Petition for Rehearing — Kevin D. Loggins, Sr., Petitioner v. Rebecca L. Pilshaw, Judge, District Court of Kansas, Sedgwick County, et al.

91-435

IN THE UNITED STATES SUPREME COURT

FOR THE

UNITED STATES OF AMERICA

KEVIN D. LOGGINS SR.

PETITIONER/MOVANT

VS.

REBECCA L. PILSHAW, et. al.,

DEFENDANTS/RESPONDENTS

MOTION FOR REHEARING PURSUANT TO RULE-44 IN COMPLIANCE WITH

RULE-22 [APPLICATION TO INDIVIDUAL JUSTICE]

\ ron. YD Lisp SC,

KEVIN D. LOGGIN SR.

KDOC NO. # 63088

HCF PO BOX 1568

HUTCHINSON, KS 67504

TABLE OF CONTENTS

I. WHETHER A REHEARING IS NECESSARY TO DETERMINE WHY

PETITIONERS CASE WAS NOT SUBMITTED TO AN INDIVIDUAL JUSTICE IN

COMPLAINCE WITH RULE-22, AND IF DENIAL OF SAID PROCEDURAL

BENEFITS AMOUNTS TO DENIAL OF PROCEDURAL DUE PROCESS?

Fuentes v. Shevin, 407 U.S. at 87.........ccccccccscssscessseseceessseesssessscsesesessceuscaseceseserscsensesenssenseceneeee 1

Codd v. Velger, 429 U.S. at 632..........cscsscsscssssscsossenosssbblsaisiccnsiswebies savasanaieutetdenetiesecactsnuanssaves 1

Coe v. Armour Fertilizer Works, 237 U.S. 413, 424 (1915)... ..ceceesssccsseseeceereesessesscessesceeseess 1

Boddie v. Connecticut, 401 U.S. 371, 375 (1971).....cccscsscsssssscsceecesessescsecescesceescuceessaseceusess 1

Anti-Fascist Committee v. McGrarth, 341 U.S. at 171-172... icc ccecscscssecesescsesessececsssensecereeees 1

WSCESSup...Cta Re 224, ess lnsyele ant leet learns Brean depleted olde enlanenassnee 1,2,3

Mahan v. Howell, 404 U.S. 1201, 1202... cccscsssssessessessessescessecsecsssasseceseessesecsuseeeseeseceeees 2

Organized Village of Kake v. Egan, 80 S.Ct. 33, 4 L.Ed 2d 34 (1959)... ccccsscescesceseseeeeeseeses 2

Nebraska Press Assn. v. Stuart, 423 U.S. 1327, 1330 (1975).....ccccscsssssssessecseeeeerecescesecsstsseeees 2

Ledbetter v. Baldwin, 479 U.S. 1309, 1310 (1986).......cccessscescsssseesesecsescesesesecsececsseseeseeseseees 2

Rostker v. Goldberg, 488 U.S. 1306, 1308 (1980)... cccescsssssesseesesssseeeesseceeeeecesseesenseeaseaees 2

The Act of Feb. 5, 1867, c. 28, § 1, 14 Stat. 385. eeeecssessenscesesesseeeceneessesseeesecseeeetencens 3

28 U.S.C. § 2254(8)....ccccccscrcccssssscesassssseessorvon ete dRsiili ds thieniiis tu cleastinsis obexsuniuaieeseaestineisuccauseisss 3

2B U.S.C. § 2241(a).......:ssssceescoscesoroncesbisgeisusine dsbspsdav seu csv sevequCecspUNCORNOSVSUSSS! «-peuesscescesacseancassonces 4

Art. 1 § 9[2] Cl 2.......seseccersnssessrssnrsscsnsrecssscosserersacenensencsceessecencensnsenssacesencacencneonsentonsesensenseesesears 4

Morrissey v. Brewer, 408 U.S. 471,481 (1972)....ccccccccsssesescseeeeseees i eisbevewecdcuiusecdoseuescescsciiestis

Landon v. Plasencia, 459 U.S. 21, 34, (1982)........:cccccsccessesssessceeecesccesessecssesseesseeeseescesecencesscens 4

SUP. Ct. R. 39. cscessessesssseesseessecsesscsessnaeeaeseessseeeeesseeseeseeeeeaeseeseeueaesesaceacaceneeeeseeaseaeeneaees 4,5

Mullane v. Central Honover Tr. Co., 339 U.S. 306 (1950)........ccscscesscsessessessesetsscescesceseeeceecenees 5

Armstrong v. Manzo, 380 U.S. 545, 552 (1965)......cccccscsscssesscssesscssesscsscsecsecsecessecrareateeseasenses 6

In re Gault, 387 U.S. 1, 87 S.Ct. 1428 (1967)... cc eccccsesssssscssessesscsscssessssssecssecsesseesececuenaeeaee 7

Ik. WHETHER A REHEARING IS NECESSARY TO ADDRESS THE

CONFLICTING LAWS HANDED DOWN BY THIS SUPERIOR COURT IN HECK V.

HUMPHERY, 512 U.S. 477 (1994) AND ELLIOTT V. LESSEE OF PEIRSOL, 26 U.S. 328

(1828), FOR THE MATTER IS OF GREAT IMPORTANCE TO ALL AMERICAN

CITIZENS AND THEIR CIVIL RIGHTS TO REDRESS AN ONGOING INJURY, AS

WELL AS SEEK COMPENSATION FOR VIOLATION OF CIVIL LIBERTIES

PURSUANT TO) 42 U.S.C. § 1983? oo cccssesstsetessseacesseeessenteesseeetssseentacsucaceasereeeeaeenees 7,8

i

Ascroft v. al-Kidd, 563 U.S. 731, 735 (2011 )sesseascnesvensssessvenceneasunmersvancenscavaravbianenseatwicasiekekssds 8

