# Appendix — Akers v. Bishop

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1973%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 966

## Text

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]

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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

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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,

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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

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“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

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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

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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

ee te eee ate ae ee nee eee eee we oe ee oe

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1973%3A4. Public record. Not legal advice.