Petition for Writ of Certiorari — Eric Richard Eleson, Petitioner v. Joe A. Lizarraga, Warden, et al.

Supreme Court briefJul 27, 2018

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N THE

SUPREME COURT OF THE UNITED STATES

Eric Richard; e1eson°, Secured Party,

Tertius Interveniens/Auth. Rep. ex rd.,

— PETITIONER

ERIC RICHARD ELESON°. .J-59564, Trust,

VS.

JOE A. L1ZARRAGA, Warden,

EDMUND G. "JERRY" BROVR'L YR.,

RESPONDENT(S)

GOVERNOR STATE OF CALFORN1A,

ON PETITION FOR A WRIT OF CERTtORARI TO

district court of the United States

for the Eastern District of California

The words "dlistrictceurt of the united s.taes"ôoimnon1y descri

be constitutional courts under

Ajtic1c III, Section 1.,., U,S.C,A. Constitution of the United States

, Note 114.

(NAME OF COURT THAT LAST RULED ON MER

ITS OF YOUR CASE)

D.C.No.:.,.

1:17-cv-01193-DAD-JLT

..,

United States Court of Appeals for the Ninth Circuit

(DENIED CO.A

No.: 17-17507

Eric Richard; ci eson, Secured Party

CREFK-H Si Al 1 PRISON

File. D-46-A42-W-2 Low (J...5956fl

• U.S,P,S,Box40.9089

lone, CaIifiorniv

Near [PZ: 95640-90891 N. America

• Authorized Representative fr and via:

• ERIC RICHARD E1.ISONC, Trust,(J-59564)

In Cat, Of ,

QUESTION(S). PRESENTED

Does the U.S. Constitution's Supremacy Clause (Article VI, §2) require the

Judge(s) (both State & Federal) within STATE OF CALIFORNIA (as well as an

other State) to follow an established "legal definition" (within a Federal

Statute 'made in pursuance thereof') where NO such "legal definition" of

said 'term' exists in the State's Law?

Does CALIFORNIA PENAL CODE (CPC) §667.5(c? "legally 'define" the term,

"Violent Felony?" or, Is CPC §667.5(c) a 'legal definition" of the term,

"Violent Felony" (since, by its own words "For the purpose of this section"

it only applies to one Penal Code section?

Are the State (and Federal) Jude(s) within STATE OF CALIFORNIA required to

utilize an established Federal 'definition" (or its opposite) when a new

State Constitutional provision using an "undefined term" is created?

Do the Judge(s) (both State & Federal) within STATE OF CALIFORNIA violate

Each's Oath of Office (& Canon #3), as well as Petitioner's Right to Due

Process & Equal Protection of the Law, when Each FAILS& REFUSES to follow

and abide by the U.S. Constitution's Supremacy Clause and the established

Federal definition of "Violent Felony" (18 USC §924(e)(2)(B)), and now,

the definition of "Crime of Violence" (18 USC §16

See: Sessions v. Diyama,

2018 US LEXIS 2497), when they Fail & Refuse to acknowledge the, ipso facto,

"Non-Violent" Statutory 'elements' of Petitioner's offenses which is within

the purview of the 'newly created State Constitutional provision (Article I,

§321 CA Constitution, "non-violent" felony offenses)? "txpressio/Inclusio

unius est, exclusio alterius." = "The expression/inclusion of one, is the

exclusion of the other."

Are the "Jurist(s)" who decided U.S. V. Sherbondy, 865 F.2d 996, 1010-1011

(9th Cir. Cal. 1988) and others who cited said case (ie: U.S. v. Parker,

Taylor v. U.S., U.S. v. Chatman, Pazcoguin v. Radcliffe, Singh v. Ashcroft,

U.S. v. Ladwig, U.S. v. Piccolo, U.S. v. Mi Kyung Byuri, Delgado-Hernandez v.

Holder, Shepherd v. U. S., In re Christopher H., Hicks v. Feiock, & In re

Lance W., Supra.), "reasonable jurists who would find it debateable that the

State Courts' Judge's refusal to follow the U.S. Constitution's Supremacy

Clause,"only a State Law Issue?"

Does the inclusion of Statutory (Elements) "Non-Violent" offenses within an

alleged "List" of alleged "Violent" offenses, violate Petitioner's Federal

Constitutional Right to Due Process and Equal Protection of the Law in the

light of the newly enacted State Ctitutional provision?

Does the FAILURE & REFUSAL of the Judges in STATE OF CALIFORNIA (both State

and FederiT) to adj

CfC the. issue of 'That is the 'Primary Term' in the

case of a "Non-Violent" Third-Striker's 25 to Life Sentence" (as the 25 to

Life Sentence is an "Alternative Sentence" for purposes of Article I, §32)

(Is it the maxiumum Term authorizd/annex.ed to the underlying offense, or

the 25 year 'minimum' Term?), constitute ABDICATION OF JUDICIAL POWER. as is

outlined, in Cohens v. Virginia, 19 US (6 Wheat) 264., 404 (1821).... 6a, & 9

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject 0th

petition is as follows:

TABLE OF CONTENTS

QUESTIONS PRESENTED............................

TABLE OF AUTHORITIES CITED ........................v-vii'I

OPINIONSBELOW........................................................................................................1

JURISDICTION................................................................................................................ .2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................................

STATEMENT

THE

CASE

...................-

.......................................................................

WAS ADDED TO CALIFORNIA

CONSTITUTION AT ARTICLE I, §32, INTRODUCING A "NON-DEFINED TERM";JTHE

ILLEGAL INCLUSION OF CLASSIFICATION OF CRIME AS "VIOLENT FELONY" IN

CPC §667.5(c) §288(a), WHICH IS ONLY A "SERIOUS FELONY" @ CPC920;I

AND, CPC §667.5(c) IS NOT A DEFINITION .... .. .