Plumhoff v. Rickard, 572 U.S. 765 (2014)... cscsssssessessecsesssssecsreesseeeseesesecseeseesessaseseeseeenaees 8

Reichle v. Howards, 566 U.S. 658, 664 (2012).........ccscsssecseccssecessceeesesseeeeeeseeeenseeeesaeeceeenees 8

Anderson v. Creighton, 483 U.S. 635, 640 (1987).........ccccscesscesseeseessesseesceeseeseeeseeessesseeesseeeeees 8

Malley v. Briggs, 475 U.S. 335, 341 (1986)... eceescscsesseeseesseceesesscesesaeceeeeseaseceseeeeeseeases 8

Elliott v. Lessee of Peirsol, 26 U.S. 328 (1828)..........ccsssssssssssesecessensceeensecaeeasesseerseeenseeeneenes 9

Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348 (1920)......cccssscsssessesseesseesesens 9

Old Wayne Mut. I. Assoc. v. McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907).......ccscessseeseeees 9

Williamson v. Berry, 12 L.Ed. 1170, 1189 (1850)... eeccesessesseeeecessesseesseesseesseessseeeaes 9

Rose v. Himely, 2 L.Ed. 608, 617 (1808)..........cccssesssccssesscessecsscsseesssesesacessecsssesesesecenseeseeeeeee 9

Ex parte Royall, 117 U.S. 241 (1886).......... ssssussescssssssscessanvesuacceacisccewscsasizavsssseante raguensesesevaes 10

Randall v. Brigham, 74 U.S. 523 (1869)... ccesssccssseseseeeseeeeceseaeeeeeeessesssaeeseeceeseesseeeneeseens 10

H. Rep. No. 1656, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S. Code Cong. & Admin. News

6121, 6125...........<dsnanjseaatamarasnaasvasaseuususctusuiatavesassauaseuvigaumusienssueqeuasscequen tamsesianvaiagieaseapmeaneans 10

Roster v. Marshall, (United States use Rogers v. Conklin) I Wall, (U.S.) 644, 17 L.Ed

TNA eeessescencesececscescesseseeesessseesesseeecaseaeassavscsaceacessesessoneseseseessseaeeseesaenseseesesaceeeeaseneeeeaeeserens 11

Pullman v. Allen, 466 U.S. 522, 541-42 (1984)... ecccccsseseesssesesceessassecsesseeseeeeeeeeeeeneeees 11

Black's Law Dictionary, 1148 (4th ed. rev. 1968) (Ministerial).............:cscsesssseestesseeseeseees 12

28 U.S.C. § 753(D).. cece eseeeseeeseeecenseeteaeeeeeeecententens veceeeeeeaseneeeeeaceseeaceseaseeseeetersnceueesensecanesees 12

McLallen v. Henderson, 492 F.2d 1298, 1299 (CA8 1974).........00. sssseastssaeesseesessnecasssneanasaes 12

Waterman v. State, 35 Misc. 2d 954, 957 (1962).........cssssssesseesseseeeseeeees seesteaeeseesessteseeaeenens 12

Eldridge v. Deets, 4 Kan. App. 2d 241, 243, 45 P. 948 (1896)........cccesccsscssscsseeseesseesseeees 12

In re Terrill, 52 Kan. 29, 31 (1893)... ceeccscecceeceesssceecseesecssesecseeeeeeeeesseecsecaeseessneaeseeesenesanees 12

15A Am.Jur.2d, Clerk of Courts, sec. 21, p. 155... cesessssseseesseeeseesecscsseeescssessaesseeesereeases 12

Imbler v. Patctman, 424 U.S. at 423.............«ccnmsmasiasnieastssias taaattean eaussesavenss ben ceTaleuaaiseiatevelvie 12

Westfall v. Erwin, 484 U.S. 292, 297-298 (1988)........cccssssssscccsssssescseesesseeeessesssesseeeeseessneeaes 12

18 U.S.C. § 15126 C)1).........0...:02+0000 onsmaatesnnernaaainennensaauntenneaesenetnetina ia SKS eaebstne suena eeccleteind 12

K.S.A. § 22-2302(2)... cc eeccesescesecetseseceeeeeeessceeeceaeesseseessssesseeseessceseeseecsassneacesaesaeeeeeesseseasesseees 12

Kan. Sup. Ct. R. 108(2)(b)(D); (G)(1)(D)... cece ececccseseeseeseseseessaeseesessecaueaceeseassaeeneceesanearenes 12

Kelina v. Fletcher, 522 U.S. 118, 123, 131 (1997). ccccneensxaacconnasnasenaanexsonanonsneiaonunsnanauanainesn 13

ii

Conley v. Gibson, 355 U.S. 41 (1957)... cecccscsssssssssseesessesseeseeseeesseessceseeseesseeseeceneseesaceaseneeeaee 13

Fed. R. Civ. P. Rule 8.0... ceesessecseseeesenseacsaesceseesaeseaeseesesaseasarsuseassaesassaeaeeecesecasaceneseteesenees 13

Haines v. Kerner, 404 U.S. 519 (1972)...............-sssisstesszsisussastetsnssesvesbsscasiiates itaissccanselcawessavsia 13

Kenner v. Comm 'r, 387 F.2d at 690..0.......cccccscccsssssecsccsseccececsecsesecesseeessesceceseeesessceessesesesseeneanes 13

Elliott v. Peirsol, supra id. at 340-341 0... .ccccssssessceseesceeneeeseeseeeeeeaceenseseseeseseceeencenserseeness 13,15

United States v. Lee, 106 U.S. 196, 220.00... eccccccccscccssssssssessccsstescsssseesssssscesteetsssascesseeesesees 14

O'Shea v. Littleton, 414 U.S. 488, 503 (1974). -wsssscsasssonscdseanxecsasensveasoasectawsvesbacesccusboonninnisaneas 14

Black's Law Dictionary 55 (Sth ed. 1979)... ccesssssssssssecsscsseeseecssesesesseesesessecsseeeessaeeasessesenees 14

