. ARTICLE 1. §§ 7, 15, 24 AND THE
UNITED STATES CONST. 5TH, 6TH AND 14TH AMENDMENTS?
DID THE USCA DECISION ERRONEOUSLY BAR PLAINTIFF'S CLAIMS THAT
RAISED BOTH STATE AND FEDERAL CONSTITUTIONAL VIOLATIONS AS BEING
BARRED UNDER A "SOME EVIDENCE" OR "AS APPLIED ANALYSIS"
PURSUANT TO HECK (1994, USSC) AND BUTTERFIELD (1997, 9THCIRJ;
CONFLICT WITH WILKINSON (2005, USSC), SKINNER (20111 USSC),
SWARTHOUT (2011, USSC) AND NETTLES (2016, 9TH CIR.), WHEN
PLAINTIFF'S CLAIMS DID NOT RELY ON "SOME EVIDENCE" OR A REMEDY
THAT WOULD RESULT IN AN ORDER FOR "IMMEDIATE OR SPEEDIER RELEASE
INTO THE COMMUNITY."?
DID THE USCA PANEL'S RELIANCE ON THE ROOKER-FELDMAN DOCTRINE
ERRONEOUSLY BAR PLAINTIFF'S CLAIMS RAISED UNDER THE DOCTRINES
OF: (1) inootness; (2). capable of repetition yet evading review;
(3) res judicata; (4) collateral estoppel; (5) law of the trial;
and (6) harmless error; CONFLICT WITH BROWN (1953, USSC), SIBRON
(19(58, USSC), CHAPMAN (1967, USSC),. CHAMBERS (1973, USSC) AND
1.
11
QUESTIONS PRESENTED (Cont.)
BRECHT (1993, USSC) PURSUANT TO BOTH THE CALIFORNIA CONST. ART.
1. §§ 7, 15, 24, 28(d) AND THE UNITED STATES CONST. 5TH AND 14TH
AMENDMENTS?
DID THE USCA PANEL'S RELIANCE ON "ABSOLUTE QUASI-JUDICIAL
IMMUNITY" AND THE ROOKER-FELDMAN DOCTRINE ERRONEOUSLY BAR
PLAINTIFF'S CLAIMS OF HIS STATE AND FEDERAL RIGHT TO EXERCISE A
"PEREMPTORY CHALLENGE" AGAINST A STATE TRIAL JUDGE WHO IS
PREJUDICED CONFLICT WITH: CCP §170.6 AND 28 USC
H 144, 455;
MURCHISON (1955, USSC), TAYLOR (1974, USSC), LARKIN (1975, USSC),
McCLURE (1982, USSC), CANTON (1989, USSC), BALISOK (1997, USSC)
AND THE CALIFORNIA CONST. ART. 1. §7 AND THE UNITED STATES
CONST. 14TH AMENDMENT?
DID THE USCA PANEL'S RELIANCE ON HYUNDAI (2018, 9TH CIR.)
ERRONEOUSLY BAR PLAINTIFF'S ABILITY TO APPLY FOR CLASS CERTIFICATION WITHIN THE 42 USC §1983 CIVIL COMPLAINT; CONFLICT WITH
THE PROVISIONS UNDER FRCP 23, EISEN (1974, USSC), PITTS (2011,
9TH CIR.) AND THE CALIFORNIA CONST, ART. 1. §7 AND THE UNITED
STATES CONST. 14TH AMENDMENT?
DID THE USCA PANEL'S DECISION ERRONEOUSLY BAR PLAINTIFF "LEAVE
TO AMEND" THE 42 USC §1983 CIVIL COMPLAINT WHEN THE CLAIM(S)
ALLEGED SUFFICIENT FACTS TO SHOW THERE REMAINED "GENUINE ISSUES
OF MATERIAL FACT THAT REMAIN IN DISPUTE AND ARE TRIABLE";
CONFLICT WITH ESTELLE (1976, USSC), ERICKSON (2007, USSC),
CALDWELL (2018 9TH CI?.) AND THE UNITED STATES CONST. 14TH
AMENDMENT?
0
11.
TABLE OF CONTENTS
DESCRIPTION
PAGE
QUESTIONS PRESENTED FOR REVIEW
j
TABLE OF CONTENTS
iii
TABLE OF AUTHORITIES
vii
TABLE OF EXHIBITS
xii
STATEMENT OF JURISDICTION
1
CONSTITUTIONAL PROVISIONS
2
STATEMENT OF CASE
5
ARGUMENTS
7
(T.ATM 11
THE 2013 BOARD OF PAROLE HEARINGS (BPH) DECISION TO DENY. PLAINTIFF
PAROLE VIOLATED HIS RIGHTS TO AN INDIVIDUAL CONSIDERATION BY A PANEL
OF IMPARTIAL AND NEUTRAL DECISION-MAKERS. THE BPH ADOPTED A SYSTEMIC
AND/OR INDIVIDUAL SUB-ROSA POLICY THAT PREJUDICE THE LIFE-TERM
INMATE POPULATION BY DENYING PAROLE AT THEIR INITIAL PAROLE HEARINGS
AT A RATE OF 99.6%. THE BPH'S SUB-ROSA POLICIES INCLUDE: VIOLATING
THE RIGHT NOT TO BE COMPELLED TO ADMIT GUILT AND/OR BE COMPELLED TO
BE A WITNESS AGAINST ONESELF [PC §5011(b) & CCR §22361; COMMITTING
GRIFFIN (USSC) ERRORS; ISOLATING VARIOUS FACTORS THAT ARE PROHIBITED
IN BASING A DENIAL OF PAROLE. THESE SUB-ROSA POLICES VIOLATED
PLAINTIFF(S) 'S RIGHTS TO LIBERTY, EQUAL PROTECTION AND DUE PROCESS
UNDER THE CALIFORNIA CONSTITUTION ART. 1. §§ 7, 15, 24 AND THE
UNITED STATES CONSTITUTION 5TH, 6TH AND 14TH AMENDMENTS.
8
Plaintiff did not raise a "some evidence" claim and is not
barred by either Greenholtz (USSC) or Swarthout (USSC)
decisions by raising other constitutional violations.
8
The USCA decision fails to address plaintiff's 5th amend.
protections under the guise of an "as-applied challenge"
8
The circumstances set forth in Murphy (ussc) varies widely
than the circumstances set forth in plaintiff's case.
9
The USCA decision conflicts with Skinner (2011, USSC),
Wilkinson (2005, USSC) and Nettles (9th Cir. 2016) that
any remedy to plaintiff will result in "immediate or
speedier release" from custody.
10
The USCA decision fails to address whether plaintiff has a
protected constitutional right to. an impartial decisionmaker before a quasi-judicial panel.
10
.
111.
TABLE OF CONTENTS (Cont.)
DESCRIPTION
PAGE
The USCA elected not to allow plaintiff to provide
credible factual documentation and/or failed to review
said documentation that supported the BPH engaged in
pre-determined decision(s).
11
The USCA panel's decision failed to address the Griffin
(ussc) errors that directly relate to questions asked
that only plaintiff could answer and the "Hobson's
Choice" by forcing plaintiff to forfeit his 5th amend.
rights in order to gain his liberty.