NEW CHANGE IN THE SENTENCING LAW,

WHICH

DENIAL OF DUE PROCESS; VIOLATION OF U.S. CONSTITUTION,ARTCLE VI, §2,

"SUPREMACY CLAUSE"; VIOLATION OF SEPARATION OF POWERS, ART. III, §3, OF

CALIFORNIA CONSTITUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

DERELICTION OF DUTY; MALFEASANCE IN OFFICE; VIOLATION OF STARE

DECISIS; VIOLATION OF OATH OF OFFICE ....................11

Iv. VIOLATION(S) OF DUE PROCESS; VIOLATION(S) OF COURT RULES; VIOLATION(S)

OF STARE DECISIS; VIOLATION(S) OF OATH(S) OF OFFICE; ABDICATION(S) OF THE

JUDICIAL POWER; MALFEASANCE IN &OF OFFICE; EXTREME BIAS AGAINST THIS

PETITIONER; FRAUD; VIOLATION(S) OF U.S. CONSTITUTION'-S ARTICLE VI, §21

"SUPREMACY CLAUSE:" DERELICTION OF DUTY, Etc ................J2

REASONS FOR GRANTING THE WRIT......................................................................17

CONCLUSION.......................................................... .....................................................

INDEX TO APPENDICES

APPENDIX A. = STATE SUPERIOR COURT DECISION, CRW-5 2500, COUNTY OF TUOLUMNE

NOTICE OF VOID ORDER; VOID ORDER REFUSED FOR FRAUD, UCC 3-501

APPENDIX B

STATE APPELLATE COURT DECISION (Postcard Denial) F-075420)

NOTICE OF VOID ORDER; VOID ORDER REFUSED'FOR FRAUD, UCC 3-501

APPENDIX C = REQUEST FOR DECLARTORY RELIEF CHALLENGE TO CONSTITUTIONALITY

OF STATUTE (CCPft060& 1061.5; FOR W. &. I. Code §6601.1

APPENDIX D

SUPPLEMENTAL POINTS & AUTHORITIES IN SUPPORT

STATE SUPREME COURT DENIAL (S-242419)•NorIcE.oF VOID ORDER;

VOID ORDER REFUSED FOR FRAUD, UCC 3.561

Con'd on iv

11.1

APPENDIX E

1.17-CV-01193DAD-JLT

APPENDIX F

17-17507

•

COLIlt of the United States for the Eastern District of California

¶'

The words dittii court of the un1tád states"conuuoiily describe constitutiouai courts undcr

Article III, Section 1.... U.S.C.A. Constitution of the United States, Note 114.

OE IONS OMAGIST1E JUDGE'S FINDINGS & RECOMMENDATION

S FINDINGS & 'RECOMMENDATION

ORDER ADOPTING MAGISTRATE JUDGE'

C.O.A.;

NOTICE OF VOID ORDER;

APPEAL

REQUEST'

FOR

NOTICE OF

VOID ORDER REFUSED FORUD;UCC 3-501; MEMORANDUM OF POINTS

& AUTHOTITIES IN SUPPORT OF C .0. A.; 2nd SUPPLEMENTAL POINTS &

AUTHORITIES IN SUPPORT; REQUEST FOR RECONSIDERATION.

APPENDIX G = PETITION FOR WRIT OF MANDATE TO (SACIrO) SUPERIOR COURT

34-2017-80002713

TABLE OF AUTHORITIES CITED

C4SES

PAGE NUMBER

Arican banana Co. v. United Fruit Co.,

213 US 347, 357, 53 L. Ed. 826, 29 S. Ct. 511 (1909).

Bowen v. United States,

442 US916, 920, 45 L. Ed. 2d 641, 95 S. Ct. 2569 (1975) ........10

Brookfield Constr. Co. v. Stewart, 234 F. Supp. 94, 99 (1964) ......A-2

Brown v. Louisiana, 447 U '323: 65 L.Ed.2d 159, 166, 100 S. Ct. 2214...' 10

Brown v. Superior Court, 63 Cal. 4th 335, 351-360 (2016).

13, C-2,3, F-20

Calder v. Bull, 3 US. (3 Dali.) 386, 390, 1 L. Ed. 648 (1798). -

C-3

City of Cieburne, Texas. V. Cleburne Living Center,

473 US 432: 439,. 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985) .......9

Cohens V

Virginia, 19 US (6 Wheat) 264, 404 (1821) .......12,. 13 D-2

Coulter v. Pool, 187 Cal. 181, Hn. 3 (1921). - t . . . . . . . . . . 9, A-3

Degado-Hernandez v. Holder, 697 F.3d 1125, 1127 (9th Cir. 2012).

Glenn v CavG

2012 US Dist LEXIS 144075

C-7

Harris v. }eynolds, 13 Cal. 514, 518 (1859) ............C-2-,.•3

Hernandez v. Walker, 2015 US Dist. LEXIS 16068.........'

F-Il

Hicks v. Feiock,

485 US 624, 629-630, 99 L. Ed. 2d 721, 108 S. Ct. 1423 (1995). . C-6, F-li

In re .Chri'opher. H., 227 Cal. App. 3d'1567, 1576 (1991) .....

In re Lance., 37 Cal. 3d 873, 882 (1985) . . . . . . . . . . . . . . . C-6

In re Edwards, B-288088, (2018) 2nd ApI. Dist . . . . . . . . . . . . . . 8

In re Smith, 7 Cal. 3d 362, 364-366 (1972) ...............C-4

In re Vaught, G-054657, 4th Dist. Ct. Apl. Div. 3...........F-18, 21

Jackson v. Ylst, 921 F.2d 882 (9th Cir. 1990) .............E-1

Johnson v. Arizona, 462 F.2d 1352, 1354 (9th Cir. 1972) ....... . 10

Johnson v. United States, 576 US

192 L. Ed. 2d 569, 574578: i85s. Ct. 2251k ...J.

...,

16- ,- 7! C-2, F-1.7.20

Mulkey v. Reitman, 64 Cal. 2d 529, 536-537 (1999)

E-3

Myers V. Ylst, 897 F.2d 417, 421-423 (9th Cir. 1990) ..........9, 10

Pazcoguin v. Radcliffe, 292 F.3d 1209, 1215 (9th dr. 2001) ........C-7

People v. Chambless, 74 Cal. App. 4th 773, 783-784 (1999) .........C-4

People v. Chaez, 26 Cal. 3d 334, 352 (980) ...............

