Petition for Writ of Certiorari — Roger David Towers, Petitioner v. Mike Hamasaki

Supreme Court briefAug 22, 2022

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Text

No.

52-izs

Supreme Court, U.S.

FILED

AUG 2 2 2022

OFFICE OF THE CLERK

Roger Towers, petitioner

Mike Hamasaki, respondent

ON PETITION TOR WRIT OF CERTIORARI

TO THE NINTH CIRCUIT COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

Roger Towers

2601 Surrey Ave.,

Modesto, CA 95355

209-604-8121

4towers@sbcglobal.net

QUESTIONS

1. In light of CAED district judge’s admission

that they are “wholly unable to handle civil

matters and the district court’s order assigning

this case to district judge “NONE”; was the

referral to a magistrate lawful?

2. In light of the district judge’s ruling claiming

: that summary judgment is unavailable on

habeas; and who has otherwise failed to follow

clearly established law; should this Court

invoke its supervisory authority to prevent a

systemic abuse of discretion and/or complete

miscarriage of justice?

3. Is California Code of Civil Procedure §527.8, a

statute which fails to include any useful

standards to the situations which it applies,

void for vagueness? ^

CORPORATE DISCLOSURE STATEMENT

Petitioners do not own more than ten percent of

any publicly held corporation.

PROCEEDINGS AT ISSUE

Petition for Writ of Habeas Corpus

Towers v. Hamasaki

Ninth Circ. Case No.: 21-16236

Date of Reconsideration Order declining certificate:

May 24, 2022, A18, infra.

CAED Case No. l:20-cv-00411-DAD-HBK,

Towers v. Superior Court, County of Stanislaus

Iii addition, the background facts are directly related

to a complaint for declaratory relief (9th Circ. C ase

#18-16712, Towers v. County of San Joaquin) and a

complaint for damages (9th Circ. Case #19-16684

(Towers v. Myles). Legal issues related Article III

jurisdiction are common. The time for direct appeal

on these other cases has expired, but the validity of

these judgements will be requested to be set aside. A

petition for writ of mandate is expected to be filed

within two weeks of the filing of this Petition.

TABLE OF CONTENTS

QUESTIONS.................................................

PARTIES TO THE PROCEEDINGS............

CORPORATE DISCLOSURE...... .............

PROCEEDINGS AT ISSUE....

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

CITATIONS FOR OPINIONS/ORDERS......

JURISDICTION STATEMENT............ .......

CONSTITUTION, STATUES, RULES.......:

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STATEMENT OF CASE

.1. Introduction - CAED judges admit they

are “wholly unable to handle civil matters”

and the scheduling of civil trials is “purely

illusory”................................................................. 1

2. Petition must be granted - State failed to contest

summary judgment...!...::.

3. There is no crime- Californio, injunctive orders

are automatically stayed pending appeal.,....... 3

4. Statute is void for vagueness............................... 4

5. Unreasonable working conditions, cause

district judge to abdicate authority chaos reigns..... ..........>........................................ 7

FURTHER REASONS TO GRANT PETITION

6. Total control of the referral process is a fallacy

destroying Article III integrity:.......................... 10

7. Judgment is a legal nullity..... .......................... 12

8. Denial of COA was unlawful............................. 13

9.. Conclusion.......,.!.:.!.:.,....^............ 13

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TABLE OF ATTACHMENTS

TABLE OF AUTHORITIES

CASES

Aldrich v. Bowen, .

130 F.3d 1364 (9th Cir. 1997)

Bose Corp. v. Consumers Union,

466 U S. 485 (1984) ................

Blackledge v. Perry,

417 U.S. 21 (1974)

Bouton v. USAA Gas. Ins. Co.,

167 Cal. App. 4th 412 (2008).

Buck v. Davis,

137 S. Ct. 759 (2017)..............

Celotex Corp. v. Catrett,

477'U.S. 317, 323 (1986).......

3, 10

City of San Jose ill Garbett,

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190 Cal.App.4th 526 (2010)....

Chambers v. Mississippi,

410 U.S. 284 (1973).......

Davis v. United States, '

417 U.S. 333, 346 (1974)

Ex Parte Siebold, , .

,100 U.S. 371, 376 (1879)........