11
CLAIM #2:
THE 2013 BPH DECISION AND THE STATE TRIAL COURT ARBITRARILY AND
IMPERMISSIBLY RELIED ON EVIDENCE THAT WAS PREVIOUSLY RULED AS
INADMISSIBLE BY THE SAME TRIAL COURT AND OVER OBJECTIONS BY
PLAINTIFF'S COUNSEL. THE TRIAL COURT OPIONED THESE CLAIMS WERE
"MOOT" (Exh.-1 at p.2). THE USCA DECISION ERRONEOUSLY APPLIED THE
RCXJKER-FELDMAN DOCTRINE TO BAR A "DE FACTO" APPEAL OF STATE COURT
DECISION. THESE DECISIONS VIOLATED THE FOLLOWING PROTECTIONS:
LAW OF THE TRIAL; RES JUIJICATA AND COLLATERAL ESTOPPEL DOCTRINES;
MOOTNESS AND CAPABLE OF REPETITION YET EVADING REVIEW DOCTRINES;
DOUBLE JEOPARDY; AND DUE PROCESS CLAUSE UNDER THE CALIFORNIA
CONSTITUTION ART. 1. §§ 7, 15, 24, 28(d) AND THE UNITED STATES
CONSTITUTION 5TH AND 14TH AMENDMENTS.
12
The Rooker-Feldman doctrine does not bar a state violation of res judicata and collateral estopple and usurp
the federal protections under the "capable of repetition
yet evading review doctrine. The USCA panel's decision
conflicts with Brown (1953, USSC).
12
The USCA fails to address how plaintiff is not protected
by the federal rights encompassed in the "mootness"
doctrine when a material fact remains in dispute.
13
The USCA panel failed to address the "harmless error"
analysis raised within plaintiff's claims and the failure
of the quasi-judicial panel to give deference to the
"law of the trial" pursuant to the Chapman and Chambers
(USSC) tests.
13
CLAIM #3:
PLAINTIFF'S CLAIMS WERE NOT ADJUDICATED BY AN IMPARTIAL STATE
TRIAL COURT JUDGE WHEN THE TRIAL COURT FAILED TO FULFILL ITS
MINISTERIAL DUTY TO TIMELY NOTIFY PLAINTIFF OF THE IDENTITY OF
TRIAL COURT JUDGE ASSIGNED TO RULE ON THE MERITS OF PLAINTIFF'S
CLAIMS. THIS FAILURE OBSTRUCTED PLAINTIFF FROM EXERCISING HIS
STATE AND FEDERAL CONSTITUTIONAL RIGHT TO "PEREMPTORY CHALLENGE"
PURSUANT TO CCP §170.6 AND 28 USC §§ 144, 455; DUE PROCESS UNDER
CALIFORNIA CONST. ART. 1 §7 AND U.S. CONST. 14TH AMENDMENT.
iv.
ME
TABLE OF CONTENTS (Cont.)
DESCRIPTION
0
PAGE
The USCA panel's decision relied on "absolute quasijudicial immunity" for named defendants [court clerks]
and/or reliance on a Swarthout (2011, ussc) bar to usurp
an analysis on plaintiff's federally protected right to
an impartial decision-maker within state court.
14
The USCA panel's decision fails to address the constitutional standard analysis for peremptory challenges under
CCP §170.6 and 28 USC §§ 144, 455. This deprived
plaintiff a reasonable opportunity to appeal that right.
14
CLAIM #4:
PLAINTIFF WAS DENIED THE ABILITY TO PERFECT RAISING HIS CLAIM(S)
FOR CLASS ACTION CERTIFICATION AS A LAYMAN AT LAW WHEN FILING HIS
ORIGINAL CIVIL COMPLAINT UNDER 42 USC §1983 AND UPON FILING HIS
STATE HABEAS CORPUS PROCEEDINGS TO THE STATE'S SUPREME COURT.
THIS VIOLATED PLAINTIFF'S DUE PROCESS RIGHTS UNDER THE CALIF.
CONST. ART. 1. §7 AND U.S. CONST. 14TH AMENDMENT.
15
(1) The USCA panel's reliance on Hyundai (2018 9th Cir.) did
not address plaintiff's exceptional circumstances and
timeliness issues.
15
(2) The USCA panel failed to address any articulated reasons
on the district court's failure to permit an untimely
motion (FRCP 23), interim counsel and how plaintiff was
not permitted to submit exhibits in support of class
certification. The courts decision is in conflict with
Eisen (1974, USSC).
15
CLAIM #5:
PLAINTIFF WAS DENIED HIS RIGHT FOR "LEAVE TO AMEND" HIS CIVIL
COMPLAINT WHEN HIS CLAIM(S) WERE NOT FUTILE WHILE THERE REMAINED
A GENUINE ISSUE OF A MATERIAL FACT THAT REMAINED IN DISPUTE AND
IS A TRIABLE ISSUE. THE USCA COURT'S DECISION VIOLATED PLAINTIFF'S
RIGHTS NOT TO RECEIVE A PREDETERMINED AND PRO FORMA DECISION BY
THE DEFENDANTS UNDER THE DUE PROCESS CLAUSE OF THE UNITED STATES
CONSTITUTION 14TH AMENDMENT.
16
The USCA panel's decision asserted that plaintiff
"failed to allege facts sufficient to show that the
parole hearing denied his due process" is in conflict
with Estelle (1976, USSC) and Erickson (2007 USSC).
17
The USCA panel's decision failed to acknowledge the
"alleged facts" rests on a "he said he said" allegation
sworn under penalty of perjury that implicates a predetermined decision by a decision-maker who is not
impartial resulting in a systemic no parole policy at an
inmate(s)' initial parole hearing.
17
V.
TABLE OF CONTENTS (Cont.)
PAGE
DESCRIPTION
The USCA PANEL'S DECISION TO ADOPT THE "ABSOLUTE QUASI-JUDICIAL
IMMUNITY" DEFENSE FOR THE DEFENDANTS [COURT CLERKS] WHO FAILED TO
PERFORM THEIR MINISTERIAL DUTIES TO PROVIDE THE IDENTITY OF THE
TRIAL COURT JUDGE UPON A REQUEST BY THE PLAINTIFF, IS IN DIR ECT
CONFLICT WITH CANTON (1989, EJSSC) AND THE RIGHTS ENCOMPASSING A
PEREMPTORY CHALLENGE IN VIOLATION OF THE CALIFORNIA CONSTITUTION
APT. 1. §7 AND THE UNITED STATES CONSTITUTION 14TH AMENDMENT.
CONCLUSION
17
18
ATTACHMENTS:
BOARD OF PAROLE HEARING TRANSCRIPTS (2-5-2013) pp. 1-198)
EXHIBITS #1-#19 IN SUPPORT OF WRIT OF CERT. (137-pages)
vi.
TABLE OF AUTHORITIES
FEDERAL CASES,
0
PAGE
Bains-v-Cambra (9th Cir. 2000)
204 F.3d 964
13
Barker-v-Fleming (9th Cir. 2005)
423 F. 3d 1085
14
Bell Atlantic Corp.-v-Twombly (2007)
550 Us 544
17
Biodiversity Legal Foundation-v-Badgley (9th Cir. 2002)
309 F.3d 1166
12
Brecht-v-Abraham (1993)
507 Us 619
13
Brooks-v-Soto (tJSDC E.D. Cal. 2014)
2014 U.S. Dist. LEXIS 16814
14
Brown-v-Allen (1953)
344 Us 443
12
Burnett-v-Lampert (9th Cir. 2005)
432 F.3d 996
13
Butterfield-v-Bail (9th Cir. 1997)
120 F.3d 1023
10
Caldwell-v-City of San Francisco (9th Cir. 5-4-2018)
2018 DJDAR 4363
Canton-v-Harris (1989)
489 Us 378
17
Cantrell-v-City of Long Beach (9th Cir. 2001)
241 F.3d 674
13
Chambers-v-Mississippi (1973)
410 US 284
0
13,16
11,13
Chapman-v-California (1967)
386US18
13
Demaree-v-Pederson (9th Cir. 1-24-2018)
2018 DJDAR 790; 880 F.3d 1066
17
Edwards-v-Balisok (1997)
520 Us 641
10
Eisen-v-Carlisle & Jacquelin (1974)
417 US 156
15
vii.
