Petition for Writ of Certiorari — Austin v. Douglas G. Peterson & Associates

= 891001 FEB z

OFFICE OF THE CLERK

In The

Supreme Court of the United States

H. Richard Austin,

Petitioner Pro Se

Douglas G. Peterson & Associates

Stephen W. Houghton,

Respondents

On Petition for Writ of Certiorari

To the United States Court of Appeals

for the First Circuit

PETITION FOR WRiT OF CERTIORARI

H. RICHARD AUSTIN

Petitioner Pro Se

P.O. Box 220814

Saint Louis, MO 63122

314-849-4827

austin richard @msn.con

QUESTIONS PRESENTED

1) Are U.S. v. Throckmorton, 98 U.S. 61, Marshall

v. Holmes, 141 U.S. 589, and related precedents

consistent regarding the requirements that govern

an independent action (FRCP 60(d)(1), including

when the finality of judgments or the principles of

equity is the dominant consideration? (Cf U.S. v.

Beggerly, 524 US 38, 45 (1998) - (the “precise

contours [of an independent action] are somewhat

unclear.”)

2) When a “new set of facts” emerges so it is

“against conscience to execute a judgment,” isn't

the role of an independent action for fraud to

investigate those new facts and not what was fully

tried, and by inquiring into the “conduct of the

parties” determine if the judgment in question was

“obtained directly” by fraudulent act{s) so there

was “no adversary trial”?

3) Isn’t the central issue in an independent action

the negative impact of the fraudulent “act(s)” on the

court proceeding instead of whether such conduct

can be viewed as “intrinsic” or “extrinsic” - terms

that at times overlap so it can be difficult to identify

a “precise line” between them. (Cf Marine Insurance

Company of Alexandria v. Hodgson, 11 U.S. 332, 336

(1813).

4) Isn’t “fraud on the court” (FRCP 60(d)(3)) that

species of fraud, in which an attorney (“officer of

the court”) conspires with others to utilize a

fraudulent “scheme” in order to obtain an

unconscionable judgment?

TABLE OF CONTENTS

TABLE OF APPENDIX..............

8 8 he 0)

STATEMENT OF THE CASE.................

Precedent |

1) Marine Insurance Company of Alexandria

ES CUR. SS + 5 ae

2) U.S. v. Throckmorton (98 U.S. 61)...............

3) Marshall v. Holmes (141 U.S. 589)......000..00...

4) Toledo Scale Co. v. Computing Scale Co.

EE, OID cn cccececsvvccoveocesecsvcoeesecesseevensee!

5) Hazel-Atlas Glass Co. v. Hartford Empire

| en

That Problematica! Distinction -

“Intrinsic” versus “Extrinsic” Fraud...

The Lower Courts Attempt Their Own

Formulation........

Fraud On the Court.............

The Dispute-“A Grave Miscarriage

of Justice”

1) Subject Matter...

2) Investigations of the Fire Site

3) Scientific Fraud....

eS ee E eT

5) Concealing the Scheme

6) Fabricating Additional, Fraudulent

Evidence.......

FE eT

First Circuit’s Order (November 10, 2009).....5

REASONS FOR GRANTING THE WRIT.................2$

1.The Law Pertaining to Independent

Actions Is Unsettled and Requires a

Long-Awaited Clarification By The

Supreme Court

2.This Case Constitutes A “Grave

Miscarriage Of Justice”’...

i aa

TABLE OF APPENDIX

ORDER (COURT OF APPEALS FOR THE

FIRST CIRCUIT (November 10, 2009).......0.000000000....13

Quote: (“Austin did not make a sufficient

showing to warrant relief under Rule

60(d)(1).”)

TABLE OF AUTHORITIES

Cases

Boone v. Royal Indemnity Company, 460 F.2d 26

er Oe PO i cuneie RON he she ce 13

, ° A7 Oc . 7° 6 A? tk Vs v7

Browning v. Navarro, 826. F.2d 535 (5° Cir. 1987)

Bulloch v. United States, 721 F.2d 71¢

(10 Cir. 1983)

Daubert v. Merrell Dow, 509 US 579 (19938)

Geo. P. Remntjes Co., v. Riley Stoker Corp., 71

44 (1* Cir. 1995)

Gleason v. Jandruko, 860 F.2d 556 (2d.Cir.

1988)

Great Coastal Exp. v. International Broth., Ktc.,

O75 F.2d 136 (a Civ. TOY ii sree scccescersnserssstensens 9,10

Hazel-Atlas Class v. Harttord-Emptre Co.,

322 U.S. 238 (1944) 6,7,9,11,14,30,32

In Re Genesys Data Technologies, 204 F.3d 124

C gg > |; SNORE anei nmap ener ty em EL 1S 7

Marine Insurance Company of Alexandria v.

MOdION, 11 U.S. BSZ C1S1S Ji cccosecccsctecsovevseseesseoh yt Mgt |

Marshall v. Holmes, 141 U.S. 589 (1891),

vel, othe

Publicker v. Shallcross, 106 F.2d 94‘

1939)...

Toledo Scale Co. v. Computing Scale Co.,

261 U.S. 399 (19238).

Toséano-v. CI.R., 441 F.2d 930 (9" Cir.

Traveler’s Indem. Co.

s th 1° _-

tiv * AQ) | eee

cy

United States v. Beggerly, 524 U.S. 38 (1998)...1,2,7

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

©)

VU

ssccosseoly 1,50, 4,0, 0, (,0,10,11,28,29,.30,31,;

Westchester Fire Insurance Company V.

Deuso, 146 Vt. 424, 505 A.2d 666

te ee Sb.) )

Statutes

ERCP 60(d)(1) secissseinianesdabinduiaiionn

| SR UR ees ean

28 USC 1254.....

Treatises

Moore’s Federal Practice 3d - 60.81|1]|b] [i]

55 Yale Law Journal, 623, 658-9 (1946)

11 Federa/ Practice and Procedure. 2868, 240-1

C. Wright & A. Miller (1973)

OPINION BELOW

The Order from which this appeal is taken

was entered by the First Circuit (09-1099) on

November 10, 2009.

As stated therein: “(See also United States v.

Throckmorton, 98 U.S.61 (1878) (‘the doctrine is

equally well-settled that the court will not set aside

a judgment because it was founded on a fraudulent

instrument, or perjured evidence, or for any matter

which was actually presented and considered in the

=

judgment assailed.’))

JURISDICTION

The appeal comes before the Supreme Court

pursuant to 28 USC 1254(1).

STATEMENT OF THE CASE

This Petition concerns the standards that govern

an independent action In equity, a body of law that

has evolved piecemeal over the decades and to this

day remains somewhat ill-defined. The subject case

involves a judgment that was “obtained” through

fraudulent litigation practices or “acts.” Among

others, these include concealment of an essential

witness, who did not reappear until discovery was

closed; forged documentation that was used to

thwart a key discovery order and also wasn't

produced until discovery was closed; false state-

ments by the attorney to a federal judge in open

court to mislead him regarding the nature of

evidence and the timing when it was produced; use

of the discovery period to produce additional,

fraudulent evidence on an ongoing basis to defeat

discovery; collusion between attorneys and experts,

etc.. In essence, this dispute constitutes a textbook

example of how to undermine a judicial proceeding

and includes both fraud against the opposing party

and the court. All of these nefarious activities are

substantiated by explicit documentation attached to

the Amended Complaint that is contained in the

Joint Appendix submitted to the First Circuit.

