Los Angeles, California
I know that this blog reaches an international audience, because a person I know from Oslo, Norway got into contact with me through a blog I wrote about Conrad Murray and the Murray trial. Therefore, the Norway contact cleared up any question that I had regarding whether the blog received international exposure.
*There will be three interchangeable titles for this blog, after Bray v. Department of Justice, et al.,: (1) A view of racial discrimination by the Executive and Judiciary Branches of Government in California; (2) How the judicial system in California works if you are poor and black; and (3) the government's only hope is an unfair or biased judge; if I get a fair judge, the government is in trouble, and they(federal and state) know it. I will use the most appropriate title for the subject of the blog the week of publication. Ordinarily, the blog will be published weekly, with no particular or designated day for publication. However, there are times when I will publish the blog two or more times a week, when I choose to for whatever reasons.
Febraury 21, 2014
(Current or today's date)
July 13, 2012
(Original date)
*Denotes an alteration to the original with additional material or changes
**UPDATE (this designates NEW updated information in the blog)
This blog is about and will follow the federal district court case of Laurack D. Bray v. Department of Justice, et al.. NO. CV12-5704CJC*(RZ). As can be seen, I'm the lead and only Plaintiff in the case, and, I'm a Black lawyer. Further, I'm bringing this case pro se at this time, in large part because there are a lot of cowardly lawyers in California who hesitate and withdraw when a case involves the judiciary or judges, and especially when claims are made against judges, even if the claims are meritorious. The type of lawyers that I'm referring to are the type that abandoned Richard Fine, a white lawyer, when he was incarcerated by a judge after refusing to devulge his financial affairs. This was a circumstance that called for lawyers to back another lawyer because he was a lawyer (undergoing the conditions that he was subjected to). But, there was no outcry from any California lawyer associations in protest of his extended incarceration, although there was a basis to protest. Besides not knowing him , there were other,including legal, reasons that I could not represent him at the time, otherwise , I would have, had he desired it. More importantly, though, Mr. Fine had made claims against several California judges regarding their salaries, and had become a thorn in the judges' sides. Consequently, he got no outwardly displayed support in his fight against the judicial system. Ultimately, Mr. Fine had to undergo disbarment proceedings, associated with his filing multiple complaints or claims. He represented himself (pro se) at the disbarment proceedings, when he should have had members of the California Bar, especially Bar Associations (whether he was a member or not), represent him, pro bono. Mr. Fine, who I believe is a gentleman, was disbarred. At another time, I will address Richard Fine's situation separately in an independent writing.
Also, like Dr. Conrad Murray (Michael Jackson's black doctor, now convicted of manslaughter) filed an appeal as an indigent (black doctor), I filed my civil rights complaint as an indigent black lawyer. And, in my in forma pauperis motion, I charged the government with causing my indigency, in large part, through its misconduct. Unless otherwise noted, when I refer to "the government" with regard to my Complaint, I mean both the state and federal governments. While I certainly do not choose to be indigent, my indigent state, as well as Dr. murray's (and even before Murray's conviction and incarceration, he was not wealthy or rich--and struggled to maintain middle class status), should bring home to my readers the reality of the circumstance that many minority professionals are not wealthy, rich, or even middle class, even though they have that professional label of "doctor" or "lawyer"; and in many cases, the dire financial state of affairs of these minority professionals are not based on their competency, skill, or business affairs, but rather, are based on racial discrimination or other non-skill (or business) factors.
Now to the lawsuit. The lawsuit was brought during the week of July 4th, 2012 not only for timeliness reasons, but also for the significance of July 4th as Independence Day. For me, it represents my strife for independence as a single Black man in America, after 8 years of economic imprisonment, brought on by the misconduct of the state and federal governments. As the lead and only Plaintiff in the case, I brought the case on behalf of Conrad Murray and Oscar Grant, the deceased black man murdered by a white police officer (shot in the back while being held down by other officers), as similarly-situated black male professionals/semi-professionals. The Defendants in the lawsuit are both state and federal officials and agencies, including the United States of America. Some of the federal Defendants are: the United States of America, the U.S. Department of Justice, the U.S. Attorney's office in Los Angeles, the Federal Bureau of Investigation(FBI) and Andre Birotte (U.S. Attorney for Los Angeles or the Central District of California). Some of the state Defendants are: the Superior Court of California, judges Michael Pastor and Robert Perry of Los Angeles County, and former judges Steven Hintz, Barry Klopfer, Ken Riley, and David Long of Ventura County.
The main claim of the Complaint and lawsuit is racial discrimination by the Executive and Judicial Branches of government, both state and federal. Secondary claims are : constitutional fraud (that is, fraud utilized to deny a constitutional right); unreasonable search of mail; illegal surveillance; violation of right to privacy; medical negligence; and denial of due process. The Complaint covers actions accumulated over an 8-9 year period primarily beginning with the year 2003. Ordinarily, I would publish the entire Complaint here, but since it's 30+ pages long, I'll wait to publish it later, or will have to utilize some other method.
*I've decided to publish a portion of the Complaint below (Counts I through III):
FACTUAL ALLEGATIONS AND CLAIMS
COUNT I
RACIAL DISCRIMINATION
Violation of 42 U.S.C. secs. 1981, 1982, and 1985
Violation of Due Process/Equal Protection Clause of Fifth Amendment
Bivens Action
(Against Federal Defendants)
29. Plaintiff incorporates Paragraphs 1-28 as if fully set forth herein.
30. Laurack D. Bray is African American or Black. Also see Paragraph #15 herein.
31. Beginning in the year 2007, Bray has filed several criminal-civil rights complaints with the U.S. Attorney’s Office (USAO) in Los Angeles and attempted to have those complaints investigated and prosecuted by that said office or the Federal Bureau of Investigation (FBI).
32. But, the USAO refused to investigate and prosecute the complaints because (at least in part) Bray is African American or Black.
33. The USAO, including former United States Attorney Thomas P. O’Brien and present United States Attorney Andre Birotte, and former and present Assistant United States Attorneys and others working in the Citizens Unit of the USAO, knew Bray was Black when it refused to prosecute criminal complaints filed by Bray. The USAO’s conduct was motivated by Bray’s race (African American or Black).
34. Thomas O’Brien and Andre Birotte as U.S. Attorneys denied Bray the right to full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens by refusing to investigate and prosecute multiple criminal complaints brought by Bray.
35. O’Brien and Birotte, instead of providing Bray with the full and equal benefit of the laws and proceedings for the security of persons and property, especially the laws dealing with bringing criminal prosecutions and securing the rights of victims and their property, violated federal laws which were put in place to protect and secure the rights of victims of crime.
36. In all cases where the USAO , and O’Brien and Birotte, refused to investigate and prosecute a criminal complaint brought by Bray, the complaint was accompanied and/or supported by probable cause evidence, or there was enough evidence or sufficient probable cause to make an arrest.
37. O’Brien and Birotte’s refusal to investigate and prosecute criminal complaints brought by Bray was done under circumstances giving rise to an inference of racial discrimination and/or was not done to other similarly-situated persons not of Bray’s protected group. One such circumstance is that several of Bray’s complaints involved allegations of false statements or fraud; and clearly, the U.S. attorney’s Office in Los Angeles prosecuted multiple false statement and mail fraud cases at or about the same time that it refused to investigate and prosecute the complaints brought by Bray, even though Bray’s complaints were supported by probable cause evidence. The same thing applies to Bray’s obstruction of justice complaints.
38. For another example, in 2007, when Bray filed a criminal complaint against various public officials, including judges, even though O’Brien and his office refused to prosecute anyone, the FBI found sufficient probable cause evidence that a crime had been committed to require two Superior Court of California, Ventura County, judges to retire from the bench, Steven Hintz and Barry Klopfer, as part of an informal plea agreement. That is, the FBI, rather than arresting Hintz and Klopfer (based on probable cause evidence), gave the two the option of retiring from the bench rather than being arrested and prosecuted.
39. In the 2007 Complaint, Bray, who is Black, charged Hintz, who is white, with racial discrimination in causing Bray to be evicted from his home-law office in Ventura, California, while Hintz was the presiding judge over an unlawful detainer action brought and decided in 2002-2003.
40. O’Brien refused to prosecute Hintz or Klopfer because both of them were white, and the criminal complaint against them had been brought by a Black lawyer-complainant.
41. In 2010, after Birotte took over the U.S. Attorney’s Office, he was aware that O’Brien had not prosecuted Hintz for the 2007 criminal complaint brought by Bray, and he became aware of a second or amended complaint against Hintz brought by Bray based on Hintz’s criminal activity (fraud/mail fraud) conducted during the primary and general elections. Yet, Birotte refused to investigate the complaint or pursue prosecution of Hintz as well.
42. At the same time that O’Brien and Birotte were refusing to investigate and prosecute any of the individuals charged in any of Bray’s criminal complaints, they were investigating and prosecuting other individuals who had been charged with some of the same types of crimes that Bray had complained about, e.g., false statements, mail fraud, etc. .
43. O’Brien specifically knew about Bray’s complaints because Bray and some of his clients and their friends demonstrated and/or picketed in front of the federal courthouse in downtown Los Angeles, protesting O’Brien’s failure to bring prosecutions. O’Brien had one of his Assistant U.S. Attorneys (AUSAs) contact Bray to say a response to the complaint would be forthcoming. The response was a false and fraudulent letter claiming that the U.S. Attorney’s Office does not conduct criminal investigations. This false letter was likely sent to numerous citizens whom had filed criminal complaints and whom the USAO did not want to investigate their complaints.
44. A federal complaint was brought against O’Brien as well for making a false statement (through his office and the Citizens Unit). And, a criminal complaint was later brought against Birotte for the same thing.
45. O’Brien and Birotte both were charged with the responsibility and authority to prosecute criminal cases and/or complaints brought in the U.S. Attorney’s Office or to the attention of the USAO. They had direct authority to bring prosecutions of federal criminal complaints.
46. Neither O’Brien nor Birotte contacted Bray for the purpose of gathering information pursuant to investigation of the particulars of the complaints.
47. The United States government has exercised racial discrimination against Bray as a Black lawyer in litigating civil cases in federal courts in California both before and after Bray filed criminal complaints.
48. In refusing to investigate and prosecute any of Bray’s criminal complaint’s, O’Brien and Birotte intended to and did deny Bray restitution, including injunctive relief and the right to re-possession of the property in Ventura, California located at 1019 E. Santa Clara Street.
49. O’Brien and Birotte knew that Bray had charged that he was dispossessed of his property interest in the property in Ventura, CA, because of his race or color, and they intended to deny Bray the right to rent or own property because he is Black when they refused to prosecute Hintz or Klopfer (or any of the other defendants in the Complaint) so that Bray could receive restitution, including injunctive relief and re-possession of his property interest.
50. When O’Brien and Birotte exchanged the U.S. Attorney’s Office (O’Brien stepping down and Birotte taking office), O’Brien informed Birotte that he had refused to prosecute Bray’s Complaints, and Birotte agreed to continue the refusal to prosecute the Complaints when he took office. When Birotte took office, there were at least 3 separate pending Complaints (with multiple individuals complained about in the 2007 Complaint) before him. Presently, there are at least 6 Complaints pending (and these are single complaints with sometimes multiple accused or defendants, which, if filed separately for each accused, would amount to clear double-digit complaints).
51. Bray requested Attorney General Eric Holder to appoint an independent counsel to prosecute the Complaints, but he refused to respond to the request.
52. Bray also wrote to appointed special prosecutor John Durham, and requested that he conduct a review of the complaints as part of his duties pursuant to his appointment by the Attorney General. But, Durham did not respond either.
53. Both O’Brien and Birotte ordered or directed their subordinates to write false and fraudulent letters to Bray to support their refusal to prosecute his complaints and to support their refusal to obey federal law dealing with victims’ rights.
COUNT II
CONSTITUTIONAL FRAUD
Violation of the Fifth Amendment Due Process Clause
Bivens Action
Violation of Crime Victims Rights Act, 18 U.S.C. sec. 3771(a)(6)
18 U.S.C. secs. 3663-3664 (Victim and Witness Protection Act)
54. Plaintiff incorporates Paragraphs 1-53 by reference, as if fully set forth here.
55. In March, 2008, through and in a letter from the U.S. Attorney’s Office in Los Angeles, received by Plaintiff, the USAO and O’Brien and unnamed AUSAs stated that “The United States Attorney’s Office does not conduct criminal investigations.” This was and is a false statement and misrepresentation, because, in fact, the U.S. Attorney’s Office does conduct criminal investigations. And, because the letter was sent by mail, it was also mail fraud.
56. The fact was material because a criminal investigation and prosecution is what was being sought by Plaintiff in his criminal complaint, which would ultimately lead to relief and/or restitution.
57. O’Brien and the AUSAs in the Citizens Unit of the USAO intended to make the false misrepresentation, notwithstanding the fiduciary duty of the USAO to investigate and prosecute federal criminal complaints brought by citizens of the United States.
58. O’Brien and the unnamed AUSAs used and relied on the false and fraudulent statement to avoid investigating and prosecuting Bray’s Complaint, which denied Bray a due process examination and processing of his criminal Complaint(s).
59. O’Brien and the unnamed AUSAs , in refusing to investigate and otherwise prosecute the said criminal complaints, denied Plaintiff his statutory right to restitution which would have evolved from a prosecution and conviction. By not investigating or prosecuting the criminal complaints, O’Brien and the others made it impossible to obtain or recover restitution. Part of the restitution sought would be injunctive relief and re-possession of Bray’s property interest in the property located in Ventura, CA. Moreover, Bray was also denied monetary restitution for loss of income based on the closure of his law office brought about by the criminal conduct of several defendants. He also suffered much pain and a loss of enjoyment of life based on the USAO’s refusal to investigate and prosecute, while at the same time, using a false statement and misrepresentation to support the refusal.
60. The sole purpose of the above false and fraudulent statement made to Plaintiff by the USAO was for the USAO to avoid or evade carrying out its duty to investigate and prosecute Plaintiff’s Complaints.
61. In January , 2011, Birotte directed his subordinates to construct a similar letter to the letter constructed by O’Brien’s office, falsely stating that the U.S. Attorney’s Office “does not conduct investigations”.
62. In fact, subordinates, including AUSAs, constructed such a letter, and the letter stated in part, “Please be advised that this agency does not conduct investigations. . . .” (Emphasis in original letter). This was a false and fraudulent statement, or a “lie”, and the letter containing the statement was mailed to and received by Bray.