Rule 12(f), Fed. R. Civ. P. wee cccssseseseseeeseeeeassenceatssceacssnessessseseeesaeesseeseeesseseseeseseseessessessasenes 14

Rule 8, Fed. R. Civ. Po cece cccccccccsccssscesscsscssscesssssssssescaccssesscesseeasuseeeesenseseccessesessseeeeeseceeaaas 14

Minalga v. Fid. Invs. Instit. Oper. Co. 2002 U.S. Dist. Lexis 22038, **3-4........ccscssseteseees 14

Murphy v. White, 691 F.2d 350, 353 (7th Cir. 1982)... eessesssssesssesseeceeseasseeaseseseeeeuenseaeees 14

Renalds v. SRG, 119 F. Supp. 2d 800, 802 *( N.D-II]. 2002)... eeeccsseseesececenteeesseetseeaseeeeaeees 14

Main v. Thiboutot, 100 S.Ct. 2502 (1980)..........csssssssesscssesseessessecssesseeessecsesssscseecsecseseeeeneessees 15

Basso v. Utah Power & Light Co., 495 F.2d 906, 910.........ccessccsssesssceesseecscecseeesseeeseeseesenseees 15

Joyce V. U.S., 474 F.2d 215 occ ccssessseecssesersscnsessceessceeeseesesessceeeeneaesassataceaseacateeeseeetseseneeees 15

Omer v. Shalala, 30 F.3d 1307 (10th Cir. 1994)........ vstsuntstutustieieee becesceeeceeeeeeees 15

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 (1986).........cccccssssssssseseesesseeseeees 15

Old Wayne Mut. L. Assoc. v. McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907).......:cscssseseeeseees 15

Fed. R. of Civ. P. Rule 38(b)........cccccssecssssessscesscesscessccsecessesssceseecsseecessesseeeseseceasesseesseesenaeeesecs 15

Fed. R. of Civ. P. Rule 12(0)(6).... ssscssnesvenessonneascecuscsnusatainecensibsiitewenienk scewsikenes vhsibtstkanekteliesesnaiaike 15

Fed. R. of Civ. P. Rule 126)... cc ccssssccsseceeseseeseesesssseseessesssssessesesssecaseeeesaecsessesesseseeenesseseeeass 15

Appendix-(A) (Petition to Individual Justice [Justice Sonia Sotomayor])

Appendix-(B) (Clerks refusal to file Motion for Extension of time in Case No. 116,716-A)

Appendix-(C) (Extraordinary Circumstances warranting Extension of time)

Appendix-(D) (Inquiry into Petitioner Application Pursuant to Rule 22)

Appendix-(E) (Clerks letter returning Petition for Writ of Cert., on multiple occasion on false

narrative) .

Lit

L WHETHER A REHEARING IS NECESSARY TO DETERMINE WHY

PETITIONERS CASE WAS NOT SUBMITTED TO AN INDIVIDUAL JUSTICE IN

COMPLIANCE WITH RULE-22, AND IF DENIAL OF SAID PROCEDURAL

BENEFITS AMOUNTS TO DENIAL OF PROCEDURAL DUE PROCESS?

Standard of Review: "It is enough to invoke the procedural safeguards of the Fourteenth

Amendment that a significant property interest is at stake, whatever the ultimate outcome of a

hearing...." Fuentes v. Shevin, 407 U.S.. at 87; see Codd vy. Velger. 429 U.S.. at 632

(STEVENS, J., dissenting); Coe vy. Armour Fertilizer Works, 237 U.S. 413, 424 (1915).

Because the right to procedural due process is "absolute" in the sense that it does not depend

upon the merits of a claimant's substantive assertions, and because of the importance to

organized society that procedural due process be observed, see Boddie v. Connecticut, 401 U.S.

371, 375 (1971); Anti-Fascist Committee v. McGrath, 341 U.S., at 171-172 (Frankfurter, J.,

concurring).

USCS Supreme Ct R 22

Rule 22. Applications to Individual Justices

1. An application addressed to an individual Justice shall be filed with the Clerk, who will

transmit it promptly to the Justice concerned if an individual Justice has authority to grant

the sought relief.

2. The original and two copies of any application addressed to an individual Justice shall be

prepared as required by Rule 33.2, and shall be accompanied by proof of service as required by

Rule 29.

3. An application shall be addressed to the Justice allotted to the Circuit from which the case

arises. An application arising from the United States Court of Appeals for the Armed Forces shall

be addressed to the Chief Justice. When the Circuit Justice is unavailable for any reason, the

application addressed to that Justice will be distributed to the Justice then available who is next

junior to the Circuit Justice; the turn of the Chief Justice follows that of the most junior Justice.

4. A Justice denying an application will note the denial thereon. Thereafter, unless action thereon

is restricted by law to the Circuit Justice or is untimely under Rule 30.2, the party making an

1

application, except in the case of an application for an extension of time, may renew it to

any other Justice, subject to the provisions of this Rule. Except when the denial is without

prejudice, a renewed application is not favored. Renewed application is made by a letter to the

Clerk. designating the Justice to whom the application is to be directed, and accompanied by 10

copies of the original application and proof of service as required by Rule 29.

5. A Justice to whom an application for a stay or for bail is submitted may refer it to the Court for

determination.

6. The Clerk will advise all parties concerned, by appropriately speedy means, of the disposition

made of an application.

"As a threshold consideration, Justices of this Court have consistently required that there be a

reasonable probability that four members of the Court will consider the issue sufficiently

meritorious to grant certiorari or to note probable jurisdiction. See Mahan v. Howell, 404 U.S.

1201, 1202; Organized Village of Kake v. Egan, 80 S. Ct. 33, 4 L. Ed. 2d 34 (1959). Of equal

importance in cases presented on direct appeal -- where we lack the discretionary power to refuse

to decide the merits -- is the related question whether five Justices are likely to conclude that the

case was erroneously decided below.