4,7,9

Garrison v. State of La.,

379U.S. 64(1964)..,...... ........

Gooding v. Wilson,

405 U.S. 518, 521 (1972) ........

Groyned v. City of Rockford,

.......... 408 U.S. 104 (1972)...;......-......

Heck v. Humphrey,

•

512 U.S. 477 (1994) ....... ........

Hutto v. Davis,

• 454 U.S. 370 (1982)...... .........

In re George T,

33 Cal.4th 620 (Cal. 2004) ....

In re Habeas Corpus Cases, '

216F.R.D. 52, 54 (E.D.N.Y. 2003)

Ins. Corp. of Ireland v. Compagnie ties Bauxites de

Guinee, 456 U.S. 694 (1982).... .

Journigan v. Duffy,

552 F.2d 283, 288 (9th Cir. 1977)

9, 10, 13

CASES CONTINUED

La Buy v. Howes Leather Co.,

352 U.S. 249, 259-60 (1957).;.................................. 12

Maurer v. Ind. as Members of Los Angeles Cty,

691 F.2d 434, 437 (9th Cir. 1982)...........................

Menna v. New York,

423 U.S. 61(1975)...................................................

Montgomery v. Louisiana,

577 U.S. 190 (2016)............ ....................................

New York Times Co. v. Sullivan,

376 U.S. 254 (1964)....... ..........................................

Northern Pipeline Co. v. Marathon Pipe Line Co.,

458 U.S. 50 (1982)............................ ....................... 10

Pacemaker Diag. Clinic ofAmer. v. Instromedix, Inc.,

725 F.2d 537, 552 (9th Cir. 1984)

People v. Mirmirani,

30 Cal.3d 375 (Cal. 1981)...........

Peretz v. United States,

501 U.S. 923 (1991).....................

11, 12

Ross v. Figueroa,

139 Cal. App. 4th 856 (2006).....

Smith v. Goguen,

415 U.S. 566 (1974)......... ...........

Snyder v. Phelps,

562 U.S. 443 (2011).....................

Steel Co. v. Citizens for Better Env %

523 U.S. 83 (1998)......................

Stern v. Marshall,

564 U.S. 462 (2011).....................

Texas v. Johnson,

491 U.S. 397(1989)......................

Tolled v. Henderson,

411 U.S. 258 (1973).....................

Thomas v. Arn,

474 U.S. 140 (1985)............ ........

United States v. Kelner,

534 F.2d 1020 (2d Cir. 1976)......

United States v. Raddatz,

447 U.S. 667 (1980).....................

United States v. Shipp,

214 U.S. 386, 392(1909).............

CASES CONTINUED

United States v. Valencia-Mendoza,

912 F.3d 1215 (9th Cir. 2019)..........

United Student Aid Funds v. Espinosa,

559 U.S. 260 (2010) ....... ....................

U.S. v. Cotton,

535 U.S. 625 (2002)...........................

Varian Medical Systems, Inc. v. Delfino,

35 Cal.4th 180 (Cal. 2005)........

Virginia v. Black,

538 U.S. 343, 359 (2003)

.....

Wellness Int'l Network, Ltd. u. Sharif,

575 U.S. 655 (2015)........................

Washington v. Texas,

388 U.S. 14 (1967) ........ .............

Zal v. Steppe,

968 F.2d 924 (9th Cir. 1992)........

U.S. CONSTITUTION

Article III............

1st Amendment...

14th Amendment

1, 2, 6, 8

FEDERAL STATUTES

28 U.S.C. §2243..........

28 U.S.C. §2254.........'

FEDERAL RULES OF CIVIL PROCEDURE

Rule 56

LOCAL RULES. EASTERN DIST. OF CALIF.

Rule 144(c).

Rule 260(b)

Rule 302....

CALIFORNIA STATUTES

Code of Civil Procedure 527.8....

916(a)...

3, 10

..... 2, 4, 5

CITATIONS FOR OPINIONS/ORDERS BELOW

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,Order denying Petition '.

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Towers v. Superior Court, l:20-cv-00411-NONE-HBK

(E.D. CaLJun. 18, 2021)

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Order, denying COA ' . r

The case is captioned: Roger David Towers v: Mike

• Hamasaki, Case No. >21-16236/ • »

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JURISDICTION

Jurisdiction of this Court is pursuant to the all

•writs act (28 U.S.C. §1651) and/or direct appeal

pursuant 28 U.S.C. 2101 (c).' s v * «;.