63. The mailing of the letter, with its contents, to Plaintiff was a willful or intentional attempt by the USAO and Birotte to avoid or evade their responsibility and duty to investigate and/or prosecute Bray’s filed criminal complaints.
64. The pending criminal complaints were never investigated nor prosecuted. In part, the failure to investigate the complaints was a violation of federal law.
65. The failure by Birotte and the USAO to investigate the complaints denied Bray due process, or a due process investigation of his complaints.
66. The conduct by Birotte, the USAO, and the unnamed AUSAs caused Bray the denial of his right to restitution, which could only be achieved through prosecution and conviction. Bray suffered damages pursuant to the denial of restitution.
67. The conduct by Birotte, the USAO , and the unnamed AUSAs was a part of a pattern of misconduct begun by O’Brien, the USAO, and the unnamed attorneys working in the Citizens Unit during O’Brien’s tenure in office. That misconduct, inter alia, was intentionally refusing to investigate and/or prosecute criminal complaints filed by Bray because of his race, and, thereafter, drafting false and fraudulent letters claiming the USAO doesn’t conduct investigations and mailing those letters to Bray in an attempt to rationalize the intentional refusal and evade their responsibility and duty to investigate and prosecute Bray’s Complaints.
(Against Federal Defendants)
COUNT III
UNREASONABLE SEARCH/MAIL
Violation of the Fourth Amendment
Violation of Fifth Amendment Equal Protection Clause
Bivens Action
68. Plaintiff incorporates Paragraphs 1-67 by reference, as if fully set forth here.
69. Plaintiff received several letters from one of his clients, Sayed Jawaid , opened. Mr. Jawaid is Indian and a Muslim by religion. Plaintiff contends the mail opening was not only a product of racial discrimination against Plaintiff, but also a product of racial profiling and racial and religious discrimination against Mr. Jawaid.
70. The letters were uncut and closed or sealed prior to being delivered to the post office in LaVerne, California (or Pomona, California), but several letters were opened when they were received by Bray in his post office box.
71. Neither Bray nor Jawaid gave their permission or consent to the U.S. Postal Service or any postal employee, or anyone else in the postal service to open their mail. Nor was permission or consent given to the postal service to allow anyone outside the post office or postal workers to open their mail.
72. There were no search warrants issued or presented to Plaintiff or Mr. Jawaid for the mail openings. Defendants opened the mail---sent by Jawaid and received by Bray---without a warrant and in violation of the Fourth Amendment to the United States Constitution. The Defendants’ search of Bray-Jawaid mail was an unreasonable search in violation of the Fourth Amendment.
73. The unreasonable search of Bray-Jawaid’s mail was conducted because of both Bray’s (African American) and Jawaid’s (Indian ) race or color and because of Jawaid’s religion (Muslim), therefore, the unreasonable search also violates Bray’s and Jawaid’s Fifth Amendment Equal Protection rights.
74. Jawaid wrote and mailed several letters to Bray using the same procedure. These were personal letters from client to attorney, and there were no expectation that the letters would be opened and reviewed by third parties. The Defendants’ opening of the letters was also an invasion of privacy. The unlawful tampering with mail is also a crime.
(Against Federal Defendants)
End of Complaint.
Concurrently, with the Complaint, I lodged-filed an ex parte application for a temporary restraining order (TRO) directed at property that I was unlawfully evicted from in 2003. That application is still pending, awaiting a decision. Thereafter, I attempted to file an ex parte motion with or to the Chief Judge of the District Court, Central District of California, but the motion was "received", and not filed with the court by the Clerk's Office. This motion involved a transfer of the case and in forma pauperis status. It also involves another significant issue, but because that issue might be prejudicial, and may not need to be addressed here, I will await the TRO decision before deciding whether to address or discuss it here.
The next time, I will discuss some of the procedural snarls that I face as a pro se, in forma pauperis Plaintiff, on my "journey to justice".
UPDATE --July 18, 2012
I'm still awaiting a decision on my TRO application.
Just a few of the procedural snarls I had to face as a pro se, IFP litigant were : (1) unlike being represented by a lawyer, I had to draft my own Complaint and other papers, e.g., the TRO application. But, admittedly, being a lawyer myself, I prefer drafting my own Complaint, even if I were represented by a lawyer, knowing what I know about the significance of a Complaint; (2) I had to complete all other supportive documents to a Complaint, e.g., civil cover sheet and summons; and (3) I had to pay for and file the Complaint, and since I asserted indigency status, the Complaint was lodged rather than filed until the IFP status was granted. Ordinarily, with retained counsel, a Plaintiff's counsel take care of these matters (even though the client is ultimately responsible for paying for the filing of the Complaint--the client just do not have to go to the clerk's office him or her self).
More next time.
UPDATE--July 19, 2012
Today, I received notice from the Court that my case has been transferred to Judge Cormac J. Carney, as a related case. Most importantly, judge Carney accepted the case. This is one giant step forward for me in my pursuit of this lawsuit. I do not know judge Carney, either personally or professionally, but the little that I do know of him, I believe he is fair. But aside from my personal beliefs, at this point, without knowing him or having been before him in the past, I must believe that he will be fair. Thus, pursuant to the topic of this blog, if judge Carney proves to be a fair judge, "the government is in trouble, and they know it." I am not making any predictions on the outcome of the case, but with a fair judge, the government knows that it will have some serious obstacles to overcome in order to prevail (and prove that it is not liable for the claims in my Complaint).
Of course I realize that even for the fairest of judges, my status as an indigent, black, pro se, lawyer will provide a test, or challenge if you will,as far as the capacity of the judges to be fair is concerned. We'll see what happens.
UPDATE--July 24, 2012
It has now been three weeks, and the TRO motion (which is an extraordinary motion seeking extraordinary relief) is still pending.
Before I begin the new updated material, I must refer back to the last blog (July 19, 2012), last paragraph; instead of ending with "We'll see what happens", I should have ended with "But, a fair judge will be able to meet the challenge. And that's the difference between a fair and an unfair judge."
Now to the current or today's blog. The title of this blog is "How the judicial system in California works if you're poor and Black."
The adverse actions that I received, because I am poor and Black, in the judicial process in the U.S. District Court for the Central District of California, began with the Clerk's office. Ordinarily, citizens are lead to believe that the Clerk's Office is independent and impartial as far as the parties to the litigation are concerned. But that is not always, if at all, the case. And, it certainly was not the case in my case. Before actually filing the above-entitled case and lawsuit, I inquired from a clerk at the desk in the Clerk's Office how my Complaint and temporary restraining order application (ex parte) would be handled when filed. I informed him (white-Hispanic?) that I would be filing my Complaint pro se and in forma pauperis (IFP). He informed me that if I paid for my Complaint filing that it would be assigned and submitted to a judge right away (because of the TRO), but if I proceeded IFP, I would have to wait about 5 days before I could be assigned a judge and have the matter decided by a judge (regardless of the urgency of the TRO). That was my first indication of the discriminatory treatment to come. When I approached the Clerk's Office on the actual day that I filed (or attempted to file) the Complaint, I received the same message from a second clerk (Black), and the black clerk, who I believe is a supervisory clerk, repeated this message even after I had submitted my IFP papers; which implies that the clerk believed that I was proceeding IFP, even though I could afford to pay,i.e.,that I was just trying to scam the system. I informed him that the difference in processing of the Complaint based on my IFP status was "prejudicial". He (and another--Hispanic female clerk, who was actually processing the paperwork) became silent. So, because I proceeded IFP and did not pay the filing fee, my Complaint and TRO application was "lodged" rather than filed and I was not assigned a judge; and the TRO motion was not submitted to a judge for immediate action. And, thusfar, I still have not received any action on my TRO application.
If I were rich and white, my Complaint and TRO motion would have been filed and assigned and submitted to a judge the same day, and the TRO likely would have been acted upon within three days, if not the same day (since it was an ex parte TRO). Again, it has been three weeks now, and I'm still awaiting a decision or some action on the TRO. If the issue of the TRO truly involved life and death, I'd be dead. And, the judicial system would care less, apparently. *Just another dead nigger.
Also, when you file a lawsuit as a poor and black citizen, and you receive these adverse actions, you do not know whether the adverse action lodged against you is based on you being poor, or on you being black, or on you being black and poor. Most times its both.
The next substantial adverse matter I faced (and face) was (is) engaging in needless litigation in order to obtain the benefits that IFP status provides. That is, IFP status provides for, among other things, waiver of the filing fee and service of process on Defendants by the U.S. Marshall. And, even though, I moved for the status, which would provide for all that the federal statute provides, i.e., 28 U.S.C. sec. 1915, the magistrate , in issuing an order granting IFP status, only allowed the waiver of the filing fee. Now, I have to move again for other provisions.
More later.
UPDATE--August 4, 2012
I am still awaiting a decision on my application for a temporary restraining order (TRO), filed on July 3, 2012.
UPDATE--August 21, 2012
I have now filed a *petition for a writ of mandamus in the Ninth Circuit Court of Appeals to address the issue of the district court, Judge Cormac J. Carney, refusal to rule on the TRO. Subsequent to my Petition, judge Carney has now ruled on the TRO---but, the only problem is, he lacks jurisdiction to do so now. That is, he has acted without authority in issuing the August 14, 2012 Order. Since the matter was already on appeal when he issued the order, he lacked authority to issue it. Therefore, I will not respond to it; rather, I will await the 9th Circuit's decision, as judge Carney must do. But, I did respond as to the jurisdictional issue, that is, to state that judge Carney acted without authority in issuing the Order.
Previously, in my July 19, 2012 update, I stated that I believed judge Carney "is fair", and that without knowing him, "I must believe that he will be fair". Well, now, I do know more about him through readings, e.g., litigated cases that he has presided over, and his actions in this case, and I am confident in saying that I now believe that he is the direct opposite of "fair" or a "fair judge". *That means he is an "unfair" judge. But this matter is now in court and is being litigated, with me being a party, so I must refrain from any further personal comments about the judge as a matter of professionalism. So I will not comment further personally, at this time, regarding judge Carney. However, I will say this, that if there had been a legal requirement for me to respond to his August 14, 2012 Order, I would have had more to say about his characteristic behavior with respect to his Order.
I await the 9th Circuit's decision.
UPDATE--August 31, 2012
I have now discovered that two documents that I filed in the Clerk's Office have not been placed on the docket. One of the documents is a reply to the district court's August 14, 2012 Order. I will inquire after the holiday why the documents have not been docketed. In the meantime, I will publish the Reply below:
LAURACK D. BRAY
P.O. Box 611432
Los Angeles, CA 90061
Tel: (805) 901-2693
Plaintiff Pro Se
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISRTICT OF CALIFORNIA
LAURACK D. BRAY
NO. CV 12-5704-CJC (RZ)
Plaintiff,
v.
DEPARTMENT OF JUSTICE, ET.AL.
Defendants.
______________________________________
RESPONSE RE : JURISDICTION ONLY TO COURT’S AUGUST 14, 2012 ORDER
Plaintiff Laurack D. Bray hereby and specifically responds only as to the district court’s lack of jurisdiction to issue the August 14, 2012 Order.
Plaintiff has filed a *petition for a writ of mandamus in the United States Court of Appeals for the Ninth Circuit, appealing the very issues that the district court, Judge Cormac J. Carney, is attempting to make a ruling on, i.e., the TRO and Plaintiff’s Complaint, see Laurack D. Bray v. USDC, C.D. of Cal., No. 12-72501, therefore , the district court lacks jurisdiction to make any rulings or take any other actions pertaining thereto until the Court of Appeals issues a decision. See Smith v. Lujan, 588 F.2d 1304 (9th Cir. 1979).
When the district court had legal jurisdiction to rule on the TRO, it intentionally refused to do so. So now, after (and only after) Plaintiff has filed a *petition for a writ of mandamus in the 9th Circuit to address that refusal, judge Carney has now attempted to do what he should have done earlier, i.e., make a ruling on the pending TRO, through a hastily written Order lacking in any real substance or merit. But now, it’s too late . The district court lacks authority to make any further rulings until the 9th Circuit has issued a decision on the *petition for a writ of mandamus.
Therefore, Plaintiff will disregard, and not respond to, the substance and merits of the court’s August 14, 2012 Order, and will await, as the district court must do, the 9th Circuit’s decision.
__________________ _______________________________
Date LAURACK D. BRAY
I continue to await the 9th Circuit's decision.
UPDATE--September 6, 2012
The last time I made an entry into this blog, I indicated that two filed documents, including the above "Response", had not been docketed by the clerk's office, and I indicated that I would visit the Clerk's Office after the Labor Day holiday to inquire as to why the documents had not been docketed. Well, I did in fact visit the Clerk's Office last Tuesday, and guess what?, the documents had been docketed, purportedly on August 29, 2012 ( the documents were filed on August 20, 2012). Did my blog have anything to do with the docketing? You be the judge!
Moreover, one of the filed documents was a "Certificate of Service", indicating that the "summons" had been served on the United States of America. Well, the Clerk's Office, after entering the most important information pertaining to the service, i.e., when the government's answer to the Complaint is due, proceeds to point out certain formal requirements *(for service by mail) that were not met (I believe in an effort to discredit me ). The problem with the Clerk's unnecessary and biased disclosures is that those requirements are inapplicable and irrelevant to service of the summons in this case because the United States voluntarily appeared and entered an appearance, thereby waiving formal service of process, because the purpose for formal service of process had been met, i.e., notice and appearance. Furthermore, in the Clerk's effort to discredit me, it provided false information *to the public. That is, it stated that service was not made at the U.S. Attorney's Office. This was false. In fact, the Complaint was personally served at the U.S. Attorney's Office in Los Angeles, on an Assistant U.S. Attorney, Mr. Axe, together with other materials. And this is likely why the United States voluntarily appeared, because it had been personally served with the Complaint, at the U.S. Attorney's Office. Finally, in my Response above, I specifically indicated that it addressed the issue of jurisdiction only, not the merits of the district court's Order. Yet, the Clerk, in its docketed entry, merely identifies the Response as a response, without indicating that it is a response to jurisdiction only. Therefore, it is misleading *to the public. To the average person who reviews the docket, without downloading the Response document itself, the docket gives the impression that I responded to the merits of the court's Order, when in fact I did not. The docket is misleading and is intended to be.
Consequently, if there was any doubt that the Clerk's office is acting partially *in favor of the government (rather than impartially) in this case, the late docketing of the filed documents, the unnecessary and false information in the certificate of service entry, and the misleading docket entry of my Response to the district court's order, eviscerates that doubt.
UPDATE--September 14, 2012
There's no new information other than it should be clear now that the Clerk's office is acting partially in favor of the government in this case, and that it has acted at least discriminatorily, if not racist, in acting on my filings, and that it has provided the public with false and misleading information regarding this case.
To simplify the matter regarding this topic (How the judicial system in California works if you are poor and Black), just ask yourself, would most of these adverse actions have occurred if I were rich and white? Especially most of the Clerk's actions and judge *Carney's refusal to rule on the TRO. *You be the judge.
I continue to await the 9th Circuit's decision.
UPDATE--September 21, 2012
There's no new news to report, but I betcha the government is anxiously awaiting the outcome of the 9th Circuit's decision, as I am (but, for other reasons), to see if the case will continue to be presided over by judge Carney. They (state and federal) are hopeful that it will be. Right now, based on judge Carney's latest order (August 14, 2012), the government is encouraged, waiting to see if the order will be validated, knowing that, even though the order is not well founded, with judge Carney presiding, they have a chance.
I continue to await the 9th Circuit's decision.
UPDATE--September 27, 2012
Although there is a recent Los Angeles Times article written about a case presided over by judge Carney that I believe relates to my case, and that I would ordinarily comment on (as it relates to this case), I will not comment at this time. Instead, I will await the 9th Circuit's decision. As a matter of fact, unless there's an outstanding or significant matter that I feel I must comment on immediately, I will withhold any further comment on the case until I receive the 9th Circuit's decision, unless there is a procedural change or action in the case that precedes the 9th Circuit's decision.
UPDATE--October 16, 2012
I'm back! I had to complete a project, so I've been unable to write the blog before now. But, there clearly have been procedural actions that you should be apprised of. As a matter of fact, I just received one filing or order yesterday. And, keep in mind that this week's title is "How the judicial process in California works if you are poor and Black". Also, keep in mind that as I point out the following matters to you that I am a lawyer, while most poor, black, pro se plaintiffs are not. Therefore, most poor, black, pro se litigants are susceptible to being influenced by the dictates of the judicial process, even if those dictates are legally wrong or erroneous, which ususally result in the poor, black plaintiffs losing their cases, even where those dictates were wrong, and in most cases, intentionally wrong. So, with the aforementioned in mind, here are recent procedural actions occurring since the last blog.
First, the district court, judge Cormac J. Carney, issued an order on September 26, 2012, purportedly dismissing this case "with prejudice", through another hastily written and unconstitutional (i.e., denial of due process and equal protection) decision. However, as I asserted in a previously written response to his previous order (August 14, 2012), he lacked jurisdiction to issue the September 26, 2012 Order, or he acted without authority in issuing the Order. So, I responded with a supplemental writ of mandamus filed in the 9th Circuit, and I gave notice of the supplemental petition for the writ of mandamus in the district court. I will post both documents here. I will first post the supplemental petition :
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NO. 12-72501
LAURACK D. BRAY
Petitioner,
v.
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
Respondents,
DEPARTMENT OF JUSTICE(U.S.); UNITED STATES
OF AMERICA; ERIC HOLDER , UNITED STATES ATTORNEY’S OFFICE,
LOS ANGELES; ANDRE BIROTTE ; FEDERAL BUREAU OF INVESTIGATION;
ROBERT S. MUELLER;UNNAMED ASSISTANT DIRECTOR IN CHARGE, FBI
LOS ANGELES DIVISION; UNNAMED ASSISTANT U.S. ATTORNEYS, LOS
ANGELES; TANI-CANTIL-SAKANYE;, ERIC SHINSEKI; SUPERIOR COURT OF CALIFORNIA; THOMAS O’BRIEN; PATRICK R.DONOHUE; STEVEN HINTZ, BARRY KLOPFER, KEN RILEY, DAVID LONG, ROBERT PERRY, MICHAEL PASTOR; STEVEN R. SELLLERS ,
HAROLD JAMES GRIFFITH, GREGORY SECOR, JEANETTE M. ANDREWS,
and HELEN H. DAVIS
Real Parties in Interest.
________________________________________________________
SUPPLEMENTAL PETITION FOR A WRIT OF MANDAMUS
PURSUANT TO 18 U.S.C. sec. 3771(d)(3)
LAURACK D. BRAY
P.O. Box 611432
Los Angeles, California 90061
Tel: (805) 901-2693
Plaintiff Pro Se (IFP)
SUPPLEMENTAL PETITION FOR WRIT OF MANDAMUS
PURSUANT TO 18 U.S.C. sec. 3771(d)(3)
Pursuant to FRAP, Rule 21, 28 U.S.C. sec. 1651, Circuit Rules 21-2 and 21-5, and 18
U.S.C. sec. 3771(a)(6), (7) and (8), (b)(1), (c)(1), and (d)(3), Petitioner herein files this Supplemental Petition for a writ of mandamus and petitions the Court for a writ of mandamus as set forth below in the “Relief Sought” section of this Petition.
I
BRIEF STATEMENT OF THE CASE FOR THIS SUPPLEMENTAL PETITION
Subsequent to the filing of Petitioner’s initial petition for a writ of mandamus and appeal in this Court as entitled and numbered above, the district court judge, Cormac J. Carney, rather than await this Court’s decision regarding his authority to proceed in view of the prior appeal , has proceeded to enter two separate Orders, August 14, 2012 and the latest, September 26, 2012, which is a dismissal of Plaintiff’s Complaint “with prejudice”. This Supplemental Petition addresses the issue of judge Carney’s jurisdiction or authority to issue the two orders.
II
RELIEF SOUGHT
In this Supplemental Petition, Petitioner seeks, in addition to the relief sought in his primary and initial petition for a writ of mandamus, the vacation of the district court’s two subsequent orders filed after the appeal of the district court’s failure to rule on Plaintiff’s TRO, with particular emphasis on the court’s September 26, 2012 dismissal Order.
Plaintiff also seeks an expeditious ruling on the initial mandamus petition.
III
ISSUES PRESENTED
The issue presented is as follows : whether the district court judge committed error, and acted beyond his jurisdiction, in issuing two orders after an initial appeal of his actions regarding the same subject matter as that of the two orders?
While ordinarily the legal standard for granting a writ of mandamus is “clear error”, this Petition is brought pursuant to the Crime Victims’ Rights Act (“ CVRA”), 28 U.S.C. sec. 3771(d)(3), and this Court stated in Kenna v. United States District Court for the Central District of California, 435 F.3d 1011 (9th Cir. 2006) that “The CVRA creates a unique regime that does, in fact, contemplate routine interlocutory review of district court decisions denying rights asserted under the statute. We thus need not balance the Bauman factors in ruling on mandamus petitions brought under the CVRA; rather, we must issue the writ whenever we find that the district court’s order reflects an abuse of discretion or legal error.”
IV
FACTS NECESSARY TO UNDERSTAND THE ISSUE PRESENTED BY THE PETITION
The pertinent facts necessary to understand the issue presented are : In August, 2012, Petitioner filed a petition for a writ of mandamus with this Court, thereby appealing, requesting the Court to address the district court’s refusal to rule on his TRO and other matters related to the magistrate judge (and his refusal to grant certain relief). While this initial Petition, and appeal, was and remains pending, the district court, with full knowledge of the pending appeal, acted to issue Orders related to the same subject matter as that of the appeal, i.e., the ruling on the TRO and the sufficiency of Plaintiff’s Complaint. The district court’s September 26, 2012 Order dismissing Plaintiff’s Complaint “with prejudice” (which refers to the August 14, 2012 Order) is attached as Exhibit #1.
V
REASONS WHY THE WRIT SHOULD ISSUE
The writ should issue to vacate the two Orders issued by the district court, while requiring judge Carney to await the decision of the 9th Circuit regarding the initial petition, as Plaintiff must do.
In Smith v. Lujan, 588 F.2d 1304 (9th Cir. 1979), this Court explained that following the filing of a notice of appeal, a district court loses jurisdiction over action that is the subject of the matter appealed from. “Following the filing of the notice of appeal, another Rule 60(b ) motion was made in district court, where it was filed, entertained, and denied. Appellants seek to appeal that order of denial (like the district court’s denial of the TRO—and conjunctive Order—herein), but the district court had no jurisdiction to make the order appealed from. The district court could not dispose of the motion (the TRO herein and the dismissal Order), after the notice of appeal had been filed, without a remand from this Court.” Plaintiff’s petition for a writ of mandamus, particularly pursuant to 18 U.S.C. sec. 3771(d)(3), serves as a notice of appeal. Therefore, judge Carney is required to await the Court’s decision and remand.
CONCLUSION
In conclusion, Petitioner asserts that the district court lacked jurisdiction to issue the two aforementioned Orders that it issued and the Court should vacate those orders while providing the remaining relief requested by Petitioner in his initial Petition.
_________________ _______________________________
Date LAURACK D. BRAY
Petitioner Pro Se
Next, the notice of the Supplemental Petition filed in the district court :
LAURACK D. BRAY
P.O. Box 611432
Los Angeles, CA 90061
Tel: (805) 901-2693
Plaintiff Pro Se
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISRTICT OF CALIFORNIA
LAURACK D. BRAY
NO. CV 12-5704-CJC (RZ)
Plaintiff,
v.
DEPARTMENT OF JUSTICE, ET.AL.
Defendants.
______________________________________
SUPPLEMENTAL PETITION FOR A WRIT OF MANDAMUS IN LIEU OF A NOTICE OF APPEAL AND AS AN APPEAL OF THE DISTRICT COURT’S SEPTEMBER 26, 2012 ORDER DISMISSING PLAINTIFF’S COMPLAINT
Plaintiff Laurack D. Bray, solely for the protection of his rights, hereby gives
Notice that he will, concurrently with the filing of this notice, file a supplemental petition for a writ of mandamus with and in the United States Court of Appeals for the Ninth Circuit (see Appeal No. 12-72501) in lieu of a notice of appeal and as an appeal of the district court’s September 26, 2012 Order dismissing his Complaint.
The district court’s September 26, 2012 Order, like his August 14, 2012 Order, has been issued without jurisdiction or authority, therefore, it is an illegal order. Although Plaintiff is not required to respond to it, he will, but only as to the court’s lack of jurisdiction to issue the Order. Only the Ninth Circuit Court of Appeals may determine its own jurisdiction and whether the district court has jurisdiction to issue the aforementioned orders, and since, thusfar, the Ninth Circuit has not ruled on Plaintiff’s pending Petition for a writ of mandamus, Plaintiff must, in order to protect his rights, respond (through a supplemental petition for a writ of mandamus) in absence of a decision by the Court of Appeals. Plaintiff believes the law is clear as to the district court’s lack of jurisdiction after the filing of an appeal from an initial order of the same subject matter, and he will continue to proceed on that basis. See Smith v. Lujan, 588 F.2d 1304 (9th Cir. 1979). Nonetheless, the Ninth Circuit is the final decisionmaker as to the matter, thus, this appeal.
When the district court had legal jurisdiction to rule on the TRO, it intentionally refused to do so. So now, after (and only after) Plaintiff has filed a writ of mandamus in the 9th Circuit to address that refusal, judge Cormac J. Carney has now attempted to do what he should have done earlier, i.e., make a ruling on the pending TRO, and he has attempted to do so through two hastily written Orders, both lacking in any real substance or merit. But now, it’s too late . The district court lacks authority to make any further rulings until the 9th Circuit has issued a decision on the writ of mandamus (now supplemented).
Finally, judge Carney purportedly dismissed Plaintiff’s Complaint with
“prejudice” . Well, that certainly is an accurate depiction of his actions since
being assigned Plaintiff’s case. He has exhibited nothing but prejudice against Plaintiff since taking over the case, and his latest order is simply a continuation of that prejudice. Indeed, judge Carney’s actions are simply an intentional denial of Plaintiff’s constitutional rights under color of law, based on Plaintiff’s race or color. He has no intention of providing Plaintiff with a due process evaluation of his case.
__________________ _______________________________
Date LAURACK D. BRAY
After the Supplemental Petition was filed in the district court or the district court was notified of the filing, the district court, in error, designated the filing a "notice of appeal", which caused the Petition to be an appeal of a legitimate and legal final order. This was error. But, I do not believe that this was intentional conduct. I believe the supervisory clerk called to interpret the filing was unfamiliar with a sec. 3771(d)(3) appeal and made a determination that the only way the document could be filed was as a "notice of appeal", although the document clearly stated that it was not a notice of appeal and I stated to him that it was not a notice of appeal. But he simply was trying to find a way for the document to be filed. So, the document was forwarded to the 9th Circuit as a notice of appeal of the district court's September 26, 2012 dismissal Order. This was error. I had no intention of appealing the district court's Order, because that would make the order a legitimate, legal order, and my position is that the order is an illegal order issued without authority to issue it. I figured that when the Court of Appeals clerk received the document, it clearly would understand between the title of the document itself and the Clerk's Office familiarity with 3771(d)(3) appeals that the document was not a notice of appeal but a petition for a writ of mandamus. At minimum, the 9th Circuit's Clerk's Office should have called me to clarify my intention, based on the title of the document (which speaks for itself) and the Clerk's office's familiarity with 3771(d)(3) appeals. Surely, this is one of the reasons, or type of reasons, that the court system require a telephone number from attorneys and pro se litigants.
However, after the 9th Circuit received the document, it, rather than processing the document as a petition for a writ of mandamus, which it was, it processed it as a notice of appeal and instituted and/or developed a new appeal, providing a new appeal number and a briefing schedule, which it mailed to me. This was either gross error or intentional conduct, unlike the simple error of the district court clerk. If the Clerk's Office was truly unsure of my intention, under the circumstances, it had a duty to call me to confirm the proper filing. It did not do so. A simple telephone call would have eliminated all of the subsequent litigation related to the erroneous notice of appeal. But, if the conduct was intentional, then, necessarily, a telephone call would not be made.
