David Harrison Federal Case
In 1988, the United States of America charged me with damaging a family automobile by use of a pipe-bomb and the burning of a trailered ski-boat (two counts under Title 18, United States Code, § 844(i)). I was hauled into the United States District Court for the Southern District of California, at San Diego, to face the charges. Each count carried a potential sentence ranging from probation up to ten years in prison.
At the time, § 844(i)'s interstate commerce element -- a fundamental element without which the United States has no legal jurisdiction (authority) over the alleged offense -- had long been interpreted by the Ninth Circuit Court of Appeals as "de minimis" connection to commerce (e.g., automobile parts manufactured and shipped across United States and/or state borders, or a boat being insured by an out-of-state insurance company; even the mere mailing of license plate tags or an insurance policy by means of the United States Postal Service sufficed for interstate commerce purposes). A challenge of the interstate commerce elements of my case was presented to the district court, but was summarily denied. A guilty plea followed upon the ill-advice of defense counsel that any appeal of the interstate commerce elements (jurisdictional question) would be frivolous, and that I was facing a small amount of time in prison. Indeed, an individual then under § 844(i) conviction for much more serious acts received probation. At sentencing, however, I was given the maximum ten years on each count, run consecutively, for a total of twenty years in prison. Such draconian sentences for this first time offender were the result of outright fabrications, lies and other misconduct by then-Assistant United States Attorney, Larry A. Burn, upon Judge Rhoades, both in court and in improper ex parte communications between Burns and Rhoades. A Notice of Appeal was filed but later withdrawn on the, again, egregious advice of defense counsel that any appeal of the interstate commerce elements would be futile against the Ninth Circuit's de minimis theory of commerce connection. Suffering such inequities and injustices, I embarked on a quest to right the wrongs.
In Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), the United States Supreme Court addressed the interstate commerce element of § 844(i). In Jones, the Supreme Court held that the damaged or destroyed property must have been currently and actively used in commerce. A taxi cab or charter fishing boat are examples of property actively used in commerce, as would be an apartment building and liquor store. A mere passing, passive or past connection to commerce does not suffice for purposes of § 844(i) jurisdiction. The Ninth Circuit Court of Appeals' theory of de minimis commerce connection was thrown out by the Supreme Court as over-reaching. The Supreme Court's holding rendered my § 844(i) convictions null and void because the damaged/destroyed property of my convictions were not then-currently nor actively used in interstate commerce. In other words, my convictions were for alleged conduct that was not a violation of United States law (crimes that did not exist). I surged ahead.
Since 2000, challenges and appeals of various nature have been filed, but every one was denied or dismissed on procedural grounds. In virtually every instance the judges of the San Diego District Court did deliberately misconstrue or recharacterize each challenge/appeal as something other than it was, then denying or dismissing the altered filing as procedurally barred. At one point I was able to have all the magistrates and judges of the San Diego District Court recused from my challenges/-appeals, but that lasted only a short time. Holding themselves above the law, the magistrates and judges decided to ignore the ORDER of recusal. The abuses of power resumed. For example, Judge Rhoades acknowledged that my convictions were to non¬existent crimes, but would not vacate the convictions. Judge Whelan's method of denying me justice was to withhold making any ruling, acting as if no challenge was even before him. An attorney was told that no relief would ever, under any circumstances, be provided. The reason for such misconduct by, one would hope, otherwise decent judges, is the shielding of Burns -- first a magistrate, then a judge in that same courthouse -- from his gross misdeeds in prosecuting me. To protect Burns, rather than right the wrongs, the judges refuse on procedural grounds to ever reach the merits of my challenges and appeals of the null and void convictions. Any other judge of the United States would have granted relief long ago, acknowledging the convictions as null and void, and issuing an ORDER vacating the convictions. Righting the wrongs. But not the judges of the San Diego District Court, whose ideals and oaths of office rise only as high as protecting one of their (corrupt) own.