TABLE OF AUTHORITIES (Cont.)
FEDERAL CASES
PAGE
Erickson-v-Pardus (2007)
551 US 89
17
Estelle-v-Gamble (1976)
429tJS97
17
Exxon Corp.-v-Heinz (9th Cir. 1994)
32 F.3d 1399
11
Gibson-v-Berryhill (1973)
411 US 564
11
Greenholtz-v-Inmates of Nebraska Penal & Corr. Complex (1979)
442US1
8
Griffin-v-California (1965)
380 US 609
81 11
Heck-v-Humphrey (1994)
512 US 477
10
Hewitt-v-Helms (1983)
459 Us 460
11
Hiat-v-Brown (1950)
399 US 103, 94 L Ed 691
2
Hubbart-v-Knapp (9th Cir. 2004)
379 F.3d 773
12
Hydrick-v-Hunter (9th Cir. 2005)
449 F.3d 978
13
Hyundai, In Re & Kia Fuel Econ. Litig. (9th Cir. 2018)
881 F.3d 679
15
Jackson-v-Arizona (9th Cir. 1989)
885 F.2d 639
17
Jones-v-Mendoza-Powers (9th Cir. 2011)
443 Fed. Appx. 253
9
Liteky-v-U.S. (1994)
510 US 540
14
Lopez-v-Smith (9th dr. 2000)
203 F.3d 1122
16
Mantolete-v-Bolger (9th dir. 1985)
767 F.2d 1416
16
viii.
1
0
1
TABLE OF AUTHORITIES (Cont.
FEDERAL CASES
PAGE
Minnesota-v-Murphy (1984)
465Us420
8
Miranda-v-Arizona (1967)
384 Us 436
8
Morrissey-v-Brewer (1972)
408 Us 471
16
Murchison, In Re (1955)
349 US 133
10
Nettles-v-Grounds (9th Cir. 2016)
830 F.3d 922
10
0'Bremski-v-Maas (9th Cir. 1990)
915 F.2d 418
10
Pictorial Review Co.-v-Helvering (D.C. Cir. 1934)
68 F.2d 766
11
Pitts-v-Terrible Herbst, Inc. (9th Cir. 2011)
653 F.3d 1081
15
Pratt-v-Rowland (9th dr. 1995)
65 F.3d 802
11
Ricchio-v-BPH (USDC E.D. Cal. 9-11-2012)
Case No. 12-1318-LJO-DLB
12
Schweiker-v-McClure (1982)
456 Us 188
10
Sibron-v-New York (1968)
392 US 40
12
Starr-v-Bacca (9th Cir. 2011)
652 F.3d 1202
17
5tivers-v-Pierce (9th Cir. 1995)
71 F.3d 732
10,11
Streit-v-County of Los Angeles (9th Cir. 2001)
236 F.3d 552
17
Swarthout-v-Cooke (2011)
562 Us 216 (per curiam)
8
Taylor-v-Hayes (1974)
418 US 488
11
ix.
TABLE OF AUTHORITIES (Cont.)
FEDERAL CASES
PAGE
Taylor-v-Terhune (9th Cir. 2004)
366 F.3d 992
13
U.S.-v-Antelope (9th dr. 2004)
395 F.3d 1128
9
U.S.-v--Misraje (9th Cir. 5-1-2018)
2018 DJDAR 3831; 888 F.3d 1113
9
Waggoner-v-Dallaire (9th Cir. 1980)
649 F.2d 1362
14
Wilkinson-v-Dotson (2005)
544 US 74
10
Withrow-v-Larkin (1975)
421tJS35
10
STATE CASES
c
Lawrence, In Re (2008)
44 Cal. 4th 1181
16
People-v-Flint (C.A.1/4, 5-2-2018)
2018 DJDAR 3964
9
People-v-Rubulloza (C.A. 6, 2015)
234 Cal. App. 4th 1065
11
FEDERAL RULES OF CIVIL PROCEDURE
Rule 8 (a)(2)
Rule 8(e)
Rule 16(d)
Rule 23(1)
Rule 23(d)(1)(A)
Rule 23(d)(2)
Rule 23(g)(3)
17
17
5,15
16
16
5,16
UNITED STATES CODES
28 USC §455
28 USC §1254(1)
42 USC §144
42 USC §1983
14
2
5,14
(passim)
x.
TABLE OF AUTHORITIES (Cont.)
SUPREME COURT RULES
PACE
Rule 10(c).
Rule 12(2)
Rule 14(l)(e)(jv)
1
1
:1
FEDERAL RULES OF EVIDENCE
Rule 803(8)
16
.
UNITED STATES CONSTITUTION
Fifth Amendment
Sixth Amendment
Eighth Amendment
Fourteenth. Amendment
2,8,9,11
2
8
2,8,11
CALIFORNIA CONSTITUTION
Article 1. §7
Article 1. §15
Article 1. §24
2,8
3
3
3
Article 1. §28(d)
CALIFORNIA PENAL CODES
§ 5011(b)
§ 1026.5(b)(7)
4,8,9
9
CALIFORNIA CODE OF CIVIL PROCEDURE
§ 170.6
§ 170.6(a)(1)
§ 170.6(a)(4)
CALIFORNIA CODE OF REGULATIONS
§ 2236
§ 2250
14
4,14
4
4,8,9
4
xi.
TABLE OF EXHIBITS
EXHIBIT
DESCRIPTION
Santa Clara County Superior Court Order Re:
Denial of Habeas Corpus #198955 (11-14-2014,
by J. Alloggiamento)
1
California Court of Appeals for the 6th Appellate
District Order Re: Denial of Habeas Corpus #H042450
(9-30-2015, by Justices, Elia, Bamattre-Manoukian,
Marquez)
2
California Supreme Court Order Re: Summary Denial
of Habeas Corpus #S231215 (4-20-2016, by Judge
Cantil-Sakauye)
3
USDC Eastern District California (Sacramento)
Findings & Recommendations Re: 42 USC §1983
Civil Complaint #2:16-cv-00997-WBS-CKD (11-4-2016,
by Mag. J. Delaney)
4
USDC Eastern District California (Sacramento)
Order Re: 42 USC §1983 Civil Complaint Adoption
of Magistrate Judge's F&R #2:16-cv-00997-WBS-CKD
(4-13-2017, by Dist. J. Shubb)
5
US Court of Appeals for the 9th Circuit Memorandum
Re: Affirming USDC Order in 42 USC §1983 Civil
Complaint #17-15953 (6-20-2018, by Circuit Judges
Rawlinson, Clifton, and Nguyen)
6
US Court of Appeals for the 9th Circuit Order
Re: Denial for petition for rehearing en banc
in 42 USC §1983 Civil Complaint #17-15953 (11-2-2018,
by Circuit Judges Rawlinson, Clifton and Nguyen)
7
BPH Life Prisoner: Documentation Hearing (CcR §2269.1)
(10-12-2009, by Deputy Comm. James S. Martin)
8
Declaration of Michael Victory (3-15-2013) Re: BPH
Documentation Hearing before Deputy Comm. James S.
Martin (10-12-2009)
9
Declaration of Marc E. Norton, Esq. Re: Representation
of Michael Victory for BPH Initial Suitability Hearing
(8-28-2013)
10
Correspondence to BPH & FAD Re: Legal Advisement to
Penal Code §5011(b) & CCR §2236; Corrections to factual
and legal errors (by Marc E. Norton, Esq.) covering
periods of 2012, 2015-2016
11
xii.
TABLE OF EXHIBITS (cont.)