In response to the Complaint, none of this

extensive evidence was disputed. Nonetheless, in

spite of the widespread fraudulent “acts” on which

the disputed judgment is based, the Complaint was

dismissed. The First Circuit affirmed, citing US. v.

Throckmorton, 98, U.S. 61, 65. What is involved

here is not a dispute over evidence but rather

the nature of a judicial remedy that, in spite of

its significance, to this day remains ill-defined

(“its precise contours are somewhat unclear.”)

United States v. Beggerly, 524 US 38, 45 (1998).

According to Throckmorton:

(“the acts for which a court of equity will on

account of fraud set aside or annul a judgment

. have relation to frauds, extrinsic or collat-

eral, to the matter tried by the first court, and

not to a fraud in the matter on which the

decree was rendered.”) at 68. Emphasis added.

However, as stated in Marshal] v. Holmes, 141 US

589, 596 (1891):

(“any fact which clearly proves it to be against

conscience to execute a judgment, and of

which the injured party could not have availed

himself in a court of law...but was prevented by

fraud or accident, unmixed with any fault or

negligence in himself or his agents, will justify

an application to a court of chancery.”)

Emphasis added.

In Graver v. Faurot, 162 US 435, 438 (1896), the

Supreme Court noted what the Seventh Circuit

considered the conflict between Throckmorton and

Holmes:

(“the assumption that this court has applied

well-settled general principles of law differ-

ently in two different cases... While some

hesitation in decision may temporarily result

until it is finally determined whether that

assumption is justified, and, if justified, the

anomaly is corrected, we think such deter-

mination ought not to be attempted, save

where the point must be disposed of on a

record after final decree.”)

The issue has been noted by other courts as well:

(“The Supreme Court of the United States, to

show its utter impartiality, has ruled both

ways, ... Since the courts are at liberty to cite

either line of authorities, and do so as suits

their convenience, the only possible answer in

spite of repeated assertions that the federal

rule is clear, is that there is no federal rule at

all.”

Publicker v. Shallcross, 106 F.2d 949, 951 (3d Cir.

1939). Emphasis added.

Precedent

1) Marine Insurance Company Of

Alexandria v. Hodgson, il U.S. 332

For more than a century, the relationship of

Throckmorton and Holmes has been debated along

with the broader issue of how to harmonize courts

of law and chancery. To this day, there remains

considerable disagreement on the subject, espe

cially regards the “intrinsic’/“extrinsic” fraud

distinction emphasized in 7Arockmorton.

This problematical situation can be viewed as

having its genesis in Marine /nsurance Company of

Alexandria v. Hodgson, 1\ US 332 (1813). Therein,

Justice John Marshall stated the grounds support-

ing an action in equity that later was quoted by

Justice Harlan in the 1891 Marsha// case. However,

at that time the Court also observed:

(“Without attempting to draw any precise line

to which Courts of equity will advance, and

which they cannot pass, in restraining parties

from availing themselves of judgments

obtained at law, it may safely be said that any

fact which clearly proves it to be against

conscience to execute a judgment...”) etc. at

336. Emphasis added.

2. U.S. v. Throckmorton (98 U.S. 61)

In 1878, the Zhrockmorton decision was handed

down, a dispute involving a 1853 California land

claim challenged by the U.S. government. The

grounds was that the claim filed by W.A. Richard-

son was based on a fraudulently back-dated land

grant supported by perjured depositions. Although

the Court in Throckmorton noted the general rule

that (“fraud vitiates the most solemn contract,

documents, and even judgments’ ), at 64-5, it

denied the government's claim, Justice Miller

making his now-famous statement regarding

extrinsic or collateral frauds that has occasioned so

much debate. In essence, the Justice attempted to

do what Justice Marshall would not - employ the

intrinsic/ extrinsic distinction to draw what

amounts to a “precise line” that should restrain a

court of equity from intervening in a judgment no

matter how unconscionable.

3. Marshall v. Holmes (141 U.S. 589)

Thirteen years after Throckmorton, the Supreme

Court again addressed the issue of whether a

forgery could provide the basis for granting relief

from a judgment. In Marshal/ v. Holmes, a Mrs

Marshall contended that several judgments against

her were obtained through a forged letter that was

used as evidence in various state court procced-

ings. The holding of the Court was that Mrs.

Marshall could remove her case to federal court on

the grounds of diversity. However, it is the dicta in

the decision mirroring what Justice Marshall stated

almost a century before that is remembered: (“any

fact which clearly proves it to be against conscience

to execute a judgment...”) etc..

Thus, Justice Miller’s position in 7Arockmorton,

has been viewed as emphasizing the finality of a

judgment above other considerations except those

considered collateral, while Justices Harlan and

Marshall presumably recognized that various

“act(s)” (regardless of how they are designated)

could provide the grounds for relief. At the same

time, ZVhrockmorton is cited as precedent in

Holmes at 596. It is not surprising that courts

across the country have encountered difficulty

rationalizing the two cases, and as previously noted

in Graver v. Faurot, the Court did not at that time

rule on the matter, leaving open the possibility that

at a future time it might do so.

4. Toledo Scale Co., v. Computing Scale Co.

(261 US 399)

In 1923, the Court revisited the subject,

stating:

(“ We do not find ourselves obliged to enter

upon a consideration of the sometimes nice

distinctions made between intrinsic and

extrinsic frauds in the application of the rule...

to justify setting aside a decree for fraud,

whether extrinsic or intrinsic, it must appear

that the fraud charged really prevented the

party complaining from making a full and fair

defense.”) at 421. Emphasis added.

It would appear that the Court was indicating that

what-is considered either intrinsic or extrinsic

fraud can support an independent action, in effect

abandoning what it refers to as those “somewhat

nice distinctions.” Subsequently, however, little

notice has been taken of this apparently significant

statement.

5. Hazel-Atlas Glass Co. v. Hartford Empire

Co. (322 US 238)

In 1944 the Hazel-Atlas Glass case entered the.

picture, a dispute involving a forged, scientific

article employed to support a 1926 patent

application. In addition, the article was used as

evidence in court, including before the Third

Circuit. However, the article was actually written by

officials and lawyers for the company (Hartford-

Empire) seeking the patent. When the matter

reached the Supreme Court, the Court stated that

(“every element of the fraud here disclosed

demands the exercise of the historic power of

equity to set aside fraudulently begotten judg-

ments... we find a deliberately planned and

carefully executed scheme to defraud not only the

Patent Office but the circuit Court of Appeals.”) at

245-6. Emphasis added. In the opinion, Justice

Black employed the now-famous term “fraud on the

court.” Because the fraud was also directed at the

court itself, no concern was shown for the fact that

Hazel-Atlas could be viewed as not exercising

sufficient diligence uncovering the requisite evi-

dence (what in Ho/mes is referred to as negli-

gence. ) In other words, it isn't necessary for a

court to rely on a litigant to protect its own

interests.

