Petition for Writ of Certiorari — Kenneth Eugene Gage, Petitioner v. California

Supreme Court briefJun 2, 2025

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Text

-------------- ORONAL

IN THE

filed

JUN 0 2 2025

SUPREME COURT OF THE UNITED STATES

KENNETH EUGENE GAGE

p^T|TIONER

(Your Name)

vs.

SUPERIOR COURT OF SANTA CLARA COUNTY

_____ ______ — RESPONDENT(S)

PEOPLE OF THE STATE OF CALIFORNIA, Real Party•in * Interest

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS, NINTH CIRCUIT

No claims recognition, no rule on the merits

_____________ N.D. CAL. Same, no claims recognition, etc.

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

KENNETH EUGENE GAGE

(Your Name)

Calif State Prison-Solano (#C-71542)

P.O. Box 4000, 21-22-1L_____________

(Address)

Vacaville, CA 95696-4000

(City, State, Zip Code)

Prison Administration Number

(707) 451-0182

(Phone Number)

COVER

QUESTIONS PRESENTED

1. Where throughout Our Nation ALL criminal defendants are

routinely released, liberty restored, should the felony trial

judge, in exercise of his or her discretion, elect not to produce

document, affix signature to, a "JUDGMENT," (state legislative and

federal law mandate), the sole written, requisite instrument

witnessing on record a disposition of guilt —

May any sane, adult, United States citizen against whom no

"judgment" of guilt exists (in the matter at bar), none documented

none entered on record, no docket listing, and who remains

innocence, be forever detained (44-plus years and continuing),

trial abandoned pre—judgment by both prosecution and defense

counsel?

2. While this court has provided guidance where AEDPA and

successive petition limitations are inapplicable against claims of

unlawful conviction, it is not clearly settled, here a case of

first impression: What burden, or procedural bar, if any, falls

upon a citizen requesting an appropriate remedy, to prove (denied

assistance or re-appointment of counsel) he is NOT convicted of

crime?

QUESTIONS PRESENTED

APPL of K.E. GAGE

REQ CERT APP

- Page J

TABLE OF CONTENTS

QUESTIONS PRESENTED

(List of parties appear on the front cover)

Page:

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES

iii-vi

REFERENCE TO THE OPINIONS BELOW, Rule 14.1(d)

...

vii

OFFICIAL & UNOFFICIAL REPORTS OF OPINIONS

& ORDERS ENTERED IN THE CASE

STATEMENT OF THE BASIS FOR JURISDICTION

CONSTITUTIONAL & STATUTORY PROVISIONS

STATEMENT OF CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

TABLE OF CONTENTS

APPL of K.E. GAGE

REQ CERT OF APPEAL - Page ii

TABLE OF AUTHORITIES

United States Supreme Court Rules 10(a), (b) and (c)

United States Supreme Court Rule 14.1(e)

. Page:

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

U.S. Constitution FIFTH AMENDMENT ......................

U.S. Constitution FOURTEENTH AMENDMENT

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

Due Process Clause............

Equal Protection Clause

.......

28 U.S.C. § 1254(1)........................

Form 12 (Ref:

28 U.S.C. §§ 2244(b)(3), 2254

Federal Rules

of Criminal Procedure, former Rules 32(d)(1)

Federal Rules

of Criminal Procedure, Rule 32(k)(l)

8,11

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

. .

California Constitution, ARTICLE I, Section 7(a) ..........

Due Process Clause

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

Equal Protection Clause ..........

Calif Code of Civil Procedure §577

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

1» 3

Calif Code of Civil Procedure

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

1,3

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

1, 3

§664

Calif Code of Civil Procedure §664.5

Calif Penal Code § 1191..............................

Calif Penal Code § 1202a..............................

1, 3, 7

Calif Penal Code § 1207

1, 3, 7, 8

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

Calif Penal Code §§ 1213-16 ............................

1,7

Calif Penal Code § 2081.5

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

Calif Penal Code § 2900(a)...........................

Calif Rules of Court, Rule 2(a)(1)(3)

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

Calif Rules of Court, Rule 8.252(3)....................

