Petition for Writ of Certiorari — Osinowo v. Comptroller of New York

Supreste @ousi, U.S.

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96 984 OC] 19%

OFFICE OF Jue Guan

In the

SUPREME COURT OF THE UNITED STATES

October Term 1996

EZEKIEL 0. OSINOWO,

Petitioner,

Vv.

CONTROLLER OF NEW YORK CITY,

Respondent

On Petition For A Writ of Certiorari

To The United States Court Of Appeals

For The Second Circuit

PETITION FOR A WRIT OF CERTIORARI

EZEKIEL 0. OSINOWO

1133 FOREST AVENUE #B-OFF

BRONX,NY 10456

(718) 378-0092

eS A Ar te

an sae ner

QUESTIONS PRESENTED FOR REVIEW

j

Does District Court Have Jurisdiction on this Case?

il

The Respondent Did Not Respond to the Petitions,

what Should the Courts Have Done for Several Occasions

from State Court to District Court and United States

Court of Appeal ?

il

United States Court of Appeal for the Second Circuit

and the United States District Court neglected the

Feldman Doctrine that Accepted Applied by the Parties.

Why Did the Courts Disagree?

iv

United Stated Court of Appeal Did not Consider the

Facts of the Case. Neither the District nor the State

Court, Why?

v

United States Court of Appeal of the Second Circuit

Did not Use Conventional Approach in Judgement, Why?

es

LIST OF PARTIES TO THE

PROCEEDINGS BELOW

Ezekiel 0. Osinowo

1133 Forest Avenue # B-OFF

Bronx, NY 10456 (Petitioner) }

Vs

Controller of New York City (Respondent)

iti

TABLE CONTENTS

|

Questions Presented for Review...........cccccccccssscssccssccsscscees i

List of Parties to Proceeding Below ........cscsccccccsscesscescecesees ii

TROND OF CONERTIES ccvccesdsccncttcecccncccecésocceccccecespapecisecstsevsvoces iii

Te CF FRING secs de cicdtdenesitccdiscncsccisesecccisctacasetsviibekens iv

Report of the Opinions of the Second Circuit .......ceccesseseesees 1

Statement of Supreme Court Jurisdiction ............cccccececeeses 1

Constitutional Provisions Involved in the Case .........sesecsesess 1

Statement of Proceeding and Disposition ........ceccccecessececeees 4

TTIIEE TET PONIES cavecactsusedenesccurevonesaccsceusncessenveonpensesaccves 4

Reason Relief Upon for Allowance of the Writ of Certiorari 5

| Certiorari is warranted because the Secon Circuit

failed to give petitioner due process as the District

Court. It was done twice

II Conventional Wisdom in law was not used

in judgment

ttl The Court of Appeals improperly weighted

Petitioner's brief of facts

REESE Se Se big COSY DRILL eeeseeeeece “2

TABLE OF AUTHORITIES

Denial of Dues Process

- Fed. A.C. P 52 (b)

App. 1 Pg, 1 of General Docket for Second Circuit

Feldman Doctrine

FEDERAL STATUES

28 U.S.C. § 2403

STATE STATUES

NYC.PL.R. 7804(e)

1

App 11

REPORT OF THE OPINIONS

OF THE SECOND CIRCUIT

The United States Second Ur ~uit Court of Appeal dis-

torted justice on this case twice on June 11, 1996 for

reconsideration, and first on April 10, 1996 by over dis-

charging its duty without request.

STATEMENT OF SUPREME COURT JURISDICTION

Justice without due process is not constitutional in

this land. Hence, a redress is a must in this case before the

court. Feldman Doctrine was wrongly interpreted and the

quoted judgement was under reconsideration by District

Court - (95 Civ 4279 (Quoted Jugdment 95 Civ 2980)

CONSTITUTIONAL PROVISIONS INVOLVED IN THE CASE

Civil Rights of Petitioner to justice through due

process was denied twice by Second Circuit.