0 DESCRIPTION
EXHIBIT
Declaration of Thomas Master (12-20-2010) Re:
Initial Parole Hearing Statistics; Summary of
Initial Parole Hearing Decisions for period
covering 1-1-2000 thru 1-31-2013
12
Santa Clara County Probation Officer Report
(by Deputy P.O., Jeanne Rupprecht (7-17-1998)
13
Comprehensive Risk Assessment (CPA)
(by Kristina Reynoso, Ph.D. (3-27-2012)
14
Declaration of service to BPH Re: Preliminary
Hearing Transcripts (9-4-1997); Reporter's
Transcripts #198955 (by Marc E. Norton, Esq.
1-25-2013)
15
Santa Clara County Superior Court: Clerk's Trans.
pp. 335, 381-386; Preliminary Hearing Trans. (9-4-97)
pp 148-150; Reporter's Trans. Case No. 198955
pp. 141-144
16
Declaration of Michael Victory Re: Peremptory
Challenge of Trial Judge (11-28-2014)
17
Cover Letter To: Court Clerk. From: Michael Victory
(5-17-2014)
18
Cover Letter To: Court Clerk, From: Michael Victory
Re: Identity of Trial Judge (8-20-2014)
19
xiii.
o
3
MICHAEL VICTORY P-07048
CSP-SOLANO
P.O. BOX 4000
VACAVILLE, CA 95696
In Pro Per
4
SUPREME COURT OF THE
5
UNITED STATES
6
MICHAEL VICTORY
•
Plaintiff-Appellant.
CASE NO.
Case No. 2:16-cv-00997-WBS-CKD
V.
Eastern Dist. Calif. Sacramento
7
8
Case No. 17-15953
. 9
10
11
BOARD OF PAROLE HEARINGS4
Defendants-Appellees.
U.S. Court of Appeal 9th Cir.
PETITION FOR WRIT OF CERTORAPI W/MEMO.'
OF P&A W/EXHIBITS IN SUPPORT THEREOF.
STATEMENT OF JURISDICTION
12
I, Michael Victory, Plaintiff in the above entitled action seeks .Petitionfor
13
Writ of Certiorari in this Court pursuant to USSC Rule 12. Plaintiff is
14
proceeding in forms pauperis and in pro per as plaintiff is currently
15
confined in a California institution. (Rule 12(2)). l3laintiff's claims received a
16
judgement before the Eastern District Court of California (Sacramento) on
17
4-13-2017 (See Exhibit-5, Case No. 2:16-cv-00997-WBS-CKD). Plaintiff filed an
18
appeal to the Court of Appeals for the Ninth Circuit and received a judgement
19
on 6-20-2018 affirming the district court's Order (Exhibit-64. case No. 17-15953).
20
Plaintiff filed a petition for rehearing en banc in the Court of Appeal and was
21
denied a rehearing on 11-2-2018 ( Exh.-7 Case No.. 17-15953).
22
This Court has jurisdiction over the federal District Courts and the Court
23
of Appeals which are inferior courts under the U.S. Supreme Court to review the
24
adjudications of said courts that raise a violation of the U.S. Constitution.
25
i.e. Fifth and Fourteenth Amendments. (Rul 14(1)(e)(iv)). All federal questions
26
have been exhausted through both the state and federal courts pursuant to PLRA.
Q27
(See Tables of: "Exhibits" and "Attachments"), (42 USC §1983; Rule 10(c))).
28
Both the State Supreme Court of California and the Court of Appeals for the
1.
INinth Circuit have decided an important federal question in a way that conflicts
with relevant decisions by this Court; and federal questions that have not been,
3 but should be settled by this Court. (28 USC 1254(1); Hiat-v-Brown (1950) 399
4
S 103, 94 L Ed 691).
5 11
CONSTITUTIONAL PROVISIONS
6 U.S. Const. 5th Amend.:
7
"No person shall be. .compelled in any criminal case to be a witness against
8
himself, nor be deprived of life, liberty, or property, without due process of
.
9 I law;"
10
U.S. Const. 6th Amend.:
11
"In all criminal prosecutions, the accused shall enjoy the right to a speedy
12
and public trial, by an impartial jury of the state and district wherein the
13
crime shall have been committed, which district shall have been previously
C:;
ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have compulsory
16
process for obtaining witnesses in his favor, and to have the assistance of
17
counsel for his defense."
18
ri c
-,,.,4- 1A4-h
19
"...No state shall make or enforce any law which shall abridge the
20
privileges or immunities or citizens of the United States; nor shall any state
21
deprive any person of life, liberty, or property, without due process of law;
22
nor deny to any person within its jurisdiction the equal protection of the laws."
23
Calif. Const. Art. 1. §7:
24
"(a) A person may not be deprived of life, liberty, or property without due
25
process of law or denied equal protection of the laws; provided, that nothing
26
contained herein or elsewhere in this Constitution imposes upon the State of
27
California or any public entity, board, or official any obligations or respons- I
28
ibilities which exceed those imposed by. the Equal Protection Clause of the 14th I
2.
• 1 Amendment to the United States Constitution..."
2 Calif. Const. Art. 1. §15:
3
-
"The defendant in a criminal cause has the right to a speedy public trial,
4 to compel attendance of witnesses in the defendant's behalf, to have the
5 assistance of counsel for the defendant's defense, to be personally present with
6 counsel, and to be confronted with the witnesses against the defendant. The
7 Legislature may provide for the deposition of a witness in the presence of the
8 defendant and the defendant's counsel.
9
Persons may not twice be put in jeopardy of the same offense, be compelled
1 0 in a criminal cause to be a witness against themselves, or be deprived of life,
11 liberty, or property without due process of law."
12 Calif. Const. Art. 1. §24:
13
"flights guaranteed by this Constitution are not dependent on those
14 guaranteed by the United States Constitution.
15
In criminal cases the rights ofa defendant to equal protection of the laws,
16 to due process of law, to the assistance of counsel, to be personally present
17 with counsel, to a speedy and public trial, to compel the attendance of witnesses,
18
to confront witnesses against him or her,. . .to not be compelled to be a witness
19 against himself or herself, to not be placed twice in jeopardy for the same
20 offense, and to not suffer the imposition of cruel and unusual Punishment, shall
21 be construed by the courts of this State in a manner consistent with the Constit22 ution of the United States. This Constitution shall not be construed by the
23 courts to afford greater rights to criminal defendants than those afforded by the
24 Constitution of the United States,..."
25 Calif. Const. Art. I. §28(d):
L4
26
27
"(d) Right to. Truth- in-Evidence. Except as provided by statute hereafter
•
-+-
i- ,
., ,
..,
ir4
.
,f 4..,-I,,
.,I
.i I
.-''-'I, I--S.'--'
%Juoq=¶JL
l-1--.
LI ItL
eg slaLure,
28 relevant evidence shall not be excluded in any criminal proceeding, including
3.
1
pretrial and post conviction motions and hear ings,...Nothing in this section
2
shall affect any.existing statutory rule of evidence relating to privilege or
3
hearsay, or Evidence Code, Sections 352, 782 or 1103..."
4
Calif. Penal Statute:
5
PC 55011(b): "The Board of Prison Terms shall not require, when setting
6
parole dates, an admission of guilt to any crime for which an inmate was
7
committed."
8
Calif. Code of Regulations:
CCP 52236: Prisoner's Version. "...The board shall not require an admission
10
of guilt to any crime for which the prisoner was committed. A prisoner may refuse
11
to discuss the facts of the crime in which .instance a decision shall be made
12
based on the other information available and the refusal shall not be held
13
against the prisoner..."
14
CCP §2250: Impartial Hearing Panel. "A prisoner is entitled to a hearing by
15
an impartial panel. A prisoner may request the disqualification of a hearing
16
panel member or a hearing panel member may disqualify himself.