Furthermore, the Court did not attempt an

analysis as to whether intrinsic or extrinsic fraud

was involved. Based on the usual interpretation of

those terms, the subject matter at issue was

intrinsic. As a result, in a minority dissent (at 251),

Justice Roberts opposed the decision on the

grounds that “fraud in the preparation of the

document was not extrinsic but intrinsic and will

not support review, emphasizing the lack of

diligence by the attorneys for Hazel-Atlas. Thus,

the problems related to the two categories of fraud

surfaced again and demonstrated that the Supreme

Court was divided on the subject.

Furthermore, the Hazel AZl/as decision cites

favorably both Throckmorton and Marshail/ at 246,

Gust as Ho/mes cited Throckmorton ). In addition,

the Court states that (“Proof of the scheme, and of

its complete success... is conclusive.”) at 246.

However, in Throckmorton, the success of Richard-

son’s scheme to legitimatize a fictitious deed was

not persuasive to the Court. Thus, the situation

involving Throckmorton and Holmes appears to

have grown even more confused with the exact

nature of this important judicial remedy still in

question (“somewhat unclear”) United States v.

Beggerley, 524 US 38, 45 (1998).

The Advisory Committee to the 1946 Amend-

ments of Rule 60 observed that such an equitable

action is permitted as far as “established doctrine

permits.” One can conclude that the traditional

independent action had a rather broad character in

order to afford a degree of flexibility to meet a

variety of circumstances - a consideration that

probably influenced Justice Marshall's reluctance

to establish a (“precise line to which Courts of

equity will advance, and wherc they cannot pass.”)

a position that, of course, contrasts markedly with

the approach taken by the Court in 7Vhrockmorton.

In addition, according to the 1946 formulation,

the “independent action” became the sole reposi-

tory of relief for out-of-time accions (exceeding one

year) that address fraud, repiacing the various,

“more narrow, traditional writs that for centuries

were utilized. Thus, in modern practice the inde-

pendent action has taken on a singular importance.

Nonetheless, the relevant case law, that defines the

scope of the procedure, has evolved piecemeal over

many decades and contains a number of gray areas.

Furthermore, much of the commentary on the

subject has come from the lower courts that have

attempted on their own to formalize the procedure

while not always agrecing on the subject. Much of

the problem is centered on the imtrinsic/ extrinsic

fraud distinction, and as this case demonstrates,

the issue of where to draw the “precise line”

between them is still very much in dispute and can

at times produce unfortunate results.

6) The Problematical Distinction -

“Intrinsic” versus “Extrinsic” Fraud

(“At times it is a journey into futility to attempt a

distinction between extrinsic and intrinsic matter

. little is to be zained by classifying successful

fraud into intrinsic or extrinsic categories.”) J.

Moore, “Federal Relief from Civil- Judgments,” 55

Yale Law Journal, 623, 658-9 (1946).

(“Distinction is “most unfortunate, if true. [Tt]

rests on clouded and confused authorities, its

soundness as a matter of policy is very doubtful,

and it is extremely difficult to apply. It ought not to

persist as a limit on independent actions..”) 11. C.

Wright & A. Miller, Federa/ Practice and

Procedure, 2868, at 240-41 (1973).

This criticism is mirrored in the lower courts,

some of which do not apply the concept (Third

Circuit), while (“most courts continue to observe

that distinction in independent actions...”) Moore’s

Federal Practice 3d, 60.81[{1][{b][il].

(“The district court followed the intrinsic/

extrinsic fraud distinction described in United

States v. Throckmorton, 98 U.S. 61. Under this

doctrine, fraud must be “extrinsic” to justify relief...

Notwithstanding the considerable criticism... and

the debate regarding the effect of WVarshal/ v.

Holmes, 141 US 589,.”) Great Coastal Exp v.

International Broth., Ftc., 675 F.2d 1349, 1358 (4

Cir. 1982) Emphasis added.

(“The distinction that 7Arockmorton made

between intrinsic and extrinsic fraud may have

become questionable as early as 1891..in Marshal]

v. Holmes, 141 US 870....”) Browning v. Navarro,

826 F.2d 335, 344, n.11. (5 Cir. 1987). EF. added.

7) Lower Courts Attempt

Their Own Formulation.

In the current version of Rule 60, the extrinsic/

ntrinsic fraud distinction was abolished for a

motion that was given a one-year timeframe.

However, the Rule does not address the issue of

intrinsic versus extrinsic fraud as the term applies

to an independent action. Lacking direction from

the Supreme Court, the circuits have on their own

tried to reach a compromise, although some

contend that the two concepts are no longer valid.

As a result, many emphasize what amounts to a

lack of opportunity. Thus, while continuing to

utilize the distinction, they define extrinsic fraud

according to res judicata principles. At the same

time, many harmful or obstructionist acts

connected to the substance of a trial can still be

considered intrinsic and beyond reach of an

independent action. Therefore, the lower courts

remain free to decide this pivotal issue according to

what amounts to a subjective standard.

(“[extrinsic] fraud... that infects the actual

judicial process, is grounds to set aside a judgment

as procured by fraud.”) Browning v. Navarro, 826

F.2d 335, 344 (5 Cir. 1987).

(“aggrieved party seeking relief ...still must be

able to show that there was ‘no opportunity to have

the ground now relied upon to set aside the

judgment fully litigated in the original action....see

Marshall, 141 US at 596.”) Gleason v. Jandrucko,

860 F.2d 556, 560 (2d. Cir. 1988)

(“fraud must be ‘extrinsic’ to justify relief, that is,

fraud that actually prevented an issue from being

joined.”) Great Coastal Exp. v. International Broth.,

Etc., 675 F.2d 1349, 1358 (4" Cir. 1982)

7) Fraud On The Court

The 1946 version of the Rule also for the first

time provided relief from a judgment on the

grounds of “fraud on the court.” While citing Haze/-

Atlas, the Advisory Committee did not specifically

define the concept or state how it should be

applied. Questions persist as to its scope and

meaning. In Voscano v. CLR., 441 F.2d 930, 933-4

(1971), the Ninth Circuit stated: (“The distinction

between “fraud” on the one hand and “fraud on the

court” on the other is by no means clear.”) Such

fraud has been variously described: (“That other-

wise elusive concept...”) - Jn Re Cenesys Data

Technologies, 204 F.3d 124, 130 (2000); (“directed

at the judicial machinery.”) - Bulloch v. United

States, 721 F.2d 713, 719 (10™ Cir. 1983). What is

clear is that such fraud is a special category.

Among others, its purpose is to recognize dishonest

dealings with the court, especially by an attorney

such as occurred in the case underlying this

Petition.

The Dispute -

“A Grave Miscarriage of Justice”

1) Subject Matter

This long-standing dispute illustrates vividly in

its various aspects the type of harmful or “fraudu-

lent acts” that typically support an independent

action. The case is centered on a conspiracy that

included a national insurance company, attorneys,

experts and others, who utilized falsified scientific

evidence of fire causation to void a homeowners

policy. The “scheme,” that involved professionals in

at least four states, commenced only a few days

after a house fire (November 12, 1993) and long

before any dispute arose concerning the fire itself

or the relevant insurance. Eventually it became a

systematic attack on the judicial process and

] ,

demonstrates how far some attorneys are willing to

go to undermine legal standards. The prompt,

almost routine way it was initiated indicates that at

least some of these individuals had considerable

experience-in this type of activity.