At the time of this writing, in the fall of 2013, another petition, this one founded expressly on the Fifth Amendment of the United States Constitution, and Supreme Court law from 200 hundred ago to present, is being prepared for filing. The petition must be first presented to the San Diego District Court. I expect no justice there. Perhaps in the Ninth Circuit Court of Appeals, or the Supreme Court. I do not know where, but I do expect justice. By law, the question of whether the United States ever had jurisdiction to haul me into court on any felony charge remains open forever.
The quest continues…
- Burns secreted to judge Rhoades false tape recordings which he deliberately mismarked to incriminate me in a fabricated murder plot (tapes judge Rhoades either never listened to, or made no effort beyond Burns' word to authenticate the voices). Once the secret tapes were discovered they were proven not to be of me, but two roll-playing government minions;
- In other proceedings before judge Rhoades, he once opined that my assertions of a government witness having committed perjury were not of import, because the perjury was corroborated by another government witness -- essentially finding that a lie upon a lie makes a truth;
- In a 1993 civil action (Case No. #CV-03-1942-B), where a jail-house snitch turned government agent averred in his own pleadings that he was "at all times a government agent" working for Burns (a fact Burns concealed from the defense and the court), judge Brewster refused to acknowledge the agent's averment and made a finding that there was no evidence that the snitch was a working government agent. We were midway into the case when judge Brewster dismissed it pursuant to the just released Supreme Court decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), which prohibited civil litigation against prosecutors until the underlying conviction is "called into question." Even then, judge Brewster attempted to dismiss the case "with prejudice" so that I would be unable to reactivate the case at such time that I was able to have the conviction "called into question." On appeal, the Ninth Circuit Court Of Appeals (Court Of Appeals) sent the case back to judge Brewster instructing that he issue the dismissal in accordance with the Heck ruling, i.e., "without prejudice.";
- Being the tyrant that he is, Burns sought to change the specific terms of my restitution sentence. Judge Rhoades indulged the child. On 21 April, 1995, after years of contentious litigation, judge Rhoades violated well established law in not only altering the unambiguous terms of my restitution sentence, but doing so without me present -- all to no net value except the waste of taxpayers' dollars (a fancy costing taxpayers tens-of-thousands of dollars) and to sate Burns' ego;
- When federal and state motions were filed for the return of property, both governments opposed the motions based on arguments that the property might be necessary in any future retrial(s). On 11 October, 1995, judge Rhoades denied my federal motion. The state motion was also denied -- later to be discovered that all the while Burns was covertly, and without court authorization, engaged in destroying property and other evidence crucial to my appeals;
- When Burns' perjuries in two personal declarations were exposed, I caused to be filed on 23 February, 1999, my Application To Have The District Court Convene A Grand Jury So That Applicant May Present Evidence Of Perjury By United States Magistrate Larry A. Burns (Case No. #'99-0311-JKS). Eventually, judge James K. Singleton (a federal judge in Alaska, presiding over the case (see, Item #7, below)) squashed Grand Jury review by recasting the perjuries as merely "misinformation", although conceding that Burns had, in fact, provided such "misinformation" in both federal and state prosecutions;
- On 26 August, 1999, I moved to recuse all judges and magistrates of the United States District Court for the Southern District of California, at San Diego, due to their gross bias and prejudice against me, and in favor of Burns. That motion was granted on 7 March, 2000, and cases involving myself and Burns sent to judge Singleton, United States District Court Judge for the District of Alaska ( judge Singleton was hand-picked by the Chief Judge of the District Court of San Diego, then approved by rubber-stamp of the Ninth Circuit Court of Appeals.);
- A Federal Rules Of Civil Procedure (Fed.R.Civ.P.), Rule 60(b)(6), motion seeking review of Burns' "fraud upon the [federal sentencing] court" was re-characterized by judge Singleton on 5 September, 2000, as a motion under 28 U.S.C. Â§ 2255 and dismissed;
- When the government -- confident in her favored position -- filed a critical pleading 42 days late without permission or explanation and later did not oppose my motion, supported by two controlling Supreme Court cases, that their late pleading be stricken from the case, judge Singleton simply ignored my motion and Supreme Court law and allowed the government's late pleading ... just as the government expected;