Several factors control a single Justice's consideration of an application for writ of —

injunction pursuant to this Court's Rule 44. If there is a "significant possibility" that the Court

would note probable jurisdiction of an appeal of the underlying suit and reverse, and if there is a

likelihood that irreparable injury will result if relief is not granted, the Justice may issue an

injunction. See Nebraska Press Assn. v. Stuart, 423 U.S. 1327, 1330 (1975) (BLACKMUN, J.,

in chambers). See also, e. g., Ledbetter v. Baldwin, 479 U.S. 1309, 1310 (1986) (Powell, J., in

chambers); Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (BRENNAN, J., in chambers).

Applying these principles to the facts before me, I grant the application.

In the case at bar the clerk of the court Mr. Scott and courts case analyis Ms. Nesbitt,

denied petitioner the Statutory benefits of petition to a single justice in compliance with Sup. Ct.

R. 22. The Court Clerk accepted petitioner $300.00 filing fee along with an application to submit

2

the case to a single justice Justice Sonia Sotomayor in compliance with Rule-22. The Clerk

submitted the case to the whole of the court. See Appendix-(A).

To accept payment and ignore petitioners stated wishes to submit the case to a single

Justice is denial of procedural due process. Petitioner has a right to pursue redress from the

government pursuant to whatever statutory vehicle that is available, and to accept petitioner

property [money] and ignore the intent of the petitioner/applicant is to not only deny petitioner of

procedural due process, but deprivation of ones property [money] without due process.

The clerk of the court via Lisa Nesbitt, also deprived petitioner of this vehicle in a related

case, Case No. 21-435. Ms. Nesbitt has on multiple occasion rejected the Supreme Court Rules

[Statutes]. As stated above she and the clerk of the court accepted payment of the filing fee to file

a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241 in compliance with Rule-22

[APPLICATION TO A SINGLE JUSTICE SONIA SOTOMAYOR], and ignored said

intent. Congress in 1867 enacted the following provision.

The Act of Feb. 5, 1867, c. 28, § 1, 14 Stat. 385, provided that

"the several courts of the United States . . . within their respective jurisdictions, in addition to the

authority already conferred by law, shall have power to grant writs of habeas corpus in all cases

where any person may be restrained of his or her liberty in violation of the constitution, or of any

treaty or law of the United States... ."

Federal habeas review for those in state custody is now authorized by 28 U. S. C. § 2254 (a):

"The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an

application for a writ of habeas corpus in behalf of a person in custody pursuant to the

judgment of a State court only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States." (Emphasis added).

Petitioner sought relief pursuant to application to an individual justice [Justice Sonia

Sotomayor] (10th Circuit). The Clerk of the Court submitted the petition to the whole of the

court at his/her own volition, undermining petitioners well stated intent to pursue relief pursuant

to Rule-22 and in compliance with 28 U.S.C. § 2241(a) which provides,

"(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof,

the district courts and any circuit judge within their respective jurisdictions. The order of a circuit

judge shall be entered in the records of the district court of the district wherein the restraint

complained of is had."

To deny me this avenue is to deny petitioner procedural due process to redress the

government pursuant to Art. I § 9[2] "Cl 2. Habeas corpus. The Privilege of the Writ of Habeas

Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety

may require it." This amounts to providing a congress legislated statute and rule to pursue relief,

and upon payment to file said Application/petition for redress, file the pleadings in a different

capacity then applied for. “[D]ue process is flexible,” we have stressed repeatedly, and it “calls

for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408

U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); see also Landon y. Plasencia, 459 U.S.

21, 34, 103 S. Ct. 321, 74 L. Ed. 2d 21 (1982).

In another related filing by petitioner, Case No. 21-5933 , the Clerk of the

Court via Lisa Nesbitt, interferred with the filing of the case requiring petitioner to have to send

said Petition for Writ of Cert., 3-times costing approximately $60.00 for postage. Ms. Nesbitt

returned the petition the first time alleging that petitioner needed to file a Affidavit and

Declaration in order to proceed. Petitioner resent the petition and attached the rule governoring

the issue which provides:

Rule 39. Proceedings In Forma Pauperis

"1. A party seeking to proceed in forma pauperis shall file a motion for leave to do so, together

with the party’s notarized affidavit or declaration (in compliance with 28 U.S.C. § 1746) in the

form prescribed by the Federal Rules of Appellate Procedure, Form 4. The motion shall state

whether leave to proceed in forma pauperis was sought in any other court and, if so, whether

leave was granted. If the court below appointed counsel for an indigent party, no affidavit or

4

declaration is required, but the motion shall cite the provision of law under which counsel

was appointed, or a copy of the order of appointment shall be appended to the motion."

Petitioner motion to proceed in forma pauperis had the order of appointment of counsel

attached thereto. The Clerk again returned the petition claiming that said appointment was not in

that case in particular. Petitioner returned the petition again along with the copy of the record on

appeal, confirming that said appointment order is the appointment in the case at bar. Appx-(E).

In another related case, Petition from Kansas Supreme Court Denial of Petition for review

of Appellate Case No. 116,716-A the Clerk of the Court via Lisa Nesbitt refused to docket

petitioners Writ of Cert. Petitioner sought an extension of time to file the Petition for Writ of

Cert., with in the time allotted to file for said extension. The Clerk of the Court denied siad

request as Rule 30(4). Computation and Extension of Time provides the Clerk may in the first

instance. However, when petitioner the aggrieved party sought to request an extension to a

individual justice as the rule provides, the clerk of the court via Lisa Nesbitt refused to submit the

motion to the justice. See Appendix-( 8 ).

