Appendix — Akers v. Bishop

INDEX TO APPENDIX CONTENTS

EXHIBIT DESCRIPTION PAGE

02-6235-04 “JUDGEMENT” as entered by Judge

Jennifer B. Coffman, U. S. District Court

for Eastern District of Kentucky-

Lexington Division, On 09/25/02... 5

|

02-6235-23 “ORDER” pursuant to opinion of JJ. CLAY ,

and GIBBONS; CLELAND sitting by .

designation, affirming Exhibit 02-6235-04 |

hereinabove, entered 05/02/03.......sssssesesereeeesess 8

02-6235-25 “ORDER” denying filing of “ PETITION

FOR EN BANC DETERMINATION",

entered 05/29/03....ssssssereresrerensnenenerersseseerensnes 15

te ts Deni FS rameters os ell alten Ba rs

73

CERTIFICATE OF SERVICE

COMES THE PLAINTIFF-APPELLANT, James G.

Akers, without counsel in strict accordance with Title 28 US.C.

§ 1654, and certifies that I have on this, the 5" day of June, 2003,

served one (1) true and complete copy of the foregoing

“MOTION FOR LEAVE TO FILE AMENDED PETITION FOR

EN BANC DETERMINATION”, upon lead counsel of record for

each and every opposing party, via “UNITED STATES MAIL-

FIRST CLASS”, postage pre-paid, and in that manner as follows:

(Listing of served Parties and/or their respective

Counsel-of-Record are omitted from instant Petition

for Writ of Certiorari for the purposes of economy &

handling by Court. See official record for listings.)

s/ James G. Akers

JAMES G. AKERS, Plaintiff-Appellant

POST OFFICE BOX 3648

BRENTWOOD, TENNESSEE 37024

[END OF DOCUMENT]

74

Case Number: 02-6235

IN THE

United States Court of Appeals

for the Sixth Circuit

JAMES G. AKERS,

Plaintiff-Appellant,

v.

CAROLYN P. BISHOP, et al,

Defendants-Appellees.

On Appeal from the United States District Court for

the Eastern District of Kentucky-Lexington Division

AMENDED PETITION FOR EN BANC DETERMINATION

This document was prepared by:

James G. Akers, Plaintiff-Appellant

Post Office Box 3648

Brentwood,-Tennessee 37024

Telephone: 615/ 834-2843

Facsimile: 615/831-9307

— ao *

Pw AeA amet

75

I - INTRODUCTION

1. On May 2, 2003, an “ORDER” pursuant to the

decision of a three (3) judge panel was entered in this Court -

affirming the “JUDGEMENT” and “MEMORANDUM

OPINION AND ORDER, DISMISSING” as entered in United

States District Court for the Eastern District of Kentucky

[Exhibits 02-6235-04 & 02-6235-05, respectively, Joint Appendix

at pages 157-193].

2. As required by FRAP 35(b)(1), the petitioner, James G.

Akers (hereinafter “ Akers”) hereby asserts as follows:

(A) The panel decision conflicts with numerous

decisions of the United States Supreme Court including,

but not limited to: Abney v. United States, 97 S.Ct. 2034,

52 L.Ed.2d 651 (1977) [see Akers’ “FINAL BRIEF FOR

PLAINTIFF-APPELLANT ’ at page 5 & 7]; Cleavenger v.

Saxner, 474 U.S. 193; 106 S.Ct. 496, 501; 88 L.Ed.2d 507

(1985)[id., page 22]; Cohen v. Beneficial Loan Corp., 337

U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528

(1949) [id., pages 2, 5, 6, 7, 12]; Conley v. Gibson, 355 US.

41, 45-46 (1957) [id., page 26]; Cruz v. Beto, 405 U.S. 319

(1972) [id.]; Ex parte Virginia, 100 U.S. 339; 25 L.Ed. 676

(1879) [id., page 22]; District of Columbia Court of Appeals

v. Feldman, 460 U.S. 462, 476 (1983) [id., page 16]; Ex

parte Young, 209 U.S. 123 (1908) [id., page 27]; Firestone

Tire & Rubber Co. v. Risjord, 101 S.Ct. 669, 66 L.Ed. 24571

(1981) [id., pages 5, 7, &12]; Ford Motor Co. v. Dept. of

Treasury, 323 U.S. 459 (1945) [id., page 27]; Great

Northern Life Insurance Co. v. Read, 322 US. 47 (1944) [id.];

Haines v. Kerner, et al, 404 U.S. 519, 520; 92 S.Ct. 594

(1972) [id., pages 26 & 30]; Heck v. Humphrey, 512 US.

477, 486-87 (1994) [Exhibit 02-6235-22, Joint Appendix,

pages 850-854]; Kennecott Copper Corp. v. State Tax

Commission, 327 U.S. 573 (1946) [supra, page 27]; Monroe

v. Pape, 365 U.S. 167 (1946) [id.]; Moor v. County of...