- The heart and soul of Fed.R.Civ.P., Rule 60(b)(4), is to correct null and void convictions, but judge Whelan ignored my filing and repeated requests for a ruling, refusing ever to acknowledge my submission under Rule 60(b)(4);
- On 18 July, 2001, I did file into the San Diego District Court my petition under 28 U.S.C. Â§ 2241(c)(3). That petition was re-characterized by judge Miller as a motion under 28 U.S.C. Â§ 2255 and dismissed as unauthorized, notwithstanding that within the petition I had reminded all judges of their recused status. Justice be darned, judge Miller ignored that reminder. Judge Miller's "appearance of impropriety" in failing to abide by the recusal Order was presented in a Judicial Complaint to the Court Of Appeals in Case No. #02-89037. The Judicial Council covered their eyes to judge Miller's glaring misconduct.~ */ In an Associated Press article of 16 July, 2002, it was noted that of 766 Judicial Complaints filed in 2001, only one resulted in a penalty. Judges "have an obligation to police themselves, and of course that is the problem," said American University Law Professor, Paul Rice. Furthermore, Rice points out that "[j]udges sit on the boards that review allegations of ethical misconduct and are loath to punish a colleague.";
- On 17 January, 2002, I filed a Notice To All Judges And Magistrates Of Their Oath Of Office; Duty To Uphold The Constitution, therein informing every judge and magistrate of their duty to uphold the Constitution and protect the rights of every citizen. Thus, their duty to correct the injustices that are my false convictions. The Notice was served by Certified/Return Receipt mail upon every judge and magistrate in the San Diego District Court. A week later, judge Whelan ruled that the court had no jurisdiction to entertain my Notice of the judges' duty or the issue of my false convictions. Judge Whelan then ordered the Clerk to close the file;
- On 19 July, 2002, I filed my Request To Dismiss Indictments, premised on established law that a judgment of conviction rendered by a court lacking jurisdiction over the charged offense is a nullity (judgment for nonexistent offense) and can never become final. Because the judgment can never become final the proceedings remain, by definition, pending, and a defendant may move the court at any time to dismiss the fatally flawed underlying indictment. See, Federal Rules Of Criminal Procedure (Fed.R.Crim.P.), Rule 12(b)(2). Judge Rhoades issued a four sentence denial -- no facts or law cited -- opining simply that I pled guilty, thus am stuck with the convictions (albeit to offenses that do not exist). Contrary to judge Rhoades' opinion, the Constitution and Supreme Court hold that no man can be convicted, by judge, jury or plea of an offense that does not exist. Like judge Miller, judge Rhoades ignored my notice that the prior recusal of all judges in San Diego prohibited him from presiding over the case. Judicial Complaint Case No. #02-50478 was blinked away;
- On appeal of judge Rhoades' denial, a three-judge panel of the Court Of Appeals summarily dismissed, opining that the constitutional question of a conviction for a nonexistent offense is so "insubstantial" as not to warrant consideration (Case Nos. #02-50477 and #02-50478);
- In late 2001, I transferred from one prison to another. Relocated in a federal district other than that of San Diego, I properly presented another Â§ 2241(c)(3) petition to the district court now having jurisdiction. On 24 September, 2002, that petition was filed in the United States District Court for the Central District of California, at Los Angeles (Case No. #EDCV-02-1030-RT(RC)), and on that same day the assigned magistrate ordered the government to answer in regards to my unconstitutional convictions. Not until 31 March, 2003, did the government file her answer. Then, without prior notice to me of any kind, a judge interjected himself into the case and ordered it transferred to San Diego (court of conviction). The judge ignored the fact that all judges in San Diego are recused, and cannot entertain any filing from me involving Burns. The "fix" was in. My repeated filings, both into the Central District and to San Diego, to be heard concerning the transfer of the case were ignored. Back in San Diego, the petition was given a new Case Number (#03-CV-0795), and sent to judge Singleton, who then re-characterized and dismissed. But judge Singleton went a step further. He ordered the Clerk of the Court to close the file and not to accept any future filings from me;
- On 13 May, 2003, the Court Of Appeals erased Case Nos. #02-50477 and #02-50478: "Petitioner's motion for reconsideration en banc ... is denied on behalf of the full court.";