TABLE OF AUTHORITIES

APPL of K.E. GAGE

REQ CERT of APPEAL - Page iii

TABLE OF CASES - FEDERAL

Allen v. McCurry (1980) 449 U.S. 90

Brown v. Muniz (9th Cir. 2018) 899 F.3d 661

Chavez-Perez v. Ashcroft (9th Cir. 2004) 386 F.3d 1284

Codispoti v. Pennsylvania (1974) 418 U.S. 506

Decatur v. Paulding (1840) 39 U.S. 497

Frantz v. Hazey (9th Cir. 2008) 533 F.3d 724

Felkner v. Jackson (2023) 562 U.S. 594

Herrera v. Collines (1993) 506 U.S. 390

Hittie v. City of Stockton (2025) 145 S.Ct. 759

Jennings v. Woodford (9th Cir. 2002) 209 F.3d 1006

Karis v. Calderson (9th Cir. 2002) 283 F.3d

Keeney v. Tamayo-Reyes (1992) 502 U.S. 1

Kuhlman v. Wilson (1986) 477 U.S. 436

Martin v. Ohio (1987) U.S. 228

Middlesex County Ethics Com. v. Golden State Bar Ass’s (1982)

457 U.S. 423

Miike v. Ryan (9th Cir. 2013 711 F.3d 998

Miller-El v. Cockrell (2003) 537 U.S. 322

Miller v. Fenton (1985) 474 U.S. 104

Montana v. United States (1979) 440 U.S. 147

Moore v. Illinois (1977) 434 U.S. 220

Nelson v. Colorado (2017) 581 U.S. 128

Panio v. United States (1963) 375 U.S. 29

Patton v. Yount (1984) 467 U.S. 1025

Payne v. Madison (9th Cir. 1069) 274 F.2d 702

People v. Gill (9th Cir. 1995) 61 F.3d 688

Cases - Federal

TABLE OF AUTHORITIES

APPL of K.E. GAGE

REQ CERT of APPEAL - Page iv

TABLE OF CASES - FEDERAL

Preiser v. Rodriguez (1972) 411 U.S. 475

Ramdass v. Angelone (2000) 530 U.S. 156

Renico v. Lett (2010) 599 U.S. 766

Slack v. Me Daniels (2000) 529 U.S. 473

5,9

Snyder v. Louisiana (2008) 552 U.S. 472

St. Mary's Honor Ctr. v. Hicks (1993) 509 U.S

502

United States v. Ripinsky (9th Cir. 1994) 20F.3d 359

Uttecht v. Brown (2007) 551 U.S. 1

Wainwright v. Witt (985) 469 U.S. 412

Williams v. Cavazos (9th Cir. 2011) 646 F.3d 626

Woodward v. California (2025) 145 S.Ct. 534

Younger v. Harris (1971) 401 U.S. 37

TABLE OF CASES - STATE

Dart Industries, Inc. v. Commercial Union Ins. Co. (2002)

28 Cal.4th 1059

Estate of Duke (2015) 61 Cal.4th 871

Ex parte Dobson (1867) 31 Cal. 497

In re Application of Bost (1931) 24 Cal. 150

Jameson v. Desta (2018) 5 Cal.5th 594

Lafayette Morehouse, Inc. v. Chronicle Publishing Co.

(1995) 39 Cal.App.4th 1379

Morris v. Williams (1967) 67 Cal.2d 733

Mosier v. DMV (1993) 18 Cal.App.4th 420

People v. Banks (1959) 53 Cal.2d 370

People v. Bautista (2004) 115 Cal.App.4th 229

People v. Boyd (1971) 16 Cal.App.3d 901

People v. Carlucci (1979) 23 Cal.3d 249

Cases-Federal-State

TABLE OF AUTHORITIES

APPL of K.E. GAGE

REQ CERT of APPEAL - Page v

TABLE OF CASES - STATE

People v. Carmony (2004) 33 Cal.4th

367

People v. Frye (1992) 7 Cal.App.4th 1148

People v. Fuhrman (1997) 16 Cal.4th

930

People v. Hovarter (2008) 44 Cal.4th 983

People v. Johns (2019) 36 Cal.App.5th 168

People v. Laudermilk (1967) 67 Cal.2d 272

People v. Lucas (1969) 1 Cal.App.3d 637

People v. Renko (1996) 48 Cal.App.4th 1417

People v. Sourisseau (1944) 62 Cal.App.2d917

People v. Woodward (2024) 100 Cal.App.5th 67

Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362

Santa Barbara Pistachio Ranch v. Chowchilla Water District

(2001) 88 Cal.Ap.4th 439

Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728

• 12

Steuri v. Junkin (1938) 27 Cal.App.2d 758

Thomas v. Lusk (1994) 27 Cal.App.4th 1709

Cases - State

TABLE OF AUTHORITIES

APPL of K.E. GAGE

REQ CERT of APPEAL - Page vi

REFERENCE TO THE OPINIONS BELOW - RULE 14.1(d)

Gage v. People (Calif) U.S. Court of Appeals for the Ninth

Circuit, No. 24-6182, Order Filed April 21, 2025, denying

Certificate of Appealabilty (Docket Entry 3), ’’pending motions

denied as moot,’’ received by petitoner April 25, 2025.