The rule provides:

"4, A motion to extend the time to file any document or paper other than those specified

in paragraph 3 of this Rule may be presented in the form of a letter to the Clerk setting out

specific reasons why an extension of time is justified. The letter shall be served on all other —

parties as required by Rule 29, The motion may be acted on by the Clerk in the first instance,

and any party aggrieved by the Clerk’s action may request that the motion be submitted to

a Justice or to the Court. The Clerk will report action under this paragraph to the Court as

instructed. (Amended effective May 1, 2003; further amended effective February 16, 2010;

amended effective July 1, 2013; amended effective November 13, 2017.)"

The Clerk never submitted the motion to the individual justice holding that since the

court had extended the time to file a writ of cert., to 150 day instead of 90 days, there would be

no more extension granted. The Statute and Rule provides said extension can be granted upon

extraordinary circumstances. The extraordinary circumstances in this case was, 1.) that the

KDOC facility petitioner is housed at in Hutchinson, Kansas was placed on lock down for

approximately 2-month, thus restricting access to legal library; 2.) That upon coming off lock

5

down, and law library appointment being resumed on a extremely narrow basis (2-days a week),

for approximately another month the Lexis Nexis Legal Research program that the facility

provides for inmates was down and unaccessible. See Appendix-( C ).

The Clerk of the Court via Lisa Nesbitt refused to docket the case or submit the Motion

foe Extension of time to Justice Sonia Sotomayor, despite statutory dictates requiring her to do so

without discretion. Petitioner cites all these hinderance in petitioning this Superior Court

Jurisdiction to vindicate plaintiffs federally protected Constitutional Rights as a pattern, that has

again led to denial of procedural due process of law.

The Statutory dictates and Court Rule of Procedures provides that a Petitioner may

petition the Court for A Writ of Cert., Writ of Habeas Corpus or a Motion for Extension of

time to a single Justice pursuant to Rule-22, on Three occasions the clerk of the court via Lisa

Nesbitt denied petitioner this statutory vehicle for redress and submitted the case as the clerk of

the court saw fit.

"The theme that "due process of law signifies a right to be heard in one's defence,"

Hovey v. Elliott, supra, at 417, has continually recurred in the years since Baldwin, Windsor,

and Hovey. Although "many controversies have raged about the cryptic and abstract words of the

Due Process Clause," as Mr. Justice Jackson wrote for the Court in Mullane v. Central

Hanover Tr. Co., 339 U.S. 306 (1950), "there can be no doubt that at a minimum they require

that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity

for hearing appropriate to the nature of the case." Id., at 313.

"\What the Constitution does require is "an opportunity . . . granted at a meaningful time

and in a meaningful manner," Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (emphasis

added), "for [a] hearing appropriate to the nature of the case," Mullane v. Central Hanover Tr.

Co., supra, at 313. The formality and procedural requisites for the hearing can vary, depending

upon the importance of the interests involved and the nature of the subsequent proceedings.

It is without question the clerk of the court via Lisa Nesbitt, interferred with petitioners

filings and denied procedural due process to seeking relief before the court pursuant to Rule-22.

The statute does not provide the Clerk nor a case analysis discretion to override a petitioners

stated intent regarding his filings/petition, especially after receive the petitioners money ($300.00

Filing Fee). This is no clerical mistake, the Clerk via Lisa Nesbitt intentionally and deliberately

ignored petitioners stated intent. See Appendix-( D ) which confirms that petitioner inquired why

said Application pursuant to Rule-22 has not been complied with. The rule is unambiguous and

provides, "1. An application addressed to an individual Justice shall be filed with the Clerk,

who will transmit it promptly to the Justice concerned if an individual Justice has

authority to grant the sought relief."

Failure to follow procedural denies the mechanism which is put into place by the

congress or court to protect the function of law. This Superior Court in In re Gault, 387 U.S. 1,

87S. Ct. 1428, 18 L. Ed. 2d 527 (1967).

"Failure to observe the fundamental requirements of due process has resulted in instances,

which might have been avoided, of unfairness to individuals and inadequate or inaccurate

findings of fact and unfortunate prescriptions of remedy. Due process of law is the primary and

indispensable foundation of individual freedom. It is the basic and essential term in the social

compact which defines the rights of the individual and delimits the powers which the state may

exercise. As Mr. Justice Frankfurter has said: "The history of American freedom is, in no small

measure, the history of procedure. But in addition, the procedural rules which have been

fashioned from the generality of due process are our best instruments for the distillation and

evaluation of essential facts from the conflicting welter of data that life and our adversary

methods present. It is these instruments of due process which enhance the possibility that truth

will emerge from the confrontation of opposing versions and conflicting data. "Procedure is to

law what 'scientific method' is to science."

Wherefore, the Court should order a rehearing to determine why petitioners expressed

intent to seek the relief pursuant to Rule-22 was not complied with, and find procedural due

process was denied, and order the case remanded for review before the individual justice as law

provides petitioner can.

WHETHER A REHEARING IS NECESSARY TO ADDRESS THE

CONFLICTING LAWS HANDED DOWN BY THIS SUPERIOR COURT IN Heck vy.

Humphrey, 512 U.S. 477 (1994) AND Elliott vy. Lessee of Peirsol, 26 U.S. 328 (1828), FOR

THE MATTER IS OF GREAT IMPORTANCE TO ALL AMERICAN CITIZEN AND

THEIR CIVIL RIGHTS TO REDRESS AN ONGOING INJURY, AS WELL AS SEEK

COMPENSATION FOR VIOLATION OF CIVIL LIBERTIES PURSUANT TO 42 U.S.C.

j

§ 1983?