- Following the re-characterization and dismissal of Case No. #0795, I did file on 17 June, 2003, my Notice Of Appeal and Application For Certificate Of Appealability (paying the entire filing fee of $105.00, which the court greedily swallowed). But judge Singleton had more dirty tricks up his sleeve. He deliberately misconstrued the Application For Certificate Of Appealability as a request for authorization to file a second or success motion under Â§ 2255 (a filing that does not go to the district court, and does not require any filing fee). Judge Singleton then ignored my every request that he rule specifically on the Certificate Of Appealability;
- Not to be discouraged by the en banc denial, I marched on to the Supreme Court, filing on 15 July, 2003, my Petition For Writ Of Certiorari raising before the High Court three questions as to the constitutionality of the lower courts' actions in matters of my Request To Dismiss Indictments;
- On 6 October, 2003, the Supreme Court denied my Petition For Writ Of
Certiorari (Case No. #03-5892). The constitutional questions presented
would not, this time, become one of the favored 1% of cases accepted for
full briefing, argument and decision. Maybe next time. And there will be
a next time. The denial effectively terminated my efforts to have the
The Jones ruling came down in 2000. Since that time I have been unrelenting in efforts to have my false convictions vacated. As the above chronology shows, I have attempted every proper and legal means to gain access into the district court. The corrupt judges of the San Diego District Court, with the unwavering complicity of judge Singleton, have improperly and illegally kept the courthouse doors closed, bolted and barricaded. Those judges have ignored motions, re-characterized filings and then dismissed them, misconstrued applications, and have ordered cases closed and instructed the Clerks not to accept any further filing from me. Indeed, those judges have unanimously held that I could never access the court by way of any Â§ 2241 petition. They were all wrong. Because only the guilty go quietly to the gallows, I never let their foolish Orders and gross malfeasance deter me from my quest. Also, I believed in my understanding of the law, and was convinced that Â§ 2241 was the proper and legal means to access the court, and to challenge my null and void judgments of conviction. As you will now see, I was right.
- On 23 December, 2004, I filed into the Court Of Appeals my Application For Leave To File Second Or Successive Petition Or Motion Under 28 U.S.C. Â§ 2254 Or Â§ 2255 (Case No. #04-76726). Obtaining authorization to file a second/successive Â§ 2255 motion is, however, a near impossibility. But, that was not my goal. In fact, the Application was merely the means to an end, a way to get into the Court Of Appeals. Without going into a very lengthy discussion as to (1) the retroactive nature of the Jones ruling, and (2) whether it is a new rule of constitutional law, suffice to say the issues were arguable and sufficient for my purposes. Most importantly, in the Application I argued the constitutional concerns that would arise if the Court Of Appeals did not grant authorization to file a second/successive Â§ 2255 motion. The issue, therefore, was problematic for the Court Of Appeals; here was a person convicted for nonexistent offenses raising the very real issue of denial of access to the court. My strategy was to give the Court Of Appeals a way out by offering that it could deny Â§ 2255 authorization by granting permission to bring my challenge by way of a Â§ 2241 petition. The Court Of Appeals did what I have never before seen them do -- they issued an Order to the government to reply ("The application for authorization to file a second or successive 28 U.S.C. Â§ 2255 motion in the district court raises issues that warrant a response."). The government eventually responded (although there was some chicanery in failing to mail me their response, thus attempting to cause me to miss the filing deadline to reply). The government fell into the trap by arguing narrowly that the Jones ruling did not warrant Â§ 2255 authorization. The Court Of Appeals was then presented with my reply, citing controlling law, that the Court Of Appeals must, if not authorizing Â§ 2255 access, provide access by way of Â§ 2241. To deny both would raise an issue of constitutional concern;
- On 30 March, 2005, the Court Of Appeals returned my $105.00 filing fee from Case No. #0795. Although the fee was returned, and despite my best efforts, the issues were never addressed, having been lost in the confusion generated by judge Singleton's deliberate misconstruing of the Certificate Of Appealability;
- On 21 June, 2005, the Court Of Appeals issued her Order in Case No. #76726 (Â§ 2255 authorization is denied without prejudice to the filing of the issues into the district court under Â§ 2241);
- On 21 July, 2005, I did file into the District Court my Petition Pursuant To Article I, Section 9, Clause 2, Of The United States Constitution (The Great Writ Of Habeas Corpus; 28 U.S.C. Â§ 2241(c)(3)). While it would appear incredible to someone unaware of the corruption in the San Diego District Court, it came as no surprise to me that the case was assigned to my ex-prosecutor, now-judge, Larry A. Burns! In a rare glimmer of ethical conduct, Burns removed himself from the case. Reverting to form, however, he turned the case over to a fellow judge in that same courthouse where, as he is well aware, all judges have been recused from cases involving him and I;