The subject fire completely destroyed Petitioner

Austin’s home in Warren, Vermont in late-1993,

the structure and contents insured by a policy

issued by the Hanover Insurance Company,

Worcester, Massachusetts a subsidiary of the

Allmerica Financial Corporation, a conglomerate

listed on the New York Stock Exchange. The

amounts of coverage under the policy were deter-

mined by the company and their agent and

approximately equaled the loss. In other words

there was no excess insurance. Subsequently all

terms for indemnification were complied with,

including the Proofs of J.oss establishing the

financial parameters of the claim that were accept-

ed by Hanover as fair and accurate. Thus the

compensatory damages are liquidated. A few weeks

after the fire, Hanover was informed that the

purpose of the claim was the prompt reconstruction

of the dwelling, anda qualified builder acceptable

to the insurer was chosen by the insurer’s agent.

Over a period of months extensive preparations

were made to start reconstruction as soon as the

weather permitted. Nonetheless, just as the spring

building season arrived, the insurer voided the

policy on-the grounds of arson and refused to

permit reconstruction.

The resulting litigation commenced with an

action against the Hanover in August 1994 that

resulted in an adverse judgment on August 1, 1997

after a jury trial devoted almost entirely to the

issue of fire causation. During the trial, the insurer

did not produce any evidence regarding the

essential elements of opportunity and motive.

Fraud was not at issue. About a year and a half

after trial, however, information was obtained that

demonstrates conclusively the judgment was

obtained through a conspiracy to fabricate

“scientific” evidence that provided the misleading

impression the subject fire was deliberately set

(“incendiary”). Thus, the fraud went to the heart of

the insurer's legal case, establishing through

devious means the element that has become

indispensable (sine gua non) to the so-called arson

defense to liability - definitive proof that a fire was

in fact deliberately set (“must find...that the fire

was of incendiary origin.) Westchester Fire

Insurance Company v. Deuso, 146 Vt. 424, 426, 505

A.2d 666 (Supreme Ct. - Vermont (1985)). The

cases from across the country cited in Deuso

indicate that any circumstantial evidence relied

upon in this regard must be very strong. For

instance, Loone v. Royal Indemnity Company, 460

F.2d 26, 28 (10th Cir. - 1972) - (“Several pounds of

explosive substance had been placed in the building

. explosion preceded the fire...”).

To meet this substantia] burden, the opinion of

experts in fire investigation is generally used.

Federal standards control] the admissibility of such

evidence. The hard evidence that allegedly

supported the investigation was falsified lab tests’

utilizing some sort of material that didn’t come

' (“. whether a theory or technique is scientific knowledge that

will assist the trier of fact will be whether it can be (and has been)

tested.”) Daubert v. Merrell Dow, 509, U S 579, 598 (1993)

from the subject fire site. The other, key aspect of

the scheme was the ongoing campaign engineered

by Hanover's attorneys to undermine the judicial

process so it could not function correctly. Further-

more, the dishonest way in which the attorneys

dealt with the court ultimately rose to the level of

“fraud on the court” (Haze/-At/as Glass v. Hartford-

Empire Co., 322 US 238.

2) Investigations of the Fire Site

Pursuant to a voluntary release provided by

Petitioner, Hanover conducted the investigation of

the site that -was supposed to determine the fire’s

cause. The work for the insurer was done by

defendant Douglas G. Peterson & Associates,

Greenfield, Massachusetts, under the direction of

defendant Stephen W. Houghton.

Over several years Petitioner personally. built

much of the house that contained many unique

features, including a complex, electrical system

with computer and satellite dish components. To

this day, he still considers the wood stove the most

likely cause of the fire. It served as a back-up

source of heat to a hot-water, ou-fired system with

multi-zones that covered the entire structure. The

stove, that was on the ground floor, was connected

to a tall chimney with a strong draft and had

previously overheated, resulting in two, chimney

fires that damaged the flue tiles.

Relying on the insurer’s commitment to share

the results of its examination, Petitioner did not

have his own investigator. This commitment was

not kept, and some preliminary information

regarding Hanover’s supposed “scientific” evidence

of arson was only obtained through a court hearing

and order in mid-1996, or almost three years after

the fire. As a means of broadening the resources

brought to the investigation, Petitioner also

provided a voluntary, unrestricted release to the

Vermont State Police so they could participate in

the work at the site. Their investigation took place

on November 15 and 16 and utilized a dog trained

to detect petroleum-based substances in fire debris.

Tests performed at the New York State Crime Lab

were all negative, and it has never been determined

what the dog might have detected. The officer

(Harrington), who performed the police investi-

gation, stated at his sworn deposition that no one

knows what the dog detected.

The insurers’ investigator, George Wilson of

Douglas G. Peterson, was present during the police

investigation and also worked there by himself on

November 24. Wilson’s work on the 24 provides the

basis for his 1 »port that supposedly established by

recognized, scientific procedures that the probable

cause of the fire was an accelerant being poured in

the laundry room. The information that has emerg-

ed over several years, however, demonstrates

conclusively that the report is a cynical fabrication

intended to serve the objective of thwarting

Petitioner's insurance claim.

3) The Scientific Fraud

While at the site on November 24, Wilson took

numerous photographs and collected eight samples

from the utility/laundry room area. This debris was

supposedly shipped to the Mercury Research Lab

in Cary, North Carolina, where analytical tests were

performed on a Hewlett Packard gas chromato-

graph/ mass spectrometer (GCMS). It is further

16

alleged that two of the cight samples tested

positive for an accelerant initially identified as

kerosene. Later, this was changed to No.2 fuel oi

or home heating oul.

It is now beyond reasonable doubt, however, that

the tests were ordered from the lab before Wilson

returned to the site on the 24 for the purpose of

fabricating a report that would utilize the fake

tests. The two, allegedly positive tests are dated

respectively November 25, 1993, 2:32am (sample

#4) and November 25, 1993, 4:00am (sample #6).

(See Joint Appendix in the First Circuit, pgs. 36-37;

231-232). Such a date/time is generated auto-

matically by the GCMS at the inception of a test

and encrypted along with the rest of the data in

binary code (computer language). It cannot be

altered later without destroying a significant

portion of the test file. The date/time is produced

by an internal clock that runs automatically even

when the computer is turned off because it is

supported by a CMOS battery. These batteries are

very reliable and long-lasting. In the unlikely event

that one failed, any date/time would be lost along

with the computer’s BIOS (basic in/out or

operational instructions). “ Hence, the computer

would not be able to function correctly when the

* For further details, the sworn statements of Petitioner’s experts

are provided in the Joint Appendix. Mr. Jay Chrystal is President

and Lab Manager of ChemServe, Milford, New Hampshire, an

environmental testing lab accredited nationally (Joint Appendix -

pgs 52-70) Dr Donald Hesse is a chemist and software engineer

from Saint Louis, Missouri (Joint Appendix - pgs 71-89). At that

time Chrystal and Hesse had almost 40 years of combined

experience in the testing field, which includes working with

Hewlett Packard GCMS equipment

GCMS was restarted. It would, of course, be

impossible not to notice such a situation.