Gage v. People (Calif), U.S. District Court, Northern District

California, No. 24-cv-02100-HSG, Order and Judgment of

September 18, 2024, DISMISSED (court characterized) Habeas

Petition, Denial as moot request for re-appointment of counsel

and Leave to Enter Evidence, court characterized as second or

successive, DENIED Certificate of Appealability. Judgment

entered in favor of Respondent, received by peitioner September

23, 2024.

(Gage v. California, 2024 U.S. Dist. LEXIS 168553.)

In re Gage on (Court Characterized) Habeas Corpus, California

Supreme Court, No. 282972, unsigned En Banc denial without

opinion Filed March 12, 2024.

(In re Gage, 2024 Cal. LEXIS

1173. )

In re Gage on (Court Characterized) Habeas Corpus, California

Court of Appeal, Sixth Appellate District, No. H051556, Denied

November 17, 2023.

In re Gage on (Court Characterized) Habeas Corpus, California

Court of Appeal, Sixth Appellate District, No. H050770, Denied

March 13, 2023.

Gage v. People (Calif) Superior Court of California, Motion

to Dismiss Criminal Case No. 79195, (motion filed 12/12/22),

(no opinion/claim recognition on Motion to Dismiss) habeas

characterized, w/No. C2208713, denied January 6, 2023.

REFERENCE TO THE OPINIONS BELOW

APPL of K.E. GAGE

REQ CERT OF APPEAL - Page vii

STATEMENT OF THE BASIS FOR JURISDICTION - Rule 14.1(e)

The judgment of the Court of Appeals was filed on April 21,

The jurisdiction of this Court is invoked under 28 U.S.C. §

2025.

1254(1).

CONSTITUTIONAL & STATUTORY PROVISIONS

Violations of the Due Process and Equal Protection Clauses of

the Fourteenth Amendment to the United States Constitution and like

guarantees afforded under Article I, Section 7(a) of the California

Constitution are brought and repeatedly invoked here and below.

A variety of California statutes, most basic California Penal

Code §§ 1202a, 1207 (federal rules also) mandate disposition of

guilt upon felony trial to be in the sole form of a document (here

absent), prepared at the discretion-instruction of the trial judge

(Honorable R. Donald Chapman), titled "JUDGMENT," which shall bear

the authenticated original signature of the trial judge, witnessed

by the attending Court Clerk of Record (here J. Nettesheim), filed

and entered on record, a docket entry to follow.

In absence of a disposition, a judgment document on record,

no law provides for adverse consequence or sentencing authority.

Confirming are sentencing-imprisonment statutes, California Penal

Code §§ 1213, 1216, 2081.5, 2900(a), as each are "judgment" reliant.

Likewise a written "judgment" must exist and be filed-entered

upon civil and/or criminal trial record as a finding-determination

of liability or guilt.

Cal. Code of Civil Procedure §§ 577, 664,

664.5 (notice of entry [here absent] is required: Cal. Rules of

Court, Rules 2(a)(l)(3) and 8.252(3) . )

STATEMENT OF JURISDICTION

CONST. & STAT. PROVISIONS

APPL of K.E. GAGE

REQ CERT OF APPEAL - Page 1

STATEMENT OF CASE - COMBINES DECLARATION OF APPLICANT

Having fully exhausted State administrative and judicial

remedies (footnote 1), petitioner caused to be filed April 8, 2024,

in United States District Court, Northern District of California

(#24-cv-02100-HSG), a form instructed/required by the District

Court, Petition forWrit of Habeas Corpus, with Petitioner’s

Declaration combining Statement of Case, Memorandum and Exhibits.

Petitioner requested appropriate remedy and characterized his

petition/form as an Appeal from Denial of Motion to Dismiss, for

Abandonment of Prosecution, Abandonment of Defense Counsel, No

Judgment (of Guilt) or Conviction, seeking immediate release from

Court detention, alleging unlawful-continuing (40 year) pre-trial

restraint.

District Court Docket No. 1.

APPENDIX Bl-3.

On the same facts and causes petitioner further (twice)

requested Appointment or Re-Appointment of Defense Counsel.

District Court Docket Nos. 2 and 6.

See

APPENDIX Bl-2.

The cause brought follows evidence newly discovered (Summer

2021, thanks to education on state law and procedure from a more .

experienced elderly fellow prisoner) upon review of prison/court

records, followed by unfulfilled "judgment" document requests

a current clerk of and presiding Santa Clara County Superior Court

1. Motion to Dismiss Santa Clara County Superior Criminal Case

#79195 (1981), in the interest of justice, on the merits (no

disposition) and abandonment of prosecution, moved for expungement

of all records arising therefrom, and gave notice revoking past

speedy trial waivers, filed December 13, 2022; denied January 13,

2023. Appeal to California Court of appeal, Sixth Appellate

District (#H050776), denied September 6, 2023; subsequent petition

to same court (#H051556) denied November 11, 2023. Appeal to

California Supreme Court (#282972) resulted in unsigned denial En

Banc March 12, 2024.