When I received the appeal packet, containing the briefing schedule and new appeal number, I returned it, by mail, to the 9th Circuit with a letter stating that I did not file a notice of appeal (signifying that the materials were inappropriately sent to me). I also filed a "correction" to the erroneous notice of appeal in the district court. See below :
LAURACK D. BRAY
P.O. Box 611432
Los Angeles, CA 90061
Tel: (805) 901-2693
Plaintiff Pro Se
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISRTICT OF CALIFORNIA
LAURACK D. BRAY
NO. CV 12-5704-CJC (RZ)
Plaintiff,
v.
DEPARTMENT OF JUSTICE, ET.AL.
Defendants.
______________________________________
CORRECTION REGARDING ERRONEOUS NOTICE OF APPEAL
Plaintiff Laurack D. Bray hereby corrects the District Court record regarding the previously filed “Supplemental Petition for a writ of mandamus in lieu of and as an appeal of the district court’s September 26, 2012 Order dismissing Plaintiff’s Complaint”, filed on or about October 1, 2012. Although I believe the title of the document speaks for itself, indicating that a supplemental petition for a writ of mandamus was filed in the district court, the district court apparently has designated the writ of mandamus as an ordinary “notice of appeal”(and the 9th Circuit has responded by assigning a new appeal number ) . This was incorrect. The document was not an ordinary notice of appeal, it was a sec. 3771(d)(3) appeal, which replaces an ordinary notice of appeal with a writ of mandamus, which must be filed by crime victims in lieu of a notice of appeal. Therefore, the district court’s designation of the writ of a mandamus as an ordinary notice of appeal is erroneous. Therefore, the district court record should reflect that a writ of mandamus pursuant to 18 U.S.C. sec. 3771(d)(3) was filed in the 9th Circuit Court of Appeals and not a notice of appeal.
Attached is a copy of the Supplemental Writ of Mandamus that was filed in the Ninth Circuit Court of Appeals.
________________ ___________________________
Date LAURACK D. BRAY
Also, here's a copy of the letter sent to the 9th Circuit Clerk :
LAURACK D. BRAY, ESQ.
FEDERAL ATTORNEY
P.O. BOX 611432
LOS ANGELES, CALIFORNIA
TEL: (805) 901-2693
October 11, 2012
Clerk’s Office
United States Court of Appeals
for the Ninth Circuit
P.O. Box 193939
San Francisco, CA 94119-3939
RE: New Appeal and New Appeal Number (12-56815)
Dear Clerk:
I am in receipt of a packet of information regarding a briefing schedule and containing a new appeal number, 12-56815. I am returning this packet of information because I did not file a notice of appeal in the district court, and apparently this information is directed to an appeal of the district court’s September 26, 2012 Order, and I am not appealing that Order through an ordinary notice of appeal (which the packet of information is directed to). Further, my case does not need a new appeal number because it already has an appellate number, 12-72501.
I filed a Supplemental Petition for a Writ of Mandamus, pursuant to 18 U.S.C. sec. 3771(d)(3), like the original petition, therefore, I do not need a new number, which is why I know that the enclosed packet of information and assigned new number has been erroneously sent to me.
Furthermore, even if I attempted to pursue this appeal, as an ordinary appeal, it probably would be dismissed at the end for lack of jurisdiction, because a crime victim cannot file an ordinary notice of appeal, but rather must file a writ of mandamus. In any event, even if I was proceeding as a non-crime victim, I still would be proceeding pursuant to a writ of mandamus because my position is that the district court’s Order is illegal for a lack of jurisdiction, therefore, it’s not a final order that can be appealed from with an ordinary notice of appeal.
Finally, if the Court wants to send me briefing and scheduling information for my mandamus petitions, I would certainly agree with and accept them.
Sincerely yours,
Laurack D. Bray, Esq.
Enclosures
Cc: Jason Axe, counsel for federal defendants
After this attempted clarification of the notice of appeal and the new appeal, I received yesterday a copy of an order sent from the 9th Circuit to the district court directing the district court to inquire into my in forma pauperis status related to the filing of a "frivolous" appeal, an appeal that I never filed. In other words, the 9th Circuit wants the district court to determine whether I should pay, instead of being granted IFP status, for a "frivolous" appeal that I never filed, and had no reason to file. Indeed, for me to file the "frivolous" appeal, would be a direct contradiction of my position, that is, that the district court's order is illegitimate and illegal, because the "frivolous" appeal is a direct appeal from that Order (based on a finding that the Order is a lawful order). This Order appears to be nothing more than a backdoor method of trying to get me to pay (for something, anything) when the law says that I don't have to. This directly relates to this week's topic of discussion, "How the judicial system works in California when you are poor and black".
It appears to me that the district court, in view of the "correction" filed in the district court, together with the letter sent to the 9th Circuit and the apparent errors made by the Clerks of both courts, must respond by stating: Plaintiff's in forma pauperis status is not (and was not) affected by appeal no. 12-56815, be it deemed frivolous or not, because he did not file the appeal. Based on errors by this court and the Ninth Circuit, the appeal was filed and assigned a new number and briefing schedule when it should not have been, through no fault of Plaintiff. Therefore, Plaintiff's IFP status remains the same and unaffected by the filing of appeal no. 12-56815. I will await the district court's decision.
NOTE: There is a possibility that the 9th Circuit issued the above order to the district court before it received my letter or became aware of my district court "correction" filing. Should that be the case, it would subtract from the notion that the order was entirely malicious. I say entirely because the Court still had before it, notwithstanding the letter and correction, the filing/notification in the district court(which the 9th Circuit chose to treat as a notice of appeal) which clearly stated that the filing was a petition for a writ of mandamus and not a notice of appeal.
That's all for now, but more the next time on : sec. 3771(d)(3)'s 72 hour rule and the federal defendants' precarious position.
UPDATE--October 19, 2012
With the current topic in mind, I want to remind my readers that you must always view the state of the procedures from the standpoint of whether or not, generally, I would have received the same treatment from the court system if I were rich and white, and if I were not a lawyer. I can provide you with a very real and quick difference immediately, based on ordinary procedure and the law. If I were rich and white, at this time, I would be back in my office in Ventura, and the case would have been settled or would be undergoing settlement negotiations at this time. I would have been granted a TRO, putting me back in my office and the government would have either answered the Complaint or foregone answering the Complaint by settling or a joint voluntary dismissal. By my being poor and Black, that didn't happen. Rather, I have had to undergo the various procedural processes that I have undergone in order to get where I am at now. In the future, I will provide you with some case proof of the difference in treatment.
But, for now, I promised you a discussion of the 72 hour rule applicable to the 9th Circuit in deciding the mandamus petitions. Briefly put, the 9th Circuit had 72 hours, or not more than 5 days to decide the mandamus petitions, that is, the original one (filed in August, 2012) was supposed to be decided in 72 hours, and that clearly has not happened; and the second or supplemental mandamus petition was also supposed to be decided in 72 hours, and clearly that has not happened either. The specific language of the provision (18 U.S.C. sec. 3771(d)(3) states: "The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed. In no event shall proceedings be stayed or subject to a continuance of more than five days for the purposes of enforcing this chapter." Further, "If the court of appeals denies the relief sought, the reasons for the denial shall be clearly stated on the record in a written opinion." Since neither Petition has been decided in the 72 hours (or five days) as required, what happens next? I'll discuss that the next time, and the federal defendants.
UPDATE--October 24, 2012
To continue where I left off, there clearly has been a violation of the 72 hour rule by the Ninth Circuit Court of Appeals regarding both the original Petition and the Supplemental Petition, so what happens next? Well, that depends on how long it takes past the 72 hour limitation. I will only discuss, at this time, a reasonable time. On one hand, for a reasonable time, one might do nothing because of the litigant's belief that the Court's purpose in extending the time may be to provide the litigant with a due process evaluation and determination of his or her case, and in order to do so, 72 hours just wouldn't be enough time . On the other hand, if timing is more critical, for example, where a crime victim wishes to attend a particular hearing, even an otherwise reasonable time might be perceived as, and might actually be, unreasonable under the circumstances. Therefore, the crime victim might want to take some action even after just a reasonable time has past following the Circuit Court's violation of the 72 hour rule, depending on when the hearing is scheduled. For instance, he or she might wish to move for a stay of the hearing in the district court, pending a decision by the Court of Appeals. I will leave for another day, the possible actions for an unreasonable delay or period of time past the 72 hour (or five day) limitation.
I believe, or want to believe, that the time which has past since the 9th Circuit's violation of the 72 hour rule in my case is a reasonable time based on due process considerations, and that 72 hours (or 5 days) just wouldn't be enough time for a due process consideration of my case. But, at this time, it is at the outer limits of reasonable time. Let's see what happens.
As for the defendants, both federal and state, they are relying on the judge Carney's erroneous and unconstitutional decision to dismiss the case for their protection. So, if that decision is overturned, both state and federal defendants will have to answer the Complaint, and will not have the opportunity to move to dismiss based on the merits of the Complaint itself, as they would normally do, because the 9th Circuit would have ruled on the merits of the Complaint in its disposition of the TRO.
UPDATE--October 24, 2012
Well, yesterday, I received two orders from the Ninth Circuit Court of Appeals, one dealing with an erroneous appeal and the other dealing with this case, a "statement" of the Court's decision regarding the mandamus petitions filed in this case. I will briefly discuss both orders. First, the erroneous appeal. Even though this appeal was initiated by the 9th Circuit itself, through either gross error or misconduct or intentional conduct (and because of the characterization of this latest order, I now am convinced it was intentional conduct and malicious), the Court is nonetheless attempting to assign responsibility for the appeal and its own misconduct to me. But, its not going to happen. I did not file the appeal, so I do not need to dismiss it, and I didn't do so. If it was a vountary dismissal, as the Court has has characterized it, it was a voluntary dismissal by the 9th Circuit, not me. So, while I cannot control the Court's characterization of its documents, I can control my actions and acceptance of responsibility for a misguided and mischaracterized action by the Court, and I accept no responsibility for Appeal NO. 12-56815. That appeal is all on the Court of Appeals and its Clerk's Office. What honestly should have been done is that the Court of Appeals should have vacated the appeal, rather than dismissed it, and that could have resulted in no blame being placed on anyone. That is, the Court could have simply stated that the appeal has been vacated, without providing a reason. Or, it could have stated that the appeal has been vacated due to error. Instead, the Court of Appeals, absent of any integrity and dignity, is trying to place the blame on me, and have the record reflect that I initiated the appeal and am now "voluntarily" "dismissing" it. Well, I did not file the appeal so, necessarily, I can't dismiss it. The power of dismissal lies with the Court of Appeals itself, and I accept no responsibility for it. And, this latest action contributes to my belief that the original action of assigning the appeal a number and initiating a new appeal was intentional and malicious. I could respond by letter to the Court of Appeals, but it would probably simply disregard it; and I'm not going to make a formal filing in response because that would assign some legitimacy to the appeal and it might be perceived as my acceptance of that legitimacy. Therefore, this will be my only response, to you the reader/and or the public.
Next, the Court's "statement" denying the mandamus petitions. Am I surprised by the ruling? Absolutely not. I have a history with the 9th Circuit involving allegations of racial discrimination and fraud (check the I.C.R.; I will begin publishing it again soon. I temporarily stopped publishing it because I did not want it to appear threatening to any new and fair and impartial judge that would be deciding my case; but,as it turns out, it didn't matter), and the main focus of this blog is how the judicial process in California works if you are poor and Black, and these decisions(i.e.,this order and the above-described order) are part and parcel to the topic.
Am I disappointed with the outcome? Yes, I am, not only for me, but also for the individuals I was suing on behalf of. But, the major source of my disappointment comes from the lack of integrity and dignity shown by the Ninth Circuit. Believe it or not, even with my history with the Ninth Circuit, I somehow genuinely believed that the Court would rise above the fray and appoint some fair and impartial judges to decide this case, because of the fundamental rights involved. But that didn't happen, and the court continues to carry on its discriminatory ways. There is only one judge on the Court of Appeals that I feel confident would be fair and impartial, and he wasn't on my panel (I was hopeful that he would be). And strangely enough, of all the cases that I have had before the 9th Circuit, including cases where I've represented clients--which is most of the cases, he has never been on one of my panels. I will not give his name because I do not want his name to be involved in this matter unnecessarily, because it may be a disservice to him, but his initials are "S.R." However, I will provide the last names(as they are provided in the order) of the judges that are a member of the panel that issued the "decision" in this case, that is, Bybee, Clifton, and W. Fletcher. The order is clearly an arbitrary and capricious order, that is at the same time a false statement, because this case clearly warrants the intervention of an appellate court (in this case, the 9th Circuit) by means of the extraordinary remedy of mandamus, and *for this case, 3771(d)(3) mandamus relief. Remarkably, the panel does not mention 3771(d)(3), knowing that it violated the statute without excuse. But the panel's failure to mention the statute would not preclude review and assignment of responsibility for the violation thereof.
Suffice it to say, this *is not the end. There will be a next step. So, none of the applicable parties in this case should get too comfortable at this point.
UPDATE--November 3, 2012
There is an interesting and important matter about the case that needs to be addressed, but, I'm not going to address it at this time, for various reasons. Before writing this entry, I was prepared to address it, but upon further reflection, I think it is best that I wait. When I address it, I will reflect back on this passage. I have to look into another matter first.
I'm in the process of preparing for the next step in this litigation process. Hopefully, at the end, integrity and dignity will prevail (so far, it hasn't). If that happens, I should prevail (the facts and law of the case are clearly on my side, and have been from the beginning--only the racial discrimination, and/or bias, and/or lack of integrity and dignity by the court system have prevented me from prevailing). Thusfar, as you can see if you have been following this case, there has been no determination of the merits on my claims against the government, which is what the government wants. The government knows that if and when a decision on the merits is made, I will prevail. So it is delighted that, with help from the court system itself, it has avoided a decision on the merits (and the court system, thusfar the federal court system, has relied on racial discrimination and/or bias, and a lack of integrity and dignity to support its aid to the government--although it's supposed to be fair and impartial). A win for me will be a win for integrity and dignity.
As I move ahead in preparing for the next step in this litigation, you should keep in mind the primary focus of this blog: to demonstrate how the legal process in California works if you're poor and black, notwithstanding the merits and strengths of the case. Thusfar, regardless of the outcome of the case, you, the reader, have learned some of the actions, experiences, and outcomes undergone by me, as a poor, black litigant that you might not have thought about or considered before. And, this case have not even gone to trial yet. The fact that I am a lawyer, as you can see, doesn't stop or prevent the discrimination and bias, it only helps me fight the discrimination with a stronger, more knowledgeable and informative force.
Talk to you next time!
UPDATE--November 7, 2012
Still preparing for the next step! Still have some information to obtain.
UPDATE--November 16, 2012
Hope to begin work on the document this weekend! But, I still have to get some information on an associated matter. I have to make sure of something. However, that shouldn't stop me from getting started on the next step document. Speak at you next time.
UPDATE--November 28,2012
Well, its been awhile. I know. I got tied up with some things, such as I had to attend a funeral of a family member. But I'm back now. Things are moving along in preparartion of the next step, and I still have to gather some more information that will contribute to part of it.
In the meantime, regarding my interchangeable titles for this blog, one such title is : the government's only hope is an unfair or biased judge; if I get a fair judge, the government is in trouble, and they (federal and state) know it. Well, the government is winning so far, and that's precisely why it is winning, not just one, but several unfair and biased judges. So this title rings true to form. But, I'm keeping the main title in place because, at this time, it is still the focal point of the blog. The next time I update the blog, I should have more material information. Later!
UPDATE--December 5, 2012
Things are moving along. I acquired the information that I sought. The drafting is just about finished. The computerizing should start soon. I wish I could have got the document done sooner, but I am a sole practitioner. 'Til next time!
UPDATE--December 15, 2012
Almost there! Hopefully next week!
UPDATE--December 24, 2012
By the next update, the document will have been filed.
UPDATE--December 27, 2012
The document has now been filed! It is an Application to Supreme Court Justice Anthony M. Kennedy requesting declaratory relief regarding the Ninth Circuit ruling on my Petition for a writ of mandamus rather than transferring or seeking transfer of the Petition to a different Circuit Court.
Because this blog is so long, and because I have published the Application on a separate blog, "Application to Supreme Court Circuit Justice Anthony M. Kennedy, Re: the Ninth Circuit's Failure to Transfer the Bray v. Dept. of Justice Mandamus Petition to Another Circuit for Decision",I am tempted not publish it here. But, I believe I must. Here it is :
NO.______
_______________
SUPREME COURT OF THE UNITED STATES
________________
LAURACK D. BRAY, Applicant
v.
ALEX KOZINSKI and
THE NINTH CIRCUIT COURT OF APPEALS, Respondents
_________________
APPLICATION FOR A DECLARATORY JUDGMENT AND TO VACATE THE ORDER
OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
__________________
To the Honorable Anthony M. Kennedy, Circuit Justice for the Ninth Circuit :
Applicant Laurack D. Bray respectfully moves for an order declaring that Chief Judge Alex Kozinski and the United States Court of Appeals for the Ninth Circuit, under the circumstances, had a duty to transfer Applicant’s mandamus petitions to another circuit court of appeals for decision; and by not transferring or seeking to transfer Applicant’s mandamus petitions to another circuit court for decision, the Ninth Circuit, based on the totality of the circumstances, violated Applicant’s constitutional due process and equal protection rights, pending the filing of and final action by this Court on an anticipated petition for a writ of mandamus directed to the Ninth Circuit panel issuing the decision on Applicant’s filed mandamus petitions in that Court (or seeking review of the panel’s mandamus decision through a mandamus action in this Court based on the facts and law of the panel’s decision). Applicant also requests an order vacating the panel’s decision.
The mandamus petition in this Court will seek review of the Ninth Circuit panel’s mandamus decision below in Laurack D. Bray v. U.S. District Court for the Central District of California, No. 12-5704(CJC) for clear error (in violation of a federal statute), which said decision basically affirmed an unlawful judgment of the United States District Court for the Central District of California that denied Applicant’s motion for a temporary restraining order and dismissed Applicant’s civil rights Complaint without authority to do so. Copies of the Ninth Circuit’s panel’s mandamus Order, see Appendix #3, together with the District Court’s judgment (as part of the mandamus petition), see Appendix #2 (Supp.) are attached hereto .
This is the only Court that can review the propriety of the Ninth Circuit’s decision to rule on Applicant’s mandamus petitions itself rather than transferring or seeking a transfer of the petitions to another circuit.
I BRIEF PROCEDURAL HISTORY OF THE CASE
The relevant procedural events are summarized as follows:
A. On July 2, 2012, Applicant lodged an eight (8) count civil rights Complaint against multiple state and federal defendants, alleging racial discrimination (evolving from a failure to prosecute Applicant’s criminal complaints), constitutional fraud, unreasonable search (mail), illegal surveillance (including wiretaps and a GPS device), violation of the right to privacy, medical negligence (FTCA), and denial of due process and equal protection. See Appendix #1. One of the major forms of relief sought in the Complaint is permanent injunctive relief that will permanently place Applicant in possession of premises or property (that served as both home and law office for Applicant) that he has alleged was unlawfully and/or wrongfully taken in 2003 through an unlawful and racially-motivated eviction.
On the same day, Applicant lodged an ex parte application for a temporary restraining order (TRO), see Appx #1, requesting the district court to restrain certain defendants from selling, leasing, renting or otherwise transferring the aforementioned property to anyone else until a determination was made as to the rightful possessory rights to the property located in Ventura, California. Applicant also requested the court to restrain the applicable defendants from prohibiting Applicant from taking immediate possession of said property (as Applicant had observed that the property had undergone renovations and was empty or vacant at or near the time that Applicant filed the Complaint and moved for the TRO).
On the same day, Applicant lodged a motion to proceed in forma pauperis (IFP) for the filing and prosecution of Applicant’s case in the District Court. In his motion papers, Applicant argued that the government (both state and federal), through misconduct, was directly responsible for Petitioner’s indigency and his need to proceed in forma pauperis in filing his Complaint.
The papers were lodged pending a decision on Applicant’s IFP motion. No action was taken with respect to Applicant’s TRO application.
B. On July 3, 2012, Applicant returned to the Clerk’s Office to obtain the status of his pending motions, particularly the TRO. Applicant discovered that the magistrate had acted upon his IFP motion, but had only granted partial relief, that is, prepayment of the filing fee, while omitting other relief sought pursuant to the IFP statute, i.e., 28 U.S.C. sec. 1915, such as service of process by the U.S. Marshall. There was no action taken on the TRO, and the case had not been assigned to a judge, although district court procedural rules require that a civil case be randomly
assigned to a judge upon filing. The case was officially filed on this day (July 3rd,
2012).
C. On July 5, 2012, Applicant returned to the district court and filed a Notice of Related Case, indicating that Applicant’s case was related to a case on the docket or calendar of district judge Cormac J. Carney, and that the case should be transferred to judge Carney. While filing the Notice, Applicant was informed by the clerk that his case had been assigned to a judge . Applicant discovered that the Clerk’s Office, rather than randomly assigning the case to the next available judge, had intentionally assigned the case to a judge who had several years earlier denied Applicant relief in another unrelated case and who was implicated in a federal criminal complaint filed by Applicant against another Central District judge, Dickran Tevrizian, see infra. The TRO motion still had not been acted upon by any judge. Applicant nonetheless went ahead and filed the Notice of Related Case (and indicated in another filing to the Chief Judge that if the assigned judge, Christina Synder, remained on his case that he would be prompted to take some type of action).
D. On July 17th, 2012, Applicant’s case was transferred to judge Carney (upon judge Carney agreeing to accept the case). Judge Carney could have objected or declined the transfer, but he agreed to accept the case.
E. On August 6, 2012, after judge Carney had not acted upon or failed to rule on Applicant’s TRO application, Applicant contacted the Ninth Circuit Court of Appeals Clerk’s Office, pursuant to a 9th Circuit Rule, Cir. Rule 21-5, requiring such action, and informed that office that Applicant would be filing a Petition for a writ of mandamus pursuant to 18 U.S.C. sec. 3771(d)(3) . Applicant sent the mandamus petition on this same day, via postal express mail.
F. On August 14, 2012, after Applicant-Plaintiff had filed his mandamus appeal and after the sec. 3771(d)(3) three- day period for the Ninth Circuit Court of Appeals to have acted upon the mandamus petition had expired, judge Carney issued an Order, purportedly denying the TRO and ordering Applicant to show cause why the case should not be dismissed for failure to state a claim.
G. On August 20, 2012, Applicant responded to judge Carney’s order as to jurisdiction only, arguing that he (Carney) lacked jurisdiction to make any rulings, either on the TRO or to issue a show cause order, because Applicant had appealed his failure to rule on the TRO prior to his Order.
H. On September 26, 2012, judge Carney issued an Order purportedly dismissing Applicant’s case with prejudice for failure to state a cognizable claim.
I. On October 3, 2012, Applicant filed a Supplemental Petition for a writ of mandamus pursuant to 18 U.S.C. sec. 3771(d)(3) in the Ninth Circuit Court of Appeals, see Appendix #2, arguing that the district court acted without authority in issuing the latest order (dismissing the Complaint) and the former order (denying the TRO); and Applicant gave notice to the district court that he would be concurrently filing the Supplemental Petition in the Ninth Circuit Court of Appeals in response to the district court’s dismissal order. See Appendix #4.
J. On October 19, 2012, well beyond the 3- day sec. 3771(d)(3) requirement for acting on both petitions (main and supplemental)(and each petition had a separate 3 day period), the Ninth Circuit issued a two sentence Order denying both petition(s) (which raised different issues) without stating the specific reason directed to each respective petition as to why (or the basis) the petition was being denied. See Appendix #3. At the same time, the Court prohibited Applicant from seeking further review from the Ninth Circuit, i.e., rehearing or rehearing en banc.
K. January 19, 2013: Present due date for filing a Petition for a writ of mandamus in this Court, being 90 days from the Ninth Circuit’s mandamus decision and the denial of any right to petition for a rehearing.
II GROUNDS FOR DECLARATORY RELIEF
The grounds for seeking declaratory relief are as follows:
A. Under the circumstances of this case, the Ninth Circuit Court of Appeals had a duty to transfer or request a transfer of this case to a different circuit court for a decision on Applicant’s sec. 3771(d)(3) mandamus petition.
B. Even if the Ninth Circuit did not have a duty to transfer this case, or seek to have the case transferred based on the circumstances or specific facts of the case, it had a duty to do so based on 28 U.S.C. sec. 455(a).
C. The entire Ninth Circuit had a conflict of interest as to Applicant’s Complaint and the mandamus petitions.
D. It was a violation of Applicant’s Fifth Amendment due process and equal protection rights for the Ninth Circuit to rule on Applicant’s sec. 3771(d)(3) mandamus petition, or any other matter or proceeding.
III ARGUMENT FOR DECLARATORY RELIEF
Before undertaking argument, Applicant believes it is important, and perhaps necessary, to inform the Court of Applicant’s status here and below. Applicant is a Black lawyer, sole practitioner, who has practiced law for over 25 years now, and nearly his entire career as a lawyer has been as a sole practitioner. He began his career in Washington, D.C., and later moved back to California (where he was raised and attended college), where he practices federal law only. Applicant has no disciplinary history with the Bar, and has participated in several cases as counsel of record which has resulted in published opinions, including a Ninth Circuit case, see Jackson v. Guirbino, 364 F.3d 1002 (9th Cir. 2004)(the reported case does not indicate that Jackson had filed his own Opening Brief and raised his own issues on appeal before Applicant entered the case, thereby causing multiple issues to be raised on appeal—but, it was the Miranda issue that Applicant raised in his Supplemental Brief that caused the reversal of Jackson’s conviction). Finally, Applicant is a member, in good standing, of the Bar of this Court. Applicant has proceeded in forma pauperis (IFP) in the Courts below, and is now proceeding IFP in this Court. Applicant continues to charge that it was the misconduct and/or criminal conduct of the state and federal defendants in Applicant’s district court Complaint that directly caused Applicant’s eventual indigent status, which began to develop with the unlawful and racially-motivated shutdown of Applicant’s home-law office in Ventura, California in 2003.
A. UNDER THE CIRCUMSTANCES OF THIS CASE, INVOLVING APPLICANT’S
PRIOR HISTORY WITH THE NINTH CIRCUIT BELOW, THE NINTH CIRCUIT
COURT OF APPEALS HAD A DUTY TO TRANSFER THE CASE ITSELF
PURSUANT TO DUE PROCESS CONSIDERATIONS, OR REQUEST A
TRANSFER TO ANOTHER CIRCUIT VIA THE CHIEF JUSTICE, FOR RESOLUTION
OF PETITIONER’S MANDAMUS PETITION.
The following are some of the circumstances giving rise to a duty of the Ninth Circuit to transfer the petition for a writ of mandamus to another circuit:
1. Prior to June, 2007, Applicant (on behalf of himself and two clients, from two separate and different cases ) filed a federal misconduct Complaint with the Ninth Circuit’s Judicial Council charging several district court and Ninth Circuit judges with misconduct regarding their involvement with several civil cases that began at the district court level (Central District of California) and ended at the 9th Circuit level.
The acting chief judge of the Judicial Council, rather than submitting the
Complaint to a Committee for investigation, acted on the Complaint himself and rationalized away all of the misconduct by the judges, except for one judge; and for this one judge, rather than rule on his serious misconduct, the chief judge forced him to retire, thereby avoiding discipline. As the chief judge stated in the misconduct decision, “One of the district judges named by complainant has retired, rendering the charges against that judge moot”, citing In re Charge of Judicial Misconduct, 91 F. 3d 90 (9th Cir. Jud. Council 1996). However, the best evidence that the Complaint was meritorious was the action of the acting chief judge in intentionally delaying ruling on the misconduct complaint, in violation of a federal statute requiring an expeditious ruling, in order to allow the same aforementioned federal district judge to “retire” and avoid discipline for his misconduct.
In June, 2007, because most, if not all, of the misconduct by the federal judges named in the misconduct complaint had criminal ramifications as well, and because Applicant and his clients continued to seek a remedy for the actions of several judges, Applicant (and again on behalf of the same two clients mentioned above) filed a multi-party federal criminal-civil rights Complaint with the U.S. Attorney Office in Los Angeles, charging, generally, the same federal judges named in the misconduct Complaint (including the “retired” judge) and adding several state court judges from Ventura County, CA, Superior Court, where Applicant’s district court civil litigation originally began) and the then 9th Circuit Clerk , Cathy Catterson.
While it does not appear to add anything to the application with respect to Applicant’s request for declaratory relief to name the judges, rather than just informing this Court that there were multiple Central District court and Ninth Circuit court judges named in the Complaint, Applicant will name some judges because of their special circumstances (and the description of their conduct will only cover the special circumstances or conduct , not usually the charges of the Complaint—therefore, usually there were separate charges against them in the Complaint) . But see Applicant’s Affidavit at Appendix #6.