Having spent most of November 24 at the site,

Wilson had to drive back to the offices of Dougla

G. Peterson & Associates in Greenfield Massa

chusetts (about five hours), sort and package the

samples and ship them to Cary, North Carolina,

which is about one-thousand miles away. After

reaching the Mercury I.ab, the samples had to be

unpacked and undergo cxtensive preparation. This

last step is an overnight process. All of this,

including transport over such a long distance,

would have to take place in only a few hours so the

tests could be performed in the early morning of

November 25. Obviously this is completcly

impossible. Despite repeated opportunities,

Hanover’s experts have not been able to provide a

scientifically plausible explanation for the

date/time discrepancy containcd in the lab tests

that allegedly support George Wilson’s opinion of

arson.

4) Concealed Expert

At the trial Jimmy Pau, technical director of the

Mercury Lab, who for several months could not be

located, provided deliberately false testimony with

the assistance of attorney Gregory Clayton in order

to deceive the jury about the tests. (Joint Appendix

- pgs. 46-51, especially 49 and 51). According to

Pau, the samples didn’t reach the lab until Novem-

ber 30 and the tests conducted on December 1. He

attempted to explain the date/time discrepancy by

alleging that the computer in the GCMS had been

turned off for six, straight days because of

electrical problems in the Cary, North Carolina

area. Allegedly this stopped the internal clock that

generates the date/time. Thus, when the computer

was turned back on so the tests could be conduct-

ed, there was the discrepancy of six days. As Pau

stated falsely under oath: “You have to set the date

and the time ”...after you turn it off, you have to

reset it... you need to reset the clock every time you

run that.” (p.49) This explanation is obviously

false and contradicts the way the clock in the

GCMS'’s computer functions, including the fact it is

supported by a battery. Since there is this reserve

source of power, it isn’t necessary “every time’ to

reset the clock which continues to run on its own.

Furthermore, Pau testified that when the tests took

place, lab personnel didn’t notice that the computer

generated an erroneous date/time six days before

the date when the tests were supposedly perform-

ed. However, an electronic clock, such as that ina

GCMS’s computer, is not like a mechanical clock

that continues to display the time when it stops

running. In the event the source of power ceases,

(Chrystal) Those dates and times are what are called the

acquisition time. The place where it gets the time is from the

real-time clock, which is on the motherboard of the computer

Q. That clock is supported by a battery; is that correct?

A. That is correct

(Jay Chrystal statement - Joint Appendix, pgs. 57-58

A. When the instrument is going to start collection on an alga

run, 1t reads the date and time from the computer system clock,

and inserts that into the data file

Q@. Okay. Now the statement that 1s necessary every time at the

beginning of a test to set the internal clock wouldn't that be false.

A. Yes: That would be false It is not necessary to set the date

and time before each analytical run.

(Dr. Hesse’s statement - Joint Appen

19

any date/ time is lost along with the computer’s

operational instructions (BIOS). (Chrystal

statement - p. 59 - “It (ie. the battery) sustains all

of the bio(s) settings for the computer itself.” 1n.4)

Equally revealing is the fact that Pau’s testimony

is disproved by the lab’s own written correspon-

dence related to the analytical tests. In a letter

dated December 2, 1993 addressed to Douglas G.

Peterson and reporting the testing of the samples

supposedly acquired by Wilson on November 24

(Joint Appendix pgs. 40-42), reference is made to

the lab’s “quality assurance program” performed

immediately prior to testing so the GCMS would

function accurately. As stated: “A quality assurance

program was incorporated into the standard

anaiytical operating procedure. The QA program

consists of a daily auto-tune of the mass spectro-

meter and a standard calibration run on the GCMS

system. This program ensures the proper cali-

bration of both GC and MS instrument.” (emphasis

added). Since this “auto-tune” program was being

conducted on a “daily” basis, the computer that

controls the equipment could not have been turned

off for six, straight days - (“Daily (adj.) - occurring,

made, or acted upon everyday’- Merrram- Webster's

Collegiate Dictionary, 11" Ed,, p. 313.) Further-

more, it is totally implausible that just after

conducting a quality assurance review of the GCMS

prior to testing, the operator didn’t notice that the

computcr that controls the equipment wasn't

functioning correctly (ie. the BIOS was lost). Based

only on this written evidence from the Jab itself,

there 1s no other possibility except that Pau’s

explanation of the date-time discrepancy given

under oath before the jury is deltberately false and

20

the tests and fire investigation a total fraud.

The date/time discrepancy was the result of an

unanticipated change in George Wilson’s schedule.

Originally he returned to the site on November 22.

However, Petitioner would not allow hiin to pro-

ceed without assurance that the results of his work

would be shared. Hence, he had to come back on

the 24, causing the :discrepancy, which resulted in

the fraud.being detected.

Finally it should be noted that at no time during

the trial did Petitioner assert fraud. Although he

suspected that something unusual was involved, he

was unable to obtain the requisite information to

make such a serious accusation. Thus the question-

ing of the various experts emphasized what was

considered their lack of professionalism.

5) Concealing the Scheme

After the litigation commenced, the attorneys,

Harold Eaton of Woodstock Vermont and then

Gregory Clayton of Littleton, New Hampshire,

conducted an ongoing campaign to undermine the

court proceeding, including discovery. This

included generating in increments additional,

falsified evidence in order to stay a step ahead of

the inquiry. Also, the insurer did not voluntarily

produce for deposition the experts connected to its

own fire investigation. Afterward, neither Wilson

or Pau would sign their preliminary telephone

depositions - something that is not typical of

truthful, scientific experts. At that point Pau

abruptly disappeared “somewhere abroad’ so his

deposition could not be completed in person at the

lab and his records examined. When Petitioner

contacted lab personnel trying to ascertain where

Pau was located, Attorney Clayton repeatedly

threatened sanctions, making clear his deter-

mination to prevent further contact with this

important, material witness. (Joint Appendix pgs.

90-92). Since Pau did not reappear until discovery

was closed, it was never possible to finish question-

ing him about the tests.

After Pau finally resurfaced, he cooperated with

Attorney Clayton to produce a forged document

falsely attributed to the prestigious American

Society of Testing and Materials. This includes a

cover letter from Clayton (November 25, 1996)

endorsing the document as authentic. (Joint

Appendix pgs. 93-94). The immediate purpose of

this deceptive act was to nullify an important court

order (October 28, 1996) regarding relevant

information promised by Pau. However, this

spurious document was only produced after

discovery ended so Pau could not be questioned

about this subject as well. At the trial Pau admitted

the document he produced was not authentic.

(Jomt Appendix pgs. 95-96)

G) Fabricating Additional, Fraudulent

Evidence

Of significance is the fact that while discovery

was in progress, Wilson and the other experts tried

intermittently to undermine their own opinions so

they would be excluded by the court. Having

become aware of the date/time discrepancy in the

lab tests, they no doubt acted in this fashion out of

concern for potential legal consequences.