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Alameda, 411 U.S. 693 (1973) [id.]; Myers v. Anderson, 238

U.S. 368 (1915) [id.]; O'Shea v. Littleton, 414 U.S.488, 503;

94 S.Ct. 669; 38 L.Ed.2d 674 (1974) [id., page 22]; & Rooker

v. Fidelity Trust Co., 263 U.S. 413 (1923) [id., page 16].

Additionally, the panel decision conflicts with

numerous decisions of the United States Court of

Appeals for the Sixth Circuit, including, but not limited

to: Azar v. Conley, 456 F.2d 1382, 1384 (6" Cir. 1972) [id.,

page 28]; Byrd v. Wilson, 701 F.2d 592, 594 (6th Cir. 1983)

[id., page 26]; Hermansen v. Chandler, No. 99-5943, 2000

WL 554058 (6" Cir. 2000); Lucarell v. McNair, 453 F.2d

836, 838 (6 Cir. 1972) [supra, page 28]; Malone v. Colyer,

710 F.2d 258, 260 (6 Cir. 1983) [id., page 26]; Rauch v.

Day and Night Manufacturing Corp., et al, 576 F.2d 697 (6

Cir. 1976) [id., page 27]; & Westlake v. Williams, et al, 537

F.2d 857, 858 (6" Cir. 1976) [id., page 28] and, therefore,

consideration by the full court is necessary to secure and

maintain uniformity of the court’s decisions; and

(B) The proceeding involves questions of

exceptional importance inasmuchas the panel’s decision

conflicts with numerous decisions rendered by other

United States Courts of Appeals, including, but_not

limited to: Boyce v. Alizaduh, 595 F.2d 948, 951-953 (4"

Cir. 1979) [id., page 26]; Collins v. Chandler Unified School

Dist., C.A.9 (Ariz.) 1981, 644 F.2d 759 [id., page 5];

Cooper v. Molko, D.C.Cal., 512 FR.Supp. 563 (1981) [id.];

Dennis v. Chang, C.A.9 (Hawaii), 1980, 611 F.2d 1302

[id.]; Eades v. Sterlinskt, 810 F.3d 723 (7" Cir. 1986) [id.,

page 22]; McMillan v. Svetanoff, 793 F.2d 149, eS Cir.

1986) [id.]; PT United Can Co. v. Crown Cork & Seal

Co.,138 F.3d 65, 71-72 (2 Cir. 1998) [id., page 5];

Wiggins v. New Mexico State Supreme Court, 664 F.2d 812,

815 (10 Cir. 1981) [id., page 26].

na Ee ee Te

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3. Pursuant to FRAP 40(a)(2), it is hereby brought to the

attention of the full Court that the panel has erred with respect

to crucial matters of material fact, viz, that:

(a) Plaintiff-Appellant James G. Akers (“ Akers”)

is, or at any time relevant hereto has been, “a Kentucky

resident” [see “ORDER” entered on May 2, 2003, page 2,

line 1];

(b) “[T]he substantial part of the events giving

rise to Akers’s claims occurred in Lexington, Kentucky”

[id., page 3, ¥ 3];

(c) Akers’ instant case is, in any manner

whatsoever, an “appeal of a case already litigated in

state court” [id., page 4, lines 8 & 9]; &

(d) Akers “can prove no set of facts in support of

his claims that would entitle him to relief” [id., page 4,

lines 18 & 19].

4. As well pursuant to 6 Cir. 1.0.P. 40(a), it is hereby

brought to the attention of the full Court that the panel has erred

in Its interpretation and/or application of Federal law insofar as

It “affirm(s) the district court’s judgement for the reasons stated

by the district court” [id., page 3, lines 3& 4]. In other words,

the panel affirms the district court’s denial of Akers’ rights,

privileges, and immunities guaranteed by the United States

Constitution including, but not limited to:

(a) Protection from the unconstitutional

enactment and/or enforcement of any ex post facto law

as provided by Article 1 - § 10 [Cl. 1] thereof [see Akers’

“FINAL BRIEF FOR PLAINTIFF-APPELLANT'’ at FN7,

page 16; & FN8, page 17];'

' ‘This issue is of paramount public importance in light of the position

presented by Kentucky Assistant Attorney General D. Brent Irvin within this

Court on January 2, 2003 [see Irvin’s “ Appellees’ Brief”, page 18, line 10,

through page 19, line 3] coupled with the fact that, in 1974, the Kentucky

Legislature abolished the statute of limitations on all felonies - raising the

horrifying prospect that at any future point which Kentucky’s prison

population drops below an acceptable level of profitability - all Kentucky will

then need to do is to plant “hand-picked” judges on its Court of Appeals

and/or Supreme Court to “change the rules”, as retroactively as It wishes,

78

so that any person who has ever lived in or ever visited the State of

Kentucky could then become a target for prosecution and imprisonment.