17
(a) Grounds for disqualification. A hearing panel member shall disqualify
18
himself in the following circumstances: ... (3) The hearing panel member is
19
actually prejudiced against or biased in favor of the prisoner to the extent that
20
he cannot make an objective decision."
21
Calif. Code of Civil Procedure:
22
CCP
51170.6(a)(1): "A judge .... of a superior court of the State of
23
California shall not try a civil or criminal action or special proceeding of any
24
kind of character nor hear any matter therein that involves a contested issue of
25
law or fact when it is established as provided in this section that the judge...
26
is prejudiced against a party or attorney or the interest of a party or attorney
27
appearing in the action or proceeding."
28
CCP §1170.6(a)(4): "If the motion is duly presented, and the affidavit or
Wi!
oH
declaration under penalty of perjury is duly filed or an oral statement under
oath is duly made, thereupon and without any further act or proof, the judge
3
supervising the master calendar, if any, shall assign some other judge .... to' try
4
the cause or hear the matter..no party. .shall..make more than one such motion."
S
United States Code:
6
42 USC 144: Bias or Prejudice of Judge: "The affidavit shall state the
7
facts and the reasons for the belief that bias or prejudice exists, and shall be
8
filed not less than 10 days before the beginning of the term at which the
9
proceeding is to be heard., or good cause shall be shown for failure to file it
10
within such time. A party may file only one such affidavit in any case. It shall
11
be accompanied by a certificate of counsel of record stating that it is made in
12
good. faith."
13
Federal Rules of Civil Procedure:
14
FRCP Pule 23(1) Determination: "Within such time as the court may direct
pursuant to order issued under FRCP 16(d), the 'plaintiff shall move for a
16
determination under FRCP 23 whether the action is to be maintained as a class
17
action. In ruling on the motion, the court may allow or conditionally allow the
18
action to be so maintained, may disallow and strike the class action allegations,
19
or may order postponement of the determination pending, discovery of such other
20
preliminary procedures as appear appropriate and necessary."
21
FRCP Pule 23(g)(3). Class Counsel: "Interim Counsel. The court may designate
22
interim counsel to act on behalf of a putative class before determining whether
23
to certify the action as a class action."
24
STATEMENT OF CASE
25
Plaintiff appeared before the California State Board of Parole Hearings on
26
2-5-2013 for his Initial Hearing as a life term prisoner. The parole panel
027
denied plaintiff parole and scheduled his next hearing in 5-years. (See Attch.
28
BPH Trans. at pp. 182-196.). Plaintiff was represented by Marc E.Norton, Esq.
ON
Plaintiff filed a petition for writ of habeas corpus in the Santa Clara
0
2
County Superior Court in 2014 raising ALL of the claims asserted within this
3
Petition for Writ of Certioari. On 11-14-2014, the trial court issued its ruling
4
without an Order to Show Cause (OSC) and denying ALL of plaintiff's claims.
5
I(Exh.-l;,Case No. 198955).
6
Plaintiff filed another petition in the state Court of Appeals for the 6th
7
District raising ALL of the claims asserted in the trial court. The Court of
8
Appeals provided a summary denial on ALL of plaintiff's claims. (Exh.-2, Case
9
No. H042450).
10
Plaintiff filed another petition in the State Supreme Court raising ALL of
11
the claims asserted in the trial court. Throughout all filings in the state
12
courts, plaintiff's claims cited state and federal constitutional authorities.
13
On 4-20-2016 the State Supreme Court provided a summary denial on ALL of
plaintiff's claims. (Exh.-3, Case No. S231215).
0
On 5-11-2016, plaintiff filed a 42 USC §1983 Civil Complaint in the USDC
16
Eastern District of California (Sacramento) raising only six of the orginal
17
twelve claims raised in the state courts. Plaintiff withdrew six claims that
18
solely relied on state constitutional grounds pursuant to Swarthout-v-Cook
19
(2011) 562 US 216
[Per Curiam]. On 11-4-2016, the magistrate judge issued a
Findings & Recommendations to dismiss ALL claims. (Exh.-4, Case No. 2:16-cv21
00997-WBS-CKD).
On 4-4-2017, plaintiff filed his Objections to the F&R regarding ALL claims
with reliance of the Federal Constitution and federal authorities. On 4-13-2017,
the District Judge issued an order adopting ALL of the magistrate judge's F&R.
(Exh.-5, Case No. 2:16-cv-00997-WBS-CKD).
On 5-9-2017, plaintiff filed a timely Notice of Appeal in the District
i
Court. The U.S. Court of Appeals for the 9th Circuit granted plaintiff
27
0
28
permission to proceed with in forma pauperis status. On 1-16-2018, plaintiff
6.
filed his Opening Brief raising ALL of the six :laims raised in the District
2
Court. On 6-20-2018, the Court of Appeals panel issued an Order Affirming the
District Court's Order regarding ALL
Six claims. (Exh.-6, Case No. 17-15953).
4
On 7-5-2018, plaintiff filed a Petition for Rehearing in the Court of
5
Appeals regarding ALL six claims raised within his Opening Brief. On 11-2-2018,
6
the Court of Appeals Circuit Judges denied plaintiff's, petition for rehearing.
7
(Exh.-7, Case No. 17-15953).
8
9
10
11
12
13
,o
14
15
.
16
17
18
19
20
21
22
23
24
25
26
27
C:;
.
7.
1
CLAIM #1:
2
The panel's decision relies on Swarthout-v-Cooke (2011) 562 U.S. 216 at 220
3
as precedence and Stare Decisis that plaintiff's due process rights were NOT
4
violated on the basis plaintiff "failed to allege facts sufficient to show that
5
the parole hearing denied him due process, including: (1] "an opportunity to be
6
heard; (21 a statement of the reasons why parole was denied." (Exh.--6 at p.2).
7
Firstly, Swarthout was a per curiam decision with reliance on Greenholtz-v-
8
Inmates of Nebraska Penal & Corr. Complex (1979) 442 U.S. 11 16. The gravamen of
the claims raised in Swarthout stemmed from a "acme evidence rule of judicial
10
review". A procedure BEYOND what the Constitution demands. Plaintiff's claim(s)
11
NEVER raised a claim under the "some evidence" standard
protected under
12 the California Constitution's Due Process Clause (Art. I. 7). Both Swarthout
13
and Greenholtz's rulings or dicta, did not bar a plaintiff from asserting other
14
types of violations that are still protected under the U.S. Constitution, i.e.
15
Forced to admit guilt or compelled to be a witness against oneself (5th Amend.);
16 Cruel and unusual punishment (8th Amend.); Ex post facto clause, Equal protection
17
or Discrimination, Appear before a neutral decision-maker (14th Amend.). Any one
18
of which carries with it questions of exceptional importance and rules of
19
national application and/or uniformity in states that adopt legislation that
20
permits prisoners to engage in parole process.
21
Secondly, the panel's decision makes no concise statement that plaintiff
22
HAS or DOES NOT HAVE 5th Amend. protections during a parole hearing, whether
23
those protections are dependent on a particular state's adopting specific
24
legislation, as the case here under Penal Code 5011(b) and Calif. Code of Rego.
25
2236 (Opening Brief (o.B.) at pp. 4-7, 16, 19-59). The panel's decision
26
ambiguously defines plaintiff's clams as "as-applied challenges" with no
27
reference to or argument against plaintiff's citations to Minnesota-v-Murphy
28
(1984) 465 U.S. 420, 426, 435; Miranda-v-Arizona (1967) 384 U.S. 436; Griffin-v-
8.
IlCa1ifornia (1965) 380 U.S. 609, 615; U.S.-v-Antelope 395 F.-3d 1128, 1133, 11381139 (9th Cir. 2004); Jones-v-Mendoza-Powers 443 Fed. Appx. 253 (9th Cir. 2011).