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CONSTITUTION, STATUTES AND RULES

■ * t; UNITED STATES CONSTITUTION

Article III, Section 1:

The judicial power of the United States, ;shall be

Vested in one Supreme Court, and in such inferior

” Courts as the Congress may from time to time

ordain and establish. The judges, both of the

supreme and inferior courts, shall hold their offices

during good behaviour, and shall, at stated times,

receive for their services, a compensation, which

shall not be diminished during their continuance

in office.

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First Amendment:.

Congress shall make no law respecting an*

u 1 establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech )

or of the press; or the right’ of the people peaceably to

assemble, and to petition the government for a

redress'of grievances.1 1 ’

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CALIFORNIA CODE OF CIVIL PROC. §916

(a) Except as provided in Sections 917.1 to 917.9,

inclusive, and in Section 116.810, the perfecting of an

appeal stays proceedings in the trial court upon the

judgment or order appealed from or upon the matters

embraced therein or affected thereby, including

enforcement of the judgment or order, but the trial

court may proceed upon any other matter embraced

in the action and not affected by the judgment or

order.

(b) When there is a stay of proceedings other than

the enforcement of the judgment, the trial court shall

have jurisdiction of proceedings related to the

enforcement of the judgment as well as any other

matter embraced in the action and not affected by

the judgment or order appealed from.

EASTERN DIST. OF CALIFORNIA LOCAL RULES

L.R. 144(c) - Initial Ex Parte Extension.

The Court may, in its discretion, grant an initial

extension ex parte upon the affidavit of counsel

that a stipulation extending time cannot

reasonably be obtained, explaining the reasons

why such a stipulation cannot be obtained and the

reasons why the extension is necessary. Except for

one such initial extension, ex parte applications for

extension of time are not ordinarily granted.

L.R. 260 (b) - Opposition (Summary Judgment)

Any party opposing a motion for summary

judgment or summary adjudication shall reproduce

the itemized facts in the Statement of Undisputed

Facts and admit those facts that are undisputed and

deny those that are disputed, including with each

denial a citation to the particular portions of any

pleading, affidavit, deposition, interrogatory answer,

admission, or other document relied upon in support

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of that denial. The opposing party may also file a

concise "Statement of Disputed Facts," and the

source thereof in the record, of all additional r,

material facts, as to which there is a genuine issue

precluding summary judgment or adjudication. The

opposing party shall be responsible for the fifing of

all evidentiary documents cited in the opposing

papers. See L.R. 133(j). If a need for discovery is.^.

asserted as a basis for denial of the motion, the party

opposing the motion shall provide a specification of

the particular facts on which discovery is to be had or

the issues on which.discovery is necessary.

L R. 302 (Fed. R.’Civ. P. 72) -.DUTIES TO BE

PERFORMED BY MAGISTRATE JUDGES f f r

(a) General. It is the intent of this-Rule, that. ;

Magistrate Judges perform .all duties permitted by

28 U.S.C. § 636(a), (b)(1)(A),.or other law where the

standard of review of the .Magistrate Judge's decision

is clearly erroneous or contrary to law. Specific^ *

duties are enumerated in (b) and (c); however, those

described duties are not,to be considered a limitation

of this general grant.

(b) Criminal...

Magistrate Judge Pursuant to 28 U.S.C. § , .

636(a), (b)(1)(A), (b)(1)(B), (b)(3), or Other Law.

(17) Actions brought by a person in custody who is

seeking habeas corpus relief (28 U.S.C. § 2241 et )

seq.), or any.relief authorized by 42 U.S.C. §,1981 et

seq., Bivens or theFederalTortClaims Act including

dispositive and non-dispositive,motions and matters;

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STATEMENT OF CASE

1. Introduction

In May 2020, CAED District Judge Dale A. Drozd

amended his standing orders to stop planning for

civil trials because scheduling would be “purely

illusory and merely add to the court’s administrative

burden of vacating arid resetting dates for trials that

will not take place in any event.” He further ordered

that “NONE” be used to replace district judge initials

in case numbers. His Order recounts the exodus of

CAED judges, refusal of Senior status, and refers to

a June 2018 plea of the judges in which they are

“wholly unable to handle civil matters”. (Al, infra)

It is axiomatic that “total Control” of the referral

cannot be accomplished when there is no district

judge. Abdication of Article III authority results in a

void judgment. (See Sections 6 and 7.)