(b) Guarantees and immunities against “double

jeopardy” or, in the instant case, “multiple jeopardy” as

provided by the Fifth Amendment [see Akers’ “FINAL

BRIEF FOR PLAINTIFF-APPELLANT ' at FN7, page 16];

(c) Fundamental preservation of the “right of trial

by jury” as provided by the Seventh Amendment thereof

[id., pages 28 & 29]; &

(d) Guarantees of “due process of law” and

“equal protection of the law” as provided by the

Fourteenth Amendment thereof [id., page 16];

4. Yet further, pursuant to 6 Cir. 1.0.P. 40(a) at lines 5

through 9, it is hereby brought to the attention of the full Court

that the panel erred in Its interpretation and/or findings with

respect to the “facts” of the case at bar - specifically including,

but not limited to:

(a) That Akers is “a Kentucky resident” [see

“ORDER” entered on May 2, 2003, page 2, line 1] when,

in fact, save the various periods within which Akers was

fraudulently and/or otherwise unlawfully imprisoned

within Kentucky between November of 1995 and July of

2000, Akers has not been a “Kentucky resident” since he

lawfully migrated back to the State of Tennessee in

September of 1994;

(b) That “venue was proper in Kentucky because

the substantial part of the events giving rise to Akers’

claims occurred in Lexington, Kentucky” [id., page 3, 4

3, emphasis added]. Venue was not proper in the

transferee court and, while a “substantial part” of the

acts “giving rise” to Akers claims may have occurred in

Lexington, Kentucky, the prevailing acts committed by

the Defendants-Appellees, and those invoking federal

law, i.e., “interstate blackmail”, “interstate extortion”,

“interstate kidnaping”, “fraudulent extradition”,

ay a as hie healt

79

“interstate mail fraud”, “interstate wire fraud”,

“interstate conspiracy”, “unlawful imprisonment”

within Davidson County [Tennessee] Detention Center,

and “interstate civil rights intimidation” ali occurred in

Davidson County and/or Williamson County,

Tennessee. Absent those specific “prevailing acts”, none

of the subsequent “events” within Central Kentucky

either would have, or could have, even been possible.

(c) That Akers’ herein case is, in essence, an

“appeal” or “collateral attack” of “state court conviction”

- thereby invoking the Rooker-Feldman doctrine [id., page

4, lines 6-10]. The instant Federal case is not an “appeal”

nora “collateral attack” of Akers’ state court convictions

but, rather, a proper attempt to obtain redress for the

illicit manner in which those convictions were obtained

- as clearly provided for by the First and Seventh

Amendments to the United States Constitution in

conjunction with Title 18 U.S.C. § 1964(c), Title 18 U.S.C.

§ 1965(b), Title 42 U.S.C. § 1983, & Title 42 U.S.C. §

1985(3) [see, e.g., Joint Appendix, Volume Two, pages

925-662 thereof]. The conduct of the named Defendants-

Appellees, the judgement of the United States District

Court for the Eastern District of Kentucky, and

affirmation of that judgement by the three-judge panel

of the Sixth Circuit Court of Appeals are, however, a

“collateral attack” - upon the Constitution and laws of

the United States of America. Surely, any Federal

justice could recognize that if ever willing to look beyond

the simple facts that Akers is: (i) not an attorney; (ii)

not a prisoner “in custody”; (iii) not proceeding in

forma pauperis herein; and (iv) is, in fact, neither a

“wife-beater” nor in any manner a “criminal”.

(d) That Akers’ has, in any way, attempted to

assert a common law tort for “malicious prosecution”

pursuant to Kentucky law inasmuch as: (i) it is clear

80

Akers no more has a remedy under Kentucky law than

the Commonwealth of Kentucky had personal and

subject matter with respect to Akers’ prosecutions [see,

e.g., Akers’ “FINAL BRIEF FOR PLAINTIFF-

APPELLANT’ at FN7, page 16]; & (ii) it is equally clear

that Akers both clearly understands that concept and

recognizes the implications thereof [see, e.g., Exhibit 02-

6235-22, Joint Appendix, Volume 3 at page 861, {

2(G)(ii)].

II - LEGAL ARGUMENT(S)

1. The panel has “AFFIRMED” the District Court's

judgement “for the reasons stated by the court” [see “ORDER”

entered on May 2, 2003, page 3, lines 1-2]. In other words, the

panel concurs with the opinion of the District Court as follows:

DISCUSSION - Standard of Review

(a) First, the court acknowledges that:

(i) “pro se pleadings are held to less stringent

‘standard than those drafted by attorneys” (citing Cruz v.