People v. Lopez, 251 Cal. App. 2d 918, 922 (1967). -

A-2

. . . . . . . . . 10

People v. Martinez, 11 Cal. 4th 434, 444-445 (1995) .........C-4

People v. Superior Court (Johannes), 70 Cal. App. 4th 558, 569 (1999.) .. C-3

People v. Superior Court (Romero), 44 Cal. App. 4th 1073, 1086/

13 Cal. 4th 497, 508-509 (1995) ....................9, 12

People v. Tenorio, 3 Cal. 3d 89, 91 (1970) ...............9, A-3

Perry v. Brown, 671 F.3d 1052, 1064-1076 (9th Cir. 2012) .........0-1

Plyler v. Doe, 457 US 202, 205-211,

72 L. Ed. 2d 786, 791-798, 102 S. Ct. 2382 (1982) ............10

Schmuck v. United States,

489 US 705, 716,& 720, 103 L. Ed. 2d 734, 109 S. Ct. 1443 (1999)....F-12

Sessions Y

Diyama, 2018 U.S. LEXIS 2497 (4/18/18 DJDAR, Pg. 3331).

31 6, & F-25

Russo v. Johnson, 129 F. Supp. 2d 1012, 1024 (2001) . . . . . . . . . . . F-25

Shepherd P. United States,

544 U8 13 19, 161 L. Ed. 2d 205, 125 S. Ct. 1254 (2005) ........C-7

Singh P. Ashcroft, 386 F.3d 1228, 1231-1232 (9th Cir. 2004).

C-7

Slack v. McDanel, •529 US 473, 484, 146 L. Ed. 2d 542, 120 S. Ct. 1595. '-1, 3

State v. Superior Court of Orange County, 12 Cal. 3d 237, 251-252

Taylor v. United States,

495 Us 575, 602, 109 L. ED. 2d 607, 608-610, 110 S. Ct. 2143 (1990).c-7,.E-3

United States

Chatman, 869 F.2d 525, 529, (9th Cir. (1989).

.C-7.

United States v. Gaines, 2015 U.S. Dist. LEXIS 57324 @ fn. 2........ 10

United States v. Ladwig, 432 F.3d 1001, 1003, (9th Cir. 2005).

United States v. Mi Kyung Byun, 539 F.3d 982, 991-992 (9th Cir.).

.C-7

C-7

United States v. Parker, S F.3d 1322, 1324. (9th Cir. 1993).......

United States v. Piccolo, 441 F.3d 1084, 1087 (9th Cir. 2005).

United States v. Ramirez, 21 M.J. 353,

_C-7

(1986) .......... ..... .C-4

United States v. Sherbondy, 865 F.2d 996, 1010-1011 & fn. 18,

(9th Cir. Cal. 1988), Cited all throughout Petition & Attachments. 6, 8, 13. etc.

Unted States v. Stogner, 539 Us 607 (2003) .............C-3

United States v. Throckmorton, 98 US 61, 64, 25 L. Ed. 93 (1798) .... ... E-2

Welch . United States,

577 US, 194 L. Ed. 2d 387, 136 S. Ct. 1257 (2016) ....... 3, 6, C-2, F-25

Witter V. Baker, 2014 U.S. Dist. LEXIS 111321...............10

STATUTES AND RULES

California Civil Code §13..........................8, C-2

Code of Civil Procedure (CCP) §16, §1060 & 1061.............8, C-2

California Government Code §11342.2....................

G-1

California Penal Code §667.5(c). .

Throughout Petition & Attachments

§1192.7 (=Serious, NOT Violent) ............5

§1170.126 . . . . . . . . . . . . . . . . . . . . . . . F-19

§1385........................9,12,A-3

§288(a), etc.......Throughout Petition & Attachments!

.....

Welfare & Institutions Code §6691.1 & §6600(b) ............. . .C-6: 8

California Rules of Court (CRC) Rule 4..551(c.)(1) & (g) ...........12

Stats. 1965, Ch. 299, §2 = Judicial Notice ........C-i, 2, 6, D-1, E-1, F-i

Federal Rules.of Evidence, Rule 201(d) ..................E1, Fl

18 USC §924(e)(2)(B). .

.....

.3, 5, All Throughout, A-i, C-7, 81 D21 53,...

18 1JSC16(b) ............................ 4, 6, R-25

28 USC §530B (McDade Act) ........................

4, 11

28 USC §2253(c)(2) & (3) . . . . . . . . . . . . . . . . . . . . . . . . . . F-2

28 USC §2254(d)(1) & (2) .........................4, 12

15 CCR §349O/349l............................

UCC 3-501 . . . . . . . . . . . . .

.... .

..........

A-i, 4, D-1, 4

1979 Stats., Ch. 944, §6.51 Pg. 3254 (Legislative separation-out). . . 4,6,7..

vii

OTHER

alifornia Constitution, Article I, §7, & §32.

California Constitution, Article III., §3

3 4, 5, ii, 12, 14, A2, E2, Etc.