On the merits, no crime is involved here. I was

arrested and prosecuted for possession of a firearm

in violation of a restraining order. I was under no

obligation to surrender my Second Amendment

rights pursuant to an invalid order automatically

stayed pending appeal. (Section 3). Also specific to

California law, invalid injunctive orders can be

challenged at the time of enforcement. The

dispositive facts are uncontested. The law is clearly

established. But my challenge was not allowed.

Additionally, California’s civil restraining order

statutes are unconstitutionally vague. After the

California Supreme Court declared the State’s

criininal threat statute void for vagueness, the

California legislature adopted similarly vague civil

statutes. In this manner, California residents are

deprived of their Second Amendment rights because

they cannot afford legal counsel. This deprivation of

protected rights must be stopped. (Section 4)

2. Petition must foe granted - State failed to

meet its burden on summary judgment. - >

It is admitted that I never threatened anyone;

and the order was sought in'response to my speech

criticizing public officials at a planning commission •

hearing and the-filing of a 2016 federal action.1 •

Because there was no “true threat”;2 and because the

my rights in due process were trammeled, the

restraining order was issued in violation of the 1st

and 14th Amendments.

The due process violation's are briefly stated as ‘

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follows.3 1 » ^

- I was not allowed subpoena witnesses without ” ‘

waiving venue,4 but a right to call witnesses is a

fundamental right of due process. Washington v.

Texas, 388 U.S; 14, 19 (1967); Chambers v. Mississippi, 410 U.S. 284, 294-95 (1973). '

The right to discovery was denied,5 but “the

[California] Civil Discovery Act applies to ‘every civil

action and special proceedihg of a civil'nature.’

(Leake v. Superior Court (2001) 87 Cal.App.4th 675; ‘

682..." Bouton v. USAA Cos. Ins, Co., 167 Cal. App.

4th 412, 427 (2008).

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The trial court had no discretion to deny my

request for a continuance. Cal. Code,of Civil t

Procedure §527.8(o) provides: “The respondent shall

be entitled, as a matter of course, to one continuance,

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SUF #’s 14,15,16 (dkt#19-1,' pp. 8-9)

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2 “ ‘True threats’ encompass those statements where the

speaker means to communicate a serious expression of an

intent to commit an act of unlawful violence ..."-Virginia v.

Black, 538-U.S. 343, 359 (2003). .

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3 See supporting brief for further detail, dkt#19, pp. 7-14. 1 .,

4 SUF#9-11, dkt#19-l pp.6-7.

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3 SUF#10,dkt#19-l.

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for a reasonable period, to respond to the petition:”6

Denied opportunity to prepare for trial with counsel,

the continuance was clearly prejudicial.

The trial was also tainted by false testimony and

the refusal of the trial court to allow hearsay

evidence under the relaxed rules applicable to the

proceeding.7

The State, failed to dispute my SUF; did not admit

facts as required by Local Rule 260 (b); and, refused,

to specify what facts or issues could be discovered as

required by Local Rule 260 (b) and FRCP Rule 56 (d).

Instead, the State requested dismissal based on

findings and recommendations of CAED magistrates

claiming habeas summary judgment motions “are

unnecessary” (dkt#21,p.2:6). This Court holds that I

am “entitled to judgment as a matter of law.. . ‘The

standard [for granting summary judgment] mirrors

the standard for a directed verdict under Federal

Rule of Civil Procedure 50(a)’... Anderson Liberty

Lobby, Inc., ante,.at 250.” Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986).»

3. There was no crime and no reason to

believe a crime had been committed.

The appeal of the restraining order had been )

pending with the CAL-3DCA for two months. On

April 6, 2017 police agents from the California

Department of Justice came to my house and banged

on the door as if to bust it down. (SUF#25, dkt#19-l,

p.12) Upon admitting a registered handgun was in

my house, I was arrested and jailed. Handcuffed

6 SUF#10 and Ross v. Figueroa, 139 Cal. App. 4th 856, 864-66

(2006).