- On 5 August, 2005, United States District Court Judge, Dana M. Sabraw, issued an Order Requiring Response From Government. Sabraw ordered the United States Attorney to file and serve a response to the petition no later than September 30, 2005;
- On 9 August, 2005, I did file my Motion Reminding Judges Of Recusal Order (all judges of that courthouse having been recused in 2000 by order of the Chief Judge) seeking the immediate disqualification of all judges of the San Diego District Court from the instant Â§ 2241 petition involving my fraudulent prosecution by Burns and resulting erroneous convictions;
- Having received no response from the government, I did file on 5 October, 2005, my Ex Parte Notice Of Intent To File Reply; filed with heightened caution in case the government had timely filed a response but had failed to serve me (this happens with some regularity). I did properly serve a copy of my Notice on the government;
- Still having received nothing from the government, I did file, and serve upon the government on 30 October, 2005, my Motion That Court Grant In Total Unopposed Petition Pursuant To Article I, Section 9, Clause 2, Of The United States Constitution (The Great Writ Of Habeas Corpus; 28 U.S.C. 2241(c)(3)). My Motion noticed the Court of the controlling Supreme Court law holding that one day late is fatal in matters of missed filing deadlines. In this case the government was a full 30 days late;
- On 3 November, 2005, the government applied to Sabraw . to allow them until 28 November, 2005, in which to file a reply to my Petition;
- On 3 November, 2005, without allowing any opposition, and ignoring the controlling Supreme Court law on the matter, Sabraw granted the government until 28 November, 2005, in which to respond to my Petition; another of the many examples through the years of those judges refusing to follow the law in matters involving myself and Burns, always to the benefit of the government (to the protection of Burns), and always to my detriment;
- The Government's Response And Opposition To Petitioner's Petition For Writ Of Habeas Corpus Pursuant To 28 U.S.C. 2241 was filed on 28 November, 2005. The Response did not argue against relief, but sought the dismissal of the Petition for its refiling in the District Court in the district of my incarceration: "The Government respectfully requests that this Court deny habeas relief, without prejudice, so that Harrison may file this 5 2241 claim before the proper court: the district court for Central District of California.";
- In a supplemental reply, filed 23 January, 2006, I argued that denial of the Petition would be contrary to established law. In fact, the very case cited by the government required that Sabraw's only act could be to transfer the case to the District Court for the Central District;
- Sabraw, who was handed my Petition by Burns, was not about to let down her brethren. On 27 February, 2006, Sabraw ignored the government, the Ninth Circuit Court Of Appeals, and the law, and dismissed the Petition on the grounds that I was barred from bringing the Â§ 2241 petition at all! Sabraw "conclude[d]" that the Ninth Circuit Order granting me the presentation of my issues by way of 5 2241 jurisdiction didn't mean that at all. Sabraw opined that what the Ninth Circuit meant was that I could file the Petition, but not necessarily proceed with it. If it weren't such a blatant act contrary to law it would almost be comical. No doubt Burns bought Sabraw champagne and chocolates for her favor. Even more despicable was the , reasoning underlying Sabraw's dismissal of the Petition; opining that since I did not challenge the issues in 1989 (at the time of my direct appeal) or 1992 (at the time of my first and only motion under 5 2255) -- ELEVEN YEARS AND EIGHT YEARS, RESPECTIVELY, BEFORE THE SUPREME COURT CHANGED THE LAW THAT DECRIMINALIZED MY ALLEGED CONDUCT -- I was barred in raising the issues now. Sabraw ignored the fact that the Ninth Circuit had already addressed this precise issue in granting me 5 2241 jurisdiction to present the issues, and ignoring well established case law throughout the country that a convicted person be provided an unobstructed opportunity to raise an issue once the Supreme Court changes the law. Sabraw could not cite a single case to support her ruling (two wholly inapplicable cases were offered); a ruling issued to hinder my federal convictions being overturned, and to protect Burns from his exposure to civil litigation for the 12+ years I was falsely convicted and imprisoned. In a footnote, and baldly turning a blind eye to the Chief Judge's order recusing all judges of that courthouse, Sabraw refused to disqualify herself from the case, suggesting, without more, that she had no conflict;