The Second Circuit (Court of Appeal) has interpreted

the Rooker-Feldman Doctrine to mean that “an inferior fed-

eral court established by Congress pursuant of Article Ill,

Sectional |, of Constitution may not act as an appellate

Tribunal for purpose of over ruling a State Court Judgement

even Though the Judgement may rest on an erroneous reso-

lution of Constitutional or Federal law issues. The exclusive

procedure for Federal review is specified at 28 USC #

1257”

STATEMENT OF PROCEEDINGS AND DISPOSITION

Date: Summarized Contents of Reports:

2/7/36

2/7/36

2/7/96

2/7/36

2/7/36

2/7/36

2/7/96

2/16/96

2/16/36

2/23/36

WPA Ere) mae 5 ’.

j Me : ee

Copy of district court docket entries and

notice of appeal on behalf of Appellant

Ezekiel 0. Osinowo filed (96-7134) (pr21)

Note: This appeai was PRO SE when filed

(pr21)

Copy of U.S. District Court order dated

12-15-96 filed.

Copy of U.S. District Court judgement

dated 12-28-95 filed (pr21)

Copy of U.S. District Court memo

endorsed dated 1-10-96 filed. (pr21)

Record on appeal filed. (Original papers of

district court.) (pr21)

Copy of receipt re: payment of docketing

fee filed on behalf of Appellant Ezekiel O.

Osinowo receipt # 254703. (96-7134)

(pr2 1).

Scheduling order # 1 filed. Appellant's

brief and appendix due on 3/18/96.

Appellee’s brief due on 4/16/96.

Argument as early as week of 5/7/96.

(pres).

Notice to counsel and pro se appellant of

scheduling order # 1. (pr28).

Notice of appearance from on behalf of

2/26/96

3/29/96

4/10/96

4/10/96

Ezekiel 0. Osinowo, received. (Orig. to

Calendar) (Please Note-This form is

INCOMPLETE. appellant FAILED to pro

vide mailing address on form) (in01).

Appellant Ezekiel 0. Osinowo motion for

appointment of counsel FILED (w/pfs).

(763834-1) (pr21).

Scheduling order # 1 filed. Appellant's

brief and appendix due on 4/29/96.

Appellee's brief due on 5/29/96.

Argument early as week of 6/1996.

(pr21).

The Court noting that a scheduling order

#1 having been entered in error on

March 29, 1996, it is hereby ordered

that the said order be and it hereby is

vacated. (pr21)

Order FILED DENYING motion for appoint

ment of counsel (763834-1) by appellant

Ezekiel O. Osinowo, and the appeal is

dismissed as so indisputably lacking in

merit as to be frivolous. See Neitzke v.

Williams. 490 U.S. 319 (1989); Pillay v

INS., 45 F 3d 14 (2d Cir. 1995). The dis

trict court properly held that it lacked

jurisdiction to review state court judicial

decisions. See District of Columbia Court

of Appeals v Feldman, 460 U.S. 462, 482

(1983); Atlantic Coast line R.R., Co. c.

Brotherhood of Locomotive Engineers

4/10/96

4/10/96

appeal

9/30/96

6/13/96

7/11/86

398 U.S. 281, 196 (1970). Order

endorsed on motion dated 2/26/96.

(RKW, DGJ. GC) (pr 21).

Certified copy of order dated 4-10-96

disposing of the appeal issued to district

court (pr271).

This appeal (96-7134) is disposed by the

order dated 4-1096 dismissing that

(pr21).

Record on appeal RETURNED to lower

court. No of volumes: 1 (ref).

Appellant Ezekiel 0. Osinowo motion to

reconsider the subject matter jurisdic

tion judgement FILED (w/pfs)

(8114854-1) (pr21).

Order FILED DENYING m otion to recon

sider decision (8114854-1) by appellant

Ezekiel 0. Osinowo, endorsed on motion

dated 6/13/96. “IT iS HEREBY ORDERED

that the motion be and it hereby is

denied.” (Hons. RKW, DGL, AND GC,

C.J.J.) (pr29).

STATEMENT OF FACTS

No due process involved in the trial; Where petitioner

and defendant agreed was ignored; Constitutional right of

plaintiff was ignored; Conventional approach in judgment

was abased; No facts of the case was considered before

judgement and no response of appellee disregarded.