7 SUFtfs 17, 19, 21.

8 See Section 4 (below) for cases in context of California law.

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behind my back, I suffered a substantial rotator cuff

injury. I was then prosecuted and convicted of

possession of a firearm and ammunition in violation

of the restraining order (misdemeanors). (SUF#30)

There was no crime and no reason to believe a

crime had been committed. In California, “an appeal

stays proceedings in the trial court upon the

judgment or order appealed from..., including

enforcement of the judgment or order. . ■. ." (Cal. Code

of Civ. Proc. § 916, subd. (a), infra, viii.) (See:

Varian Medical Systems, Inc. v. Delfino, 35 Cal.4th

180, 189 (Cal. 2005) citing Elsea v. Saberi, 4 Cal.

App.4th 625, 629 (Cal. Ct. App. 1992) - “The trial'

court's power to enforce, vacate or modify an

appealed judgment or order is suspended while the

appeal is pending.”

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"P]f the commitment be against law, as being

made by one who had no jurisdiction of the cause, or

for a matter for which by law no man ought to be ■

punished, the court are to discharge." Bac. Abr., Hab.

Corp., B. 10.” Ex Parte Siebold, 100 U S. 371, '376

(1879). “There can be no room for doubt that such a

circumstance inherently results in a complete

miscarriage of justice.” Davis v. United States, 4l7

U.S. 333, 346 (1974). [citation/marks omitted]

4. Statute is void for vagueness.

At issue is a threat statute, California Code of

Civil Procedure (C.C.P.) §527.8, stating, at sub- ’

paragraph (a):

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Any employer, Whose employee has suffered 1

unlawful violence or a credible threat of

violence from any individual, that can

reasonably be construed to be carried out or to

have been carried out at the workplace, may

seek a temporary restraining order and an

order after hearing on behalf of the employee

and, at the discretion of the court, any number

of other employees at the workplace, and, if

appropriate, other employees at other

workplaces of the employer.

The definition of a “credible threat of violence is

stated in sub-paragraph (b)(2):

“Credible threat of violence” is a knowing and

willful statement or course of conduct that

would place a reasonable person in fear for his

or her safety, or the safety of his or her

immediate family, and that serves no

legitimate purpose.

This so called “credible threat of violence” was

invoked by the trial court in sustaining a relevancy

objection relative to my testimony at the September

29th, 2016 Planning Commission meeting, the trial

judge stated (ECF19-2, Ev. V.l, p.273:22):

It's not what you were saying, sir, that they are

alleging is threatening. It's how you were

saying it. Okay. It's your demeanor that they

are alleging was threatening. They are not

alleging that what you were talking about was

threatening.

Judge Mewhinney granted the County Counsel’s

fraudulent Petition, on the basis that these witnesses

felt threatened by my “demeanor”, and thus posed a

“credible threat of violence”. (ECF 19-3, Ev. V.2,

p.335:5-15) Speech and the associated emotion are

inseparable elements. Texas v. Johnson, 491 U.S.

397,407(1989).

As authoritatively construed by the California

Courts, “if there is evidence that the elements of a

petition under section 527.8 have been satisfied, the

speech is not constitutionally protected.” (Opinion,

ECF 19-3, Ev. V.2, p.354 quoting City of San Jose v:<

Garbett, 190 Cal.App.4th 526, 537 (2010). Garbett ’

failed/refused to be bound by this Court’s 2005 *

definition of a “true threat” in Virginia v. Black.

Instead, Garbett (at 539) substitutes a contrary

definition supplied by In re Steven S., 25 Cal/

App.4th 598, 607 (Cal. Ct. of App. 1994).

Garbett, like the CAL-3DCA Opinion, diminishes

the broad scope of the First Amendment and •

dismisses the explicit mens rea requirement for “true

threats”. Id., 538. The element of “intent” cannot be

avoided by attaching a civil label. United States v.

Kelner, 534 F.2d 1020, 1027 (2d Cir. 1976). In context

of public debate see: New York Times Co. v. Sullivan,

376 U.S. 254„270-71 (1964); Garrison v. State of La.,

379 U.S. 64, 73 (1964); Sn/yder v. Phelps, 562 :U.S. ,

443, ,458 (2011).