- On 24 March, 2006, I filed my timely Notice Of Appeal. Along with the NOA I filed my certified papers to waive the filing fee. Although the NOA was properly filed, Sabraw deliberately ignored the waiver of fee request. The Court Of Appeals then warned, naturally, that the appeal was subject to dismissal since the filing fee had not been paid. I diligently refiled paperwork directly with the Court Of Appeals asking that the filing fees be waived, hopefully averting Sabraw's end-game to abort my efforts to appeal her malfeasance in dismissing the Â§ 2241 petition;
- On 8 May, 2006, Appeals Commissioner, Peter L. Shaw, issued an Order instructing the District Court to either issue, or decline to issue, a Certificate Of Appealability, which is required in certain types of cases before an appeal may be taken. A COA is in effect permission from the District Court to appeal. COAs are one of the poisons of the Antiterrorism And Effective Death Penalty Act of 1996, and ask the same judge who denied the petition to grant the petitioner the right to appeal. Essentially, the judge has to tell the Court Of Appeals that their ruling may have been wrong. As you can imagine, that rarely happens. In my case, Sabraw wasn't about to confess that her grossly illegal ruling was wrong. Sabraw kept to her ruling, telling the Court Of Appeals that she declined to issue any COA because no court could disagree with her finding that I was barred from bringing the petition that, in her twisted wisdom, should have been brought 11 and 8 years BEFORE the Supreme Court changed the law. Sabraw did not cite a single pertinent case to support her position declining to issue the COA.
- On 26 May, 2006, I filed papers challenging Shaw's Order requiring a Certificate of Appealability ("COA"), arguing that a COA is not required in the nature of appeal before the Court Of Appeals;
- Having not heard from the Court Of Appeals, I did file my Motion For Certificate Of Appealability on 14 June, 2006. Statute provides that once the District Court declines to issue the COA, a petitioner may seek issuance of the COA from the Court Of Appeals (and, if need be, from the Supreme Court in the event the Court Of Appeals declines to issue a COA);
- On 19 July, 2006, the Court Of Appeals found that no decision in the Ninth Circuit had ever decided the issue I had challenged, whether a COA was required in the nature of appeal now before the Court Of Appeals. The Court Of Appeals ordered that counsel be appointed to represent me, and counsel and the government would file briefs specifically addressing the issue being challenged;
- Following briefing, oral arguments were held on 27 September, 2007;
- On 20 March, 2008, a three-judge panel of the Court Of Appeals issued an incredible ruling throwing out the appeal of my 1988 federal convictions. The panel opined that federal statutes do not allow me to appeal my convictions despite the, United States Supreme Court's ruling in 2000 (a ruling occurring more than a decade after my convictions) holding that my alleged conduct does not fall within the reach of federal law enforcement authorities. In other words, the panel decided that despite my convictions for conduct that is not criminal under federal law (convictions for nonexistent crimes) I am foreclosed any judicial remedy to challenge the erroneous convictions. As you are aware from this chronology, see, #22, above, a prior three-judge panel held just the opposite, holding that I am entitled to challenge the convictions in light of the Supreme Court's ruling. The latter panel effectively overturned the former panel's holding. Yet, statutes and well-established law hold that the holdings of a prior panel control and may not be overturned except by the entire Ninth Circuit Court sitting en banc or by the Supreme Court. No subsequent three-judge panel can overturn a prior panel's holding. But they did it in this case! As was recently stated in one of the many legal newsletters I receive: "Success in the Ninth Circuit continues to depend not on the law, not even on Ninth Circuit law, but solely on the luck of the draw."; Oddly enough, after throwing my case out, the rogue panel went on to hold that henceforth, as a matter of Ninth Circuit law, a COA is not required in the nature of appeal I had presented to them;
- My requests for rehearing by the rogue panel or by the en banc Court were denied, so I am now headed to the Supreme Court (petition for writ of certiorari ("cert.")) with the constitutional question: How does a person, convicted for crimes that do not exist, gain access to the court to challenge such convictions? The chances of the Supreme Court accepting my cert. for briefing and consideration are about .8%. Still, better than the lottery. But don't fret, even if the Supreme Court does not accept my cert., other possibilities exist. We are far from done;
- On 6 October, 2008, the Supreme Court denied the cert. petition.