The 2007 federal criminal Complaint included the following federal Central
district court judges : Dickran Tevrizian, who “retired” (rather than face disciplinary
proceedings) during the Ninth Circuit misconduct proceedings mentioned above;
Terry Hatter, Jr., who, upon information and belief, was a member of the Ninth
Circuit Judicial Council as late as 2010; and William W. Schwarzer, who acted as a
designated judge of the Ninth Circuit when his acts were committed. The Complaint included the following Ninth Circuit judges:
Mary Schroeder, who was named in the misconduct complaint and charged with
misconduct in her position as Chief judge, and was allowed to step down as Chief
Judge before the misconduct decision was issued; Alex Kozinski and Richard Clifton
(the Complaint was subsequently withdrawn as to Kozinski and Clifton, but on a
ground other than the merits or reasons for the Complaint), see infra; and others.
The U.S. Attorney’s Office in Los Angeles refused to investigate and/or
prosecute any of the individuals in the Complaint, including the Court Clerk , Cathy
Catterson. However, although the U.S. Attorney refused to investigate or prosecute
any of the individuals, the best evidence that the Complaint was meritorious, and
supported by probable cause in at least some cases, was the action taken by the F.B.I.
based on its own authority or power to perform certain functions. That is, upon information and belief (because the F.B.I. did not contact me and inform me of their actions—I surmise to keep their actions secret—but, at the same time, denying me relief), the F.B.I., through deal-making (e.g., in order to avoid arrest and/or prosecution, you must retire or resign your position), caused at least the following individuals to retire or resign as a result of Applicant’s criminal Complaint: state judges
Steven Hintz (on or about the same day that Applicant filed the Complaint) and Barry Klopfer (about one week later) of the Superior Court of California, Ventura County, CA (retired)—both of these judges were involved with Applicant’s criminal charge of a racially-motivated eviction from his home-law office in Ventura, CA; Central District Court of California judge Terry Hatter, Jr. (retired to senior status); Northern District of California judge William Schwarzer (retired from senior status); and then-Ninth Circuit Clerk Cathy Catterson (resigned). After some time had passed, the Ninth Circuit rehired Catterson as Court Executive . She currently maintains that position. As mentioned earlier, upon information and belief, Hatter at least was a member of the Ninth Circuit’s Judicial Council as of 2010.
2. In 2008, Petitioner filed another criminal Complaint(s) charging, among others, Ninth Circuit judge Harry Pregerson and two other Ninth Circuit judges, and the current Circuit Court Clerk, Molly C. Dwyer. Part of the charge against judge Pregerson was based on his conduct during the aforementioned judicial misconduct complaint proceedings, e.g., tampering with the appellate file by removing a docketed filing in order to support misconduct, i.e., allowing a district judge, Tevrizian, to retire rather than face discipline. He was also separately charged as part of a Ninth Circuit panel .
Applicant also filed a separate Complaint against the then-U.S. Attorney Thomas P. O’Brien. O’Brien later resigned. Upon information and belief, O’Brien’s resignation was at least, in part, based on Applicant’s criminal Complaint against him.
3. Subsequent to the 2008 Complaint, the U.S. Attorney for Los Angeles announced , at least through the L.A. Times, that it was beginning a new section, the Public Integrity Section, that would be charged with investigating and prosecuting civil rights complaints, among others. Pursuant thereto, Applicant began a blog, announcing that he was aware of candidates that should be investigated and prosecuted pursuant to the U.S. Attorney’s announced dictates of misconduct to be investigated and prosecuted. Many of the individuals identified in the blog were (are) Ninth Circuit judges who had been named in Applicant’s criminal complaints which were not investigated or prosecuted by the U.S. Attorney’s Office previously.
Applicant believes the above facts alone required the Ninth Circuit to transfer the document itself or request the transfer of the Applicant’s mandamus Petition to another circuit court for resolution.
See also, Appendix #6 (Affidavit of Laurack D. Bray), esp. at No. 14.
B. EVEN IF THE NINTH CIRCUIT DID NOT HAVE A DUTY TO TRANSFER THE CASE
BELOW BASED ON THE SPECIFIC FACTS OF THE CASE, IT HAD A DUTY TO DO
SO BASED ON 28 U.S.C. SEC. 455(a).
Pursuant to 28 U.S.C. sec. 455(a), “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” (Emphasis added). And Congress has apparently interpreted this provision as meaning “if there is a reasonable factual basis for doubting the judge’s impartiality, he should disqualify himself and let another judge preside over the case.” See H.R. Rep. 93-1453 (1974), reprinted in 1974 U.S.C.C.A.N. 6351. Applicant believes the above-stated facts in Section “A” provides the reasonable factual basis for doubting any Ninth Circuit judge’s impartiality. Certainly, a reasonable third party observer with knowledge of the above facts would conclude that there is at least a risk that all Ninth Circuit judges would be influenced by said facts and resolve the mandamus petition below on a basis other than the merits.
And, while it might have been helpful for Petitioner to file a motion for recusal of the entire 9th Circuit Court, Petitioner was not required to do so in order for the Ninth Circuit to have an obligation to recuse itself. “Whenever a judge’s impartiality ‘might reasonably be questioned’ in a proceeding, 28 U.S.C. (sec.) 455(a) commands the judge to disqualify himself sua sponte in that proceeding.” Alexander v. Primerica Holdings, Inc., 10 F. 3d 155(3rd Cir. 1993). See also Youn v. Track, Inc., 324 F.3d 409 (6th Cir. 2003) where, “Under (sec.) 455(a), a judge must sua sponte recuse himself if he knows of facts that would undermine the appearance of impartiality.”
Finally, the Rule of Necessity as explained in United States v. Will, 449 U.S. 200 (1980) did not apply to prevent the recusal of the entire Ninth Circuit Court of Appeals in the case below, primarily because “all” the Article III judges (such as those of another circuit court other than the 9th Circuit) did not have an interest in the outcome of Petitioner’s mandamus petition directed to a district court judge of the Ninth Circuit’s area, “so that it was not possible to assign a substitute (circuit) judge or for the Chief Justice to remit the appeal, as he is authorized to do by statute, to a division of the Court of Appeals with judges who are not subject to the disqualification provisions of (sec.) 455. . . .” Will, supra.
1. Judge Cormac J. Carney
The mandamus petitions and decision here which is the subject of this application was directed to the conduct of Central District (of California) judge Cormac J. Carney. Not only is judge Carney a member of the Central District, which is a part of or included in the Ninth Circuit’s jurisdiction, but judge Carney also served as a “designated” judge of the Ninth Circuit, which, in essence, made judge Carney a member of the Ninth Circuit Court himself. See E.T. v. Cantil-Sakauye, 682 F. 3d 1121 (9th Cir. 2012). And, as a member of the Ninth Circuit, he has a unique relationship with both district court and Ninth Circuit judges. “(G)iven the extent to which circuit and district judges within a circuit deal with each other on professional and personal levels, Chief Judge Browning’s apparent conclusion that the appearance of justice would be served by having appellant’s appeals heard by impartial judges from outside the Ninth Circuit seems eminently reasonable.” (Emphasis added) United States v. Claiborne, 870 F. 2d 1463 (9th Cir. 1989). Apparently, it was the “appearance of justice” that prompted the Ninth Circuit Judicial Council, evolving from the Central District case of U.S. v. Isaacs, No. CR 07-732GHK, to request the Chief Justice to transfer the misconduct Complaint of Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals to another Circuit for decision. Although the Judicial Council did not provide any specific reasons for the request (merely stating “Exceptional circumstances appearing, and pursuant to Rule 26 of the Rules for Judicial-Conduct and Judicial-Disability Proceedings, the Ninth Circuit Judicial Council requests that the Chief Justice transfer this identified complaint to the judicial council of another circuit for review and disposition”), it is clear that the predominant reason was because judge Kozinski was a member (and Chief Judge) of the Ninth Circuit Court of Appeals, and in order to provide an “appearance of justice”, see Claiborne, supra, the Judicail Council felt compelled to make the request.
In any event, it appears that at least one or more of the same reasons that compelled the Judicial Council in Isaacs to request the Chief Justice to transfer the Kozinski Complaint to another circuit are applicable here as to judge Carney—the mandamus petition was basically a complaint of misconduct, i.e., that judge Carney was acting without authority, and should have compelled a transfer here as was the case with Kozinski.
2. Judge Richard Clifton
While all panel members of the Ninth Circuit mandamus decision in the case below precluded an “appearance of justice” for Applicant, judge Clifton specifically precluded such because Petitioner had filed a criminal complaint against him (and although Applicant withdrew the Complaint on an independent ground not related to the charges of the Complaint, the charges of the Complaint remained intact, although not subject to enforcement because of the withdrawal), and that provided an independent reason for Clifton not being impartial.
3. Judge Alex Kozinski
Again, Judge Kozinski had the same duty pursuant to Section 455(a) to recuse, but he had a special duty to promote a transfer of the mandamus petition to another circuit. That is, judge Kozinski was also named in the 2007 criminal complaint (and although the Complaint was withdrawn against him on an independent ground as well, the reasons for the Complaint remained), he had undergone a transfer experience himself in Isaacs , and as Chief Judge, he was empowered , pursuant to 28 U.S.C. sec. 291(a) , to make the request to the Chief Justice for the transfer, and he could have made the transfer request without any input from the remaining Ninth Circuit judges .
Moreover, even though Applicant here has predominantly relied on sec. 455(a) in arguing that the Ninth Circuit had a duty to transfer based on an appearance of injustice (because “an objective observer would entertain reasonable questions about the (Ninth Circuit’s) impartiality”, Liteky v. U.S. , 114 S. Ct. 1147 (1994)), the Ninth Circuit also exhibited a personal bias or prejudice towards Applicant after his case reached the appellate level. Applicant asserts that the Ninth Circuit, through erroneous and malicious means, attempted to have Applicant’s IFP status revoked in the district court, which would have foreclosed Applicant from proceeding and prosecuting his case in the district court and hindered his proceeding in this Court. Basically, the Ninth Circuit, relying on an error made by the district court Clerk’s Office (which had to be recognized by the Ninth Circuit), tried to use that error to have Applicant’s IFP status revoked. Briefly (as I can be), Applicant gave notice to the district court (Clerk’s Office) that he was appealing judge Carney’s decision (dismissing his case and denying the TRO post-appeal) through a petition for a writ of mandamus pursuant 18 U.S.C. sec. 3771(d)(3), see Appendix #4, and that he was concurrently filing a Supplemental mandamus petition in the Ninth Circuit. See Id. The district court clerk (finally, after the initial clerk, a supervisory clerk) concluded that the only way that the notice could be filed was as a regular notice of appeal of judge Carney’s decision. This was error. Applicant believes that the Clerk simply was unfamiliar with 3771(d)(3) appeals. But, the document itself clearly stated that it was not a notice of appeal, but a 3771(d)(3) appeal (or supplemental petition for a writ of mandamus)(both in the document’s heading and the text). See Id. However, even though the Ninth Circuit and its Clerk’s Office clearly are familiar with 3771(d)(3) appeals and has a specific Circuit Rule directed to them, see 9th Cir. Rule 21-5, it, nonetheless (and without contacting Applicant by mail or telephone to clarify the matter) , treated the 3771(d)(3) notice as a regular notice of appeal from a final judgment and assigned it a new and separate appellate number (from the already filed Petition for a Writ of Mandamus) and issued a briefing schedule.
Thereafter, the Ninth Circuit issued a Referral Notice, see Appendix #5, directing the district court to respond in 21 days as to why Applicant’s IFP status should not be revoked for filing a frivolous appeal (an appeal that Applicant never filed). After Applicant submitted two documents (one in the district court, a “correction” document, and one in the Ninth Circuit, a letter and returned documents, including the briefing materials), the district court , likely realizing it was being used for a nefarious purpose (i.e., revoking Applicant’s IFP status for an unjustified reason), never responded to the Notice (which caused Applicant’s IFP status to remain intact) and, albeit wrongfully, omitted the document from its Docket (as of this writing, the district court had not placed the document on its Docket). The Ninth Circuit kept the document on its Docket, but there is no response from the district court (and the 21 days has now past) as requested on the Ninth Circuit docket (and this Court can confirm that itself) . The Ninth Circuit subsequently dismissed the erroneous appeal, after its misguided efforts had failed, and, instead of vacating the appeal—which could have avoided laying blame on anyone for the erroneous appeal, the Ninth Circuit characterized the appeal as a “voluntary dismissal” by Applicant, thereby laying the blame for the erroneous appeal on Plaintiff, rather than itself; and it did so by “treating” the letter and materials Applicant had returned as a request by Applicant to voluntarily dismiss the appeal (again, an appeal that he never filed) without Applicant’s permission or consent or any action by Applicant . Applicant could not voluntarily dismiss the appeal because he did not file the appeal and the Ninth Circuit knew this.
Applicant contends that the Ninth Circuit knew from the Notice submitted by Applicant, see Appendix #4, that it was a supplement to the same appeal (already filed and numbered), and that Applicant was not filing a “new” appeal (which required a new number), and that it intentionally tried to use the district court error to get the district court (rather than itself—because it could have revoked Applicant’s IFP status for the so-called frivolous appeal in its own court—because only a district court revocation would apply to Applicant’s entire case, or would prevent Applicant from pursuing the case) to revoke Applicant’s IFP status, so that he would be unable to pursue the action or his case through the courts.
C. THE ENTIRE NINTH CIRCUIT HAD A CONFLICT OF INTEREST AS TO
APPLICANT’S COMPLAINT AND THE MANDAMUS PETITIONS
Most significant, in Count I of Applicant’s Complaint filed in the district court,
Plaintiff-Applicant alleged that the reason the U.S. Attorney’s Office refused to
prosecute Applicant’s criminal complaints was because of Applicant’s race or color and not because of the merits of the Complaints themselves. Therefore, if Applicant’s Count I is sustained, it would result in the revival or re-certification of the Complaints and require investigation and possible prosecution of all the individuals named in the Complaints, including the Ninth Circuit judges. Therefore, the entire Ninth Circuit had personal (and some had financial--based on restitution payments) interest in denying the mandamus petition and, as a consequence, in the dismissal of Applicant’s Complaint.