REASONS RELIED UPON FOR ALLOWANCE

OF THE WRIT OF CERTIORARI

Certiorari is warranted because the Second Circuit

failed to give petitioner due process as the District

Court. It was done twice.

iI Conventional wisdom in law was not used in judge

ment.

il The Court of Appeals improperly weighted Petitioner's

brief of facts.

The first opinion went beyond the appellent’s request

the statement of facts above are essential facts for the

court to intervene in this case. No opinion was written on

the case at second review. Can it be claimed as colleague

reflection?.

CONCLUSION

The last Appoitment Justice to the United States

Supreme Court projected ‘Justice for People” is his mott! In

this distorted justice was constantly meted out to the

Petitioner by the Second Circuit Court of Appeals. A

redress of this issue is a must.

Therefore, Petitioner Ezekiel 0. Osinowo, respectfully

request the Court to grant his petition for a writ of certio-

rari to the United States Court of Appeals for the Second

Circuit.

Respectfully submitted

Ezekiel 0. Osinowo

1133 Forest Avenue #B-Off, Bronx, NY 10456

(718) 378-0092

App. 1

EZEKIEL 0. OSINOWO

Plaintiff

v.

CONTROLLER OF NYC, Defendant

No. 95 CiV 4297 (JSM)

United States District Court

Southern District of New York

Dec. 26, 1995

Sirs:

PLEASE TAKE NOTICE that upon the annex affirmation

of Mr. Ezekiel 0. Osinowo, sworn to or affirmed on 12/20/95

and upon complaint herein, the plaintiff will move this court.

Southern District or New York, US D J in room

United States Courthouse, Foley Square, New York, NY

10007, on 2/7/96 at 9:30 A.M. or as soon thereafter as

counsel can be heard, for an order in pursuant to rule 6O (b)

of the Federal Rules of civil Procedure granting a reconsider-

ation of the order dated 12/15/95 by judge JS Martin Jr

Dated: New York, NY 12/26/95

E.0. Osinowo

App. 2

UNITED STATES DISTRICT COURT

SOURTHEN DISTRICT OF NEW YORK

EZEKIEL O. OSINOWO - PLAINTIFF

AGAINST

CONTROLLER OF NYC - DEFENDANT

STATE DE NEW YORK r

BRONX COUNTY } S.S.

E. O. Osinowo - being duly sworn, deposed and says:

|, Ezekiel O. Osinowo, am the plaintiff in the above entitled

action; and respectfully moves this court to issue an order

to reconsider the order 12/15/95 by judge John S. Martin,

Jr. under Rule 6O (b).

The reason why | am entitled to the relief | seek is as follows:

“The nature of the case was a neglected variable or fact in

the order of 8/3/95. Both State Court and the Circuit can

hear the case. Hence the Circuit has jurisdiction on this

case. The idea is squarely supported by Roofer-Feldman doc-

trine exclusive procedure for review as specified at 28 USC

# 1257. It was stressed by the plaintiff but the Court

ignored it because he was not a lawyer. But the presenta-

tion of City lawyer was adopted for the Order of 8/3/95

wholly.

Both parties in this case accepted Roofer-Feldman doctrine

as the basic law on which this case must be judged. It has

the same judicial nature to the US Supreme Court but was

projected to be inferior an inferior Federal Court stablished

by Congress pursuant to: Article Ill Section |, of the

Constitution may not act as an appellate tribunal for the

i a

App. 3

ourpose of overruling a State Court judgement eve.

The exclusive procedure for Federal Review is specific at 28

USC #1257 “ The Second Circuit (Court of Appeal)” has

interpreted the Roofer-Feldman doctrine.

Hence is reflected the review called for by the plaintiff.

Citation, adopted from City lawyer in paragraph 3 order

lacked any substantiate law basic owing to the fact that

accepted Constitution right to justice of the plaintiff was

distorted (Exclusion procedure of Roofer-Feldman doctrine).