Standard of review: "Where, as here, the Court of Appeals erred on both the merits of the

constitutional claim and the question of qualified immunity, “we have discretion to correct its

errors at each step." Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 179 L. Ed. 2d

1149 (2011); see, e.g., Plumhoff v. Rickard, 572 U.S. 572 U.S. 765, 134 S. Ct. 2012, 188

L. Ed. 2d 1056 (2014).

Under our precedents, officers are entitled to qualified immunity under §1983 unless (1)

they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct

was “clearly established at the time.” Reichle vy. Howards, 566 U.S. 658, 664, 132 S. Ct. 2088,

182 L. Ed. 2d 985 (2012). “Clearly established” means that, at the time of the officer’s conduct,

the law was “‘sufficiently clear’ that every ‘reasonable official would understand that what he is

doing’” is unlawful. al-Kidd, supra, at 741, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (quoting

Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987)). In other

words, existing law must have placed the constitutionality of the officer’s conduct “beyond

debate.” al-Kidd, supra, at 741, 131 S. Ct. 2074, 179 L. Ed. 2d 1149. "This demanding standard

protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v.

Briggs, 475 U. S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986).

To be clearly established, a legal principle must have a sufficiently clear foundation in

then-existing precedent. The rule must be “settled law,” Hunter v. Bryant, 502 U.S. 224, 228,

112 S. Ct. 534, 116 L. Ed. 2d 589 (1991) (per curiam), which means it is dictated by “controlling

authority” or “a robust ‘consensus of cases of persuasive authority,’” al-Kidd, supra, at 741-742,

131 S. Ct. 2074, 179 L. Ed. 2d 1149 (quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S. Ct.

1692, 143 L. Ed. 2d 818 (1999)).

The U.S. District Court for the District of Kansas in Topeka, Kansas dismissed

petitioners claims with prejudice holding that the defendants are immune to the suits raised and

that Heck v. Humphery Bar, forcloses said relief until petitioner receives a favorable ruling.

Petitioner from the intial filings and in petitioner sworn affidavit in support thereof, argued the

exceptions to the Heck Bar, and argued that since the trial judge acted without jurisdiction and in

contravention thereto, said judgment is void and is unable to bar the relief sought against the

defendants because law deems all defendants in the case trespasser of the law. See Doc.-( 1 ),

Exhibit-—(A). 8

The well-settled law in this case holds:

"Where a Court has jurisdiction, it has a right to decide every question which occurs in

the cause; and whether its decision be correct or otherwise, its judgment, until reversed, is

regarded as binding in every other Court. But, if it act without authority, its judgments and orders

are regarded as nullities. They are not voidable, but simply void; and form no bar toa

recovery sought, even prior to a reversal, in opposition to them. They constitute no

justification; and all persons concerned in executing such judgments or sentences, are

considered, in law, as trespassers. This distinction runs through all the cases on the subject;

and it proves, that the jurisdiction of any Court exercising authority [*341] over a subject,

may be inquired into in every Court, when the proceedings of the former are relied on and

brought before the latter by the party claiming the benefit of such proceedings”. Elliott v.

Lessee of Peirsol, 26 U.S. 328, 7 L. Ed. 164 (1828). (Emphasis added).

HECK BAR EXCEPTIONS

This Superior Court has consistently held:

The Law is well-settled that a void order pr judgment is void even before reversal.

Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S.ct. 116 (1920) ("Courts are

constituted by authoprity and cannot go beyond that power delegated to them. If the act beyond

that authority, and certainly in contravention of it, their judgments and orders are.

regarded as nullities. They are not voidable, but simply VOID, AND THIS EVEN PRIOR TO

REVERSAL." [Emphasis added]); Old Wayne Mut. I. Assoc. vy. Mc Donough, 204 U.S. 8, 27

S.Ct. 236 (1907), Williamson v. Berry, 8 How. 495, 540, 12 L.Ed. 1170, 1189 (1850): Rose vy.

Himely, 4 Cranch 241, 269, 2 L.Ed. 608, 617 (1808).

It is bipartisanly held that a judgment that is either defective in its person or subjectmatter jurisdiction, or which is in contradiction to Due Process of Law, is void, and that is prior

to reversal. In the case at bar neither the district court or court of appeals addressed the voidness

of the judgments of conviction which the law provides: "that the jurisdiction of any Court

exercising authority over a subject, may be inquired into in every Court, when the

proceedings of the former are relied on and brought before the latter by the party claiming

the benefit of such proceedings". Elliott v. Lessee of Peirsol, supra Id. at 341.

9

Thus, the mandate in Humphery v. Hecks, supra, is inapplicable in the case at bar, and the

exceptions to said rule is met for a judgment which is void can never become final. When as in

the case at bar, the record reflects that jurisdiction was lacking and said judgment was entered in

contradiction to due process of law, the legal principles and standard of review required the

lower courts inquirer into the proceedings as raised and argued by petitioner in both Doc.-(1 )

and on appeal. See Appellant brief, pg's-("’ 1-15 ).

IMMUNITY DEFENSE EXCEPTION

Likewise the immunity defense asserted by the lower courts on behalf of the defendants

that chose not to answer the complaint or brief the case on appeal is not applicable in the case at

bar. This Superior Court has consistently held:

A suit which only seeks to prevent or restrain a trespass upon property or person by one

who happens to be a state officer, but is proceeding in violation of the Constitution of the United

States, is not a suit against a State within the meaning of the Eleventh Amendment, but a suit

against the trespasser or wrongdoer." Ex parte Royall, 117 U.S. 241, 6 S. Ct. 734, 29 L. Ed. 868

(1886). In Randall v Brigham, 74 U.S. 523 (1869) this Superior Court held:

"Tn an action against a judge of any court, whether of record or otherwise, for any act

done by him or by his command, the question in every case to be determined is, was the act done

a judicial act, done within his jurisdiction? If it was not, he can claim no immunity or.

exemption by virtue of his office from liability as a trespasser; ‘for if he has acted without

jurisdiction, he has ceased to be a judge’."