Separation of Powers..........9

California Constitution, Art-ii xx, §3,. -Oath of Qffice,.6,, ia, 12, 13, C-3, 8

Legal Maxim: "Express io/Inciusio uniuØest i exciusio alteriu..:" = "The expression/

inclusion of one, is the exclusion of another." 11 Coke SB g 8 Mont.312

,7, 9, A-21 C-2, E-2

"Lex non ccgit ad impossibilia." = "The Law does not permit

impossibi1ities."(Broom',s Max 242) ..............C-2. E-2

"Lex senper da.t remedium." = "The Law will always give a

remedy." (Broom's Max 193) ....................E-3

JudicialCanons: ..............................13, A-i, 6

United States Constitutjon, Article vi, §2

Supremacy Clause. . .Throughout All

United States Constitution, Amendment(s) V 1 & XIV, Due Process & Equal Protection

of the Law................ . 41 6, 81 91 10, 12, 13, 17, &Attachments

Viii

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

cjI For cases from federal courts:

The Deniar of the United States court of appeals appears at Appendix

the petition and is

; or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

is unpublished.

14 to

The opinion of the United States district court appears at Appendix F-4 to

the petition and is

[ ] reported at

; or,

[1 has been designated for publication but is not yet reported; or,

VA is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

to the petition and is

Appendix D

; or,

[I reported at

[I has been designated for publication but is not yet reported; or,

kA is unpublished.

court

The opinion of the SIIPP.RTOR (nh1R'r OF CALIFORNIA (TuoLuE)

to the petition and is

appears at Appendix A

; or,

[ ] reported at

[I has been designated for publication but is not yet reported; or,

bi4 is unpublished.

JURISDICTION

N3 For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was May 31., 2018 (F:14)

[ ] No petition for rehearing was timely filed in my case.

oi A timely petition for rehearing was denied by the United States Couri ni

Appeals on the following date: Ju1y 12, 2018

order denying rehearing appears at Appendix F27

and a CO)V ifi I hv

An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on

(date)

in Application No, —A

The jurisdiction of this Court. is invoiced under 28 U. S. C. § 1254(1),*

[: For cases from. state courts:

.9th 2017, C.è.

The date on which the highest state courtdecided my case was

A copy of that decision appears at Appendix D

Ift A timely NOTICE OF VOID ODR was thereafter.f

ed.

iö±bn the folipwing date:

August 20th, 2.017, c.e.

and a copy of the N1) Tit &OF

appears at Appendix D

[ I An extension of time to file the petition for a writ of certiorari was granLed

to and including

(date) on

Application No, —A ,

(date) in

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a),

Petitioner also states that Jurisdiction is conferred; by the United

States

Constitution itself. Further, the First Amendment to the Constitution

acknowledges that Petitioner has a 'Right to Redress Grievances.

Petitioner

is agrieved that Judges refuse to follow the Supremacy Clause

and

Rule

according to. Truth. Refusal to adjudicate creates the appear

ance that the

Justices ignore with impunity the Contract which provides employment!

CONSTITUTIONAL AND STATUTORY PRO'iSIONS INVOLVED

1. Article VI, §2

Supremacy Clause:

"This Constitution, and the Laws made in.pursuance thereof, and all Treaties

made, are the Supreme Law of the Land. Anything'in the Constitution and Laws

of the State to the contrary, notwithstanding." . . . . . used throughout!

2. Amendment V & XIV Due Process & Equal Protection of the Law:

Sedtion 1: "...nor shall any State deprive any person of life, liberety,

or property, without due process of law;: nor.:.-deny to any person within its

jurisdiction the equal protection of the laws." .

3. 18 USC §924(e)(2)(B)

Definition of "Violent Felony"

"The term "violent felony" means any crime punishable by imprisonment for a

term exceeding'- one year, or' any act of juvenile deliquency involving the use

or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that:

has as an element the use, attempted use, or threatened use of physical

force against the person of another; or,

is burglary, arson, or extortion, involving the use of explosives,

[or otherwise involves conduct that presents a serious potential risk

of physical injury to another."] NOTE *c below. 4 . . used throughout!

4. 18 USC §16

"crime of Violence": The term "crime of violence" means:

an offense that has as an element the use, attempted use, or threatened

use of physical force against the person or property of another, or

any other offense that is a felony and that, [by its nature involves a

substantial risk that physical force against the person or property of

another may be used in the course of committing the of fense.](98 Stat. 21.36).

NOTE ** below.

, 192 L.. Ed. 2d 569,

574-577, 135 S. Ct. 2551 ; 2015 U.S LEXIS 4251: the Court VOIDED the residual

clause as iinconstitutionall vague." This was made retroactive by Welch v.

United States, 577 US

, 194 L.Ed.2d 387, 136 S. Ct. 1257; and 1 USC §16

the same reasons," in Sessions v. Diyama, 2018 US

was recently7"amended T

LEXIS 2497, (4/18/18 DJDAR Pg. 3331).

** NOTE: In Johnson _(Samuel James) v.United States, 576 US

STATEMENT OF THE CASE

On November 8th, 2016, c.e., the PEOPLE enacted (Prop-57) Article I, §32of

the California Constitution; which contained an undefined term, "Nonviolent felony,"

and itemized benefits thereto.

Petitioner then did some research and discovered that in 1979, the California

Legislature "separated-out" all "crimes of violence" (18 USC §16, & 18 USC §924(e)

(2)(B)'s "definition" of "Violent Felony") and created a separate designation/

subsection for these crimes/offenses which were done "with force, violence, menace,

or fear ...... etc." but failed to remove the "non-violent" ones from CPC §667.5(c).

(See: List on Pg. 16, Post).

Petitioner's offenses are not Statutorily (by the elements) designated asa

"Violent felony," so he requested to be taken to the BPH, and was denied, resulting

in his filing the Petition for a Writ of Habeas Corpus. All three (3) Levels

(Superior, Appellate, and Supreme) of State Courts & two (2) Levels (District&

9th Circuit Court of Appeals) of Federal Courts hve ILLEGALLY DENIED the Petitions,

necessitating this Certiorari; using as "authority" a "non-definitional" Statute

(CPC §667.5(c)), and "IGNORING" the exceptions of 28 USC §2254(d)(1) &,(2).

