A defective, uncertified, unauthenticated legal record, with insufficient or entirely absent legal foundation, was purported in the Magistrate Carla Woehrle June 12, 2009 Report and Recommendations to form the ground for the jailing of Att Richard Fine. Furthermore - the Report & Recommendation [5] - invoked the Anti-Terrorism and Effective Death Penalty Act of 1996 - as defining the purported applicable review standards. Combined – she found no fault in the conduct of the LA Superior Court and recommended denial with prejudice of the petition. Such Report & Recommendation was later adopted as the foundation for the Judge John Warner June 29, 2009 Judgment [6] denying Prisoner Att Richard Fine’s Habeas Corpus Petition.
3) Fine v US Dist Ct, LA (09-71692) – U.S. Court of Appeal, 9th Circuit
The Kozinski, Chief Judge, Paez and Tallman, Circuit Judges, June 30, 2009 Unsigned Order [7] failed to overturn such judgment of the U.S. District Court, LA.
D. Lack of any valid foundation for the jailing of Att Richard Fine
Briefly listed below are only some of the most clearly noticeable flaws in the legal foundation for the jailing of Att Richard Fine and review of such foundation by the courts.
1. Habeas Corpus petition was filed by Prisoner Att Richard Fine on March 20, 2009
The Prisoner Attorney Richard Fine March 20, 2009 Habeas Corpus Petition, which was the opening pleading in Fine v Sheriff (2:09cv01914), was in fact never responded to. In such petition Prisoner Att Richard Fine correctly named The Sheriff Department of LA County, who is depriving him of liberty, as Respondent.
2. No valid, sufficient Response was ever filed to the Habeas Corpus Petition.
Unbelievably, the Sheriff Department refused to respond or provide any records that formed the legal foundation for its holding of Att Richard Fine Prisoner. Instead, the Sheriff Department insisted that Judge David Yaffe and the LA Superior Court provide the Response. Eventually, the Sheriff Department filed a Motion to Dismiss, but such motion to dismiss failed to respond to either the Petition, or to a subsequent Prisoner Att Richard Fine Ex Parte Application for an Order for his Immediate Release.
Judge Yaffe and the LA Superior Court eventually came forward and filed a Response, albeit, an insufficient pleading, beyond other deficiencies listed below, it was founded on declaration by counsel only. Neither Judge David Yaffe, nor any other Officer of the LA Superior Court filed a declaration to substantiate the Response.
5. Magistrate Judge Carla Woehrle June 12, 2009 Report and Recommendations
...defects could not reasonably avoid detection. The June 12, 2009 Magistrate Woehrle Report and Recommendation, which was later adopted in the June 29, 2009 Judge Walter Judgment in Fine v Sheriff (2:09cv01914) opens with the following statement:
The pro se petitioner, Richard I. Fine, is in the custody of the
Sheriff of Los Angeles County, at a Los Angeles County jail facility,
under a judgment and order of contempt.. both issued on March 4,
2009, by Hon. David P. Yaffe, Judge of the Superior Court, in
California Superior Court, Los Angeles County, Case No.
BS109420.
Such statement was composed of a series of invalid, incomplete and/or insufficient legal statements, making it far from any type of reasonable legal foundation for depriving Att Richard Fine of his liberty.
E. The Standards of Review employed by Magistrate Carla Woehrle were inadequate and ignored established law on the matter without any reasonable explanation.
The direct review of the facts in the matter was the primary charge of the U.S. District Court, LA. What emerged from such review, was on the one hand neglect to address the real facts in the matter, and on the other hand – an attempt to cover-up such failure to address the facts by invoking Homeland Security and the Antiterrorism and Effective Death Penalty Act of 1996. In the June 12, 2009 Report & Recommendation, Magistrate Carla Woehrle wrote:
Review of the Petition in this case is governed by provisions of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under
AEDPA, a federal court may not grant habeas relief on a claim
adjudicated on its merits in state court unless the adjudication “resulted
in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or “resulted in a decision that was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
“Clearly established Federal law” means “the governing legal principle
or principles set forth by the Supreme Court at the time the state court
renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.