Beto, 405 U.S. 319(1972); Haines v. Kerner, 404 U.S. 519

(1972)); (ii) that “[t]he allegations in a pro se complaint

must be taken as true and construed in favor of the

plaintiff” (citing Malone v. Colyer, 710 F2d258,260(6""

Cir. 1983)); but then asserts (iii) that “Telven taking all of

Akers’ allegations as true, as dictated by Malone v.

Colyer, ...based on numerous defenses and legal ©

doctrines asserted by the defendants, Akers’ complaint

and accompanying materials are frivolous and fail to

state a claim upon Which relief can be granted.” [id.,

Exhibit 02-6235-05, Joint Appendix, Volume One, page

171].

(b) The court further acknowledges that:

Estill he Steeareaasd eis PIAO Vin natin che

81

(i) “Fed.R.Civ.P. 12(b) provides for the dismissal

of claims and parties for seven listed reasons. A motion

to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state

a claim “should not be granted unless it appears

beyond a doubt that the plaintiff can prove no set of

facts in support of his claim that would entitle him to

relief”; (ii) “[w]ell-pled allegations must be takenas true

and must be construed most favorably toward the non-

movant. (citing Conley v.Gibson, 335 U.S. 41, 45-

46(1957); Scheuer v. Rhodes, 416 U.S. 232,236 (1974);

Rauch v. Day & Night Mfg. Corp., 576 F2d 697 (6"" Cir.

1978); & Westlake v. Lucas, 537, F.2d 857 (6"" Cir. 1976),

respectively); & (iii) that “[a] complaint should be

dismissed pursuant to Fed.R.Civ.P. 12(b)(6) only if there

is no law to support the claims, if the alleged facts are

insufficient to state a claim, or if on the face of the

complaint there is an insurmountable bar to relief”: but

then, in contradiction of the specific language of those

decisions, (iv) “finds that Akers’ claims are insufficient

to state a claim on which relief can be granted and that

his complaint should be dismissed with prejudice.”

(c) Obviously, Akers disputes that the district court has

properly applied the required standard of review; totally agrees

that the standards set forth in Cruz v. Beto, Haines v. Kerner,

Malone v. Colyer, Conley v.Gibson, Scheuer v. Rhodes, Rauch

v. Day & Night Mfg. Corp., & Westlake v. Lucas clearly

establish the standard for review of Akers’ herein case; and

asserts that the specific language within those cases will speak

for itself [see Akers’ “FINAL BRIEF FOR PLAINTIFF-

APPELLANT’, “Argument VI”, pages 25-28].

(d) With respect to the court's ridiculous assessment that

“Akers’ claims are insufficient to state a claim on which relief

can be granted and...should be dismissed with prejudice”, Akers

asserts that, if that were true, then why is it that as of today -

more than two year after the filing of Akers’ Complaint - not

82

even a single Defendant has. attempted to controvert even a

single averment? The real question is: does the district court

dispute the truth of Akers’ allegations or whether TITLE 18

USC. § 1964(c), TITLE 18 U.S.C. § 1965(b), TITLE 42 U.S.C. §

1983, & TITLE 42 U.S.C. § 1985(3) are valid and enforceable

laws. Regardless of the District Court’s intent, again, the

specific language contained within Cruz v. Beto, Haines v.

Kerner, Malone v. Colyer, Conley v.Gibson, Scheuer v. Rhodes,

Rauch v. Day & Night Mfg. Corp., & Westlake v. Lucas will

speak for itself.

DISMISSAL UNDER HECK V. H UMPHREY

(a) The court surmises that:

eS he 4) 3 eee

(i) “Reduced to its core, Akers’ complaint...is an

unambiguous attempt to collaterally attack his two state

court criminal convictions and...’unlawful

imprisonment”;

(ii) “These convictions have not been reversed or

otherwise invalidated”;

(iii) Akers is seeking $14 million in damages

from the named defendants on the basis of unlawful

imprisonment stemming from two state court

convictions he alleges were obtained by fraud, jury

tampering, extortion, blackmail and other specified

illegal means”;

(iv) “Heck v. Humphrey , 512 US. 477, 1148S. Ct.

2364 (1994), operates as a complete bar to Akers’ claim.

Heck v. Humphrey precludes the recovery of damages

under...

...§ 1983 for an allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or

sentence invalid”;

(v) “Clearly, if Akers were to prevail on any one

or all of his civil rights and/or RICO claims against any

83

one or all of the defendants named herein, an anomalous

situation would exist whereby Akers could conceivably

be recovering damages for actions associated with and

resulting from allegedly unconstitutional convictions

and imprisonment, while Akers’ two state court criminal

convictions contemporaneously remain intact, valid and

undisturbed”;

(vi) “This is precisely the type of inconsistent

resuit which the United States Supreme Court ruled was

prohibited in Heck”; &

(vii) “It is obvious from the attachments to Akers’

134-page complaint and 160-page memorandum of law

that Akers views his complaint as a vehicle by which to

relitigate, in full, every aspect of his two convictions and

the prison terms he served asa result of his convictions”.

(b) Akers responds that, although Akers considers any

analogies between the case at bar and the case of Heck v.

Humphrey, 512 U.S. 477, 486-87 (1994) to border on the absolute

asinine given the stark contrast in facts and circumstances,

Akers does not object to the application of Heck herein provided

that the entire Supreme Court decision - including the

opinions articulated by Justices SOUTER, BLACKMUN,

STEVENS, and O’CONNOR is properly considered [see, e.g.,

Exhibit 02-6235-22, Joint Appendix, Volume 3, pages 851-854].

Therefore, under the doctrine of that decision - as a whole -

Akers is not subject to any of the criteria outlined by the District

Court and as recapitulated within hereinabove 4 § (a)(i) through

(vii).

“FAVORABLE TERMINATIONS” OF A PRIOR

CRIMINAL PROCEEDING [AS] A PREREQUISITE

OF A_§1983_ MALICIOUS PROSECUTION CLAIM

(a) The District Court erroneously finds:

(i) “Akers bases the instant § 1983, § 1985, and

RICO conspiracy complaint on the fact that the Kentucky

Court of Appeals reversed his assault and stalking

84

conviction in 1998 and in March, 2000, reversed his

subsequent 1998 assault conviction”; &

(ii) Characterizes Akers’ case asa “state tort claim

for malicious prosecution” under Kentucky law;

(b) Akers responds that it is precisely because of

Kentucky law - or, at least, the selective, arbitrary, and

capricious manner in which it is enforced - that Akers migrated

back to Tennessee in September of 1994 and vowed to never

return to Kentucky. Quite frankly, Akers could not care less

about Kentucky law, will certainly never seek or expect any

manner of justice under Kentucky law, and is neither subject to

nor dependant upon Kentucky law [see, e.g., Rauch v. Day &

Night Mfg. Corp., 576 F2d 697 (6" Cir. 1978), i-e.,

“It is an elementary principle of jurisprudence

that a court of justice cannot acquire jurisdiction over the

person of one who has no residence within its territorial

jurisdiction, except by {**8} actual service of notice within

the jurisdiction upon him or upon someone authorized

to accept service in his behalf, or by his waiver, by general

appearance or otherwise, of the want of due service.” (see also,

hereinabove § 1.4(d))]

EFFECT OF THE JULY, 2000, GUILTY PLEA ON

“FAVORABLE TERMINATION” REQUIREMENT

(a) The district court asserts that:

ANC G1208ssOoooOo——————

“Akers’ guilty plea, however, prevents him from

collaterally attacking same ina subsequent civil suit. In Duerr

v. Kentucky & Indiana Bridge & R. Co., Ky., 116 S.W. 325 (1909),

Duerr filed and action for malicious prosecution against the

complaining witness after Duerr had pled guilty toa reduced

felony charge. Much Like Akers, Duerr alleged: (1) that the

complaining witness gave perjured testimony against him; (2)

that there was a conspiracy among a group of individuals to

deprive him of his liberty; and (3) that the only way to avoid a

Xt celia done. nant

85

felony charge was to plead to a lesser offense under duress and

intimidation. In dismissing his malicious prosecution claim, the

highest court in Kentucky opined as follows:

But the appellant completely closed the door of the

courts to his petition for redress when he admitted that

he had pleaded guilty to a charge that was made

unjustly, as he avers, against him. A person who comes

into open court and admits on the record that he is guilty

on the offense for which he is being prosecuted will not

_ afterwards be heard to say the prosecution against him

was procured by fraudulent methods. He will not be

allowed to admit in the court that he was guilty, and in

another to plead his innocence. His public admission of

guilt in the criminal court was a complete and

unanswered refutation of the charge that the prosecution

against him was unfounded.”

(b) In its FN10, the District Court asserts that:

“Akers submitted as Exhibit ‘EEEE’, in Volume

II of his Appendix [page 634] a copy of the ‘Judgement

on Guilty Plea’ which was entered of record in the

Fayette Circuit Court on July 10, 2000. Notwithstanding

his assertion that this plea was coerced, this court

document clearly confirms that Akers’ plea to ‘assault

under extreme emotion Disturbance was knowing and

voluntary. The judgement states as follows:

“The court, finding that the Defendant

understands the nature of the charges against

him, that the Defendant understands the

elements of the charges against him and the

elements of any lesser included offenses and any

defenses available to him at trial, that the

Defendant's plea is voluntary, that the Defendant

86

knowingly and voluntarily waives his right to

confrontation, and there is factual basis for the

Defendant's plea...”