Likewise the U.S. Congress has held:

"Congress was quite explicit about its goals of eliminating sovereign immunity as an

obstacle in securing judicial review of the federal official conduct. Reasoning that 'courts can

make useful contribution to the administration of Government by reviewing the legality of

administrative conduct which adversely affects private persons,’ H. Rep. No. 1656, 94th Cong.,

2d Sess. 5, reprinted in 1976 U.S. Code Cong. & Admin. News 6121, 6125, Congress noted

that "greate strides" toward making government accountable to citizens had already been made in

the Federal Tort Claims Act and the Tucker Act, and that the amendment to § 702 was designed

10

to 'strengthen this accountability by withdrawing the defense of sovereign immunity in actions

seeking relief other than money damages, such as an injunction, declaratory judgment or writ of

mandamus." Id. at 6124.

"The officers of the law, in the execution of process, are obliged to know the

requirements of law, and if they mistaken them, whether through ignorance or design, and

anyone is harmed by their error, THE MUST RESPOND IN DAMAGES." Rosters v.

Marshall, (United States use Rogers v. Conklin) I Wall, (US) 644, 17 L.Ed. 714. (Emphasis

added).

In the case at bar its approximately 38 defendants and the relief sought varies in regards

to each defendants. See ("Relief sought" in plaintiffs Civil Complaint), Doc-( 1). Thus, the

district courts blanket defense for all defendants claiming Heck Bar and 11th Amendment

Immunity can not and does not comply with the laws governing 42 U.S.C. § 1983 civil

complaints. The finding that defendants Judges, City Counsel, and Assistant District Attorneys,

being absolutely immune in their official capacities in 42 U.S.C. 1983 actions, may be generally

true, however, there are exceptions when their actions do not provide immunity from monetary

damages or equitable relief.

Their conduct is alawys reachable for injunctive and declaratory relief. Under the Federal

Courts Improvement Act of 1996, judicial officers are only immune from injunctive relief if

declaratory relief is unavailable when sued in their official capdcities. See 42 U.S.C. § 1983;

Pullman vy. Allen, 466 U.S. 522, 541-42. 80 L.Ed. 2d 565, 104 S.ct. 1970 (1984) (absolute

immunity does not bar equitable relief against state court judges.)

The fact that each of these defendants are subjected to different damages the lower courts

finding that the same legal principle applies is error. Likewise, concerning clerks and court

reporters, no immunity existed.

11

Court Reporters and Clerks duties are ministerial. In principles of law it is described as

"MINISTERIAL. That which is done under the authority of a supervisor; opposed to judicial;

that which involves obedience to instructions, but demands no special discretion, judgment or

skill." Black's Law Dictionary 1148 (4th ed. rev. 1968).

Court reporters are charged by statute with producing a "verbatim" transcript of each

session of the court, for inclusion in the official record, 28 U.S.C. § 753(b). "The function

performed by court reporters is not in this category. "As noted above, court reporters are required

by statute to "record verbatim" court proceedings in their entirety. 28 U.S.C. § 753(b). They are

afforded no discretion in the carrying out of this duty; they are to record, as accurately as

possible, what transpires in court. See McLallen v. Henderson, 492 F.2d 1298, 1299 (CA8

1974) (court reporters not absolutely immune "because their duties are ministerial, not

discretionary, in nature"); Waterman v. State, 35 Misc. 2d 954, 957, 232 N.Y.S.2d 22, 26 (Ct.

Cl. 1962), aff'd in part, rev'd in part, 19 A.D.2d 264, 241 N.Y.S.2d 314 (4th Dept., App. Div.

1963) (same).

Likewise, the clerk of the court is a ministerial officer, Eldridge v. Deets, 4 Kan.App. 2d

241, 243, 45 P.948 (1896), and without statutory authority and cannot exercise judicial functions.

In re Terrill, 52 Kan. 29, 31, 34 P. 457, 39 Am.St. Rep. 327 (1893). Also see 15A Am.Jur.2d,

Clerk of Courts, sec. 21, p. 155.

When judicial immunity is extended to officials other than judges, it is because their

judgments are "functionally comparable" to those of judges -- that is, because they, too, "exercise

a discretionary judgment" as a part of their function. Imbler y. Pachtman, 424 U.S. at 423. n.20.

Cf. Westfall v. Erwin, 484 U.S. 292, 297-298, 98 L. Ed. 2d 619, 108 S. Ct. 580 (1988).

In the case at bar, the Court Reporters and Clerk of the court altered, concealed and

withdrew Transcript record evidence from the record on appeal and petition's for habeas corpus

in both state and federal cases. Thus committing a criminal act of obstruction of justice. See 18

U.S.C. § 1512(c)(1). The acts of producing documents pursuant to K.S.A. § 22-2302(2) to

defendant's at their request once the are filed like the clerk is all but an administrative act. If

officials removed the documents from the record in violation of Kansas Supreme Court Rule

108(2)(b)(1); (G)(1)(b), those actions were outside the scope of the advocator duties and clearly

12

ministerial and unlawful. Those acts would be known to be unlawful, and thus no qualified

immunity exist. See Kelina v. Fletcher, 522 U.S. 118, 123, 131 (1997).

This Superior court has held:

"Analyzing the complaints in light of these precedents, we see that petitioners allege facts

that demostrate the are seeking to impose individual and personal liability on the named

defendants for what they claim -- but have not yet established by proof -- was a deprivation of

federal rights by these defendants under color of state law. Whatever the plaintiff's may or

may not be able to establish as to the merits of their allegations, their claims, as stated in

the complaints, given favorable reading required by the Federal Rules of Civil Procedures

are not barred by Eleventh Amendment. Consequently, the district court erred in

dismissing the complaints for lack of jurisdiction." (Quoting Scheuer v. Rhodes, 416 U.S. Id.

at 238.) (Emphasis added).

