Thursday, June 25, 2009

Double Books at the U.S. Court of Appeals, 9th Circuit?

An Attempt to Disambiguate the State of the Records of the U.S. Court of Appeals, 9th Circuit, Relative to Petition Docketed Online Under the Name of Jailed Attorney Richard I Fine


A) Background

The request below was sent to the Clerk, U.S. Court of Appeals-9th Circuit, and it pertains to petition posted on the docket of the court, Fine v U.S. District Court, Los Angeles, No 09-71692, originating from Fine v Sheriff Dept of LA County, No 2:09-cv-01914-JFW-CW. Such petition is posted as representing the putative Emergency Petition for a Writ of Mandate and/or Prohibition of jailed Att Richard Fine, alternatively - his putative Habeas Corpus Petition.

The petition looks nowhere like the work product of an experienced attorney like Richard Fine. One couldn't even figure out what type of petition it was. Examples of Habeas Corpus Petitions filed and argued by Att Richard Fine before the U.S. Court of Appeals-9th Circuit, can be seen under xxx

The court records themselves reveal an inherent conflict in figuring out what type petition it was - a Habeas Corpus Petition, or an Emergency Petition for a Writ of Mandate and/or Prohibition: In the docketing text the petition is twice referred to as a Habeas Corpus Petition. However, in the letter by the Clerk of the Court (page 1 in Doc #1 in the docket) it is referred to as a Petition for a Writ of Mandate and/or Prohibition.

The main concern regarding the docketing of such petition is that careful review of the records of the U.S. Court of Appeals-9th Circuit must lead a reasonable person to the conclusion that the petition was in fact rejected, and that it was never accepted by the Court as a valid record, and therefore, it was never Filed and it was never Entered into a valid Court File in the records of the Court. Appearance of such petition in the online docket, with the letter from the Clerk of the Court acknowledging receipt (but neither Filing nor Entering of the petition), is surely going to mislead many to believe the contrary - that such petition was accepted by the Court as a valid record, that it was Filed and that it was Entered, and therefore - that it was/is going to be reviewed and considered by the Court in its capacity as a review panel.

Of yet greater concern is the fact that in similar situations in the past, the U.S. Court of Appeals- 9th Circuit issued orders on the matter, that were ambiguous as well. Such orders could be seen by some as recognition of the invalidity of the records. However, such orders could be claimed by others as reflecting a denial proper of a valid petition upon review and consideration. Examples include, but are not limited to: (1) Zernik v U.S. District Court, Los Angeles, No 08-72714, and (2)

This writer's opinion is that allowing such ambiguity to stand is uniquely harmful for the cause of Att Richard Fine. and also for public understanding of any rulings that may be issued by the U.S. Court of Appeals-9th Circuit on this matter - and therefore - to the appearance of Justice being done by the Court of Appeals-9th Circuit. The public may not be able to understand the nuances of such situation.

Therefore, attempts are being made to disambiguate that which should have been made crystal clear had the public gained access to a Register of Actions of the Court, where it must state clearly relative to each and every record : Filed, and/or Entered, with clear identification of the Party or Counsel who transacted the filing, the Date of Filing, the Date of Entry, and valid Verifications of each and every one of the statements regarding filing and entry by a duly authorized Clerk of the Court.

All of these critical features are missing from the "Docket" provided for public access online. Therefore, there is no way for the public (including parties and counsel) to tell what the state is of such strange and unusual record as the petition posted in case No 09-71692 Fine v U.S. District Court, Los Angeles.

Let's hope that the U.S. Court of Appeals-9th Circuit, realize that allowing any such ambiguity to remain on such matters as whether a given record was filed and entered with the court, or not, amounts to compromised Due Process for Att Richard Fine, and that the state of such records must be disambiguated BEFORE any ruling is issued on the matter, not AFTER.


B) June 25, 2009 Email to the Clerk of the U.S. Court of Appeals-9th Circuit: A Request for Disambiguation.
Date: Thu, 25 Jun 2009 14:03:23 -0700
From: joseph zernik
Subject: Urgent: Re: Request for leave to file papers in sham litigation at U.S. Court of Appeals, 9th Circuit

The matter is urgent, and time is of the essence.
Mr David Paris
Office of the Clerk
U.S. Court of Appeals - 9th Circuit.
Mr Paris:
Thanks for the note.

A couple of questions:

1) As the text of the paper I sent for filing in court itself states, the term "Received" is an ambiguous one.
I request to know whether the paper was stamped "Filed" by the court,

2) Will I get my conformed copy? I enclosed an extra copy and a stamped, self addressed envelope.

3) In case the paper was stamped: "Filed", I also request to know how I may be able to tell if it will ever be "Entered", since the online docket on display to the public seems to consistently avoid the proper use of the term "Enter" relative to the papers received by the U.S. Court of Appeal, 9th Circuit.

4) In case it was "Filed" and "Entered", is there any idea when the request may be addressed? I would like to file a couple of other papers in this case, and I was hoping for a quick answer on the matter of leave to file.