(c) Akers responds that: It must be understood,

however, this “judgement” was entered by the very same

Rebecca M. Overstreet who is named as a defendant in Akers

instant Federal civil suit - under the clear and distinct threat

from her and her co-conspirator, Lou A. Red Corn to the effect

that without such a guilty plea, Akers would fora third time be

tried for “First Degree Assault, would be held in the “hellish”

Fayette County [Kentucky] Detention Center in lieu of an almost

certainly insurmountable bonding requirement, and would

almost certainly be yet again convicted of the outrageous charge

of “First Degree Assault”. Moreover, the record will reflect that

Akers’ entire “guilty plea” was the following statement:

Overstreet: “What did you do?”

Akers: “Il slapped my wife and,

apparently, caused her a neck

injury.” (emphasis added)

(d) No responsible judge would accept that statement

as a guilty plea to any felony offense. And no responsible

prosecutor would offer a defendant a plea bargain of Fourth

Degree Assault (a misdemeanor punishable for a maximum of

ninety days in jail and/or a fine of $250.00 under Kentucky law)

[see, e.g., Exhibit 02-6235-11, Volume Two at page 662, 4/103]

and, then, three times prosecute the defendant for the very

same act as a First Degree Assault (a Class B felony punishable

for up twenty years under Kentucky law).

(e) Yet further, the District Court has conveniently

ignored the “doctrines” established by North Carolina v. Pearce,

89 S.Ct. 2089 (1969) [id., FN4, page 484]; Abbate v. United

87

States, 359 U.S. S.Ct. 666, 672-673, 3 L.Ed.2d, 72 [id., FN4, page

486]; Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 LEd(2d)

195 (1975) [id., FN4, page 486]; Abney v. United States, 431 US

651, 97 S.Ct., 52 LEd(2d) 651 (1977) [id., FN4, page 487]; &

Benton v. Maryland, 89 S.Ct. 2056 (1969) [id., FN134, page 658].

DISMISSAL UNDER ROOKER-FELDMAN DOCTRINE

(a) The district court asserts that:

(i) “This doctrine, ‘a combination of the

abstention and res judicata doctrines, stands for the

proposition that a federal district court may not hear an

appeal of a case already litigated in state court. A party

raising a federal questicn must appeal a state court

decision through the state system and then directly to

the Supreme Court of the United States.’ United States v.

Owens, 54 F 3d. 271, 274 (5" Cir. 1995) (citing District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462,

476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413

(1923); &

(ii) “The Rooker-Feldman doctrine clearly dictates

that this court lacks the subject matter jurisdiction to

entertain Akers’ § 1983 and § 1985 claims, as well as the

RICO claims, because they are a collateral attack on his

two state court convictions.”

(b) Akers responds by re-stating and reiterating his

responses in hereinabove 1.4(c).

ALTERNATIVE GROUNDS FOR DISMISSAL

Preclusive Effect of 1999 Civil Rights Order

(a) The district court asserts that:

(i) “The 1999 civil rights action [Case No.

5:99cv0173] stemmed from essentially the same set of

facts and occurrences (through and includirig May 10,

1999) which form the basis of the instant complaiat”; &

(ii) “While Akers has not proceeded in the instant

88

case in forma pauperis (IFP), case law governing IFP

proceedings (which usually also involve pro se plaintiffs)

is persuasive. Courts may appropriately dismiss IFP

actions as frivolous when the action ‘seek[s] to relitigate

claims which allege substantially the same facts arising

from a common series of...

_events which have already been unsuccessfully

litigated by the IFP plaintiff.’ Wilson v. Lynaugh, 878

F.2d846, 850 (5"" Cir. 1989); see also Curtis v. Boggs, 2001

WL 649735 (N.D. Tex.); Robertson v. Burger King Corp.,

1994 WL 424431 (E.D.La)”.

(b) Akers responds that apparently the district is just as

ignorant (or pretends to be) with respect to the definition of

“without prejudice” as is Kentucky Asst. Attorney General D.

Brent Irvin [see, e.g., Exhibit 02-6235-18, Joint Appendix,

Volume Three, FN8, page 787].

VARIOUS ALLEGED IMMUNITIES

(a) The district court asserts that every single

Defendant-Appellee is shielded from civil liabilities in the

instant case by either “judicial immunities”, “quasi-judicial

immunities”, “witness immunities” and/or some other type of

common law immunities.