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Garbett, at 537* ignores the duty of independent

review in 1®* Amendment cases. The CAL-3DCA

refused to independently review the evidence

(ECF19-3, p.12). See In re George T, 33 Cal.4th 620

632 (2004) quoting Bose Corp. v. Consumers Union,

466 U.S. 485 (1984) at 510 - independent review is

“a rule of federal constitutional law”. As such, the

CAL-3DCA denied my right to appellate review

provided by California law.

California’s restraining order statutes are facially

void for vagueness because vagueness doctrine

requires “legislatures to set reasonably clear

guidelines for law enforcement officials and triers of

fact in order to prevent "arbitrary and discriminatory

enforcement.” Smith v. Goguen, 415 U.S. 566, 573

(1974); Groyned v. City of Rockford, 408 U.S. 104,

108 (1972)- same. “[A] statute must be carefully •

drawn or be authoritatively construed to punish only

unprotected speech and not be susceptible of

application to protected expression.” Gooding v.

Wilson, 405 U.S. 518, 521-22 (1972). “Laws must

provide explicit standards for those who apply

them.” “A conviction under an unconstitutional law

‘is not merely erroneous, but is illegal and void, and

cannot be a legal cause of imprisonment.’”

Montgomery v. Louisiana, 577 U.S. 190, 203 (2016)

quoting Siebold at 376-377. See People v. Mirmirani,

30 Cal.3d 375 (Cal. 1981) - declaring California’s

criminal threat statute void for vagueness.

5. Unreasonable working conditions, causes

district judge to abdicate authority - chaos

reigns.

I filed this Petition for Habeas Corpus on March

20, 2020 in the Fresno division of the CAED.910 On

April 9, 2020 the Magistrate ordered the People to

answer and prepare the record within 60 days.

(dkt#4)u On May 15, District Judge Drozd issued

his standing orders re-assigning the case to “NONE”

(dkt#9, Al) and the arbitrary process began.

9 Calculation of one year limitation period (28 U.S.C. 2244(d))

appended to the CAED Petition at p.14, case #l:20-cv-00411NONE-JDP, Dkt#l.

10 Although I am no longer in custody of the State, this case is

not moot because the conviction needs to be expunged.

Maurer v. Ind. as Members of Los Angeles Cty, 691 F.2d 434,

437 (9th Cir. 1982). I also have §1983 claims for unlawful

arrest and malicious, criminal prosecution dependent upon the

outcome of this Petition. Heck v. Humphrey, 512 U.S. 477, .487

(1994).

11 The habeas petition was filed in the Fresno Division and is

automatically referred to a magistrate pursuant to L.R.

302(c)(17) - not(c)(21) applicable to the Sacramento Division.

See F&R for Magistrate’s claim of jurisdiction, dkt#26 f.n.l.

On May 29, the State requested an additional 60

days to prepare the record. My opposition to this exparte request detailed:12 a) that the motion was not

supported by an affidavit supporting the extension as

required by L.R. 144(c); b) the motion was based on a

false statement; c) that the relevant records had

already been filed in the California Court of Appeal

in electronic format; and, d) that the request was

contrary to law. (i.e. * “The writ, dr order to show

cause ...shall be returned within three days unless .

for good cause additional time, not exceeding twenty

days, is allowed.” 28 U.S.C. §2243. .

My opposition further detailed §2243 is not in

conflict with the Supreme Court’s Rules

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implementing §2254 habeas proceedings.' Ruld 4

allows the court to fix the time of the answer. .“These

provisions can be read and implemented in concert so

the maximum time allowable for. the return is

twenty days.” lit re Habeas Corpus Cases, 216 F.R.D.

52, 54 (E.D.N.Y. 2003). The time extension was'- .

granted (dkt#16) and I moved for summary judgment

(dkt#19) and filed the record that had been

previously filed with the CAL-3DCA.