This Superior Court in Conley v. Gibson, 355 U.S. 41, 2 L.Ed. 2d 80, 78 S.Ct. 99 (1957),

said in the rule means:

"The Federal Rules of Civil Procedures do not require a claimant to set in detail the

facts upon which he basis his claim. To the contrary, all the Rules require is 'a short and plain

statement of the claim’ that will give the defendant fair notice of what the plaintiff's claim is and

the grounds upon which it rest." Id., at 47. "As the Court unanimously held in Haines y. Kerner,

404 U.S. 519 (1972), "as pro se complaint, however inartfully pleaded’, must be held to ‘less

strigent standards than formal pleadings drafted by lawyers' and can only be dismissed for failure

to state a claim if it appears "beyond doubt that the plaintiff can proven no set of facts nh support

of his claim which would entitle him to relief." Id., at 520-521, (Quoting Conley v. Gibson. 355

U.S. 41, 45-46 (1975)."

There are exceptions to the Favorable Ruling Doctrine as required to establish the Heck

Bar, 1.) The prior judgment relied upon is Void; and 2.) The Judgment is not final. Plaintiff

raised both of these exception before the district court and court of appeals and neither looked to

the living record tyo determine if plaintiff established said exception. A Judgment that is

procured through fraud can never be final, Kenner vy. Comm'r, 387 F.2d at 690 and a void

judgment from its exception cannot bar recovery sought, even prior to reversal. Elliott v. Peirsol,

Supra Id. 341-341.

13

"No man in this Country", this court has said, "is so high that he is above the law. 'No

officer of the law may set that law at defiance with impunity’. All the officers of the

Government, from the highest to the lowest, are creatures of law, and are bound to obey it."

United States v. Lee, 106 U.S. 196, 220. ‘Judges are required to obey the law.’ See O'Shea v.

Littleton, 414 U.S. 488, 503 (1974) ("we have never held that the duties of judicial officers

requires or contemplates the immunization of otherwise criminal deprivations of

constitutional rights.")

CONCLUSION

Although a denial of a Petition for Writ of Cert., usually does not mean a ruling on the

merits of the case, the denial in the the case at bar will result in a fundamental miscarriage of

justice, and denial of petitioners right to seek damages against the trespassers. For the district

court dismissed plaintiffs civil complaint with prejudice, and asserted a defense on behalf of all

defendants that NEITHER raised in defense of the complaint. These affirmative defenses, both

the 'Heck Bar' and 'Eleventh Amendment Immunity Defense’ are affirmative defenses, that must

be plead. "An affirmative defense is one that not only denies the plaintiffs claims, but adds new

matter which, assuming the complaint to be true, states a defense to it. Black's Law Dict. 55 (Sth

ed.. 1979). Parties raising affirmative defenses must provide enough statement of the defense or

it will be stricken under Rule 12(f), Fed. R. Civ. P. as insufficient if it is impossible for the

defendant to prove a set of facts in support of the ... defense that would defeat the complaint.

Affirmative defenses are pleadings, and therefore are subjected to all pleading requirements of

Fed. R. of Civ. P.

The district court on behalf of these defendants claimed they have absolute immunity by

nature of their official positions. This mere averment of title does not meet Rule 8, Fed. R. Civ.

P. pleading requirements of "a short plain statement of defense and how the affirmative defense

is applicable to them. See Minalga v. Fid. Invs. Instit. Oper. Co. 2002 U.S. Dist. Lexis 22038,

**3-4: Murphy v. White, 691 F.2d 350, 353 (7th Cir. 1982); Renalds v. SRG, 119 F.Supp. 2d

800, 802 * N.D.Ill. 2002).

Petitioner reiterates that "NOT ONE' of the defendants raised these defenses or even

responded to the complaint. Judge Danial Crabtree asserted the defense and deemed that said

14

asserted defense ended the inquiry into plaintiffs claims, despite the defense raising new matters.

As the provides, plaintiff sought to challenge the jurisdiction of the judgment relied upon for said

defense. (Elliott v. Peirsol, Supra Id. at 341) ("This distinction runs through all the cases on the

subject: and it proves, that the jurisdiction of any Court exercising authority [*341] overa

subject, may be inquired into in every Court, when the proceedings of the former are relied

on and brought before the latter by the party claiming the benefit of such proceedings.").

(Emphasis added).

In the case at bar the district court [whom asserted the defense], simply ignored the

challenge to its findings which the law provides must be answered. "The law provides that once

State or Federal Jurisdiction has been challenged, it must be proven" Main vy. Thiboutot, 100

S.Ct. 2502 (1980). "Jurisdiction can be challenged at anytime,' and Jurisdiction, once challenged,

cannot be assumed and must be decided." Basso v. Utah Power & Light Co., 495 F.2d 906,

910. "There is no discretion to ignore the lack of Jurisdiction." Joyce v. U.S., 474 F.2d 215.

When as here, the rule provides for relief from a void judgment is applicable, relief is not a

discretionary matter, but mandatory." Orner v. Shalala, 30 F.3d 1307 (10th Cir. 1994). The law

implicitly holds said question must be answered from the living record. Bender v. Williamsport,

Area School Dist., 475 U.S. 534, 546 (1986). It is claer and well established law that a void

order can be challenged in any court. Old Wayne Mut. L. Assoc. v. McDonough, 204 U.S. 8,

27 8.Ct. 236 (1907).

The benefits of this law has been withheld from petitioner, and when as in the case at bar,

the district court judge asserts the defense for the defendants, bringing the prior judgment into

question, and relying upon said judgment as a defense, the right to challenge the jurisdiction of

that judgment became a relevant factor that needed answered. Once challenged it MUST BE

ANSWERED. Because if the living record reveals that said judgment is void for want of

jurisdiction (personal or subject-matter), was procured through fraud or being in contradiction

with due process of law, both the Heck Bar and 11th Amendment Immunity defense exception

have been met. The Court must reverse and remand for further proceedings to answer the

question of jurisdiction or find the case should move forward to trial pursuant to Rule 38(b), as

dismissal pursuant to Rule-12(b)(6) are inapplicable and nonmeritorious and must be stricken

under Rule-12(f),. as insufficient as a matter of law. Resdeetfurly ,

—evso Laggand Sp.

15 Keuin D. Loggins Sr (Pose)

Additional material

from this filing is

available in the

Clerk’s Office.