(b) They are not, and that is made abundantly clear

within Akers’ “FINAL BRIEF FOR PLAINTIFF-APPELLANT,

“Argument IV”, pages 19 through 22, i.e., as follows:

Obviously, the District Court completely

misconstrued the facts of the case - or, at least, the

timing with respect to those facts - in that It has

concluded that each and every one of the named

Defendants is shielded from civil liability by either

“judicial”, “prosecutorial / quasi-judicial”, or “witness”

89

immunities and, thus, accepts the Defendants’ ridiculous

propositions that, e.g.,

(i) By virtue of successful implementation and

subsequent unlawful validation of 1993 conspiracies in

violation Title 42 U.S.C. § 1985, Defendants Miller, Witt,

and “LFG Does 1 through 50” have somehow gained

some sort of “immunities” [see “COUNT ONE”, Akers’

Complaint, Exhibit 02-6235-02, Joint Appendix, “COUNT

ONE”, page 110];

(ii) By virtue of (heir fraudulent testimony during

fraudulent criminal trials of Akers in 1996 and 1998,

Defendants Bishop, Fleming, Rushing, CBT Does 1 thru

40, Layne, Shannon, Vaughan, and Kelly acquired

immunities for their 1994 conspiracies in violation Title

42 U.S.C. § 1983 [id., “COUNT(S) TWO thru FOUR’,

pages 111-113];

(ili) Defendants Bishop, Fleming, Rushing,

Layne, Shannon, Kelly, SCC Does 1 thru 50, Witt, FCC

Does 1 thru 30, Clark, and LFG Does 1 thru 60 have all

acquired immunities for their 1994 “unlawful

imprisonment” of Akers [id., “COUNT(S) FIVE, SIX, &

SEVEN”, pages 113-115] by virtue of fraudulent

testimony of Bishop, Fleming, Rushing, Layne, and

Shannon during fraudulent criminal trials of Akers in

1996 and 1998;

(iv) By virtue of their fraudulent testimony

during fraudulent criminal trials of Akers in 1996 and

1998, Defendants Bishop, Fleming, Layne, Kelly,

Rushing somehow acquired immunities for their 1994

predicate acts in violation of Title 18 U.S.C. § 1961, et

seq., viz, “kidnaping”, “unlawful imprisonment’, “theft

by unlawful taking (over $300.00)”, “tampering with

physical evidence”, “ wire fraud” , “mail fraud”, felonious

“forgery”, “theft by extortion’, “blackmail”, and

“extortion” [id., “COUNT(S) FIFTEEN (a) thru (d),

pages 120-124; SIXTEEN (a), pages 124-125; &

EIGHTEEN (a), pages 127-128, respectively];

(v) By virtue of their fraudulent criminal

convictions of Akers in 1996 and 1998, Defendants Red

Corn and Overstreet acquired immunities for their 1995

predicate acts in violation of Title 18 U.S.C. § 1961, et

seq., viz, “tampering with a witness” and “influencing

a jury” {id., “COUNT(S) NINETEEN (a) through (c),

pages 128-131; & TWENTY (a), pages 131-133; &

EIGHTEEN (a), pages 127-128, respectively]; &

(vi) Notwithstanding that their acts could not, by

any stretch of the imagination, be considered “judicial”,

“quasi-judicial”, or in_any other manner lawful, the

Defendants Red Corn, Overstreet, and Williams have

;mmunities for their 1998 predicate acts in violations of

Title 18 U.S.C. § 1961, et seq., viz, interstate “blackmail”,

interstate “extortion”, and “civil rights intimidation”

[id., “COUNT TWENTY-ONE (a) thru (c), pages 133-

135].

First, it is crucial to recognize that the history of “judicial

immunities”, “prosecutorial / quasi-judicial immunities”, and

“witness immunities” is demonstrative of the underlying

purpose and intent of ensuring “good faith” within the legal

process. In the instant case, however, the Defendants-Appellees

have intentionally misused and abused the common law

principles of “judicial immunities” ,“ prosecutorial / quasi-judicial

immunities”, “witness immunities”, and all other “absolute

and/or qualified immunities” as illicit amendments to the

United States Constitution and applied them for the self-serving,

self-protecting, and self-perpetuating purposes of concealing

their own criminal acts. Rather than effect the intended

purpose of “good faith”, they have been nothing more than

licenses for these Defendants to “do as they well please” to

perpetuate their individual and/or collective agendas - with

total and complete impunity and absolutely no accountability.

Secondly, there are no constitutional, legislative, or

statutory bases for such immunities - especially when, as in the

9]

instant case, they are clearly at odds with specific provisions of

the Constitution and duly-enacted Laws of the United States of

America. Although it is clear that the Federal Courts have

authority to implement policies with respect to the due

administration of justice, they do not have authority to

sanction and/or pardon criminal acts or, indeed, any other act

in clear and distinct violation of the Constitution and Laws of

the United States of America. Not even the Chief Justice of the

United States Supreme Court is lawfully immune to criminal

or civil penalties for such unlawful acts, whether intrinsically

or extraneously associated with public office [see. e.g. McMillan

v. Svetanoff, 793 F.2d 149 ‘eg Cir. 1986), i.e., “Immunity is only

granted when essential to protect the integrity of the judicial

process”; “When the initiative...