Finally, to the extent of the Ninth Circuit’s conflict of interest regarding Applicant’s mandamus Petition and district court complaint, it also had a duty to transfer the case pursuant to sec. 455(b)(1), where the Court had “personal knowledge of disputed evidentiary facts concerning the (mandamus) proceeding.” That is, at least some members of the Court, including judge Kozinski, know about the prior criminal Complaints filed and that they charged some members of the Ninth Circuit, and that Applicant-Plaintiff’s Complaint charge the prosecutor with refusing to prosecute for non-evidentiary reasons or based on Applicant’s race or color.
D. IT WAS A VIOLATION OF APPLICANT’S DUE PROCESS AND EQUAL
PROTECTION RIGHTS FOR THE NINTH CIRCUIT NOT TO HAVE TRANSFERRED
APPLICANT’S MANDAMUS PETITION TO ANOTHER CIRCUIT
FOR DECISION.
Applicant was deprived of his due process rights when his case was not transferred to another circuit because he was denied his right to have an impartial panel decide his mandamus petition and he was denied the right to a process that might have prevented him from receiving even the perception of a partial or biased panel by transferring his case to another Circuit, or at minimum, have judges from another circuit decide Applicant’s case.
Applicant was denied equal protection of the law because at least as compared to the Ninth Circuit’s (Judicial Council) treatment of judge Kozinski’s case in Isaacs, , that is, when the Ninth Circuit was required to evaluate the conduct of one of its members, i.e., judge Kozinski, rather than have any of its members evaluate judge Kozinski, it sua sponte, requested the Chief Justice assign another circuit to evaluate the case. Here, in Applicant’s case, when a member of the Ninth Circuit Court (judge Carney, by way of his designation) came before the Court for the Court’s evaluation of that judge’s ( judge Carney’s) conduct or misconduct, the Ninth Circuit appointed or assigned its own judges to decide the matter, rather than transfer the matter or request a transfer to a different circuit court. The Equal Protection Clause “keeps governmental decision makers from treating differently persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). And, it is well established that classifications based on race (and Applicant is Black) “are inherently suspect and subject to close judicial scrutiny.” Graham v. Richardson, 403 U.S. 365 (1971).
IV DECLARATORY RELIEF SOUGHT
Applicant seeks the following types of declaratory relief:
A. Declare that the Ninth Circuit Court of Appeals, under the circumstances of the case below, had a duty to transfer Applicant’s mandamus petitions to another circuit court for decision.
B. Declare that even if the Ninth Circuit Court of Appeals did not have a duty to
transfer Applicant’s mandamus petitions based on the specific facts or circumstances of the case, it was required to seek a transfer of the appeal to a different circuit based on Section 455(a) and/or due process considerations.
C. Declare that the Ninth Circuit’s failure to transfer or seek a transfer of Applicant’s mandamus appeal to a different circuit court, under the circumstances, was a violation of Applicant’s due process and equal protection rights.
V OTHER RELIEF SOUGHT
Applicant seeks the following other relief :
A. An Order vacating the Ninth Circuit panel’s mandamus decision in the Bray v. Department of Justice, et.al., case below.
B . A U.S. Supreme Court review of Applicant’s mandamus petition and
application for a temporary restraining order.
C. Such other relief as this Court deems necessary or proper.
VI PROBABLE SUCCESS OF EXPECTED MANDAMUS PETITION TO BE FILED IN THIS
COURT
Applicant intends to and expects to file a petition for a writ of mandamus in this Court based on the Ninth Circuit’s mandamus decision below, arguing that the panel below twice committed clear error, on two separate levels, in violation of federal law, in deciding Applicant’s mandamus petition below.
Simply put, Applicant filed two mandamus petitions (an original petition and a supplemental one) for a writ of mandamus in the Ninth Circuit pursuant to 18 U.S.C. sec. 3771(d)(3). The Ninth Circuit has a specific Circuit Rule, Cir. Rule 21-5, directed to sec. 3771(d)(3) appeals providing for advance notice of the intended filing. Applicant complied with this Rule and notified the Clerk’s Office of the intended filing, i.e., pursuant to sec. 3771(d)(3). Pursuant to sec. 3771(d)(3), all appeals are required to be decided in 72 hours (“The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed.”), or under no circumstances, longer than 5 days (“In no event shall proceedings be stayed or subject to a continuance of more than 5 days for purposes of enforcing this chapter.”). And, sec 3771(d)(3) requires that the reviewing court must write a reasoned decision if it denies relief in an appeal (“If the court of appeals denies the relief sought, the reasons for the denial shall be clearly stated on the record in a written opinion” )(emphasis added). There are no exceptions to the 72 hour and reasoned written opinion rule.
Applicant filed his first petition on or about August 8, 2012, which required a response from the Ninth Circuit Court of no later than August 11th or 12th , 2012 . On August 12th no response was forthcoming from the Ninth Circuit. On October 1, 2012, Applicant filed a supplemental petition, based on actions by the district court. The Ninth Circuit did not issue an order in response to the petitions until October 19, 2012, months after the original mandamus petition and weeks after the second or supplemental petition. Therefore, the Ninth Circuit twice violated sec. 3771(d)(3) in two separate ways. The Court violated the time requirement, 72 hours, and the reasoned opinion requirement (with the Ninth Circuit issuing an arbitrary and capricious , and false two-sentence Order absent any reasoning—simply a conclusory statement—the very type of statement the Rule prohibits), for both the original petition and the supplemental petition, without justification. Therefore, the Ninth Circuit committed clear error for which mandamus is warranted.
Mandamus is necessary because the underlying relief sought is a ruling on Applicant’s TRO, which requests relief for the deprivation of fundamental rights, that is, property and liberty rights (employment)—the right to repossess Applicant’s home and law office, which were wrongfully and unlawfully taken. In his TRO, Applicant has requested that he be immediately placed back into his home-law office.
Finally, one issue that would make the mandamus petition important is that this Court has never decided, to Applicant’s knowledge, what relief is available for an appellate court’s violation of sec. 3771(d)(3). Here, Applicant requests that the U.S. Supreme Court vacate the Ninth Circuit decision denying the mandamus petitions and review Applicant’s mandamus petitions and TRO motion as one type of relief. Another issue is : whether sec. 3771(d)(3) requirements are mandatory or precatory?
It appears that as an alternative to a petition for a writ of mandamus, that Applicant could also file a motion to vacate the panel’s mandamus Order below based simply on the panel’s violation of both provisions of sec. 3771(d)(3) twice .
CONCLUSION
For the foregoing reasons, Applicant requests Circuit Justice Anthony M. Kennedy
to grant the herein Application for declaratory and other relief.
________________ __________________________
Date LAURACK D. BRAY, Applicant
P.O. Box 611432
Los Angeles, California 90061
Tel: (805) 901-2693
APPENDIX
NO. PAGE
#1. PETITION FOR A WRIT OF MANDAMUS*………….…………………………………. Appx #1
#2. SUPPLEMENTAL PETITION FOR A WRIT OF MANDAMUS**………..………. Appx #2
#3. NINTH CIRCUIT’S MANDAMUS ORDER……………………………………………….. Appx #3
#4. NOTICE TO DISTRICT COURT RE: SECTION 3771(d)(3) APPEAL…………… Appx #4
#5. NINTH CIRCUIT REFERRAL NOTICE……………………………………………………… Appx #5
#6. AFFIDAVIT OF LAURACK D. BRAY……………………………………………………… Appx #6
*Contains Complaint and Application for a Temporary Restraining Order
**Contains District Court’s September 26, 2012 dismissal Order (and separately
attached to this document is a page of the District Court Docket showing the district court’s August 14, 2012 Order denying the TRO).
UPDATE--January 9, 2013
Still waiting for the Appication to be submitted to Justice Kennedy. The process has been improperly delayed, but it continues.
UPDATE--February 1, 2013
The Application was returned twice without being processed, i.e., docketed or filed and submitted to Justice Kennedy, and I believe improperly. But, at least one reason given was that the subject matter of the Application, declaratory relief, was not within the jurisdiction of a single Justice. There was enough "gray area" in the Application to at least justify the argument, but not enough to justify declining to docket the application and submitting it to Justice Kennedy.
I have now submitted a second Application to Justice Kennedy, this time seeking a mandatory injunction seeking an order directing the Clerk to docket and file the previously submitted documents. Since this blog has gotten extremely long, I won't publish the new Application here, rather I will direct you to the new blog which will be entitled, "2nd Application to Circuit Justice Anthony M. Kennedy Re: Supreme Court Clerks' Errors or Abuses; If Errors or Abuses are Found, Will They be Corrected ?"
Remember, as you continue to review the treatment of this case, the primary purpose of this blog--to provide you with some insight into how the judicial process works when you are poor and black. I suggest what is happening with my application is a continuation of the treatment of me as a poor and black litigant. If I were rich and white, even with the questions surrounding the application (for example, can declaratory relief be obtained from a single Justice?), the application would have been filed and submitted to Justice Kennedy . Perhaps it still will be, but observe the extra hoops I must go through in order to get it there.
Let's see what happens with the second Application.
UPDATE--February 13, 2013
The second Application has now been returned without docketing or filing. Again, no reason given for the failure or refusal to file the Application, and I suggest that there is no legitimate reason. Again, the return of the Application was improper, made in bad faith, and discriminatory. I provide a more fuller explanation of these premises in the separate blog "Application to Circuit Justice Anthony M. Kennedy. . . ." So, the unconstituional denial of my right of access to the Supreme Court continues. And, at the same time, the discrimination against me as a poor , black person continues as well. And, I am an attorney who has practiced constitutional and civil rights law in the past. What do you think it is like for the poor black lay citizen, proceeding pro se, without any schooling in the law? See
also my blog "2nd Application to Circuit Justice Anthony Kennedy. . . ."
Keep in mind, I am still continuing my "Journey to Justice" (see Johnnie L. Cochran's book) as a poor, Black, veteran, lawyer. And, I suggest to you that all these extraordinary occurrences that are happening, and that you will not read about in the L.A. Times or see on Channels 2, 4, 7, or 9, would not be happening, but for the fact that I am poor and Black. These occurrences that you are witnessing would never be revealed by the mass media unless at some point they are forced to do so because of unexpected exposure.
So, now I must proceed to the next step. You will be informed.
UPDATE--February 28, 2013 (the last day of Black History Month)(and my mother's 91st birthday--Happy Birthday, Mamma!)
I have now sent a letter to Senator Barbara Boxer requesting assistance in obtaining access to the Supreme Court. Since it is only 10 pages long, I will publish it here:
LAURACK D. BRAY, ESQ.
FEDERAL ATTORNEY
P.O. BOX 611432
LOS ANGELES, CALIFORNIA
TEL: (805) 901-2693
February 26, 2013
Black History Month
Senator Barbara Boxer
Office of Senator Barbara Boxer
112 Hart Senate Office Building
Washington, D.C. 20510
Dear Senator Boxer:
My name is Laurack D. Bray, and I am presently a resident of Los Angeles, California. I am writing to seek your assistance as my Senator representative in Congress. I’m writing you and seeking assistance from you because as I have attempted to exercise my legal and constitutional rights in the Supreme Court of the United States, I have been met with what I perceive has been abuse of authority, violation of Supreme Court Rules and/or law by the Supreme Court itself, and refusal of the Supreme Court to correct the misconduct of its clerks. The combination and culmination of which have resulted in the Supreme Court’s denial of my constitutional rights to access to the Court and equal protection of the law.
I am a poor, Black, veteran, pro se, lawyer, and I was the same when I attempted to exercise my statutory and constitutional rights to gain access to the Supreme Court to have my case and related matters reviewed by the Court as an appeal of the Ninth Circuit’s decision in the United States District Court, C.D. of California case of Bray v. Department of Justice, No. 12-5704CJC . The Ninth Circuit’s decision is in the form of a denial of a writ of mandamus (which charged a district court judge, Cormac J. Carney, with acting without authority in ruling on my district court case).
I am Black by birth. I am poor by racial discrimination in the state and federal courts in California (but, I am not going to do what Christopher Dorner did; although, I absolutely feel what he felt and I absolutely understand why he did what he did) . I am a veteran by serving three years of active duty service in the U.S. Army during the Vietnam War Era (and I received an honorable discharge) . I am a lawyer by graduating from Howard University law school, passing the bar, and practicing the law for over 25 years now (I also happen to be a member of the Supreme Court Bar, which means I am licensed to practice before the Court); and, I am proceeding pro se because I could not find any courageous lawyers to take on the issues in my district court complaint, which involves, among other things, allegations of misconduct by state and federal judges.
And, while I am writing for myself, regarding the facts and circumstances of my experience before the Supreme Court, I am also writing on behalf of any other similarly-situated poor, black, pro se litigants who have experienced the same or similar circumstances as I have in attempting to gain access to the Supreme Court to have their claims or cases heard . While I have not conducted a survey or sought responses as to any other prospective and/or respective litigants, I am convinced that I am not the only one who has experienced what I experienced while attempting to gain access to the Supreme Court as a poor, black, litigant (who happens to be a lawyer). I believe this because regarding one Supreme Court Rule, Rule 39 infra, even I, as an attorney (and a member of the Supreme Court Bar) had to read the rule more than once to ascertain its actual requirement of me and court clerks. Not that the Rule is overly complex or complicated, because it’s not, but it does have moments of complexity. But in order to understand its true directive to Court clerks, I had to have a second take. And, it is the second take that proved to me that Supreme Court clerks, in my case, were violating that Rule. So, I am convinced that other IFP litigants, who are not lawyers, and who have been denied access to the Court, likely did not realize the right (to access to the Court) that they possessed.
Senator Boxer, there are two specific issues that I would like you to address: (1) the Supreme Court’s denial of access to the Court to me (and, conjunctively, the denial of my constitutional rights to : petition the government, due process of law, and equal protection of the law) ; and (2) the feasibility of : (a) civil rights legislation to supplement and implement a Supreme Court Rule that is intended to protect and enforce the rights of IFP litigants, and (b) civil rights legislation to supplement and implement a Supreme Court Rule that is intended to allow prospective litigants the right to gain access to the Court by submitting an application to a single Supreme Court Justice.