Ct. 1166, 155 L. Ed. 2d 144 (2003).
A decision by a state court is “contrary to” clearly established Supreme
Court law if it “‘applies a rule that contradicts the governing law set forth in
[Supreme Court] cases’” or if it reaches a result different from Supreme Court
precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634,
640, 123 S. Ct. 1848, 155 L. Ed. 2d 877 (2003) (quoting Williams v. Taylor, 529
U.S. 362, 405-06, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000)); see also Frantz v.
Hazey, 533 F.3d 724, 734 (2008)(en banc)(state court decision which uses “the
wrong legal rule or framework” constitutes error under “contrary to” prong of §
2254(d)(1)).
However, even such standard as invoked under AEDPA required adherence to “Clearly established Federal law”. The Report & Recommendation reflect disregard for clearly established federal law. Pro Se Party in Interest holds that clearly established federal law in this matter was and is Fay v Noia (1983), where the late Justice Brennan clearly pronounced the Supreme Court decision:
In a case of Habeas Corpus a U.S. Judge is petitioned to “to inquire into the legality of the prisoner's detention”, and the overriding standard of review in such inquiry is:
�
…if the imprisonment cannot be shown to conform with
the fundamental requirements of law, the individual is
entitled to his immediate release.
Fay v Noia (1963) pp. 401–402.
Party in Interest holds that Fay v Noia (1963) continues to be the law of the land, that the jailing of Att Richard Fine failed to conform with the fundamental requirements of the law, and that Att Richard Fine is entitled to his immediate release.
F. Request for records of Marina v County (BS109420) at the LA Superior Court.
Request is addressed to Counsel Fontana, McCormick, and Rosen, hoping that their cooperation in Meet and Confer would eliminate the need for actions at courts. The following records are deemed as minimal records that would allow to establish the legal foundation for the jailing of Att Richard Fine. Respondents failed to produce such records in the course of review of the Petition of Habeas Corpus, or produced records that were not authenticated.
Given the serious concerns regarding this matter, it is requested that all authentications requested would be by the Executive Officer/Clerk of the Court John A Clarke, alternatively, that a document be furnished that such authentications were produced with the full knowledge and authority of John A Clarke.
1. Authentication that Marina v County (BS109420) was and is a case litigated by the Superior Court of California, County of Los Angeles.
2. Authenticated copy of the Register of Actions/Case History in Sustain of Marina v County (BS109420).
3. Authenticate copy of an Assignment Order of Marina v County (BS109420) to Judge David Yaffe as Presiding Judge for all purposes.
4. Authenticated copies of Notices of Appearance of Counsel of the various parties, certifying them as Counsel of Record for the respective party for the case of Marina v County (BS109420) at the LA Superior Court.
5. Authenticated copy of the purported Judge David Yaffe March 4, 2009 Judgment of Contempt. Such record should explicitly state that the record that is being authenticated was and is an effectual judgment of the Superior Court of California. It should also provide the references in the California Code and the Local Rules of Court of LA County whereby it was ascertained that the judgment was indeed entered in the manner required for entry of judgments and appealable orders, and evidence that it was determined to be effectual.
6. Declaration by Judge David Yaffe to support Response to Habeas Corpus petition of Prisoner Attorney Richard Fine
7. Declaration by Judge David Yaffe to explain the circumstances surrounding the signatures and dates on the various copies of the purported Judge David Yaffe March 4, 2009 Judgment of Contempt against Att Richard Fine.
_______________________________
5 Magistrate Carla Woehrle June 12, 2009 Report & Recommendation U.S. Dist Crt, LA (Dkt
#26) as recently seen in Pacer:
6 Judge John Warner June 29, 2009 Judgment, U.S. Dist Crt, LA (Dkt # ) as recently seen in
Pacer:
7 Justices Alex Kosinski, June 30, 2009, U.S. Crt of App, 9th Circuit (Dkt #3) unsigned order
as seen in Pacer:
_______________________________
The complete Meet and Confer Letter can be viewed online:
