Petition for Writ of Certiorari — Frederick David Pina, Petitioner v. State Farm Mutual Automobile Insurance Company

Supreme Court briefJul 21, 2024

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IN THE SUPREME COURT OF THE UNITED STATES

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FREDERICK PINA,

Supremo Court, U S.

Petitioner, Pro Se

f .i C.D

JUL 2 \ 2024

OFFICE OF THE CLEftK

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Frederick Pina, Petitioner, Pro Se

90 Vreeland Street, #4

Staten Island, New York 10304

929.944.7029 voice

pina.frederick@gmail.com

TodM. Castronovo (SBN: 97477)

SHAVER, KORFF

16255 Ventura Boulevard, #850

Encino, California 91436

818.905.6001 voice

Counsel for Defendant

QUESTIONS PRESENTED

1. Claim Preclusion and Due Process:

Whether the Ninth Circuit erred in affirming the dismissal of

petitioner's claims on the grounds of claim preclusion when the petitioner

was denied a full and fair opportunity to litigate those claims in the prior

state court action, in violation of Kremer v. Chemical Construction Corp.,

456 U.S. 461 (1982).

2. Judicial Misconduct and Due Process:

Whether the Ninth Circuit violated the petitioner's constitutional due

process rights and engaged in judicial misconduct by dismissing the

appeal without considering the petitioner's evidence of corporate fraud,

in retaliation for the petitioner's anti-corruption advocacy, contrary to

the Fifth and Fourteenth Amendments, and 28 U.S.C. §§ 453 and 455.

3. Fraud and Claim Preclusion:

Whether allegations of fraud and fraudulent concealment by the

petitioner against the defendant preclude the application of claim

preclusion under Federal Rule of Civil Procedure 60(b)(3), and how the

four-year statute of limitations for civil RICO claims impacts the claim

preclusion analysis.

4. First Amendment Retaliation:

Whether the Ninth Circuit violated the petitioner's First Amendment

rights by imposing sanctions or legal consequences in retaliation for the

petitioner's political expression and advocacy efforts, as protected by

NAACPv. Button, 371 U.S. 415 (1963).

5. Consistency in Judicial Process and Due Process:

Whether the issuance of conflicting orders by the Ninth Circuit, where

an original panel found the petitioner's appeal to be non-frivolous but a

later panel dismissed the appeal in retaliation for whistleblowing on

state government corruption, constitutes a violation of the petitioner's

due process rights to a consistent and fair judicial process, as articulated

in Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), and related

cases.

6. Fraud Upon the Court and Due Process:

Whether the California state court's approval of State Farm's Motion

for Evidence Sanctions, based on deliberate misrepresentations and

deceit, constitutes fraud upon the court, and whether the Ninth Circuit's

failure to address these allegations in the petitioner's opening brief

warrants Supreme Court review to uphold fundamental due process

rights under the Fourteenth Amendment, as supported by Hazel-Atlas

Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944), and United States

v. Throckmorton, 98 U.S. 61 (1878).

7. Legally Binding Orders and Procedural Rules:

Whether the Ninth Circuit's memorandum issued on April 2, 2024, not

constituting a legally binding order under applicable procedural rules,

and the premature and prejudicial denial of the appeal En Banc, while

the related California Supreme Court case for claim preclusion is still

pending, justify reopening the appeal based on errors and constitutional

violations.

8. Jurisdiction and Res Judicata:

Whether the Ninth Circuit's memorandum fails the two-part test for

res judicata as outlined in Commissioner of Internal Revenue v. Sunnen,

333 U.S. 591 (1948), because there was no final judgment from the

California Supreme Court and the court lacked jurisdiction.

CORPORATE DISCLOSURE STATEMENT

Petitioner Frederick Pina has no parent companies. No publicly

held company owns more than 10 percent of petitioner’s stock.

RELATED PROCEEDINGS

1. Frederick Pina v. State Farm Mutual Automobile Insurance Company,

California Supreme Court, Case No. S284975.

2. Frederick Pina v. State Farm Mutual Automobile Insurance Company,

California Court of Appeal, Second District, Division Two, Case No.

B331404.

3. Frederick Pina v. State Farm Mutual Automobile Insurance Company,

Los Angeles County Superior Court, Case No. 21STCV13962.

TABLE OF CONTENTS

Page(s):

Petition for a Writ of Certiorari

Opinions Below

Jurisdiction

Statutory Provisions Involved

Introduction

Statement of the Case

Reasons for Granting the Writ

Conclusion

Appendices

32-65

INDEX OF APPENDICES

Appendix A: Opinion of the United States Court of Appeals for the

Ninth Circuit (unreported)

Appendix B: Order of the District Court dismissing the action

(unreported)

Appendix C: Ninth Circuit Order entered on September 27, 2023:

Appendix D: Memorandum issued by the Ninth Circuit on April 2,

2024

Appendix E: Case citations relevant to the petition

Appendix F: The secret audio tape of corrupt insurance lawyer

Michael V. Madigan

Appendix G:

Appendix H:

Appendix I:

Appendix J:

Appendix K:

Appendix L:

Appendix M:

TABLE OF AUTHORITIES

Statutes and Rules

28 U.S.C. § 1254(1)

13 and 14

28 U.S.C. § 453

28 U.S.C. § 455

Federal Rule of Civil Procedure 60(b)(3)

3, 15, 23

U.S. Constitution, Amendment V

U.S. Constitution, Amendment XIV, Section 1

Cases

Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009)

3 and 25

Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985)

Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591 (1948).5, 25

Crawford-El v. Britton, 523 U.S. 574 (1998)

Federated Department Stores, Inc. v. Moitie, 452 U.S. 394 (1981)

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238

(1944)

4, 23 and 25

Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982).....2, 17, 21

Mt. Healthy City School District Board of Education v. Doyle, 429 U.S.

274 (1977)

20, 24

NAACP v. Button, 371 U.S. 415 (1963):

Taylor v. Sturgell, 553 U.S. 880 (2008):

United States v. Throckmorton, 98 U.S. 61 (1878):

Williams v. Florida, 399 U.S. 78 (1970)

McCleskey v. Kemp, 481 U.S. 279 (1987)

Strickland v. Washington, 466 U.S. 668 (1984)

Richards v. Jefferson County, 517 U.S. 793 (1996)

Turney v. Ohio, 273 U.S. 510 (1927)

I. PETITION FOR WRIT OF CERTIORARI

Petitioner Frederick Pina, respectfully petitions the Court for a writ of

certiorari to review the judgment of the United States Court of Appeals

for the Ninth Circuit.

II. OPINIONS BELOW

The opinion of the United States Court of Appeals for the Ninth Circuit

is not yet reported but is reprinted at App. A. The order of the district

court dismissing the action is unreported but is reprinted at App. B.

III. JURISDICTION

The original Order of the Court of Appeals was entered on September 27,

2023 (see App. C). A “second,” or rather curious, Memorandum was

issued on April 2, 2024; and a timely petition for rehearing en banc that

was denied on July 11, 2024. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

IV. STATUTORY PROVISIONS INVOLVED

- The Fifth Amendment to the United States Constitution:

"No person shall... he deprived of life, liberty, or property, without due

process of law..."

- The Fourteenth Amendment. Section 1:

"No State shall... deprive any person of life, liberty, or property, without

due process of law..."

- 28 U.S.C. $ 1254(1):

This statute provides the Supreme Court jurisdiction to review cases

from the Courts of Appeals.

- 28 U.S.C. $ 453:

"The oath of office for judges."

- 28 U.S.C. § 455:

"Disqualification ofjudges."

- Federal Rule of Civil Procedure 60(b)(3):

Allows for relief from a judgment due to fraud, misrepresentation, or

misconduct by an opposing party.

INTRODUCTION:

Frederick Pina petitions this Court for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Ninth Circuit,

which affirmed the dismissal of his claims against State Farm Mutual

Automobile Insurance Company based on the doctrine of claim

preclusion. This petition raises critical issues regarding the proper

application of claim preclusion, the protection of constitutional due

process rights, allegations of judicial misconduct, and the impact of fraud

on judicial proceedings.

The Ninth Circuit's decision to affirm the district court's dismissal of

Pina's claims based on claim preclusion is flawed and defective,

contravening

established

precedents

and

raising

substantial

constitutional concerns. The concept of res judicata was inapplicable

because another related case, still pending at the California Supreme

Court, has not yet been resolved. Pina argues that he was denied a full

and fair opportunity to litigate his claims in the prior state court action

due to the exclusion of critical evidence of fraud, conspiracy, and civil

rights violations by State Farm. This exclusion violates the principles

established in cases such as Kremer v. Chemical Construction Corp., 456

U.S. 461 (1982), which requires that htigants must have a full and fair

opportunity to present their claims.

Furthermore, the denial of the Petition for Rehearing En Banc by the

Ninth Circuit was based on the same flawed decision, exacerbating the

judicial errors and misconduct involved. Allegations of judicial

misconduct and retaliatory animus in response to Pina’s anti-corruption

advocacy raise serious questions about the impartiality and fairness of

the proceedings, contrary to the standards set in Tumey v. Ohio, 273 U.S.

510 (1927), which emphasizes the necessity of an unbiased tribunal.

This case presents an opportunity for the Supreme Court to clarify the

proper application of claim preclusion principles, address significant due

process violations, and reaffirm the judiciary's commitment to fairness

and impartiahty. The review by this Court is essential to uphold

fundamental constitutional rights, as protected under the Due Process

Clause of the Fourteenth Amendment, and ensure that htigants receive

a fair and unbiased adjudication of their claims, consistent with the

principles estabhshed in Gonzalez v. Crosby, 545 U.S. 524 (2005).

V. STATEMENT OF THE CASE

1. Overview: Petitioner, Frederick Pina, filed this action against

Respondent, State Farm Mutual Automobile Insurance Company, in the

United States District Court for the Central District of California. The

complaint alleged violations of the Racketeer Influenced and Corrupt

Organizations Act (RICO), 18 U.S.C. §§ 1961-1968, as well as

deprivations of Pina's civil rights under 42 U.S.C. § 1983.

2. District Court Dismissal: The district court dismissed the action,

holding that Pina's claims were barred by the doctrine of claim preclusion

(res judicata) based on a false allegation of a prior so-called judgment in

a state court action against State Farm. App. D.

3. Ninth Circuit Appeal: On appeal to the Ninth Circuit, Pina argued that

claim preclusion was improperly applied because he was denied a full and

fair opportunity to litigate his claims in the state court action.

Specifically, Pina alleged that he was prevented from introducing

evidence of fraud, conspiracy, and civil rights violations by State Farm.

Pina also raised allegations and supporting evidence of judicial

misconduct, bias, retaliation, and deprivations of his due process rights.

4. Ninth Circuit Decision: In a non-precedential memorandum

disposition, the Ninth Circuit affirmed the district court's dismissal

based on claim preclusion. App. A and B. The court rejected Pina's

arguments regarding the state court proceedings, holding that he failed

to establish a procedural defect that would preclude the application of

claim preclusion.

5. Rehearing En Banc: Pina filed a petition for rehearing en banc, raising

multiple issues including: (1) conflicts with binding precedent on claim

preclusion; (2) allegations of judicial misconduct and retaliation; (3) due

process violations; (4) abuse of discretion; and (5) improper dismissal

without

considering

his

evidence.

The

petition

also

provided

supplemental authorities, including claims of deprivation of rights under

color of law, proper ex parte communications, and judicial retaliation.

6. Denial of Rehearing: On July 11, 2024, the Ninth Circuit denied Pina’s

petition for rehearing en banc. App. B.

7. Reopening Request: On July 13, 2024, Pina requested the reopening of

his appeal in Case Number 23-55614 on grounds that the memorandum

issued by the court was not legally binding as it did not constitute an

order under federal procedural rules (see Rule 36), and that the related

California Supreme Court case for claim preclusion is still pending and

has not been settled. Pina argued that the previous decision to deny his

appeal was premature, prejudicial, and constitutionally incorrect.

Additionally, Plaintiffs First Amendment Rights were willfully violated

and ret abated against off, for anti-corruption activities, fuby protected

by the High Court.

See, Mt. Healthy City School District Board of Education v. Doyle,

429 U.S. 274 (1977): This case addresses First Amendment retaliation.

Mt. Healthy established a burden-shifting framework for retaliation

claims.

VL REASONS FOR GRANTING THE WRIT

1. Conflict with Precedent on Claim Preclusion:

This Court should grant certiorari to resolve the conflict between the

decision below and this Court’s precedents regarding the proper

application of claim preclusion principles. In Taylor v. Sturgell, 553 U.S.

880 (2008), this Court cautioned against an overly broad application of

claim preclusion that would improperly preclude adjudication of claims

on the merits. The Ninth Circuit's decision affirming the dismissal of

Pina's federal claims based on claim preclusion appears to directly

contravene this admonition. Pina has consistently argued that he was

denied a full and fair opportunity to litigate his claims against State

Farm in the prior state court action due to the alleged exclusion of critical

evidence of fraud, conspiracy, and civil rights violations. This Court has

long held that claim preclusion should not apply when a party was denied

a full and fair opportunity to litigate the claim in the prior action. See

Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982). The Ninth

Circuit's decision rejecting Pina's arguments on this issue and affirming

the dismissal based on claim preclusion conflicts with this Court's

precedents and warrants review to ensure the proper application of claim

preclusion principles.

2. Constitutional Due Process and Judicial Misconduct:

This Court should grant certiorari to address significant constitutional

issues raised by Pina, including allegations of judicial misconduct and

due process violations. Pina has alleged and presented evidence that the

Ninth Circuit's decision to dismiss his appeal was motivated by

retaliatory animus in response to his anti-corruption advocacy and efforts

to expose judicial misconduct. This Court has recognized that retaliatory

actions by judicial officers can constitute violations of due process. See

Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). The

allegations of bias and retaliation, if proven, would represent a grave

breach of judicial ethics and constitutional principles. Pina's claims of

due process violations, stemming from the exclusion of critical evidence

and the dismissal of his appeal without adequate consideration, raise

substantial questions about the fairness and impartiality of the judicial

process. Given the importance of maintaining public confidence in the

judiciary and ensuring that litigants receive fair treatment, this Court's

intervention is necessary to address these constitutional concerns, as

Ninth Circuit’s conduct violates Supreme Court precedent. See Tumey v.

Ohio, 273 U.S. 510 (1927): Emphasizes the importance of an impartial

tribunal.

3. Fraud and Rule 60(b)(3):

The application of claim preclusion in this case also warrants review due

to the allegations of fraud and fraudulent concealment by State Farm.

Under Federal Rule of Civil Procedure 60(b)(3), a judgment obtained

through fraud can be set aside. Pina has presented specific and detailed

allegations of fraud by State Farm, which he argues preclude the

application of claim preclusion. This Court has emphasized the need to

protect litigants from judgments obtained through fraudulent means. See

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944).

Moreover, the four-year statute of limitations for civil RICO claims,

as articulated in Agency Holding Corp. u. Malley-Duff & Associates, Inc.

483 U.S. 143 (1987), supports Pina's argument that his claims should not

be precluded. Review by this Court is necessary to clarify the interplay

between fraud, claim preclusion, and the statute of limitations for civil

RICO claims.

4. First Amendment Retaliation:

Pina's allegations of First Amendment retaliation by the Ninth Circuit

also raise significant constitutional issues that warrant this Court's

review. This Court has consistently held that government actions taken

in retaliation for protected speech violate the First Amendment. See Mt.

Healthy City School District Board of Education v. Doyle, 429 U.S. 274

(1977). Pina has argued that the Ninth Circuit's dismissal of his appeal

was motivated by retaliatory animus in response to his political

expression and anti-corruption advocacy. If proven, such retaliation

would represent a serious infringement on Pina's First Amendment

rights. This Court's intervention is necessary to uphold the principles of

free speech and protect litigants from retaliatory actions by judicial

officers.

5. Consistency in Judicial Process:

The issuance of conflicting orders by the Ninth Circuit, where an original

panel found Pina's appeal to be non-frivolous but a later panel dismissed

the appeal in retaliation for whistleblowing, raises significant due

process concerns. This Court has emphasized the importance of

consistency and fairness in judicial proceedings. See Caperton v. A.T.

Massey Coal Co., 556 U.S. 868 (2009). The conflicting orders in Pina's

case undermine the integrity of the judicial process and warrant this

Court's review to ensure that litigants receive consistent and fair

treatment.

6. Fraud Upon the Court:

Pina's allegations of fraud upon the court by State Farm, including the

deliberate misrepresentations and deceit that led to the approval of the

Motion for Evidence Sanctions, raise significant due process concerns.

This Court has recognized the serious nature of fraud upon the court and

its impact on the integrity of the judicial process. See Hazel-Atlas Glass

Co. v. Hartford-Empire Co., 322 U.S. 238 (1944). Review by this Court is

necessary to address these allegations and uphold fundamental due

process rights.

7. Jurisdiction and Res Judicata:

Finally, the Ninth Circuit's memorandum fails the two-part test for res

judicata as outlined in Commissioner of Internal Revenue v. Sunnen, 333

U.S. 591 (1948), because there was no final judgment from the California

Supreme Court and the court lacked jurisdiction. This Court's

intervention is necessary to ensure the proper application of res judicata

principles and to address the jurisdictional issues raised by Pina.