On August 7, 2020 the State answered the

Petition (dkt#22). My response detailed that the ^

State’s argument was frivolous and based in fraud

(dkt#24, pp. 8-10).13 My response further argued ! ■

that the restraining order statute is void for

vagueness (dkt#24, pp.15-18).; and that the order

violated the First Amendment by punishing

protected speech and petitioning. At dkt#24,

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12 Opposition Memo, dkt#14, p.2:6. ‘;;

13 An application has been directed to Justice Kagan requesting

disbarment of California Deputy District Attorney Charity

Whitney.

p.l4:16), I quoted Journigan v. Duffy, 552 F.2d 283,

288 (9th Gir. 1977) as four-square precedent.14

In Journigan, a California habeas petitioner

skipped direct appeal and argued that he was

prosecuted under an unconstitutional statute. As

here, the district court ruled that the guilty plea in

state court precluded his habeas corpus petition

pursuant to Tollett v. Henderson, 411 U.S. 258

(1973). Journigan, 285. Relying on Menna v. New

York, 423 U.S, 61, 62 (1975) and Blackledge

v. Perry, 417 U.S. 21, 30 (1974), Journigan reversed

the district court because the trial court did not have

the “power to invoke criminal process”: i.e. jurisdiction. Id., 288-289:Journigan quotes Ex parte

Siebold, supra,: “An unconstitutional law is void,

and is as no law...A conviction under it is not merely

erroneous, but is illegal and void; and cannot be a

legal cause of imprisonment.”

Despite the directive of FRCP Rule 72(a) to

"promptly conduct the required proceedings when

assigned”; eight months later, on April 1, 2021

Magistrate Barch-Kupta posted her F&R

recommending denial of relief based on a non

existent collateral bar (dkt#26, p.7:7). The

Magistrate refused to address the merits or the

binding authorities. I timely filed Objections

(dkt#27) together with a proposed order with

findings of fact and law (dkt#28).

More than eleven months after I moved for

summary judgement (dkt#19), on June 21, 2021

Judge Drozd claimed summary judgment was not

available on habeas. He cited the F&R for its

references to the CAED arbitrary process being

implemented against pro se habeas petitioners:

14 Argument in reply to the State’s Answer. (dkt#24, p.11-14)

“motions in habeas corpus are inappropriate in federal habeas cases. (See Doc. 26 at 5 quoting

Rizzolo v. Puentes, No. l:19-cv-00290-SKO (HC),

2019 WL 1229772, at 1 (E D. Cal. Mar. 15, 2019;...”

(A9, infra) He ignored the plain language of Rule

56(c) mandating summary judgment as held in

Celotex Corp. v. Catrett, All U.S. 317, 322 (1986).

On motion to reconsider, after the time to seek a

certificate of appealability had expired, Judge Drozd

refused to be bound by or even mention the

precedents: i.e. - Zal v. Steppe, 968 F.2d 924 (9th Cir.

1992) and Journigan v. Duffy, 552 F.2d 283 (9th Cir.

1977). Zal, at 927, explains that there is no . '

collateral bar rule in California: See People v.

Gonzalez, 12 Cal. 4th 804, 818 (1996).

Instead of following Zal and Journigan, the

district court relied on an unpublished district court

order from Rouse v:Plummer, No. C 04-0276 JF. (PR)

(2006) establishing aberrant process. (A10, infra) t

“Contempts such as this strike down the supremacy

of law and order and undermine the foundations of

our Government. Recurrence of such acts must be

prevented.” United States v. Shipp, ‘214 U.S. 386,-392

(1909).

• :

■

■■

FURTHER REASONS TO GRANT PETITION

6. Total control of the referral process is a

fallacy destroying Article III integrity. *

“[This Court’s] precedents make it clear that the

constitutional requirements for the exercise of the

judicial power must be met at all stages of *

adjudication.” Northern Pipeline Co. v'. Marathon

Pipe Line Co., 458 U.S. 50, 87 n.39 (1982)’“[T]he( ‘

requirement of‘the district court's total control and

jurisdiction’ must include the availability of

meaningful judicial review of the magistrate's actual

rulings...” Peretz v. United States, 501 U.S. 923, 951

(1991) (dissent quoting Northern Pipeline).

“The Constitution assigns that job—resolution of

‘the mundane as well as the glamorous, matters of

common law and statute as well as constitutional

law, issues of fact as well as issues of law’ - to the

Judiciary.” Stern v. Marshall, 564 U.S. 462, 484-85

(2011) quoting Northern Pipeline, at 87 n.39. For

these reasons, reference is predicated on total control

and plenary review of the magistrate’s F&R. United

States v. Raddatz, 447 U.S. 667, 681-682 (1980);

Thomas v. Am, 474 U.S. 140, 153 (1985).