Plaintiff asserts these cases & their progeny have been overlooked. (Exh .-6).
Thirdly, assuming the panel DID consider the ruling in Murphy, the
circumstances in plaintiff's claims varies widely from those circumstances set
forth in Murphy.' Murphy was not incarcerated and serving out the remaining of
his term as a probationer when he voluntarily attended an interview with his
probation officer. A meeting in which he was free to leave and/or refuse to
answer questions without his attorney present. For all intents and purpose, the
10
USSC ruled Murphy did not invoke a protection under the 5th Amend. In plaintiff's
11
case, he was incarcerated and therefore his liberty was at stake during the
12
2013 parole hearing. Plaintiff retained counsel in advance and was advised by
13
counsel to NOT TO ADMIT GUILT per PC §5011(b); and not to be compelled to be a
WITNESS AGAINST HIMSELF by talking about the commitment offense per CCR 2236.
California legislature mandates that the exercise of these rights during a
-'
16
parole hearing does not infringe on being found suitable for parole and CANNOT
17
be held against the inmate. (Murphy, supra. at 424-427, fn.3). There is a vast
18
difference in a probationer who elects to utter incriminating statements about
19
compliance with probation conditions, than an inmate being re-tried and deprived
20
of his liberty by a quasi-judicial panel. (see recent case of U.S.-v-Misraje
21
2018 DJDAP 3831 (9th Cir. 5-1-18); also People-v-Flint 2018 DJDAR 3964 (c.A.1/4,
22
5-2-18) [*Under both the U.S. and Calif. Constitutions, a person has the right
23
to refuse to answer potentially incriminating questions put to him or her in any
24
procedin; in addition, the defendant in a criminal proceeding enjoys the right
25
to refuse to testify at all.* citing PC
26
completely overlooks the critical difference that plaintiff was advised by
27
counsel at his Trial by Jury in 1998 to exercise his rights under the 5th Amend.
28
NOT TO TESTIFY or admit guilt to any particular felony. (Exhs.-8 thru 11).
9.
1026.5(b)(7)]). The panel's decision
1
Fourthly# the panel's decision is not concise and/or in conformity to the
2
case of Nettles-v-Grounds 830 F.3d 922 (9th Cir. 2016 (en banc). A ruling
3
supports plaintiff's claims WILL NOT result in "immediate or speedier
4
se" if granted the remedy of a new parole hearing. (Id. at 930). It may
5
appear as though the panel's decision relied on the District Court citation to
6
Heck-v-Humphrey (1994) 512 US 477 and Butterfield-v-Bail 120 F.3d 1023, 1024
7
(9th Cir. 1997) despite the panel's reliance on Wilkinson-v-Dotson 544 US 74,
8
81-82. If there was such clearity with no conflicts on filing under §1983 and
9
immediate or speedier release (as applied to plaintiff), there would have been
10
no need for the initial ruling and/or the en banc ruling in this court. Nor did
11
the panel's decision reflect the supporting facts that plaintiff's new parole
12
hearing could still be denied on similar factors as in 2013, i.e. lack of
13
insight, lack of remorse, lack of responsibility, severity of offense. (Id.
14
omitted). (See Exhibit-6 at p.2). In such a circumstance, if plaintiff were
15
successful it would NOT "necessarily demonstrate the invalidity or confinement
16 I or its duration." (Wilkinson, supra. at 81-82).
17
Fifthly, the panel's decision does not concisely address with ANY clarity
18
if plaintiff has a protected constitutional right to an impartial neutral
19
decision-maker that has NOT engaged in a pre-determined decision that directly
20
impacts plaintiff's liberty. (Exh.-A at p.2). This federally protected right
21
properly falls under the preview of the 14th amend. The panel's decision appears
22
to encompass the adjudication of this right by citation to the per curiam
23
decision of Swarthout. Thus overlooking and not addressing the stare decisis set
24
forth by the USSC decades in the past. None of which has been overturned due to
25
the 2011 Svarthout ruling. (See In Re Murchin (1955) 349 US 133, 136; Withrow-v-
26
E.arkin (1975) 421 US 35; Schweiker-v-McClure (1982) 456 US 1881 195; 0'Bremski
27
-v-Mass 915 F.2d 418, 422-423 (9th Cir. 1990); Stivers-v-Pierce 71 F.3d 732, 741
28
(9th Cir. 1995); Edwards-v-salisok (1997) 520 US 641, 648).
10.
1
Sixthly, since the panel's decision elected not to allow plaintiff to
2 provide credible factual support (deemed to be true until contested), the panel
3
DID NOT review the declarations, transcripts or documents that directly support
4 the 2013 parole panel engaged in a pre-determined decision. (Exh.-6 at p.3;
5 O.B. at pp. iv.-vii., 5-71 19-38, citing, Gibson-v-Berryhill (1973) 411 Us 564,
6 578; Taylor-v-Hayes (1974) 418 Us 488, 501-504; Exxon Corp.-v-Heinz 32 F.3d
7 1399, 1403 (9th Cir. 1994); Stivers-v-Pierce 71 F.3d 732, 741 (9th Cir. 1995)).
8
This question has exceptional national importance in seeing that quasi-judicial
9 tribunals (i.e. parole panels], are not permitted to engage in such pro forma
10 decisions by withholding a plaintiff's right to liberty. A right not addressed
11
within the Swarthout or Greenholtz uSSC rulings, (Exh.-12)..
12
seventhly, the panel's decision completely omits a concise ruling
13
and citations regarding plaintiff's claim the 2013 parole panel violated the 5th
14
amendment by relying on unanswered questions by plaintiff that implicated guilt
15
and/or compelled to be a witness against himself. Questions that only plaintiff
16
would be able to answer under the conditions of. waiving his 5th amendment rights
1
["Griffin error"] as is precedent in Griffin-v-California (1965) 380 Us 609, 615.
(Exh.-6 at p.2; O.B. at pp. 56-59, citing, Chambers-v-Mississippi (1973) 410 Us
18
19 284; Hewitt-v-Helms (1983) 459 Us 4601 472; Pratt-v-Rowland 65 F.3d 802, 807
20 (9th Cir. 1995). In plaintiff's case, the 2013 parole panel engaged in
21
retaliatory behavior for plaintiff exercising the rights encompassed under BOTH
22 the 5th and 14th amendment. In the least, the 2013 parole panel's arbitrary
23 decision was to force plaintiff into a 'Hobson's Choice", defined as: "A choice
24
without an alternative." (Ballentine's Dict. 3d ed. (2002); See Pictorial Review
25
Co.-v-Helvering 68 F.2d 766, 769 (D.C. Cit. 1934) (An election by compulsion or
26
without freedom of choice is, as it is sometimes called, "Hobson's Choice"].
27
Also, People-v-RubulloZa (2015) 234 Cal. App. 4th 1065 1073 (C.A.6) citing
28
USSC Murphy. (Attch. BPH Trans. at pp. 12-14, 187-194).
11.
1
CLAIM #2:
2
The panel's decision relied on the Rooker-Feldman doctrine that bars "de
3
facto" appeal of a state court decision regarding several claims that are
4
related to both the 2013 parole panel's decision and the state court's ONLY
5
opinion by the Santa Clara County Superior Court on habeas corpus. The panel's
6
decision classified these claims as "legal errors". (Exh.6 at p.2; see O.B. at
7
pp. 7-11, 60-86; Exhs. 11, 13 thru 16, Attch. BPH Trans. at pp. 14-16).
C)
D
8
Firstly, the district court did not classify plaintiff's Res Judicata &
9
Collateral Estoppel claim regarding the 2013 parole panel's violation of a
10
previous Trial Court Order as being barred by the Rooker-Feldman doctrine.