'rom the beginning, Petitioner has asserted and argued a denial of a Constitutional Right ("Due Process & Equal Protection of the Law," "Honest Services,"

and violation(s) of the U.S. Constitution's 'Supremacy Clause"); which has, each

time, resulted in a decision "contrary to the evidence presented in the State

Courts," (28 USC §2254(d)(2)), and, a decision "contrary to an established U.S.

Supreme Court decision." (*2254(d)(1)).

This blatant disregard for the "Rule of Law, and Stare Decisis, as well

as the U.S., Constitution itself, REJIRES the Supervisory Powers of this Court

to guide the Judiciary back to Truth & Justice. (see: Reons for Granting Writ).

I. A NEW CHANGE IN THE SENTENCING LAW (PROP-57) WHICH WAS ADDED TO CALIFORNIA

CONSTITUTION AT ARTICLE I, §32 INTRODUCING A "NON-DEFINED TERM"; 1-THE ILLEGAL

INCLUSION OF CLASSIFICATION OF CRIME AS "VIOLENT FELONY" (INCLUDED IN (ALLEGED)

GC §67.(c)(6) §288(a), WHICH IS ONLY A "SERIOUS FELONY) PER CPC §1192.7(c)

& CPC § 667.5(c) IS NOT A DEFINITION.

On November 8th, 2016, c.e., the PEOPLE and VOTERS/TAXPAYERS of STATE OF

CALIFORNIA passed proposition

57 (Public Safety & Sentencing Reform Act of

2016) which took effect on November 9th, 2016, c.e.,

IFORNIA CONSTITUTION at Article I, §32. In enacting Section (2) of said Act

at (a)(1), it states: "... Any person convicted of a non-violent felony offense

(an undefined term), and sentenced to state prison shall be eligible for parole

consideration after completing the full term for his primary Offense.

(A) For purposes of this section only, the full term for the primary

offense means the longest term of imprisonment imposed by the Court

for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence." (CA Const. Art. I, §32).

Since the term "Alternative Sentence" is applicable to: .:3Strikes:,one is directed

to the maximum sentence authorized by Statute that is annexed to the crime.

In this instant case,

years would be the maximum 'full term" for the primary

offense.

Since the term "Consecutive Sentence" is applicable to 3-Strikes, one would

preclude that any such imposed consecutive sentence (including any enhancements)

would be stricken.

Since the term "Enhancement" [CPC §667(a)(1) &

§667.5) is applicable to

3-Strikes, one would preclude that any such imposed 1, 3, or 5 year enhancements

would be stricken.

Since "Non-Violent" felony is not defined in California, and CPC 667.5(c)

IS NOT A DEFINITION of "Violent" felony, one must look eThewhere. The definition

of "Violent Felony" is located in Title 18 USC §924(e)(2)(B)1 which states:

the term "Violent Felony" means any crime punishable by imprisonment for

a term exceeding one year, or any act of juvenile deliquency involving the

use or carrying of a firearm, knife, or destructive device that would be

be punishable by imprisonment for such term if committed by an adult, that:

has as an element the use, attempted use, or threatened use of

physical force against the person of another; or

is burglary, arson, or extortion, involving the use of explosives,

[or otherwise involves conduct that presents a serious potential

risk of physical injury to another."] [NOTE at *1 and,

18 USC §16 states: The ter "Crime of Violence" means:

an offense that has as an element the use, attempted use, or threatened

use of physical force against the person or property of another, or

any other offense that is a felony and that [by its nature involves a

substantial risk that physical force against the person or property of

another may be used in the course of committing the offense. (98 Stat. 2136)

[NOTE*] In Johnson (Samuel James) v. United States, 576 US

192 L. Ed. 2d 569,

574-577; 135 S. Ct. 2551; 2015 U.S. LEXIS 4251 "the Court voided the residual clause

as unconstitutionally vague." This was made retroactive by Welch v. United States,

577 US

194 L. Ed. 2d 387, 136 S. Ct. 1257; and by Sessions v. Diyama, 2018 U.S.

LEXIS 2497 for 18 USC §16; and "Federal Law is determinative." U.S. v. Sherbondy,

865 F.2d 996, 1010-1011 (1988 CA9 Cal.), and Mattschei v. U.S., 600 F.2d 205, 211

@fn-5 (1979).

STATE OF CALIFORNIA has (allegedly) created a Statute of "Violent Felonies"

which are "listed" in (alleged) CPC §667.5(c) (See: Exhibit "A").

Since 1979, when the Californa. Legislature "separated-out" subsection (b)

of alleged §288, (1979 Stats, Ch. 944, §6.5, Pg. 3254) and subsequently placed

the specific (b) subsection in §667.5(c), it (and each Assemblymen & Senator

& Jusde) was required by their Oath of Office and Article I, §7 of the California

Constitution, to remove/delete any reference to subsection (a) as a "violent

felony," as it is no longer a "violent felony."

In U.S. v. Sherbondy, 865 F. 2d 996 (1988) at fn. 18, " ...determining what

constitutes a 'violent felony' (so as to trigger a mandatory minumum 15 year

sentence)[or a 'full term Enhancement' under §667.5, 667.6, etc or morel is

a definitional question." (underline & bracket phrase added). Because the legal

"definitional question" issue of Sherbondy, id @ 1004, was specifically raised

by Petitioner, the Judge's refusal to acknowledge (and follow) Sherbondy, supra.,

as well as the "Supremacy Clause" (U.S. Constitution, Art. VI, §2) and rule/grant

relief to Petitioner, he violated said Supremacy Clause and the "Legal Definition."