- On 21 November, 2008, I filed into the Ninth Circuit Court of Appeals my Motion Pursuant To The All writs Act (Coram Nobis And/Or Audita Querela); The Ends Of Justice. That unique and seldom used motion was filed under the Case Number of the three judge panel that in 2005 ruled in my favor, ordering the district court to hear my appeal of the federal convictions (see, #22, above). Strangely, the Clerk of the Court stamped the motion "RECEIVED," but has never stamped the motion as filed.
- On 23 March, 2009, I sent a letter to the Clerk asking why the motion has not been filed. To date, 23 April, 2009, the Clerk has not responded.
- In time, the Court Of Appeals instructed that the coram nobis may in the first instance be filed in the District Court.
- On 12 August, 2009, my Motion Pursuant To The All Writs Act (Coram Nobis And/or Audita Querela); The Ends Of Justice was filed in the District Court (Case No. '09-CV-1792-DMS(AJB)).
On 9 September, 2009, District Court Judge, Dana M. Sabraw, issued her "Order:
(1) Granting Application To Proceed In Forma Pauperis, and
(2) Dismissing Case Without Prejudice. What that means is
(1) I was allowed to proceed without prepayment of filing fees, and (2) the case was dismissed.
You may recall, Sabraw is an abettor of my ex-prosecutor, Larry A. Burns, and has repeatedly dismissed cases of mine despite the merits of the cases and instruction of the Ninth Circuit Court Of Appeals that my cases be heard. This time, again, Sabraw did not recuse from the case, despite my reminder that all judges had previously been recused, and timely and proper filing seeking to recuse all judges this go-around. In blatant defiance of well-established law of the United States Supreme Court, and statues, Sabraw did not even address the recusal request, ignoring it completely.
To achieve her desired dismissal, Sabraw re-characterized the coram nobis filing as a motion under either 28 U.S.C. 2254 or 2255; Sabraw's Order is disjointed and convoluted. But that is not surprising, being that my filing was explicitly presented as a motion under 28 U.S.C. 1651 -- the All Writs Act, which encompasses coram nobis. Sabraw deliberately ignored the statutory jurisdiction (28 U.S.C. 1651) given and usurped jurisdiction (28 U.S.C. 2254/2255) that suited her ill-agenda of dismissing the case. Her actions are, in the words of the United States Supreme Court, "treason to the constitution."
- On 25 September, 2009, I did file into the District Court my Notice Of Appeal, seeking to appeal the dismissal. Sabraw will next deny me the ability to appeal by denying me a Certificate Of Appealability ("COA"). I know her game, and will then go to the Court of Appeals for the COA.
- On 1 October, 2009, I did send to the District Court, for filing, my Motion: Certificate Of Appealability Not Required, noticing the District Court that pursuant to Ninth Circuit law no COA is required of my coram nobis filing. Sabraw will ignore the law, and simply opine that the filing is not a coram nobis, but either a motion under 2254 or 2255, thus a COA is required. As mentioned, I'll argue it to the Court Of Appeals.
To Be Continued ..