As a result, during his telephone deposition

(August 6, 1996) Wilson explicitly repudiated his

own fire investigation. (Joint Appendix pgs. 97-

100). The focus of his supposedly authoritative

report is a so-called “accelerant pour pattern”

allegedly found on the laundry room floor and

documented by photographs. Nonetheless, during

his deposition, Wilson stated under oath that “I

don't believe I indicated where an accelerant was

actually poured... How much was poured or where it

was actually physically poured, I do not know..”

(Joint Appendix pgs. 99-100). With discovery.

thwarted, however, Wilson reappeared at the trial

and once again reversed himself, stating that he

really did find what he stated in his report.

While exhibiting an obvious concern for adverse

consequences, the experts also continued

intermittently to participate in the fraud and

thereby earn additional sums of money for their

“scientific” research. As a result Hanover and its

operatives, including the attorneys, utilized the

discovery period to falsify additional evidence in

the ongoing effort to salvage the scheme. This

involved the direct participation of defendant

Stephen Houghton, who previously remained in th:

background supervising George Wilson.

(Apparently at this point, Wilson was no long

willing to participate in further “research.”) As a

result Houghton traveled to the site in Warren,

Vermont and supposedly obtained a liquid sample

from the underground fuel tank that had been

unattended for three years. At the time it was in

the midst of a construction project to build a house

for the new owner of the property. Another test was

performed at the Mercury Lab and allegedly

established that the accelerant that was never

actually found came from the tank.

The letter of June 21, 1996 (Joint Appendix p.

101) from the lab indicates how closely the

attorneys were monitoring the activities of the

experts so no further mistakes would be made.

Previously, when the original, two, falsified tests

were produced, the correspondence from the

Mercury Lab was addressed to defendant Stephen

Houghton. (Joint Appendix pgs.40-42, and p.43),

who then wrote to Attorney Harold Eaton about the

matter. (Joint Appendix pgs. 44-45). However, after

the dating problem arose, all the correspondence

from the lab went directly to Attorney Clayton, who

was now exerting direct contro] over the production

of the fraudulent evidence.

This continues with the letier dated March 6,

1997 from the lab (also addressed to Clayton) that

concerns the next step in the campaign to prop up

the scheme and reinstate the credibility of the

initial two, falsified tests. This latest fakery

conveniently made its appearance just as the case

was placed on the trial calendar. It consisted of

some paper stuffed in a gallon tin can partially

filled with fuel oil. The item was produced by

Officer David Harrington of the Vermont State

Police more than three and one-half years after the

fire. Harrington produced the substance in the can

in spite of the fact that during his deposition on

July 2, 1996 (almost a year before Petitioner was

actually informed), neither he or Attorney Clayton

disclosed the existence of this allegedly relevant

evidence in response to repeated and emphatic

questions about any relevant, “physical” items “in

the possession” of the Vermont State Police. (Joint

Appendix pgs.104-106).

At the pretrial conference on July 1, 1997,

Attorney Clayton deliberately deceived the trial

judge (Murtha), who was new to the case, regarding

the timing when Petitioner was actually informed.

(Joint-Appendix pgs. 111-114). Clayton’s statement

to the court: “The moment we got that report back

from the lab we sent this to Mr. Austin...” (p. 112).

However, compare this to the letter from the Jab

dated. March 6, 1997 (Joint Appendix p. 110), in

which the results of the test on the substance in the

can were first reported to Clayton. Furthermore,

note his letter dated May 21, 1997 (Joint Appendix

p.107), when the information was finally sent to

Petitioner, or almost three months later. Also note

the letter to Clayton dated May 19, 1997 belatedly

generated by Stephen Houghton, in which the

attempt is made to give the false impression that

the attorney just learned about the test results

(Joint Appendix p.108-109). However, in explicit

language the letter from the Mercury Lab (March

6) demonstrates otherwise.

Allegedly the item that appeared so suddenly

was the newspaper (copy of the Wall Street

Journal) found after the fire on the front lawn nea:

a stump Petitioner was cutting up with a chainsaw.

The real newspaper, that originally was in his

wheelbarrow, had been lying there about a month.

At the trial Petitioner for the first time saw the

item, that was definitely not what had been on his

lawn. Presumably, the objective was to provide

corroboration of arson through something

independent of the falsified tests that might still be

regarded as suspect. However, since its is known

without doubt that the substance found in the first

two, falsified tests didn’t come from the fire site,

finding it in two, additional tests only compounded

the fraud.

Ultimately the can of oil ended up in the jury

room, where the acrid smell would have produced a

powerful and confusing, psychological impression

on the jury already prejudiced by days of falsified

“expert” testimony. Essentially, this was the

proverbial coup de grace of what amounted to a

cynical, dramatic performance. In all, four experts

(Pau, Wilson, Houghton and Harrington) perjured

themselves regarding the fraudulent evidence in

order to legitimatize it in the eyes of the jury. To

augment the smelly substance in the can, the

senses of the jury members were further impacted

by impressive displays (three-feet in length), which

allegedly depicted in vivid color the pour pattern

that George Wilson previously stated under oath at

his deposition that he never found. All of this

commenced with a lengthy dissertation by Officer

Harrington on the “science” of fire investigation.

Finally, it should be noted that the initial

litigation took place in a district court (Vermont),

where the judge (Sessions), who was handling the

case, had a heart attack. As a result, the file was

transferred repeatedly, dealt with by various

personnel and the trial conducted by a judge

(Murtha), who was largely unfamiliar with the case

Thus, this complex dispute took place within a

highly chaotic context that enabled the defendant

insurer, attorneys and experts (including the

current defendants) to capitalize on the resulting

confusion and undermine completely the court

proceeding.

Litigation

The lengthy history of this dispute has taken

place in five stages (Austin J - V) initiated

sequentially by Petitioner (as a pro se) over a

period of approximately 16 years. Austin J is the

initial action against the Hanover Insurance

Company that ended in the adverse judgment

procured by fraud. Subsequently, in Austin IT - [V

all of Petitioner’s Complaints based on the late-

discovered evidence were dismissed without any

hearings or findings of fact. The district court

(Vermont) and the Second Circuit based their

adverse decisions on a standard of review that

mirrors a strict reliance on the intrinsic/ extrinsic

fraud distinction but is expressed in what amounts

to contradictory res judicata principles. Abouta

year and a half after trial, Petitioner finally

obtained the information that proves the so-called

scientific evidence relied on by the Hanover in

Austin / is a complete fraud. As a result, an

independent action (Austin // was filed against the

insurer (99-CV-252 Vt). There were no proceeding

at the trial level, and instead the case was promptly

dismissed. An unsuccessful appeal to the Second

Circuit (00-9235) followed, the resulting order

indicating the appellate court did not go back in the

file or realize that an independent action was

involved - in other words there was no de novo

review.

Austin 1l/(03-CV-204 Vt) was then filed against

the attorneys and experts (including the current

defendants) who conspired with the insurer in

Austin I. Once again the case was dismissed with

no proceedings or specific findings of fact - this

time on the contradictory and mutually exclusive

zrounds of res judicata and collateral estoppel.

Another appeal to the Second Circuit (03-9264)

foliowed, and the court affirmed on the grounds of

collateral estoppel.-At the same time the court

indicated that a de novo review of the case was not

performed and hence there were once again no

findings of fact at the appellate level.