According to the Legal Maxim, "Expressio/Inclusio unius est, exclusio alterius"

"The Expression/Inclusion of one is the exclusion of another." 11 Coke 58,

8 Mont. 312. Therefore, Ipso Facto, the Express/Inclusion of "force or violence"

(against the will....) in alleged cpc §288(b) & 289(b) etc. specifically EXCLUDES

"force or violence" from the specific subsections of (alleged) CPC §288(a),

288a(c)(1), 288.5, 289(j), 423.1(d), etc. and CANNOT, by its own terms & the above

Federal Statutes and Maxim, be included in the ''List" of 'Violent Felonies." (and

therefore, CANNOT be classified as a "Violent Felony" for the purposes of those

Statutes of which violent felonies are punished more harshly). lie CPC §136.1(c),

243.4(a), 273.5, 245,, 220, etc.]. This c"concept" is evident in the following

Statutes which identify the "(b)," "use of force or violence." Alleged CPC 667.5

(c)(6) is the ONLY Ptatute which includes the "Non-Violent" subsection (a). of §288

as "violent." This unlawful inclusion of tho.j. ipso facto, NON-violent crime in

said "List," violates Petitioner's RIGHT to Due Provess and Equal Protection of the

Law, as required by Article I, §7 of the CALIFORNIA CONSTITUTION & Amendment XIV of

the U.S. CONSTITUTION.

Since 1979, when the CA Legislature sepatated-$ut the "with force or violence"

into subsection (b) of §288 (and others) any ruling, "...as 'defined' in §288

could only attach to the '(.b)" crimes/offenses, as the (a) crime was specifically ,

"excluded," not only by the Legal Maxim but by the "legal Definition" that is now

located in 18 -USC §924(e)(2)(B) (as amended by Johnson). Judge (s) are required to

follow the "elements" of a crime/offense, not some erroneous inclusion in someones

"List" In American Banana Co. v. United Fruit Co., 213 U' 347, 357, 53 L. Ed. 8261

29 S. Ct. 511 (1909), Justice Oliver Wendell Holmes of the U.S. Supreme Court said,

'every person who shall

"Words having universal scope, such as

monopolize,' etc., will be taken, as a matter of course, to mean only

everyone subject to such legislation, not all that the legislator

subsequently may be able to catch."

....

Therefore, "Violent Felony" can only attach to crimes/offenses that comport with

the 'established Federal definition.' (Sherbondy, supra, and Mattschei supra.).

STATE OF CALIFORNIA

does not define "violent felony" (only lists examples)

but would, nonetheless, be required to follow the Federal definition via the

"Supremacy Clause" of the U.S. Constitution.

Petitioner asserts that he was convicted and sentenced to a NON-VIOLENT

offense, and comes under the purview of Proposition

57, notwithstanding the

illegal and erroneous "inclusion" of said crime in CPC §667.5(c)(6). Petitoner

has also served over 24 years, which is 15 more years than the "maximum" authorized

by Law (annexed to the crime), and should therefore be considered for discharge.

[NOTE] The Court should be aware that CDC&R is now required to consider

"Von-violent 3--Strikers for Parole pursuant to the recently decidd:I case of

People v. Edwards, No. B-2880861 Court of Appeal, Second Appellate District, Div. 5.

In Brown v. Supreme Court, 63 Cal. 4th 335, 351 (6/2016), "It isa

Venerable principle that when a word or phrase appearing in a Statute

[Constitutional provision] 'has a well-es ,ttshed legal meaning," it

will be given that meaning in construing the Statute. This:has;lorig

been the law of California: 'The rule of construction of Statutes -- As

plain. Where they make use of wrods and phrases of a well-known and

definite sense in fhe law, ["Violent Felony"] they are to be received

and expounded in the same sense in the Statute.'" (arris V. ep_l1,

13 Cal. 514 518 (1859) (& Civil Code §13; & CCP §16)[ also "Ndn-violent"]

As stated earlier, STATE OF CALIFORNIA DOES NOT DEFINE the terms "Violent

Felony" & "Non-Violent Felony," so the "well-established definition from the

Federal Criminal Code (18 USC §924(e)(2)(B)) must be used! [via the "Supremacy

Clause.of the U.S. Constitution].

II. DENIAL OF DUE PROCESS; VIOLATION OF U.S. CONSTITUTION, ARTICLE VI, §2,

SUPREMACY CLAUSE; VIOLATION OF SEPARATION OF POWERS, ART. III, §3

CONSTITUTION.

When Petitioner received a DENIAL of his Petition, he again stated that

the Petition stated facts that, if TRUE, entitled him to relief (that his alleged

crime/offense is "NON-Violent" by definition, Statutory elements, and Legal Maxim,

and that he be provided the benefits of Prop-57). The illegal DENIAL by the Judge,

"fallaciously parroting the very Issue (illegal inclusion in the Code) challenged

in the Petition," violated Petitioner's RIGHT to Due Process and the "Supremacy

Clause" of the U.S. Constitution.

Since the evidence presented a "prima-facie" case for relief, the Judge,

at minimum, should have Ordered an OSC. Petitoner also Claimed that the Judge

knew, or should have known, that the possibility existed that the new Article

I, §32 provision is/was unconstitutional as a violation of the Separation of

Powers Doctrine (Art. III, §3) as NO Constitutional provision can be "passed"

by the PEOPLE (or the Legislature) that denies or prevents the Court from exercising

ITS AUTHORITY to "modify a Sentnece." The "Authority" to so modify a Sentence cannot be exclusively given to an Executive Branch Agency (CDC&R). (cf: CPC §1385 &

People v. Superior Court (Romero), 44 Cal. App 4th 1073, 1086/13 Cal. 4th 497, @

508-509 (1995). If the Court DOES NOT "SHARE" the authority to "modify a Sentence,"

(or follow the Federal definition of "violent felony" (See: No. I. supra), then,

Proposition

57 MUST BE DECLAARED UNCONSTITUTIONAL! as a violation of Separation

of Powers Doctrine. (Coulter v. Pool, 187 Cal. 181, citing People v. Tenorio,

3 Cal. 3d 89, 91) as well as the Due Process & Equal Protection Clauses of both

Constitutions. (cf: MYERS v. YLST, 897 F.2d 417, 421-423 (9th Cir. 1990).

In Glenn v. Chavez, 2012 US Dist. LEXIS 144075, "The Equal Protection Clause requires, generally that similarly situated Defendants [prisoners] be treated similarly." City of Cleburne, - Texas v. Cleburne Living Center, 473 US 432, 439, 87

L. Ed. 2d 313, 105 S. Ct. 3249 (1985), citing Plyler v. Doe, 457 Us 202, 205-211,

72 L. Ed. 2d 786, 791-798 (1982).

Here, PetitiQrier has proven that he was, in fact, convicted of a "NONviolent" felony, (and is similarly situated with other 'non-violent' felons).

The Judge had to violate and ignore numerous Judicial Precepts held sacred by

American Jurisprudence to illegally DEITY the Petition. This included the violation

of the "Supremacy Clause" and his Oath of Office! Petitioner has a RIGHT to

a valid "characterization of the status of his crime/offense," and to be treated

equally as one of those coming under the purview of Prop

57.

In Witter v. Baker, 2014 Us Dist. LEXIS 111321 (2:01-CV-1034-RCJ-CWH), citing

Myers v. Ylst, supra, ", ......,,. ,reversed

the denial of Habeas relief of a State

prisoner on the ground that the State Supreme Court had violated the Equal Protection Clause [of. the U.S. & State Constitutions] by denying him the retroactive

benefit of a new rule of State Law, while granting such benefit to ..another prisoner...".... "it must apply it with an even hand." id. at 421... "The Equal Protection Clause prohibits a State from affording one person... the benefit of a

ruling [change in State Law]... while denying it to another. Johnson v. Arizona,

462 F.2d 1352 (9th Cir. 1972); U.S. v. Gaines, 2015 US Dist. LEXIS 57324, at fn 21

was entitled to the retroactive benefit of §750."; People v. Lopez, 251 Cal.

App. 2d 918, 922 (1967); Brown v. Louisiana, 447 US 323, 65 L. Ed. 2d 159, 166,

100 S. Ct. 2214 (1980); Bowen v. U.S., 422 US 916, 920, 45 L. Ed. 2d 641, 95 S.

Ct. 2569 (1975). It appears that the Judge(s) in California care NOTHING about

their Oath(s) of Office or the U.S. Constitution! (U.S. Supremacy Clause)!

III.

DERELICTION OF DUTY; MALFEASANCE IN OFFICE; VIOLATION OF STARE

DECISIS; VIOLATION OF OATH OF OFFICE, Etc.

The refusal to follow Stare Decisis and the 9th Circuit's decisions cited,

constitutes Malfeasance in Office, and Each's refusal to address and adjudicate

(which cannot be done absent the A/G's position) the issue(s) constitutes Judicial

Cowardice at the utmost! Each's agrement to violate the Court's Rules constitutes

a violation of Each's Oath of Office, as well as "Conduct Unbecoming" of a Commissioned Officer. Petitione'is.&/was entitled to the "Honest Service" (McDade

Act, 28 USC §530B) of each Attorney General & Judge. This was denied for NO

reason, and violated said Act, as well as their Canons! In this Petitioner's

case, Each's (non-)actions unduly lengthens Petitioner's draconion incarceration &

establishes the blatant appearane of BIAS in the California Judiciary. Petitioner's

well-grounded and pled research cannot be controverted!

IV.

VIOLATION(S) OF DUE PROCESS; VIOLATION(S) OF COURT RULES; VIOLATION(S)

OF STARE DECISIS; VIOLATION(S) OF OATH(S) OF OFFICE; ABDICATION(S) OF

JUDICIAL POWER; MALFEASANCE IN AND OF OFFICE; EXTREME BIAS AGAINST

PETITIONER; FRAUD; VIOLATION(S) OF U.S. CONSTITUTION'S ARTICLE VI, §2,

!'SUPREMACY CLAUSE"; DERELICTION OF DUTY, Etc.

The SUPREME COURT OF CALIFORNIA's ORDER, (,as well as the district court

of the United States, Eastern District of California's) DENYING the Petition

for a Writ in the Nature of Habeas Corpus (hereinafter "it"):

1. Violates Petitioner's RIGHT to Due Process & Equal Protection of Law pu'ruant.;;

to Article I, §7, of the California Constitution, and the Fifth Article, and

the XIVth Article in Amendment to the United States Constitution, and was "contrary

to the evidence presented" by their FAILURE & REF SA. to Issue an Order to Show

Cause (OSC) as required by Court Rule 4.551(c) (See also: 28 USC §2254(d)(1)).

This DENIAL totally and conveniently IGNORED the points addressed in No.11

(Page 51 supra)!'' In No. II, Petitioner presented his reasoning (that the Court,

in fact, DOES HAVE THE AUTHORITY to "modify a Sentence" which was authorized

by the 'self-executing' Constitutional provision (Art. I, §32), as well as the

Court's holding(s) in CPC §1385 & the Romero cases cited. Further, "it" violates

CA Court Rule 4.551(g) in that a "Post-Card" Denial is "insufficient!" This

was again committed by the Justices of the CALIFORNIA SUPREME COURT!, and proves

Each's blatant and total disregard for Constitutional Law & the "Rule of Law!" (ie;

the "Supremacy Clause!).

-------------------------1/ Chief Justice, John Marshall, once stated, "We [Judges] have no more right:to

decline the exercise of jurisdiction which is given, than to usurp that which

is not given. The one or the other would be treason to the Constitution."

Cohens v. Virginia, 19 US (6 Wheat) 264, 404 (1821) (Underline added). Judges

of the California (State & Federal) Courts took an Oath (Art. XX, §3) to uphold

and support the Constitution of the United States and the Constitution of the

STATE OF CALIFORNIA, and Each's blatant disregard of that obligation/allegiance

can only result in an act of Treason.

Further, "it" vio1ates.5tare Decisis from the cases cited in Claims No.!I, II,.;

& III, supra. The SUPREME COURT OF CALIFORNIA Justices are REQUIRED to follow

the holdings & decisions in the U.S. Supreme Court and 9th Circuit Court of Appeals

Cases. The "ORDER(S)" prove that Each Justice did intentionally REFUSE to apply

the principles of Stare Decisis, or. ANY Decisis! and establishes a violation

of his/her Oath of Office.