...and independence of the judiciary is not effectively impaired,

the doctrine of judicial immunity does not apply”; “Judicial

immunity should not be extended lightly or only because the

actor is a judge. Before a judge is granted immunity, courts

should examine the acts complained of to determine whether

they are ‘judicial’. If the acts do not involve the judicial process

so that a fear exists that freedom of judicial decision-making

may be stifled, the judge should not be free from suit” See also:

Cleavinger v. Saxner, 474 U.S. 193, 106 S. Ct. 496, 501, 88 L. Ed.

2d 507 (1985) (citing favorably Saxner v. Benson, 727 F.2d at 669,

674 n.2 (Cudahy, J., concurring)), i.e., “We must be equally

hesitant in applying the doctrine to judges acting outside the

traditional dispute resolution function”; Doe v. County of Lake,

Indiana, et al, 399 F. Supp. 553, i.e., “Despite its fundamental

and efficacious purpose, the doctrine of judicial immunity is not

absolute and unlimited; it does not immunize every state court

judge in every lawsuit. On the contrary, application of the

doctrine is restricted to its single objective: to protect judicial

freedom in the delicate process of deciding civil and criminal

matters on their merits. Where the initiative and independence

of the judiciary will not be effectively impaired, courts have

92

refused to apply the doctrine [**6] of judicial immunity. For

example, there is no official immunity from criminal liability;

O'Shea v. Littleton, 414 U.S. 488, 503, 94 S. Ct. 669, 38 L. Ed. 2d

674 (1974), i.e., “The Supreme Court recognized long ago that a

state court judge can be made to answer criminally for violating

the criminal provisions of the Civil Rights Act. Ex parte Virginia,

100 US. 339, 25 L.Ed. 676 (1879). In addition, federal courts have

held that application of the doctrine is restricted to the following

areas: 1. immunity applies only when judges are faced with

suits involving their judicial as opposed to ministerial or

administrative duties, and 2. immunity applies only when

officials are sued for damages”; & Eades v. Sterlinske, 810 F.2d

723 (7" Cir. 1986), i.e, “Judicial immunity is a creature solely of

the common law. However, Congress did not abrogate the

defense in enacting §§1 of the Civil Rights Act of 1871, 42

U.S.C. §§ 1983.”]

Clearly, violators of Title 18 U.S.C. § 1961, et seq.; Title

42 U.S.C. § 1983; and Title 42 U.S.C. § 1985 can not be permitted

to escape liabilities by subsequently initiating fraudulent

criminal charges against their victim and then fraudulently

convicting him or testifying at his resulting trial.

III - CONCLUSION

It is quite a proper thing for the state and Federal courts

to establish “common law” for the often necessary purposes of

clarifying, implementing, enforcing, and/or resolving disputes

with respect to the interpretation of, the Constitution and laws

of the United States of America. It is quite another matter,

however, for those courts to establish common laws which

clearly - if not blatantly - create conflict with the Constitution

and laws of the United States of America.

No court, nor any justice of any court, has the authority

to override, undermine, and/or sanction violations of the

Constitution and duly-enacted laws of the United States of

America. Yet, that is precisely the results which the decisions of

wa Vins tials pein eee! aap oaths ‘.

93

the United States District Court for the Eastern District of

Kentucky and three-judge panel of the Sixth Circuit Court of

Appeals have yielded in this case. Those decisions can not and

shall not remain in effect without challenge - by every lawful

means available to Akers.

Akers has expended extreme time, effort, and resources

in the proper presentation of the instant case. The Federal

Courts can certainly continue to ignore and/or discredit Akers’

pleadings if they so choose, but they should clearly understand,

however, that this overall matter shall - one Way or another -

at some time or another - be properly presented to a fair and

impartial jury for determination of the real facts application of

proper law, and meting out of due justice.

WHEREFORE, Plaintiff-Appellant, James G. Akers,

without counsel in strict accordance with Title 28 U.S.C. § 1654,

prays of this Court to “GRANT” Akers’ herein request for

hearing or rehearing en banc, whichever is appropriate under

the unique circumstance of the instant case, together with all the

relief provided by 6 Cir. R. 35(a), lines 4 through 7 thereof.

Respectfully submitted,

s/ James G. Akers

JAMES G. AKERS, Plaintiff-Appellant

POST OFFICE BOX 3648

BRENTWOOD, TENNESSEE 37024

TELEPHONE: 615/834-2843

FACSIMILE: 615/831-9307

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