The next stage (Austin IV) was an independent

action against the attorneys in the Eastern District

of Missouri. The case was filed in Saint Louis

because the ltigation commenced there in 1994. At

the time the Hanover obtained a change of venue to

Vermont on the grounds of false statements made

to the court regarding the falsified, scientific

evidence. In other words, the case was moved

halfway across the country to facilitate a fraud.

After a nine-month delay, the court declined

jurisdiction, and the case was sent back to Vermont

(06-CV-38). In its order the First Circuit states

incorrectly that (“We join our sister appellate

courts in the Eighth Circuit and the Second Circuit

in admonishing Austin...”) However, this matter

was never before the Kighth Circuit that expressed

no opinion on the subject.

After the case was returned to Vermont, it was

dismissed again. There was another appeal to the

Second Circuit (06-4203), that issued an order also

based on the contradictory grounds of both

collateral estoppel and res judicata. It will be

recalled that another Second Circuit panel (Austin

II/} concluded that these same attorneys were not

privies (ie. collateral estoppel). In a footnote,

however, the curious statement appears that

presumably indicates that all of the defendants in

the various stages of the litigation were privies.

Once again there were no findings of fact at the

appellate level.

Thus, although the matter had dragged on since

1994, no valid litigation ever took place. The

original action was undermined completely by

fraud, and all of the subsequent actions were

dismissed by the trial court without proceedings or

specific findings and then confirmed at. the

appellate level - twice without a de novo review. In

effect, during all this time the matter went

essentially nowhere.

In Austin V, the district of Massachusetts

dismissed the current independent action against

the defendant experts on the grounds of judicial

comity and the state statute of limitations even

though a prior state case is not involved.

Subsequently the First Circuit affirmed on the

grounds of a literal interpretation of U.S. v.

Throckmorton (ie. all of the frauds that occurred

are intrinsic and hence barred.)

As noted, in all of the relevant orders there is

some sort of significant, judicial error. The prior

litigation is discussed in the Amended Complaint,

pgs. 27-31 in the Joint Appendix, and the resulting

orders are at pgs. 192-215. Finally, it should be

noted that at the various prior stages, Petitioner

unsuccessfully sought certiorari. However. the

grounds were different from those presented in the

current Petition

First Circuit's Order (November 10, 2009)

As previously stated, the mitial action (Austin J),

including the trial, is a prime example of how to

undermine a modern judicial proceeding by

fraudulent “acts.” Essentially this was a corrupted

situation that no litigant could deal with effectively

so in Austin / there never was an “adversary”

proce eding. Nonetheless, in its recent order the

+)

<

First Circuit states that (“the possibility of perjury,

even concerted, is a common hazard of the

adversary process with which the litigants are

equipped to deal through discovery and cross-

examination’), citing Geo. P. Heintjes Co., v. Riley

Stoker Corp., 71 F.3d 44, 49 (1™ Cir. 1995)

(emphasis added); and Throckmorton at 66.

However, 7hrockmorton also states that relief can

be obtained through an equity proceeding when (“a

judgment was obtained directly by fraud”) at 66

emphasis added; and (“by reason of something

done by the successful party to a suit, there was in

fact no adversary trial or decision of the issue in

the case.) at 65 (emphasis added).

Similarly in Marshall v. Holmes, the Court takes

note of the need (“to scrutinize the conduct of the

parties, and if it finds that they have been guilty of

fraud in obtaining a judgment or decree, it will

deprive them of the benefit of it...”) at 599,

Emphasis added. The citations from TVhrock-

morton and Holmes describe exactly the

situation involved in this case, where the

judgment wasn’t merely “based” on fraudu-

lent evidence (so-called common law fraud)

but instead was “obtained” by fraudulent acts

directed at Petitioner and also the court.

REASONS FOR GRANTING THE WRIT

1.The Law Pertaining To Independent

Actions Is Unsettled And Requires A

Long-Awaited Clarification By The

Supreme Court.

The “independent action” (60d)(1) 1s an essential

repository of relief from unconscionable judgments,

combining in one vehicle various, traditional

remedies. Furthermore, it is the only means of

addressing late-discovered evidence of complex

frauds. Long ago, the Court in Graver v. Faurot

noted the apparent problem of harmonizing

Throckmorton and Holmes and the need to clarify

the situation. Nonetheless, the situation among the

lower courts continues to lack a coherence that

only the Supreme Court can provide.

It is not difficult to understand why some

perceive a conflict between Throckmorton and

FHlolmes, although Petitioner does not share that

position. The determining considcration in

Throckmorton was that the government’s lawyer

knew about the fraud and failed to act upon this

important information. Mrs. Holmes, however, did

not and could not have known about the fraudulent

letter used to obtain the various judgments against

her. In these and other precedents, the need of

reasonable diligence is emphasized in order to

protect the finality of judgments. At the same time,

the important consideration is also stressed

repeatedly that an independent action can inter-

vene when the successful litigant made a concerted

effort to prevent a fair trial. Hazc/-Atlas is, of

course, highly simular to the case reviewed in this

Petition that involves a premeditated scheme,

attorney involvement and also dishonest actions

directed not only at the opposing party but the

court itself.

Much of the problem of harmonizing 7hrock-

morton and Holmes and similar cases stems from

terminology and the attempt to draw the “precise

line” of which Justice Marshall was so wary. A

“fraud practiced directly upon a party, that might

be regarded as extrinsic or collateral, can be

connected in a significant. way to what is intrinsic

to the judgment and therefore potentially ruled out.

Inevitably the two forms of fraud overlap and are

entwined. It can be argued that the distinction is

unnecessary and at times counter-productive,

creating uncertainty when it attempts to do the

opposite.

In the instant case the falsified lab tests can be

viewed as intrinsic, while the concealment of the

lab director's location so he could not be deposed

and his records examined as extrinsic. Similarly the

foul-smelling substance in the tin can that ended up

in the jury room might also be viewed as intrinsic

while.the concealment until discovery was closed

and the delberately false statements made to the

judge at the pretrial conference as extrinsic in

character. The misuse of discovery by the Hanover

and its operatives (including defendants) to

produce additional, fraudulent evidence on an

ongoing basis to thwart discovery can be

interpreted as either intrinsic or extrinsic, or both

Thockmorton, Holmes and Marine Insurance all

speak of unconscionable “acts” through which the

fraudulent judgment was “obtained.” Thus, in

Austin [, the fraudulent evidence (falsified lab

tests and investigation) was protected by

fraudulent litigation “acts” or tactics - the one

concealing and abetting the other so the

subject matter was (“never actually

presented,” nor was it “capable of being

discussed there.”) Throckmorton at 66-7.

Unfortunately the wording in 7hrockmorton at

times complicates the matter. Thus it is stated that

the extrinsic label cannot be applied (“to a fraud in

the matter on which the decree was rendered.”) at

68, while at the same time the Court speaks of a

(“hindrance besides the negligence of the defen-

dant.”) at 66. A court can conceivably regard any

misdeed if connected to the subject matter tried as

intrinsic in nature. Jn the seminal Haze/-Atlas

precedent, Justice Roberts dissented, viewing the

egregious frauds employed there as all intrinsic

and therefore not forming the basis of an indepen-

dent action. The order of the First Circuit in

dispute here adopts what amounts to a similar

position, viewing the Throckmorton and

Holmes cases as essentially inconsistent.