Further, "it" violates Each's oath of Office (and the Judicial Canons), as

each Justice swore an Oath to uphold the United States Constitution, and the

Laws made in pursuance thereof, as well as the California Constitution. Theyiwere

"Bound" by said Oath via Article VI, Cl. 2 of the U.S. Constitution (Supremacy

Clause). The STATE OF CALIFORNIA recently made a change to its Constitution

(Article I, §32), using the term, "Non-violent felony/offense." STATE OF CALIFORNIA

dfines" NEITHER "Violent Felony," nor "Non-Violent Felony." The Supremacy Clause

states, ".... and the Judges in every State shall be bound thereby, any Thing in

the Constitution or Laws to the Contrary notwithstanding." (underline added). The

9th Circuit Court of Appeals case of United States v. Sherbondy, 865 F. 2d 996,

1010-1011 & fn 18 (1988) does state, " .....determining what constitutes a "violent

felony" (....) is a definitional question." The ONLY

"definition" of "violent

felony" appears in 18 USC §924(e)(2)(s)!; and via Each's Oath of Office, and

the above-cited Supremacy Clause, in addition to the Legal Maxim cited, "Expressio/

Inclusio unius est, exclusio alterius." were REQUIRED to Classify Petitioner's

Offense(s) as "Non-Violent," and effectuate "prop-57." This Each REFUSED TO DO!

(See: Brown v. Superior Court, supra.).

Further, "it" establishes an "Abdication of Judicial Power." The Judge's

abdication of his/her Judicial authority to "modify a Sentence" invokes the

consequences cited in the footnoted case, (Cohens v. Virginia), as SUPREME COURT

OF CALIFORNIA IS REQUIRED to resolve Issues of Controversy regarding the California

Constitution. At the very least, the Judge should have issued an OSC (or Request

for Informal Response per CRC Rule 4.551), and since the newly initiated (Prop57) Article I, §32 of the California Constitution literally and essentially does,

in fact, "modifies a Sentence" the Court was required to acknowledge its authority

to function in this "Parole Consideration" (and/or Discharge) process, OR the Court

was required to VOID the Proposition as being in violation of the Separation of

Powers Doctrine. They did NEITHER! This refusal also establishes Each's "Gross

Malfeasance in Office" by accepting the Salary provided by the Taxpayers/Voters of

California and REFUSING to perform Each's Judicial Duties!

Further, "it" continues the blatant and extreme BIAS & DISCRIMINATION against

this Petitioner, in retaliation for his filing Criminal Treason charges against

Each of them.

Any Pleading, No matter how well-pled, is required to be delayed

as long as possible and then arbitrarily DENIED with NO REASON! Petitioner spends

numerous hours meticulously researching the Issues, only to have the Justice(s)

arbitrarily. D

;.tié Petition without any (alleged) "learned input" from the1STATE

OF CALIFORNIA (via the Attorney General). This blatant Discrimination points - to

NO other explanation. The Court was required to Issue an OSC, hav@ the Attorney

General attempt to find any authorities to counter this Petitioner's weli-pled&

Legally-Sound Claims, and then make a Constitutionally valid "reasoned decisioni

for all the Courts & CDC&R to follow. This "Conduct Unbecoming" is a Court's

Martial Offense, and the Defrauding of those who elected (and appointed) Each: co

their Office.

Lastly, "it," as shown by all of the above, UNLESS this Honorable Court GRANTS

CERTtORARI, and "repremands the errant California Judges1 ESTABLISHES that the "Rule

of Law" IS DEAD in Ca1iforna, and the California Judiciary is a MASSIVE FRAUD!

Respectfully Submitted,

REASONS FOR GRANTING THE PETITION

It is quite apparent the the Judge(s) in CALIFORNIA (both State & Federal),

either: 1) DO NOT UNDERSTAND the import and all-reaching application of the

U.S. Constitution's "sLipremacy Clause" (Article VI, §2), or, 2) CARE NOT.one

whit about it, or their "solemn" Oath of Office (as evidenced by Each's "flipr

pant disregard" of both), and so, need a strong reminder (kick in the behind)

of what EXACTLY it (ALL the words used in Clause 2) means as applied to this

Country's Jurisprudence; and that IF their Oath is just a "bunch of words,"

they should be invited to find employment in the "Private Sector!"

The issues presented (and NOT adjudicated) will, and are, affecting @20%

of California prisoners (as well as possibly some in all other States), aand

will continue to waste Judicial resources due to the volume of litigation. from

these prisoners. Both Judge(s) (& Legislators) and prisoners deserve and

require a new "difinitive ruling" as to the correct application of the "clearly

esf.ished" "legal definitions" of terms used in Constitutional provisions/

Statutes (versus "lists")(or can the Judge(s) just ignore, "Anything in

the Constitution or Laws of the State to the contrary, notwithstanding..."?).

It is time for "The Rule of Law" to be paramount in California's (and other

States') Jurisprudence. Logic, Reason, and TRUTH should ' pe the primary tools

of adjudication, NOT emotions!

IMM

CONCLUSION

Therefore, based upon all of the foregoing, and the Issues presented -in

all the Attachments, Petitioner has proven that the Lower Courts are in dire

need of a reminder of the purpose our Fore-Fathers placed the "upremacy Clause"

within our Organic Documents; and this Honorable Court is the perfect foru.m.in

which to so do. This Petition for a Writ of Certiorari should be GRANTED.

Respectfully Submitted,

July 5th, 2018, c.e.

November

20th, 2018, c • e.)

'Ile

Tertius Interveniens/Auth. Rep., ex rel.,

Exemption No. 5598928464 (juris et de jure)

Holder-In-Due-Course, Record Owner

Trade Name Owner, Sovereign American

Bond No, C-52971371

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.