11
Instead, denying this claim under a Swarthout bar. (Exh.-4 at p.3, O.B. at pp.
12
60-66). Plaintiff's claim also asserted violations of "Double Jeoupardy" and
13
"Capable of Repetition Yet Evading Review" doctrine. These claims were also
14
raised in the state Trial Court under habeas corpus WITHOUT issuance of an Order
15
to Shove Cause (OsC). The Panel's decision not only fails to be concise to these
16
federally protected "legal errors", but omits recognizing the conflicting
17
citation to Hubbart-Knapp 379 F.3d 773, 777-778 (9th Cir. 2004). An example of a
18
plaintiff's §1983 complaint prevailing on such legal claims received an
19
injunction to prevent "capable of repetition" of "deleterious" material when the
20
USI)C Eastern Dist. issued an injunction. (Ricchio-v-BPH Case No. 12-1318-LJO-DLB
21
(9-11-2012). The "Capable of Repetition" doctrine brings with it several
22
protections to limit the irreparable harm from being repeated at foreseeable
23
future proceedings. (Biodiveraity Legal Foundation-v-Badgley 309 F.3d 1166, 1173
24
(9th Cir. 2002); Sibron-v-Nev York (1968) 392 US 40, 52-53 • The Rooker-Feldman
25
doctrine is not absolute and conflicts with Brown-v-Allen (1953) 344 US 443.-
26
463-465 (Holding that habeas litigation filed by state prisoners INCLUDE review
27
by federal judges). These conflicts were not addressed within the panel's
28
decision and this claim involves questions of exceptional importance.
12.
Secondly, the panel's decision brings no legal clarity as to why the
"Mootness" doctrine is not a federally protected right when a violation occurs
-
3
by the state Trial Court under habeas corpus. (Exh. 6 at p.2; O.B. at pp. 67-90).
4
The Trail Court issued an Order (without osc) asserting eleven out of the twelve
S
claims raised under habeas corpus were "moot" without any articulated analysis
6
or citation to state or federal points & authorities. The panel's decision left
7
plaintiff with the same effect and in conflict with Cantrel-v-City of Long Beach
8
241 P.3d 674, 678 (9th Cir. 2001); Burnett-v-Lampert 432 F.3d 996, 1000-1001
9
(9th Cir. 2005). Here, plaintiff's claims can receive redress by a proper
10
favorable court decision and/or an evidentiary hearing to present existing
11
evidence and preserve critical testimony in a timely manner. Taylor-v-Terhune
12
366 F.3d 992, 1007-1008 (9th Cir. 2004). The Trial Court and panel's decision are
13
in conflict with these decisions and not addressed in the opinion. These eleven
14
claims involve questions of exceptional importance and involve genuine issues of
15
a material facts that remain in dispute. Thus, substantially affecting the
16
outcome of the claims raised and any resulting decision. (See the recent case of
17
Caldwell-v-City of San Francisco, et al. 2018 D.JDAP 4363 (9th dr. 5-14-18)).
18
Thirdly, the panel's decision fails to address the "harmless error"
19
analysis citations raised within plaintiff's claims. (Exh. 6 at p.2; O.B. at pp.
20
71-74).
Plaintiff
cited
Brecht-v-Abraham
(1993)
507
US
619,
637-639;
21
204 F.3d 964, 977 (9th Cir. 2000); Taylor, supra. at 1007-08
22
addressing the injurous effect or influence on the 2013 parole panel and/or lower
23
court's decisions. When a quasi-agency [BPHJ is acting under the confines of a
24
judicial tribunal, it did not give deference to the "law of the trial". This is a
25
cognizable claim pursuant to Hydrick-v-Hunter 449 F.3d 978, 989 (9th Cir. 2005).
26
Both Chapman and Chambers (ussc) tests "must be based on our own reading of the
27
record" (Chapman-v-calif. (1967) 386 US 18, 24) and fair procedures transcends a
28
specific type of adjudicatory proceeding (Chambers-v-Miss. (1973) 410 US 284).
13.
1
CLAIM #3:
2
The panel's decision relied on "absolute quasi-judicial immunity" for the
3
defendants (court clerks) named in plaintiff's fl983 complaint for a failure to
4
promptly inform plaintiff of the identity of the "all purpose" judge assigned to
5
rule on his state habeas petition. (Exh.-S at pp. 2-3; O.B. at pp. 11-12,
6
91-102). Plaintiff being a layman at law was unaware of any other legally
7
permissible defendant or state agency were not protected by immunity. Plaintiff
8
was acting in pro per and both the Dist. Court and this Panel denied any "further
9
leave to amend" (Exh-(> at p.3; O.B. at p.17). The crux of plaintiff's claim
10
involved whether the federal right to a "peremptory challenge" is also recognized
11
within a state court proceeding to insure plaintiff's claims are adjudicated
12
before an impartial neutral decision-maker. (ccv ft70.6; 28 USC §§ 144,, 455).
(1)
13
Firstly, the panel's decision omits any concise analysis or citation that
14
addresses the merits of a federally protected right to be adjudicated before an
15
impartial decision-maker within a state court. Plaintiff provided citations to
16
Murchison, Larkin, McClure, Balisok, Taylor (ussc); and 0'Bremski, Stivers,
17
Heinz, (9th Cir.), supra. in support of this critical constitutional right. The
1 8 panel's reliance on an immunity defense or Swarthout bar does not usurp these
19 protections. (see also Waggoner-v-Daflaire 649 F.2d 1362, 1370 (9th Cir. 1980)).
20
Secondly, the panel's decision omits any concise analysis or citations to
21 both the state procedures that address the right to "peremptory challenge"
22
(ccP 170.6); and those provided within the federal courts (28 USC J§ 144, 455).
23 A proper analysis and briefings would reasonably reveal the state adopted a
24 less onerous constitutional standard for reassignment of a judge, than the
25 standards set forth in federal courts. Regardless, plaintiff asserts the panel's
26 decision deprived plaintiff of a reasonable opportunity to assert and appeal that
27
right. (Liteky-v-U.S. (1994) 510 US 540; See Brooks-v-Soto 2014 U.S. Dist. LSEXIS
28 16814 (E.D. Cal. 2014); Barker-v-Fleming 423 F.3d 10851 1091 (9th Cir. 2005)).
(Exhs.-17 'thru 19).
14.
1
CLAIM #4:
2
The panel's decision relied solely on the Diet. Court's discretion to deny
3
lass certification based on citation to the "standard of review". (In Re Hyundai
4
Kia Fuel Econ. Litig. 881 F.3d 679, 690 (9th Cir. 2018); Exh.-6 at p.3; O.B. at
5
pp. 1-3, 13-14, 19-37). The Diet. Court's F&R stated "Plaintiff seeks to 1itigat
6
this claim as a class action; however, he has made no motion pursuant to FRCP 23
7
seeking to have the court certify this matter as a class action." (Exh.4, p.3).
8
The panel's decision makes no concise statements regarding the legal and factual
9
circumstances that are integral to plaintiff's layman pursuit of "seeking" class
10
11
Firstly, the panel's reliance on Hyundai, supra. is not on point to the
12
circumstances plaintiff outlined within his claim from the start of filing his
13
c1983 complaint application form. An application that prohibits citations and
14
exhibits. Plaintiff had no notice he was to file a separate motion for class
15
certification OR at what time to file AND under what FRCP. (Pitts-v-Terrible
16
Herbst, Inc. 653 F.3d 1081 (9th Cir. 2011)).
17
1)
certification, i.e. proper notification, timely filing, interim counsel, etc.