STATEMENT OF CASE

APPL of K.E. GAGE

REQ CERT OF APPEAL - Page 2

Judge, neither of whom, upon required payment (by third party

supporter) of archive search and copy fess (Cashier’s Check #857649

in the sum of $100)) discovered a "judgment," witnessing no

disposition, silent case abandonment by the court, prosecution and

defense counsel in applicant’s 1983 criminal trial before The

Honorable R. Donald Chapman, Superior Court Judge, presiding in the

matter of People of the State of California v. Kenneth Eugene Gage,

Santa Clara County Superior Court, Crim. Case #79195, charging

capital murder and various enhancements - wherein neither the

prosecutor nor defense counsel checked the record, or docket

listings, for entry or existence of a "judgment."

These same claims applicant brought upon state exhaustion,

where his federal district court petition likewise alleged denial

of Due Process and Equal Protection (liberty) guaranteed in the

United States Constitution, Fifth and Fourteenth Amendments, and

the same guarantees under the California State Constitution,

Art. I, sec. 7(a), and laws, applicant citing, inter alia,

California Penal Code, Title 8, Chapter One §§ 1202a, 1207, and

California Code of Civil Procedure §§ 577, 664 and 664.5/.

Following this long-delayed independent discovery, no fault

to applicant, and exhaustion of state remedies, on May 9, 2024, •

applicant mailed to the District Court and served by mail upon

counsel for the People a "Request Leave to Enter Newly Discovered

Documents/Evidence Supplementing Record (Habeas Rules 6 and 7) with

declaration describing State Court and prison-provided (null)

documents witnessing no stable or conflict-free verdict (below at

Exhibits A, B and C; CT 933-934, 1018, 1019.)

STATEMENT OF CASE

APPL of K.E. GAGE

REQ CERT OF APPEAL - Page 3

The foregoing motion for Leave to Enter Newly Discovered

Documents/Evidence, entered May 13, 2024, per Docket No. 6, is

''terminated11 in the (9/18/24) denial order.

APPENDIX Bl.

On October 14, 2024, applicant caused to be filed in the

United States Court of Appeals for the Ninth Circuit, Case No.

24-6182, a "Request Certificate of Appealability, Declaration in

Support of and Request for Appointment of Counsel, Memorandum of

Points and Authorities in Support of," Exhibits A through M, and

Verification-Proof of Service by mail upon the Attorney General.

On April 25, 2025, applicant received by mail an order of

Ninth Circuit Judges Canby and Miller denying Certificate of

Appealability alleging unspecified "second or successive" petition,

and denying pending motions.

Attached APPENDIX A.

I, Kenneth E. Gage, am aware of the content of the foregoing

documents/appendices copies attached hereto, and according thereto

absent, a disposition, "judgment" of guilt, signed by state criminal

trial judge, The Honorable R. Donald Chapman on record, believe I

am not convicted of any crime, and am entitled to immediate

release, or such relief This Court deems just, and declare under

penalty of perjury that the foregoing is true and correct. *

Respectfully,

Dated: September 9

■

» 2025.

KENNETH E. GAGE

Petitioner-Applicant

* REF: Upon additional discovery, no "judgment" document could

be provided upon applicant's requests from the files of: Jeffrey

F. Rosen, District Attorney, Santa Clara County, 70 W. Hedding St.,

San Jose, CA 95110 (408) 299-3099; Cal. Dept of Justice (CI&I),

4949 Broadway, Sacramento, CA 95820-1529 (916) 210-2750; or Chief

Executive Officer (Ed Kressy), F.B.I., S.F. Field Office, San

Francisco, CA 94102-9523 (415) 553-7400.

STATEMENT OF CASE

APPL of K.E. GAGE

REQ CERT OF APPEAL - Page 4

REASONS FOR GRANTING THE PETITION

All courts below deviated from or ignored the discretion of

trial judge opting,

to be settled, for no disposition, no judgment

(silent record, case abanddnement), leaving accused citizen, no

notice,

deprived of liberty, yet unconvicted, conflicting with

state and federal law.

Supreme Court Rules 10(a)(b)(c).

INTRODUCTION (Opinions Below): Examining the Circuit Court

order of April 21, 2025 (APPENDIX A), no "jurist of reason" would

"debate" whether, under protections secured by Our Constitution (or

that of any State), a sane, adult, citizen whose felony trial did

NOT result in a "JUDGMENT" signed by the judge (who having received

the evidence and heard at length the arguments of attorneys for

The People and defense), may nevertheless allow the unconvicted

citizen to be detained, deprived of liberty, here, over 40 years.

No equal case is reported, and no impenetrable "procedural

ruling" would accomodate lower courts’ failure to honor, indeed

ignore, the discretion of a state trial judge.