8. The Ninth Circuit's Application of Res Judicata Was Erroneous:

The Ninth Circuit dismissed Petitioner's federal appeal based on res

judicata,

erroneously

concluding that the

issues

were

already

adjudicated. However, the related case against State Farm is still

pending before the California Supreme Court. This ongoing state court

proceeding fundamentally undermines the application of res judicata, as

the issues in both cases have not been fully resolved.

See, Richards v. Jefferson County, 517 U.S. 793 (1996): Emphasizes that

due process requires a full and fair opportunity to litigate before claim

preclusion can apply.

A. Newly Discovered Evidence Warrants Relief Under Rule

60(b)(2)

New evidence has emerged showing that the related state case is active

and pending. This evidence, which was not discovered with reasonable

diligence prior to the judgment, is critical to the proper adjudication of

Petitioner's claims. The failure to consider this evidence constitutes a

significant error justifying relief from judgment.

B. Extraordinary Circumstances Justify Relief Under Rule

60(b)(6)

The dismissal of Petitioner's federal appeal while the related state case

is pending presents extraordinary circumstances. These include:

1. The risk of inconsistent rulings between state and federal courts.

2. The potential for conflicting judgments, should the California

Supreme Court rule in Petitioner’s favor.

3. The unnecessary expenditure of judicial resources in reconciling

conflicting decisions.

4. Fundamental fairness, as the dismissal deprives Petitioner of a fanopportunity to litigate his claims.

5. The novel legal question regarding the interaction between parallel

state and federal proceedings.

6. The strong public interest in ensuring consistent and equitable

resolutions in cases involving dual jurisdiction.

9. The Judgment Is Void Under Rule 60(b)(4):

Given the ongoing state court proceedings, the Ninth Circuit's judgment

is effectively null and void. The principle of res judicata was inapplicable,

rendering the judgment unenforceable under Rule 60(b)(4).

VII CONCLUSION:

This petition elevates pressing concerns about the core tenets of due

process, judicial impartiality, and the preservation of First Amendment

freedoms. The Ninth Circuit's issuance of two diametrically opposed

orders not only exemplifies a significant intra-panel split but also raises

profound issues of institutional racial bias, which threatens the

foundational principles of justice and equity.

The intra-panel split within the Ninth Circuit reveals a disconcerting

inconsistency in judicial rulings on critical legal issues. Such internal

discord starkly contrasts with the principles of judicial stability and

uniformity enshrined in Williams v. Florida, 399 U.S. 78 (1970). In

Williams, the Supreme Court emphasized that a coherent and

predictable application of legal standards is essential for maintaining the

rule of law and ensuring that all litigants are afforded equal protection.

The Ninth Circuit’s conflicting decisions create a legal quagmire, leaving

litigants and the public in a state of uncertainty and undermining the

reliability of the judicial system.

Moreover, the presence of institutional racial bias in these proceedings

compounds the gravity of the situation. The Supreme Court’s decision in

McCleskey v. Kemp, 481 U.S. 279 (1987), illuminated the corrosive impact

of racial bias on the fairness of judicial processes. The disparate

treatment observed in this case suggests a systemic issue that warrants

this Court’s scrutiny. The erosion of impartiality not only violates

constitutional protections but also undermines public confidence in the

judiciary's commitment to fairness and equality.

The procedural errors and constitutional violations evident in the Ninth

Circuit's handling of this case necessitate rigorous review. As articulated

in Strickland v. Washington, 466 U.S. 668 (1984), the integrity of judicial

proceedings is paramount. Deviations from established procedural and

substantive norms jeopardize the fundamental right to a fair trial and

call for rectification by the Supreme Court to ensure that justice is not

only done but is manifestly seen to be done.

Frederick Pina’s relentless pursuit of justice, in the face of substantial

judicial misconduct and retaliatory actions, underscores the critical need

for this Court's intervention. This petition transcends a mere dispute

over claim preclusion; it embodies a broader imperative to reaffirm

constitutional safeguards and rectify systemic injustices.

In the interests of upholding justice, preserving the rule of law, and

ensuring equitable administration of legal principles, Frederick Pina

respectfully petitions this Court to grant a writ of certiorari. A thorough

review of the Ninth Circuit’s judgments is essential to restore judicial

coherence and reinforce public trust in the equitable administration of

justice.

DATED: July 18, 2024

Respectfully submitted,

Frederick Pina, Plaintiff Pro Se

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