5) Based on all the above, I must assume that the court has its own register system, where it clearly marks for internal use the status of each file. I cannot see how any court could work off the information the way it is displayed on the Pacer online. Assuming that such is the case, I believe that such register would be deemed court record, subject to Nixon v Warner Communications, Inc (1978), where the U.S. Supreme Court re-affirmed the right to access court records to inspect and to copy.
I therefore would like to know what it would cost and what method of payments are acceptable to copy the entire court register and all court papers listed as filed or as received in the following caption - - Fine v U.S. District Court, LA, 09-71692; Originating from: Fine v Sheriff Dept: CV 09-1914-JFW(CW)

I would be grateful for your response on the issues above.

Joseph Zernik

C) June 23, 2009 Email from the Clerk of the U.S. Court of Appeals-9th Circuit, Acknowledgement of Receipt of Paper in Fine v U.S. District Court, Los Angeles.
At 06:12 23/06/2009, you wrote:
Return Receipt
  • Request for leave to file papers in sham litigation at U.S. Court of Appeals, 9th Circuit
was received by:
  • David Paris/CA02/02/USCOURTS
  • 06/23/2009 09:12:54 AM EDT

Denial of the Right to File Papers in U.S. Court, Washington, DC


June 25, 2009

Ms Nancy Mayer-Whittington

Clerk of the Court

RE: Case #1:2009cv00805, Zernik v Melson et al.

Dear Ms Mayer Whittington:

I received the yesterday a pager call on my cell phone, marked from Mr David Scott in your office. I am grateful for his attempt to call me. However, I believe that at present I need to receive a written response, which could be of more than one kind, from the Office of the Clerk, as described below.

Mr Scott had previously talked with me by phone a couple of times. He claimed that all my papers were stamped “Filed”. He explained to me that as a rule, all papers filed on paper are scanned and docketed within 24 hours. He also explained that “…that is not always the case”.

He also eventually agreed that my papers were delayed as a routine, as a result of their forwarding to the chambers of Judge Richard J Leon prior to docketing. I assume that the Clerk’s Office would do so only in response to a directive of some sort received by the Clerk from chambers of Judge Richard J Leon. Albeit – no record of such directive was ever served and/or noticed to me, neither is any such directive recorded in the Pacer online records, in what may be deemed as violation of my Due Process rights.

Mr Scott refused to respond to repeated requests that he explicitly state the name of the procedure,, the section of the code, or the rules of court, pursuant to which my papers were and still are denied entry into court file – for over a month. Such delays with no end in sight may be deemed as violation of my rights pursuant to the First Amendment to the U.S. Constitution.

Mr Scott later referred me to a Court Staff Counsel, who advised me of a routine of the Washington DC U.S. District Court, outside of any published Rules of Court, whereby if the Clerk doubts that a given paper should be filed, the Clerk may send it to chambers with a note of the relevant concerns. According to such unpublished procedure, as described to me by the Court’s Staff Counsel, the judge would then write by hand on the face of the record:

Leave to file Granted/Denied” and endorse the directive with his/her hand–signature.

Needless to say, such critical procedure that was never published as part of Rules of Court, may be deemed in violation of the Rule Making Enabling Act 28 USC §2071-2077.

However, it is obvious that my papers were not and still are not subjected to such unpublished procedure, since: (a) There is no writing on the face of the records that were eventually entered into the court file. (b) I never received any notice of rejection of the filing of the records that the court effectively is denying me the right to have entered into court file. (c) Neither have I received any Discrepancy Notice of any other notice explaining the disposition of the papers. (d) Neither is there any note to such effect in the Pacer online records.

Please be advised that such conduct may be deemed as violation of my Due Process rights pursuant to the Amendments to the U.S. Constitution.

Please also note, that in this particular case, the papers that are denied entry into the court file, are papers holding critical evidence of alleged real estate fraud committed against me, as well as perversion and obstruction of justice in the Los Angeles Courts, by Countrywide, Bank of American Corporation, Bryan Cave, LLP, and others.

The case in its essence is a repeat on a grander scale of wrongdoing in the courtrooms by Countrywide, which was rebuked by the U.S. Courts in Houston Texas – by the Honorable Jeff Bohm in the case of Borrower - William Allen Parsley, No #05-903-74; Filed: 10/13/2005, (e.g. Document #248), and also at the U.S. Court in Pittsburgh, Pennsylvania – by the Honorable Thomas P Agresti in the case of Borrower - Sharon Diane Hill, No. #01-22574. Such wrongful litigation practices by Countrywide were also found to be pervasive throughout the U.S. during the current financial crisis in a study conducted by the U.S. Trustee – also reported in the case from Texas cited above.

Therefore, through such effective denial of my First Amendment rights you may also be deemed as denying me Fair Trial, Access to the Courts, and Equal Protection.

I pray that my papers be accorded fair treatment and that I be accorded a fair hearing in a fair tribunal at the U.S. District Court, Washington DC. I hope and expect that the U.S. Court in Washington DC conduct its business in accordance with the Human Rights prescribed in the Universal Declaration of Human Rights, Articles #2,7,8,10,11, & 12, part of ratified International Law.

I would be glad to receive your written notice in re: nature of the procedure(s) undertaken by the Clerk of the U.S. District Court, Washington DC relative to my papers, alternatively – a notice of the date and place for hearing on ex parte applications for orders, meant to address such issues, so that I may notice all parties.



Joseph Zernik

CC: Parties per mailing list.