529 U.S. 473, 484 (2000),

Slack v. McDaniels,

provides no respite, no precedent.

Petitioner established a "prima facie case [where upon] the

burden shifts to [The People,]" having proved beyond "preponderance

of evidence" (Hittie v. City of Stockton (2025) 145 S.Ct. 759, 760)

that "in fact" judgment of guilt does NOT exist, does not appear

on record, no docket entry, in the matter of People of the State

2. Of the current Court Clerk, presiding Superior Court judge,

District Attorney, Attorney General, Secretaries CDCR, current and

former Wardens, and F.B.I., each compelled by state law to receive/

and retain a copy of criminal judgments; NONE were able to provide

a copy.

DECLARATION, Pages 5-11, attached to District Court habeas

form.

Ref: District Court Docket No. 1.

APPENDIX Bl.

REASONS FOR GRANTING

APPL OF K.E. GAGE

REQ CERT OF APPEAL - Page 5C

of California v. Kenneth Eugene Gage, Santa Clara County Superior

Court, Criminal Case #79195 from 1981, tried in 1983, the Honorable

R. Donald Chapman presiding.

Docket No. 1.

Today, no live case

in controversy exists on record, that matter long abandoned.

As in St. Mary's Honor Ctr. v, Hicks (1993) 509 U.S. 502, 527,

it is important to note that in this context a prima facie case

is proven.

(Id., at footnote 3: "the facts are uncontested.")

The courts below, sidestepping this first impression issue,

are overstepping or "second guessing" from a silent record, the

"broad discretion of the trial judge1" (Renico v. Lett (2010) 559

U.S. 766, 774), yet in California too the "final responsibility to

see that justice is done rests with the [trial] judge." (People v.

Carlucci (1979) 23 Cal.3d

249, 255.)

No contrary authority.

The DENIAL ORDER goes on to promise, "The clerk will serve

this order and Form 12, the standard application [solely applicable

to persons convicted, Rule (1)] for leave to file a second or

successive motion on appellant."

See Footnote 3 below.

I. SUCCESSIVE PETITION GROUND FOR DENIAL IS INAPPLICABLE WHERE

NO SUCH PETITION IS FOUND ON RECORD; CLAIM RECOGNITION IS

NOT FOUND, WHERE DIFFERENT PARTY, SEPARATE CLAIMS, AND

JURISDICTION ARE AT ISSUE.

The DENIAL ORDER, p. 3, claims "the facts underlying the

claim occurred by the time of the initial petition . . . the

petition challenges the same court judgment [unidentified] as the

3. Standard Habeas Form: p. 2, line 7-8 (case "abandoned by

D.A. and defense counsel with no final disposition (no 'judgment'

entered on record."); and p. 5, line 8-13 (Claim One, "CRIMINAL

TRIAL RECORDS NO JUDGMENT ENTRY", "No final disposition..."),

Legislative mandate that a 'judgment' exist, signed by presiding

judge and clerk witness and record entry."; and p. 5, line 20-23

(Claim Three,

no 'judgment' entered, no disposition of guilt.")

REASONS FOR GRANTING

APPL of K.E. GAGE

REQ CERT OF APPEAL - Page 6

initial petition," citing Brown v. Muhi?,z 889 F.3d 661, 667 (9th

Cir. 2018) and other authorities, ALL where claims were recognized

for the "convicted" ALL cases with a "judgment" on record, ALL

represented by counsel — none in line with the matter at bar.

A "'successive petition' raises grounds identical to those

rejected on the merits on a prior petition." .(Kulman v. Wilson

(1986) 477 U.S. 436, 444, 6.)

Yet, "preclusive effect" or "res

judicata" cannot be applied to an unrecognized or "wrongly

'recharacterized'" claim.

(Williams v. Cavazos (9th Cir. 2001) 646

F.3d 626, 637-638, and n. 6.)

At Allen v. McCurry (1980) 449, U.S. 90, 94, The Court states:

.. "Final judgment on the merits of an action precludes the

parties or their privies from relitigating issues that were

or could have been raised in the action. [] Under collateral

estoppel, once a court has decided an issue of fact or law

necessary to its judgment, that decision may preclude reliti

gation of the issue in a suit on a different cause of action

involving a party to the first case." Montana v. United

States, 440 U.S. 147, 153.)

None of these requisites are met.

There is but resort to an

irrelevant jurisdictional jump to this applicant's unaddressed

claims in action against a state warden, state executive branch

(DENIAL ORDER, p. 2), referencing Gage v■ Matteson, 23-cv-0295

HSG), while avoiding instant claims particularly ONLY to the state

judiciary as sole authority over an unconvicted detainee.

A warden

is not named as a party herein and has not entered, and no statute

or case law cited by the courts below or this applicant (Cal.

Penal Code § 1191, et seq., §§ 1202a, 1207, 1213, 1216 [mandating

a "judgment"]), surrenders California judicial authority to a

warden (Executive Branch).

REASONS FOR GRANTING

That authority does not exist.

APPL of K.E. GAGE

REQ CERT OF APPEAL - Page 7

Under state law, as in federal, in absence of a:

judgment [the court] has no power to commit the defendant to

the prison authority. Before he can be so committed he must

. . . have been arraigned for judgment and judgment must have

been rendered and entered as required by Penal Code § 1207 "

(People v. Banks (1959) 53 Cal.2d 370, 383J

----

Prior to a judgment or commitment, the State High Court

holds, "a defendant remains in the actual or constructive custody

of the court." (Banks, supra, at 384.)

Federal procedure is

uniform ".

. . The judge must sign the judgment and the clerk must

enter it."

Fed.R.Crim.P., Rule 32(k)(l), formerly 32(d)(1).

See Payne v. Madigan (9th Cir. 1960) 274 F.2d 702, 705 (Circuit

Judge Pope affirming).

A "judgment" must exist but here does not.

S° jurisdiction over this detained applicant upon a felony

prosecution, unended these 40 plus years (?), remains, if not

abandoned, with the State Judiciary, not its Executive Branch.

Examining the record below, no second or successive petition

can be applicable, jurisdiction certainly in issue, and none is

identified raising these issues, indeed unknown to applicant prior

to his surprise alert by a third party in 2020, only brought upon

basic law study, enlightenment and repeated judgment discovery

failures, judicial and executive, from 2021 to date, followed by

failure of the courts below to take cognizance of these funda

mental, first impression claims.

Docket No. 1. DECLARATION

P-- 3." ’ applicant denied re-appointment of counsel who, like counsel

for The People, failed to check the record for judgment entry

before withdrawal.

Docket No. 1, DECLARATION, Northern District

Calif* Petition, Page 5-6.

Case abandonment is proven.

The circuit below has held, "We are to resolve doubts about

REASONS FOR GRANTING

APPL of K.E. GAGE

REQ CERT OF APPEAL - Page

the propriety of a Certificate of Appealability in the petitioner’s

favor."

1010.)

(Jennings v. Woodford (9th Cir. 2002) 290 F.3rd 1006

This was .not done in the matter at bar.

Here upon

"appellate

appellate review of the dismissal of the petition, the court

of appeals should [have] limit[ed] its examination to a

inquiry into the underlying merit of his claims "

(Miller-El jy^Cogkrell (2003) 537 U.S. 322, 327; Slack v

McDaniel (2000) 529 U.S 473, 481 )

~‘

’

So the facts and process are not in dispute, the applicant is

not "convicted," only a procedural "what’s next?" remains.

II. VIOLATION OF DUE PROCESS JUZ

AND Z;'J..L

EQUAL PROTECTION UNDER STATE

n^«T^DERAL C0NSTITUTI0NS WHERE COURT FAILS TO RELEASE*'*

detainee upon failed criminal trial and expunge records.

A- —at which does not exist cannot be proven (federal):

In mischaracterizing the first impression and fundamental

fairness issues before it, the District Court erroneously writes

"Petitioner was convicted . .

. " (DENIAL ORDER, p. 1, line 25) but

provides no proof, no judgment, no docket entry, no party entered,

JJO—9PPosition now or ever on record.

APPENDIX Bl

This Court repeated in Uttecht v. Brown (2007) 551 U.S. 1, 17

"our precedents require deference to the trial court, and applied

an abuse-of-discretion standard." (There approving a Supreme Court

of Washington opinion in juror removal context).

More recent, This Court held in Felkner v Jackson (2023) 562

U.S. 594, 598, "The trial court's determination is entitled to

g..reat deference," and "must be sustained unless it is clearly

erroneous."

(Citing Snyder v. Louisiana (2008) 552 U.S. 472, 477.)

Justice O'Connor reasoned in Miller v. Fenton (1985) 474 U.S.

104, 115:

REASONS FOR GRANTING

RE^CERT^-APPEAL - Page 9

the appropriateness of resolving close questions concerning

the status of an issue as one of "law" or "fact' in favor of

extending deference to the trial court.

When, for example,

the issue involves the credibility of witnesses and therefore

turns largely on an evaluation of demeanor, there are

compelling law and familiar justifications for leaving the

process of applying law and fact to the trial court and

according its determination presumptive weight.' Patton v.

Youjnt [467 U.S. 1025 (1984)] and Wainwright v. Witt [469 U.S.

412, 429 (1985)] are illustrative." (Justice Rehnquist therein

the sole dissent but not on this point.)

Yet at bar California now departs uniformity, as we see:

"Virginia's definition of 'conviction' is not just a guilty

verdict.

Rather a 'conviction' also requires a piece of paper

signed by the judge entering the verdict into the record."

(Ramdass v. Angelone (2000) 530 U.S. 156, 184-185.)

And see Footnote 4 below.

B. That which does not exist cannot be proven (state).

In People v- Hovarter (2008) 44 Cal.4th 983,

1004, where "the

trial court acted well within its discretion," that discretion

"will not be disturbed on appeal absent abuse."

Industries, Inc, v. Commercial Union Ins. Co.

1059,

(Citing Dart

(2002) 28 Cal.4th

1069 ["all that ought to be required is reasonable diligence

to obtain the original [instrument]".)

The applicant's

Extraordinary diligence has been readily proven.

STATEMENT OF CASE

"Generally federal courts must abstain from interfering with

4. Witness too, Chavez-Perez v. Ashcroft (9th Cir. 2004

[Oregon]) 386 F.3d 1284, 1288, where a finding of guilt is made but

no formal judgment is entered.

And, People y, Gill (9th Cir. 1995)

61 F.3d 688, 693, fn. 1, return of guilty verdict does not

constitute a conviction until a judgment is entered, Cf. United

States v. Ripinsky (9th Cir. 1994) 20 F.3d 359, 361-362. ~A1SO

Decatur v. Paulding (1840) 85 U.S. 497, 607 ("judge died without

affixing his signature to the record.")

Plus, "order of contempt

shall recite the facts and shall be signed by the judge and entered

on record.

(Codispoti v. Penn. (1974) 418 U.S. 506, 525, same:

Panio v. United States (1963) 375 U.S. 29.)

Same upon arrest

warrant.

(Moore v.~Illinois (1977) 434 U.S. 220, fn. 4.)

*REASONS FOR GRANTING

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ongoing state criminal proceedings."

U.S. 37, 43-45.)

(Younger v. Harris (1971) 401

But an "exception" may arise under "extraordinary

circumstances that would make abstention inappropriate." (Middlesex

County Ethics Comm, v. Golden State Bar Ass'n (1982) 457 U.S. 423,

431.)

Extraordinary here is a 40-plus year case abandonment.

As distinguished from mere "errors of state law" (DENIAL

ORDER, p. 2, line 21), upon direct clash with our U.S. 14th

Amendment, "invalid [state] conviction is no conviction at all."

(Nelson v. Colorado (2017) 581 U.S. 128, 136, and n. 10; Quoting

Colorado’s Justice Hood 362 P.3d 1080.)

Here there is

no conviction" AT ALL, yet the very authorities

cited (DENIAL ORDER, p. 2) hold that only a "judgment" can

constitute a "conviction."

APPENDIX B2 Page 2.

For example, in Ex parte Dobson (1867) 31 Cal. 497, the

defendant was released as the error was in the judicial "process"

under which Dobson was held, lacking as here "a certified copy of

the judgment as entered in the minutes of the court."

Id., 499.

(Compare to: Federal Rule 32(k)(1), supra.)

Every California court, historical and current, recognizes

disposition of guilt in but one document, a "judgment" signed by

the judge, entered on record.

Some examples quoted are: In re

Application of Bost (1931) 24 Cal. 150, 153 ("certified copy");

People v. Sourisseau (1944) 62 Cal.App.2d 917, 928 ("Under section

1213-1216, [Calif.] Penal Code, the commitment is only a certified

copy of the judgment"); People v. Johns (2019) 36 Cal.App.5th 168,

175 (plea agreement, "did not result in a judgment .

. .judgment

has not yet been entered.")

■ ■

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Schmidlin v. City of Palo Alto (6th App. Dist. 2007) 157

Cal.App.4th 728, 763, we witness courtroom practice:

The courts oral ruling . . . was apparently reflected only

in the reporter's transcript and the clerk’s minutes; so far

as this record shows it was never reduced to a judgment. The

court's later order granting nonsuit, as recited in the

eventual judgment against other defendants, might constitute

an appealable order 'if it [were] in writing, signed by the

court, and filed in the action. (Santa Barbara Pistachio Ranch

V-i„ Chowchilla Water District (2001) 88 Cal. App. 4 th 439, 448, ~

fn. 1.) The present record fails to establish that any of

these conditions was satisfied."

No contrary precedents can be found.

And see Footnote 5 below.

Proven and unopposed here: "Where the record is silent

the presumption that a trial court ordinarily is presumed to have

correctly applied the law should be applicable."

(People v.

Carmony (2004) 33 Cal.4th 367, 378; same, People v. Fuhrman (1997)

16 Cal.4th 930 ["remanded to trial court"].)

Silence applies here.

III. NO BURDEN FALLS UPON A CITIZEN TO PROVE HE IS NOT

CONVICTED.