Conventional wisdom in law rejected the citations because

they were not of equal content and context. Judge Ito of

L.A. used it in past decision can serve as basic law owing to

the fact that is established the Circuit itself or foundation

law the Circuit.

lt was accepted by the Court that U.S. Supreme Court can

review final Order/decision of State Court of appeal but infe-

rior U.S. Supreme Court is disarmed from playing similar

role. They are similar in content and context but function on

different levels. Hence the inferior U.S. Supreme Court can

review the inferior State Court. It is a continuum balance

and check scope of its capacity. Therefore Roofer-Feldman

doctrine is not interpreted to the real point of its meaning.

lt was not used in Order of 8/3/95.

lt should be noted that Court definition is not changed in any

level of Federal Court.

The defendant did not respond to dismissal rejection of this

case by the plaintiff.

Two cases in one were before the Court. It was only one of

the two was judges as in the Order of 8/3/95.

App. 4

A hint of the Order of 8/3/95 was echoed By the City lawyer

in another motion request of 95 CIV 4297 (SJM) dated

7/11/95. One is but to question if this is wise locally or is

the decision based on facts or relationship. The Plaintiff

hereby appeal that the Court use both his response to dis-

missal request and this document to revive his request for

counsel. Hence the plaintiff wants a representative to

sound his part of the case.

lt could be noted that Circuit Court findings negged the

State Court's resolution in matter of facts and figures of

both cases in one”

The court should note that Judge’s orders have been

responded to for reconsideration under Rule 6O (b) of

Federal Rules of Civil Procedure have been and could not be a

better hase of order The criticism of her order were

repeated above in full content and context.

Wherefore, |, the plaintiff Ezekiel O. Osinowo, request that

the court to grant the within motion, as well as such other

and further relief and may be just and proper.

The plaintiff declared under penalty of perjury that the fore-

going is true and correct.

Executed on 12/26/95 E.0. Osinowo

App. 5

UNITED STATE COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 96-7134

OSINOWO, EZEKIEL Plaintiff

V.

CONTROLLER OF NEW YORK CITY Defendant

STATE OF NEW YORK }

BRONX COUNTY _}SS

|, Ezekiel O. Osinowo, being duly sworn, deposed and says: in

pursuit of Local Rule 27 (a) that following are the facts of

the above case.

(a)

(b)

{c)

(d)

(e)

(f)

Where appellant and appellee agreed was ignored

(Feldman Doctrine.

Constitutional right of appellant was ignored

Convectional approach in judgment was abased

No facts of the case was considered before judgment.

None response of appellee was disregarded

Appeal Court denial while appellee failed to respond to

the motion as usual as in lower court.

One could be shocked that mate-reflection with sym-

pathy overshadowed the Court of Appeal’s judgment. It

went beyond the appellant demand. No thorough examina-

tion of facts as above and no rejection of them. Conventional

wisdom in law was neglected. It stated that no two events

are ever the same.

App. 6

lt casted doubts on all citations quotes in Court of Appeals

Judgment Justice was totally denied. Both parties

accepted that Feldman Doctrine must be used as base of

judgment. Without any defense Court of Appeals went into

judgment when non-contest case was placed before the

Court. Can law principle be destroyed for mate-reflection? It

was the worst shame casted on the Court of Appeals. No

analysis of facts was ever well stabilished in this case. Can

class-emotion override justice? Yes, it was successfully

done in this case. Justice must and should be allowed to

reign supreme. How the Court of Appeals could justify a

judgment based on a case under reconsideration in lower

court justified is an amazement and ridicule of justice sys-

tem The court review policy or power was bargained for no

reward by court of Appeals as well as the lower court.

Balance and check power of Court of Appeals and lower

court was chattered in redundance from both judgments.

The appellant declared under penalty of perjury that the

foregoing is true and correct.

E.0. Osinowo

App. 7

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Xx

EZEKIEL OSINOWO Plaintiff,

Vv 95 Civ 4297

CONTROLLER OF NEW YORK CITY ORDER

Defendant

Xx

JOHN S, MARTINJr. District Judge:

Plaintiff, who is proceeding pro se, seeks review by

this court of decisions made by the Supreme Court of the

State of New York, Bronx County. Defendant has moved to

dismiss the complaint for lack of subject matter jurisdiction

pursuant to Federal Rules of Civil Procedure 12 (b) (1) and

(16).

In a separate case, 95 Civ. 2980, plaintiff filed a simi-

lar action seeking federal court review of another state

Supreme Court decision. In an order dated August 3, 1995,

Judge Shira A. Sheindlin of this court dismissed that case

for lack of subject matter jurisdiction.

This issue in this case, whether a federal court can

review the decision of a state court acting in a judicial

capacity, is identical to the issue in the case before judge

Sheindlin. This order thus adopts the reasoning of her

August 1995 order, and grants defendant's motion to dis-

miss for lack of subject matter jurisdiction.

Dates: New York, New York

December 15, 1995

|

App. 8

S.D.NLY.

95-cv-4297

Martin, J.

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United States

Courthouse, Foley Square, in the City of New York, on the

10th day of April one thousand nine hundred and ninety-six.

Ezekiel O. Osinowo

Plaintiff-Appellant,

V. 95-7134

Controller of the City of New York

Defendant -Appellee.

A motion having been made herein by appellant pro se for

assignment of counsel, upon consideration thereof, it is

ordered that said motion be and it hereby is denied, and the

appeal is dismissed as so indisputably lacking in merit as to

be frivolous. See Neitzke v. Williams, 490 U.S. 319 (1989):

Pillay v. |.N.S., 45 F 3d 14 (2d Cir 1995). the district

court properly held that it lacked jurisdiction to review

state court judicial decisions. See District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983):

Atlantic Coast Line R.R. Co. v. Brotherhood of Locomotive

Enginers, 398 U.S. 281, 296 (1970)

App. 9

June 29. 1995

BY HAND

Hon John S. Martin

United States District Judge

Southern District of New York

500 Pear! Street

New York, New York 10007

Re: Ezekiel Osinowo V Controller of NYC

95 Civ. 4279 (JSM)

Dear Judge Martin:

| am an assitant Corporation Counsel in the Office of

Paul A. Crotty, Corporation Counsel of the City of New York,

attorney for defendant herein. In accordance with the Court's

rules, | write to request a pre-motion conference for defen-

dant's motion to dismiss the complaint.

Having had an opportunity to review the complaint, it

appears that plaintiff is seeking review in this action of

adverse decision of the Supreme Court of the State of New

York, County of Bronx. However, decisions of a state court

acting in a judicial capacity are not reviewable by the federal

district courts. District of Colombia Court of Appeals v

Feldman, 460 U.S. 462, 476 (19893) (citing 28 U.S.C. &

1257; Atlantic Coast Line R. Co. v. Engineers, 398 U.S.. 281,

296 (1970); Rooker v. Fidelity Trust Co., U.S. 413, 415

(1923). In fact, the lower decisions in particular cases arising

out of judicial proceeding even if those challenges allege that

the state court's action was unconstitutional” Feldman, 460

U.S. at 486. The only federal court with authority to review

the final decision of state courts is the United State Supreme

Court, id, (citing 28 U.S.C. & 1257). See also Texaco Inc. v.

Pennzoil Co., 784 F 2d 1133, 1142-43 (2d Cir 1986), rev'd

on other grounds, 481 U.S. 1 (1987)

Based upon the above-cited authorities, defendant

believes that this Court lacks subject matter jurisdiction over

plaintiff claims, and therefore, wishes to make a motion to dis-

miss the complaint, pursuant to Rules 12(b) and (6) of the

Federal Rules of Civil Procedure.

App. 18

Accordingly, defendant respectfully request the sched-

uling of @ pre-motion conference and extension of its time to

answer the complaint until such time as the Court determines

whether it will permit defendant to make this motion.

Thank you for you consideration of this request.

Respectfully submitted,

App. 11

NY CPLR 7804 (e)

(e) Answering affidavits; record to be filed; default.

“Should the body or officer fail either to file and serve

an answer or to move to dismiss, the Court may either issue

a judgment in favour of the petitioner or order that an answer

be submitted.