2. This Case Constitutes A “Grave

Miscarriage Of Justice.”

The fire that destroyed Petitioner’s home

occurred 17 long years ago. It was a fine dwelling

where he lived for 15 years, much of the house built

at great effort with his own personal craftsman-

ship. In addition, he lost the possessions acquired

over decades, the library and business papers on

which he depended to earn a living, and also items

of great personal importance, including manu-

scripts. Subsequently he turned to the judicial

system to enforce the insurance policy that he

purchased in good faith so he could promptly

rebuild his home and get on with his life.

Unfortunately the legitimate rights he attempted to

assert in court were thwarted by an elaborate,

ongoing scheme so in effect he had no rights in

court. ‘l'’o compound the problem he has been

compelled to deal with an unsettled body of law

that by its amorphous character can invite a

miscarriage of justice such as this one.

In the responses to Petitioner’s various

Complaints in Austin // - V, the supporting

evidence of fraud was not contested. This evidence

is not only clear and convincing but virtually

indisputable. Furthermore, there have been no

findings of fact by any lower court on which a

contrary conclusion can be based.

In that regard attention should be drawn to the

belated attempt before the First Circuit to involve

some sort of amicus - a Mr. Ritchie. Petitioner has

never heard of him and did not receive any copies

of what he Submitted to the court. Consequently he

isn't sure what Ritchie is trying to allege. During all

the years this litigation has been in progress,

Ritchie never participated in the matter in any way

and has no direct interest in the dispute. Presum-

ably he is some sort of expert being paid to offer an

opinion about a subject about which he has no

direct knowledge. In an en banc decision (six

judges), the First Circuit rejected his participation

(July 22, 2009).

CONCLUSION

The facts of this dispute “clearly prove{s) it to be

against conscience’ to allow this unfortunate

situation to remain uncorrected. The First Circuit's

Order is clearly in conflict with the equitable

principles that underlie independent actions. The

evidence supporting the Amended Complaint is

clear and convincing as well as uncontested.

Furthermore, this case provides an opportunity to

address the various issues related to independent

actions that for decades have remained in doubt.

As a result, the Court can appropriately consider

disposing of this case In a Summary manner and

also granting the relief sought in the Amended

Complaint (liquidated monetary damages -

$1,918,202 plus allowable interest since prior

calculation).

Respectfully submitted,

f MLA, oh K :

H. Richard Austin

P.O. Box 220814

Saint Louis, MO. 63122

314-849-4827

austin _richard(@msn.com

St. Louis, Missouri January 29, 2010

APPENDIX NO. I

nited States Court of Appeals

For the Furst Circuit

H. RICHARD AUSTIN,

Plaintiff, Appellant

DOUGLAS G. PETERSON & ASSOCIATES

Defendants, Appellees

Before

Boudin, Selya and Lipez,

Circuit Judge:

JUDGMENT

Entered: November 10, 2009

Pro se appellant H. Richard Austin appeals

1} . the district court's dismissal of his inde penaent

ction against appellees Douglas G. Peterson &

Associates, Inc, and Stephen Houghton, brought

pursuant to Rule 60(d)(1) of the Federal Rules of

Civil Pro edure After careful de novo review of the

cord, Estate of Bennett v. Wainwright, 548 F.3d

)

95. 162 (1 Cir. 2008), we affirm

This is Austin’s fifth lawsuit following the fire

that destroyed his home in Warren, Vermont, in

November. 1993. Austin v. Hanover Ins. Co., 165

F.3d 13 (2d Cir. Nov. 12, 1998), 1998 WL 801885

(unpublished table decision), cert. denied, 527 US

1004 (1999) (Austin I); Austin v- Hanover Ins. Co.,

14 Fed. Appx. 109 (2d Cir. Jul, 13, 2001), 2001 WL

799188 (unpublished decision), cert. denied 534 U.S.

954 (2001) (Austin IT); Austin v. Downs, Rachlin &

Martin, 2003 WL 23273466 (D.Vt. Nov. 3, 2003)

affd 114 Fed. Appx. 21 (2d Cir. Nov. 4, 2004)

(unpublished decision), 2004 WL 2476474, cert.

denied, 544 U.S. 961 (2005) (Austin IJ); Austin v.

Downs Rachlin & Martin, U.S. District Court District

of Vermont Docket No. 06-38, aff'd, U.S. Court of

Appeals for the Second Circuit Appeal No. 06-4208,

cert. denied, U.S. Supreme Court Docket No. 07-

1409 (Austin IV), Both Austin I] and Austin [V were

independent actions in equity brought pursuant to

Rule-60(d)(1) (formerly Rule 60(b)) seeking to set

iside the judgment for defendants in Austin |. The

present appellees: were named defendants in Austin

(Il. At every point in each of his four prior

litigations, Austin has failéd to make a case that

appellees and others in concert with them fabricated

evidence and suborned perjury in order to avoid

paying out on his homeowners policy after the fire

In the present matter, Austin epeats his prior

claims of fraud and conspiracy. We are compelled to

conclude,.as have our sister circuits who have

reviewed virtually identical claims in Austin’s

previous suits, that Austin has failed to make out

a viable claim under Rule 60(d)(1). Our circuit

+

insist[s] on severe conaitions to tine assertion o

such a claim, due diligence in the discovery of the

fraud in the original action and clear and convincing

evidence of fraud in the collateral one.” Lundborg v.

1996). “The possibility of perjury, even concerted, is

a common hazard of the adversary process with

which the litigants are equipped to deal through

discovery and cross-examination, and where

warranted, motion for relief from judgment to the

‘presiding court.” Geo. P. Reintjes Co. v. Riley Stoker

Corp., 71 F.3d 44, 49 (1° Cir. 1995)) Moreover,

“|djiscrediting witnesses does not generally justify

an ‘extraordinary second opportunity.” Id. (quoting

Xerox Financial Services Life Ins. Co. v. High Plains

Ltd., 44 F.3d 1033, 1038-9 (1° Cir.1995) See also

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

(“the doctrine is equally well-settled that the court

will not set aside a judgment because it was founded

on a fraudulent instrument, or perjured evidence or

for anv mater which was actually presented and

considered in the judgment assailed.”

Accepting Austin’s well-pleaded facts as true and

indulging all reasonable inference in his favor, we

conclude that Austin did not make a sufficient

showing to warrant relief under Rule 60(d)(1).

Emphasis added

We join our sister appellate courts in the Fighth

Circuit and the Second Circuit in admonishing

Austin that he has repeatedly filed duplicative

lawsuits and can have no objective good faith

expectation of succeeding on his claims. Appellees

have been repeatedly hailed into court and forced to

defend against baseless litigation, engaging the

~

judicial resources ot the fede ral a Strict and circ

courts of three states

court (in fact, several of them) There i:

rOocee d nys

Austin nas had his day if)

nothing to

be gained in further |

alffurmed

The judgment of the district court

Fed. R. App. P. 39(a

By the Court

Costs to appellees

Ma rea