Either the

trial court had 'concludefd] the evidence was

insufficient as a matter of law to support a conviction' or that

it had 'viewed the evidence in the light most favorable to the

prosecution." (Woodward v. California (2025) 145 S.Ct. 534, 535,

citing People v. Superior Court (Woodward) (6th App.Dist., 2024) 100

Cal.App.5th 67, 704.)

Nonetheless there is no judgment on record.

In play below, the burden of going forward with evidence of

5. Judge Chapman's discretion, absent abuse, must be upheld

(People v. Laudermilk (1967) 67 Cal.2d 272, 282-288.) There can

be no consequence where "no disposition" (of guilt or liability)

is entered.

(People v. Lucas (1969) 1 Cal.App.3d 637, 644; same

Peoplev^Boxd (1971) 16 Cal.App.3d 901, 907, People v. Renko

(1996) 48 Cal.App.4th 1417, 1419, People v. Bautista (2004) 115

Cal.App.4th 229, 234, Estate of Duke (2015) 61 Cal.4th 871, 878,)

(Mosier v. DMV (1993) I8 Cal?App.4th

REASONS FOR GRANTING

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an affirmative defense, and the burden of proof by a preponderance

of evidence for an affirmative defense is upon the accused."

Martin v. Ohio (1987) 480 U.S. 228, 230; People v. Frye (1992) 7

Cal.App.4th 1148,

1154.)

The "burden of producing evidence

negating malice falls to the defendant who is, needless to say, in

the best position to produce such evidence."

1155.)

(Frye, supra, at

Yet absent a judgment, the defense met its burden.

However, the California Supreme Court has held:

"Where the evidence necessary to establish a fact essential

to a claim lies particularly with the knowledge and

competence of one of the parties, that party has the burden

of going forward with the evidence on the issue although it

is not the party asserting the claim."

(Morris v. Williams

(1967) 67 Cal.2d 733, 760.)

- ------

This is simplified to "the party with greater access to the

information."

(Thomas v. Lusk (1994) 27 Cal.App.4th 1709,

1717.).

Obviously, here, "The People" have this "greater access."

And

California courts have stated three immutable rules:

”[F]irst, take great care to prepare a complete record;

second, if it is not in the record it did not happen; and

third, when in doubt, refer back to rules one and two."

(James v. Desta (2018) 5 Cal.5th 594, 609, n. 11; quoting

Protect Our Water v. County of Merced (2003) 110 Cal.App.4th

362, 364.)

"When the record clearly demonstrates what the trial court did

[here silence, electing not to convict, draft or enter a judgment],

we will not presume it did something different."

Morehouse, Inc, v, Chronicle Publishing Co.

(Lafayette

(1995) 39 Cal.App.4th

1379, 1384, citing Steuri v. Junkin (1938) 2 Cal.App.2d 758, 760.)

CONCLUSION: Witnessed here is an "unreasonable determination

of the facts" and fail[ure] to apply correct controling authority."

(Miike v. Ryan (9th Cir. 2013) 711 F.3d 998,

REASONS FOR GRANTING

1003.)

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REQ CERT OF APPEAL - Page 13

This claim does NOT invoke the usual ’’high standard" employed

in bringing "an independent constitutional violation occurring in

the underlying state criminal proceeding" (Herrera v. Collins

(1993) 506 U.S. 390, 400), because the claim is simply "no result."

Examination of underlying facts and evidence (prosecution

or defense) need not be re-weighed, that weighing long complete,

as the claim here is simply "no record of conviction",

"no disposi

tion," at all, no "judgment" is documented on record.

Unopposed, this applicant-petitioner has proven that he is not

convicted of crime, having shown the "substantial invalidity of

[his 40-plus years and continuing pre- and no-judgment] confine

ment," (Frantz v. Hazey (9th Cir. 2008) 533 F.3d 724, 736), in

violation of fundamental State and Federal rights to Due Process

and Equal Protection of law.

No other citizen was ever so treated.

An "evidentiary hearing" will resolve any perceived failure

in pleadings.

(Keeney v. Tamayo-Reyes (1992) 503 U.S.

1, 7,

11.

But the applicant has made a "substantial showing of the denial

of a constitutional right" and requests this Honorable Court

"provide[] for a swift, flexible and summary determination of his

claim[s]," (Preiser v. Rodriguez (1972) 411 U.S. 475, 495) or

"grant Certificate of Appealability [or] exercise jurisdiction of

these issues" (Karis v. Calderon (9th Cir. 2002) 283 F.3d 1117,

1126), applying a remedy deemed appropriate, just or lawful.

Respectfully submitted,

Dated: September

2O25

KENNETH E. GAGE

Applicant-Petitioner

REASONS FOR GRANTING

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REQ CERT OF APPEAL - Page 14

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.