Secondly, despite plaintiff's filing a Motion for Class Certification
18
to the Diet. Court on 4-4-2017, subsequent to the issuance of
19
11-4-2016, the Diet. Court Order on 4-13-2017 only stated: "Plaintiff's Motion
20
for Class Certification (EcF No. 23) is denied" (Exh. -4, p.2). The Diet. Court's
21
Order failed to provide any articulated reasoning for the basis on which to deny
22
the motion and request for appointment of "interim counsel". The panel's decision
23
merely adopted this inept ruling. Plaintiff cited Eisen-v-Carlisle & Jacquelin
24
(1974) 417 US 156 that articulates FRCP 23 does not authorize the Magistrate
25
Judge a preliminary assessment on the merits in determining the suit can be
26
maintained as class action. Plaintiff was not permitted to submit exhibits in
27
support of class certification until filing Objections to the F&R (4-4-17). The
28
Diet. Ct. omits ANY ruling to plaintiff's Not. to Supp. Exhibits (Exh.-4,
15.
the F&R on
p.2).
The panel's decision conflicts with Mantolete-v-Bolger 767 F.2d 1416 (9th Cir.
1985) that permits additional discovery that is likely to produce substantiation
of class allegations and will promote the goals of judicial economy. (Lopez-vSmith 203 F.3d 1122, 1130-1131 (9th Cir. 2000); Fed. R. Evid. 803(8); FRCP 23
(d)(1)(A); (d)(2); (g)(3)). The panel here elected to deny plaintiff's motion to
present this court with exhibits in support of his claims and preliminary
evidence to support the class is not too vague. (Exh.-6 at p.3). There is USSC
precedence for decades that states. "The granting of parole is an essential part
of our criminal justice system." (Morrissey-v-Rrewer (1972) 408 US 471, 477;
also In Re Lawrence 44 Cal. 4th 11811 1204 (2008, Calif. Supreme Court) ("parole
is the rule, rather than the exception"]). Therefore, class certification
involves questions of exceptional importance and substantially affects a rule of
d
0; ;
national application and uniformity, since over HALF of the states in the United
States have adopted parole statutes. Many of which may have modeled their parole
statutes to California. (Exh .-12).
16
CLAIM #5:
17
The panel's decision did not: (1) permit plaintiff for "leave to amend"
18
(2) permit ANY exhibits to filed with plaintiff's Opening Brief; and (3) permit
19
an analysis for class certification based on the evidence and/or interim counsel
20
to correct/amend/discover further evidence in support. (Exh.- 6 at p.3). The
21
panel's decision has resulted in leaving genuine issues of a material fact that
22
remain in dispute and are triable. Thus, affecting the outcome of the claims
23
raised and the resulting decision. (See Caldwell-v-City of San Francisco, et al
24
2018 DJDAR 4363 (9th Cir. 5-14-18)
F.3d
-
[Reversed & Remanded]).
-
25
Firstly, the panel's decision (or the dist. Ct) NEVER provided a concise
26
ruling regarding a critical allegation by plaintiff (and plaintiff's attorney],
27
via declarations, that Deputy Comm. . James S. Martin engaged in a "predetermined I
28
and pro forms decision" to deny parole in 2009 and 2013. (0.B. pp. 4-7, 19-38).
16.
4
1
The panel's decision and reliance on Swartout "because Victory failed to allege
2
facts sufficient to show that the parole hearing denied him due process..."
3
(Exh
4
1989) [plaintiff's pro se allegations are to be liberally construed]; Bell
S
Atlantic Corp.-v-Tvoubly (2007) 550 Us 544, 555-556 and Erickson-v-Pardus (2007)
6
551 US 89, 94 (a judge must accept as true ALL of the factual allegations
7
contained in the complaint (FRCP 8(a)(2)1; also Estelle-v-Gamble (1976) 429 Us
8
97, 106; FRCP 8(e)s (Exh5.-8 thru 11).
()
9
C)
O
.-
& at p.2), CONFLICTS with Jackson-v-Arizona 885 F.2d 639, 640 (9th Cir.
Secondly, the panel's decision regarding "faile to allege sufficient facts"
sworn under penalty of perjury via
10
rests on a The said he said" allegation
11
declarations submitted within plaintiff's exhibts that were denied by this panel.
12
An allegation, if proved out, implicates a predetermined decision by a decision-
13
maker who is NOT neutral or impartial. In fact, once the evidence is properly and
14
fully compiled, has a reasonable conclusion pointing toward a "no-parole policy"
15
of a systemic and/or individual impact on the plaintiff(s). These type of facts
16
lead to a serious constitutional epidemic by the defendants in not providing
17
"neutral decision-makers". A legal claim that this panel's decision is completely
18
void in addressing IS a protected right to plaintiff(s). (See Claims #1, #2 & #3,
19
herein. Citations omitted). There exist apparent conflicts with other decisions
20
by this court and the USSC that were not addressed in the opinion. This claims
21
involves questions of exceptional importance that substantially affects a rule of
22
national application: DOES THE USSC SWARTHCVT PER CURIAM DECISION THAT OMITS A
23
CLAIM OF "NEUTRAL DECISION-MAKERS", TAKE AWAY THIS VERY RIGHT UNDER DUE PROCESS?
24
CLAIM :4;
25
The panel's decision regarding "absolute quasi-judicial immunity" conflicts
26
with Canton-v-Harris (1989) 489 US 378, 396; Streit-v-County of Los Angeles 236
27
F.3d 552, 559 (9th Cit. 2001); Starr-v-Baca 652 F.3d 1202, 1207 (9th Cir. 2011);
28
also Demaree-v-Pederson 2018 DJDAR 790 (9th Cir. 12418). (Exhs..-17 thru 19).
17.
CONCLUSION
Plaintiff is a layman at law acting in pro per throughout the
prosecution of his ft983 complaint that was originally identified as Class
Action.
Since Swarthout (ussc) the doors to the federal courthouse have mainly been closed.
Since Nettles (9th Cir.) inmates have been forced to utilize the more onerou
s
1983 complaints, as long as the claims & remedy don't result in the "likelihood
of immediate or speedier release". That is certainly not the case here for
this
plaintiff(s). There will ALAWAY be several obstacles to overcome with the parole
board even with a favorable court order. Despite the 100's of previous state
&
federal court orders that were intended to alter the systemic arbitrary decisio
ns
that violated both state and federal constitutional protections. Plaintiff's 51983
class action complaint was filed in hopes of having additional clarity as to what
constitutional rights still remain post the per curiam Swarthout decision in 2011:
Does plaintiff have a right to the 5th Amend. at his parole hearing?
Did the California Legislature incorporated the 5th Amend. by codifying
the Penal Code statue 5011(b) and subsequent Code of Rego. 2236?
Does plaintiff have a right to an impartial neutral decision-maker at
his parole hearing?
Does plaintiff have a right to peremptOry challenge a trial judge who is
assigned to rule on the merits of his habeas claims?
Does the "Capable of Repetition Yet Evading Review" doctrine apply at
plaintiff's parole hearing and/or in state court under habeas corpus?
Does the doctrines of Res Judicata and Collateral Estoppel apply at
plaintiff's parole hearing and/or in state court under habeas corpus?
Does the "Mootneas" doctrine apply in state court when plaintiff files
parole claims under habeas corpus?
Are any or all of the above rights barred from being presented and
adjudicated within the federal courts due to Swarthout?
The District Court and the USCA panel's decisions are a far cry from articulating direct answers that provide clarity to ALL of the questions raised
within
this petition. These claims raise ligitament concerns of liberty and Due
Process
that have exceptional importance for a large class of inmates within the state
of
California and through out the nation post the 2011 USSC per curiam decisio
n in
Swarthout-v-Cooke. Plaintiff prays for the relief that remains elusive.
PespectfuLly submitted,
Dated: I
Michael Victory
In Pro Per
18.
o9
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.