“Total control”, however, is fallacy. “If it

were possible for district judges to supervise all civil

cases to the extent the majority contemplates, there

would be no need for magistrates: Pacemaker

Diagnostic Clinic of America, Inc. v. Instromedix,

InC., 725 F.2d 537, 552 (9th Cir. 1984), (dissent

describing three fallacies of the Magistrates Act).

Time has proven the dissents correct.

This Court’s decisions concerning the expanded

role of the magistrate pursuant to the 1976

amendments to the Magistrates Act begin with

Raddatz, supra, (C.J. Burger, plurality). After

dismissing Raddatz’s statutory argument concerning

a suppression motion referred to a magistrate as an

additional duty pursuant to 28 U.S.C. 636(b), the

plurality determined that the referral satisfied

Article III because it takes place under the “district

court's total control and jurisdiction,...” Id., 681

(emph. added). In Justice Blackmun’s deciding

opinion, he assumed a district judge is “waiting in

the wings, fully able to correct errors... I simply do

not perceive the threat to the judicial power or the

independence of judicial decisionmaking that

underlies Art. III.” Id., 686. Six years later, Justice

Blackmun joined the dissent to question whether

Raddatz (and Schor) remained good law. “The

critical question for Article III purposes is whether

meaningful judicial review... can be accomplished.”

Peretz v. United States, 501 U S. 923, 951-52 (1991).

In 1980, nobody was envisioning the situation

where Congress would stop creating judgeships.

But, “[t]he Framers understood this danger. They

warned that the Legislature would inevitably seek to

draw greater power into its ‘impetuous vortex*’ The .

Federalist No. 48, at 309.” Wellness Int'l Network,

Ltd. v. Sharif, 575 U.S. 655, 705 (2015) (C.J. Roberts,

dissent). The district court did not and could not

“totally control” the magistrate. Instead, the CAED

is being forced by Congress to abdicate authority.

7. Judgment is a legal nullity.

“Because the magistrate judge acted without

jurisdiction, the judgement is a nullity, ... Aldrich v.

Bowen, 130 F.3d 1364, 1365 (9th Cir. 1997). La Buy

v. Howes Leather Co., 352 U.S. 249, 259-60 (1957).

“Jurisdiction is power to declare the law, and when it

ceases to exist, the only function remaining to the

court [on appeal] is that of announcing the fact and

dismissing the cause, [citations]” Steel Co. v. Citizens

for Better Env't, 523 U.S. 83, 94 (1998). This rule is

“inflexible and without exception”. Ins. Corp. of

Ireland v. Compagnie des Bauxites de Guinee, 456

U.S. 694, 702 (1982). “A void judgment is a legal

nullity...” United Student Aid Funds v. Espinosa, 559

U.S. 260, 270 (2010). “[D]efects in subject-matter

jurisdiction require correction...” U.S. v.

Cotton, 535 U.S. 625, 630 (2002). (emph. added)

8. Denial of GOA was unlawful.

“[T]he only question is whether the applicant has

shown that "jurists of reason could disagree with the

district court's resolution of his constitutional

claims... [Miller-El v. Cockrell, 537 U:S. 322, 336], at

327” Buck v. Davis, 137 S. Gt. 759, 773 (2017).

Without elaboration, the panel stated “reasonable

jurists” would not find my argument “debatable”

(A17). Because all jurists of reason would find

multiple violations of the Constitution, anarchy is

prevailing. Hutto v. Davis, 454 U.S. 370, 375 (1982).

The panel had no authority to disregard cases such

as Journigan and Veil, “Unless there is a higher

intervening authority, those cases control.” United

States V. Valencia-Mendoza, 912 F.3d 1215, 1219 (9th

Cir. 2019).

9. CONCLUSION

For these reasons, relief should be summarily

granted.

Sincerely.

Roger Towers

APPENDIX OF ATTACHMENTS

A13

A17

A18

Order assigning case to “NONE”.

Order denying petition.

Order denying reconsideration.

Ninth Circ. Denying COA.

Ninth Circ. Denying reconsideration

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.