Regarding the first issue, the denial of access to the Court, I would like you to pose some questions to Chief Justice Roberts; questions that I, as a prospective litigant, could not pose to the Chief Justice myself, but, that affect my fundamental rights. “The right of access to the courts is basic to our system of government, and it is well established today that it is one of the fundamental rights protected by the Constitution.” Ryland v. Shapiro, 708 F.2d 967 (5th Cir. 1983). Further, “The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship. . . .” Id. And, “Equality of treatment. . . is granted and protected by the Federal Constitution.” Id. Finally, “The right of access to the courts. . . is founded in the Due Process Clause and assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights.” Id.
Before I present the questions, I will offer a:
Brief Background
After the Ninth Circuit issued its decision in the district court case of Bray v. Department of Justice, I filed a motion and supportive declaration to proceed in forma pauperis (IFP) in the Supreme Court. And, because I believed that the Ninth Circuit ought not have exercised jurisdiction over my appeal in the first place, in conjunction with the IFP application, I also submitted an application for declaratory relief, to be submitted to a single Justice, in this case, Justice Anthony M. Kennedy.
The requirements for the Supreme Court Rules dealing with both the IFP motion and the declaratory judgment application were met ; however, an issue was subsequently raised regarding the declaratory relief application, but that issue, as will be seen infra, was of no consequence as to the denial of access to the Court. Especially because I also supplemented the declaratory judgment application with a request for an extension of time to file a petition for a writ of certiorari, which eliminated the declaratory judgment issue.
I subsequently filed another application, this time for a mandatory injunction against the Clerk and a renewed request for an extension of time to file a certiorari petition.
The IFP motion and applications were all returned without docketing or filing three times , by three different deputy clerks and the Court Clerk himself, and each time they were returned, there was no explanation or reason given as to why the documents were not docketed or filed. On one occasion a reason was offered as to why the application was not submitted to Justice Kennedy, i.e., that there was no provision in the rules for submitting a declaratory judgment to a single Justice. But, again, no reason was given for the IFP motion not being docketed or filed. I will submit the three letters offered with the returned document as Exhibits #1, #2, and #3 here (NOTE: Even though all clerks suggested or advised me as to the filing of a petition for a writ of certiorari or mandamus, none of the clerks provided a reason why the IFP motion and the declaratory judgment application were not docketed or filed. Also note: I am a “Mr.” and not a “Ms.”, and even though I left a message with one clerk and actually spoke with another who addressed me as “Mr. Bray”, the Court, through the clerks, still sent out the form letters with “Ms.” instead of “Mr.”) .
Even though this letter is not intended to be a legal document, per se, I must provide some discussion of the applicable Supreme Court Rules and a federal statute , 28 U.S.C. sec. 1915, in order to provide you with proper clarification of the Supreme Court’s denial of my constitutional due process right of access to the Court.
When Congress established the IFP statute, 28 U.S.C., sec. 1915, the statute was(is) “intended to guarantee that no citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or criminal, ‘in any court of the United States’ solely because his poverty makes it impossible for him to pay or secure the costs.” Adkins v. E.I. DuPont de Nemours & Co., Inc., 335 U.S. 331 (1948)(emphasis added). Therefore, the primary purpose of sec. 1915 was(is) to provide poor people with access to the courts, the same access as those with money or the ability to pay for access. And, it is clear that sec. 1915 applies to the Supreme Court. “Under (sec.) 1915(a) ‘any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor. . .” (citing sec. 1915(a)). Perroton v. Gray, 958 F. 2d 889 (9th Cir. 1992). “Under that section a ‘court of the United States’ is defined as the Supreme Court of the United States, courts of appeals, district courts. . . .” Id. (citing 28 U.S.C. sec. 451). I relied on sec. 1915 to gain access to the Supreme Court to prosecute my appeal of the Ninth Circuit’s “decision” in Bray v. Department of Justice (and the first step in that appeal was my filing an application for a declaratory judgment).
Pursuant to Section 1915 and Supreme Court Rule 39 (which, apparently, is intended to implement 28 U.S.C. sec. 1915 in the Supreme Court), I filed a motion for leave to proceed in forma pauperis (IFP), together with a declaration, and the applicable copies of the application for a declaratory judgment to be submitted to Justice Anthony M. Kennedy. Additionally, I also filed an indigency motion and declaration pursuant to Rule 40, as a veteran.
Subsequent to filing the IFP motion and the application, I filed a Memorandum with a request for an extension of time to file a petition for a writ of certiorari (as the expiration time for filing a certiorari petition was growing near). See Exhibit #4 (Memorandum).
Finally, I filed a second application to Justice Kennedy for a mandatory injunction against the Court Clerk for the clerk’s refusal to perform a ministerial duty. See Exhibit #4 (Application). Neither the IFP motion nor the applications were docketed or filed with the Court, and no explanations were provided as to why they weren’t docketed.
Now , for how my statutory rights and constitutional due process rights to access to the Supreme Court of the United States were denied.
Supreme Court Rule 39.4 states, “When the documents required by paragraphs 1 and 2 of this Rule (i.e., IFP motion and declaration and applications for declaratory relief and mandatory injunctive relief) are presented to the clerk, accompanied by proof of service as required by Rule 29(and proof of service was provided), they will be placed on the docket without the payment of a docket fee or any other fee.”
After I fully complied with the requirements of Rule 39.4, the Clerk nonetheless refused to docket the IFP motion or the applications on three separate occasions (two original submissions and one return submission), without any explanation as to why the documents were not docketed pursuant to Rule 39.4. Therefore, on three separate occasions, Supreme Court clerks, without explanation, violated Rule 39.4, refused to docket the IFP documents, and denied me access to the Court.
Because the time was drawing near for me to file a petition for a writ of certiorari in a timely fashion, I timely requested an extension of time within which to file a certiorari petition from Justice Kennedy. The Clerk refused to submit the request to Justice Kennedy, so naturally, the request was not acted upon nor granted, and the time has now expired for me to file a certiorari petition. Therefore, I have now been denied the primary vehicle for review of the Ninth Circuit’s decision. And, necessarily, I have been denied my right to access to the Court, in violation of 28 U.S.C. sec. 1915, a congressional statute.
Because it was the Clerk that initially violated my rights, denied me access to the Court, and refused to perform a ministerial duty, i.e., docket the IFP and application documents , I filed an application for submission to Justice Kennedy seeking a mandatory injunction to require the Clerk to perform his ministerial duty to docket the IFP documents and submit the applications to Justice Kennedy. I also renewed my request for an extension of time to file a petition for a writ of mandamus.
However, instead of the Supreme Court acting on the injunction application, the Court allowed the Clerk himself ( rather than recuse himself), to respond to an injunction against him. So, the Clerk , naturally, refused to docket the application, in violation of Rule 39.4, and refused to submit it to Justice Kennedy, in violation of Supreme Court Rule 22. Further, I sent courtesy copies of the injunction application to Chief Justice Roberts and Justices Kennedy and Ruth Bader Ginsburg. Those Justices, in turn, allowed the clerk to return their courtesy copies. Consequently, the actions of the Clerk are now the actions of the Supreme Court itself. Thus, it is the Supreme Court that has denied me statutory rights, pursuant to 28 U.S.C. sec. 1915 and Supreme Court Rules 39, 22, and 12, and constitutional rights, pursuant to the U.S. Constitution, particularly the First and Fifth Amendments (and the Due Process Clause—both due process and equal protection of the law). Since the Court denied me access without providing a justifiable reason (or any reason—for denial of the IFP motion and the applications—for that matter), I must believe, and I do, that at least part of any reason is my being poor and Black.
There are no legal mechanisms of review (or appeal) for the Supreme Court’s violation of its own rules or its disregard of a federal statute erected to provide access to its court for the poor. The Supreme Court is the highest court in the land and the court of last resort. Thus, if I am to obtain a remedy for the Supreme Court’s conduct, it must come from Congress. So, Senator Boxer, I am turning to you , as my ally in Congress, to try and address the violations which I have identified. I think the Supreme Court’s denial of my basic right to access to the Court is similar to the denial of the right to vote, and “The 15th Amendment, added in 1870, says the right to vote ‘shall not be abridged or denied. . . on account of race’ and ‘Congress shall have the power to enforce this article by appropriate legislation.’ ” L.A. Times, “Voting act faces test in high court”, February 19, 2013 (emphasis added). More specifically, Section 1 of the Fifteenth Amendment states “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude”. (Emphasis added) And Section 2 states “The Congress shall have power to enforce this article by appropriate legislation”. (Emphasis added). Congress has the same power with respect to the judiciary. If Congress has the power to prevent the United States from denying or abridging a citizen’s right to vote, then, it must have the power to prevent the United States (as in Supreme Court) from denying or abridging a citizen’s right of and to access to the Court.
To that end, as identified earlier, I am seeking two specific actions from you towards an ultimate remedy for violation of my rights to access to the Court and to be free from economic and racial discrimination : (1) to have the Supreme Court answer certain questions from you, as a member of Congress, that I, as a prospective litigant ( I never became a litigant because the Court refused to docket my case), could not ask and require an answer to; and (2) to entertain the feasibility of certain civil rights legislation to convert certain Supreme Court Rules into civil rights legislation.
First, the questions. I would like you to pose the following questions to the Supreme Court regarding my denied access to the Court:
1. With no facial indication that Applicant Bray’s IFP documentation was not in proper order according to Supreme Court Rules:
(a) What justifiable reason, based on Supreme Court Rules, do you offer for not docketing Applicant’s IFP motion and the applications, on three separate occasions ?
(b) After Applicant Bray made a request to Justice Kennedy for an extension of time to file a petition for a writ of certiorari, why wasn’t his application or request submitted to Justice Kennedy pursuant to 28 U.S.C. sec. 2101(c)(“A Justice of the Supreme Court , for good cause shown, may extend the time for applying for a writ of certiorari for a period not exceeding sixty days”) ?
2. Why was the Court Clerk, rather than recuse himself from the matter:
(a) Allowed to respond to the application for a mandatory injunction (against the Clerk) instead of Justice Kennedy or the Chief justice ?
(b) Allowed or permitted to return documents that were personally addressed to Supreme Court Justices, which addressed misconduct of the Clerk himself ? Was this proper under the circumstances?
3. If Applicant Bray’s IFP motion and attached documents contained deficiencies that prevented them from being docketed of filed, why weren’t those deficiencies identified and pointed out to the Applicant so that they could be corrected?
4. When was the last time the Supreme Court agreed to hear a case brought by a poor, Black, pro se litigant? Or a black, pro se litigant ?
Second, the feasibility of proposed civil rights legislation. I believe Supreme Court clerks have too much unintended power, and because that power is susceptible to abuse, I believe that Congress should erect legislation to curb the power, and hopefully the abuse, of clerks. Thus, I propose the following :
(1). To begin with, I think Supreme Court Rule 39.4 should be converted to federal civil rights legislation with criminal ramifications, similar to 18 U.S.C. sections 241 and 242. Apparently, because this is a Court Rule rather than a congressional statute, the clerks feel that they are at liberty to disregard its mandate. Further, even though Rule 39.4 , even in its present state, provides very little discretion for the clerks, e.g., likely checking for signatures on IFP documents or the attached documents, a congressional civil rights statute would make it clear that they have no discretion not to docket IFP motions and applications once an IFP applicant has met the requirements of Rule 39.4; and it would especially be the case when the applicants are people of color. For instance, with respect to the similarity of sec. 242, an appropriate statute would begin with “Whenever a clerk of the United States Supreme Court, under color of any law. . . subjects any movant, applicant, or petitioner for in forma pauperis status to the deprivation of any rights, privileges, . . . secured or protected by the Constitution or laws of the United States (e.g., 28 U.S.C. sec. 1915)… on account of such movant, applicant, or petitioner being an alien, or by reason of his being poor, or by reason of his color or race , shall be fined $1,000 or imprisoned not more than one year or both.”
(2). With respect to Supreme Court Rule 22.1(“An application addressed to an individual Justice shall be filed with the Clerk, who will transmit it promptly to the justice concerned if an individual Justice has authority to grant the sought relief”), I believe this Rule is clearly susceptible to abuse by clerks. Even though I understand the Court’s and Justice’s desire for an intermediary to screen potential applications, the Rule provides clerks with what I believe is unintended power, susceptible to abuse by allowing the clerks to decide, on their own whim, whether a person’s application for relief is decided or not. For example, the clerks can decide “if an individual Justice has authority to grant the sought relief” , rather than a Justice deciding this—but ,the clerk is not a Justice, and he ought not have that kind of power ( and I do not believe that it was intended for him or her to have that type of power). Therefore, the clerk can decide if a Justice rules on an applicant’s application and can decide, by whim, that they do not want the Justice to rule on the applicant’s application.
I believe the minimum legislation needed to cut down on abuse by the clerks is to convert the Rule to legislation and identify certain specific types of matters that are clearly within the single justice’s authority, such as applications for stays, injunctions, bail, and for extensions of time to file a certiorari petition (although this provision is contained in a statute, as is a stay, most lay people, i.e., IFP, pro se litigants, are probably not aware of the statutes). I also believe declaratory relief is clearly within the single Justice’s authority, but there is a valid question there. This would cut down on the clerk’s discretion as to whether the Justice “has authority to grant the sought relief” for the identified matters, i.e., stay, injunction, etc. Presently, the Rule does not identify any specific types of matters that are within the Justice’s authority, so that places the decision of whether the Justice hears and decides an application entirely within the hands of the Clerk. And, as alluded to above, the Clerk can decide if this is the type of matter, depending on who files the application, that the Justice can and will decide. And, if the clerk decides against an applicant, the applicant generally has no recourse, since he or she cannot make the request directly to the Justice.
And Senator, if the applicant attempts to have the full Court review the Clerk’s decision, you need only review what happened to my application when I sought review of the clerk’s conduct. The Court refused to review the conduct (and returned the application to me, un-docketed). And, keep in mind Senator, the remedy I sought (asking the full court to review the clerk’s conduct) had been suggested by a district court and court of appeals as an “adequate remedy” for getting a clerk’s conduct corrected. See Borutrager v. Stevas, 772 F.2d 419 (8th Cir. 1985) where, “The plaintiff has a fully adequate alternative remedy, a motion directed to the Supreme Court seeking review of the defendant’s (clerk’s) conduct. Although the Court recognized that no statute or rule expressly authorizes the Justices to conduct such a review, it reasoned that the Supreme Court’s power over its clerks is inherent in the nature of the relationship between the two, pointing out that ‘it is the right and duty of the court. . . to correct the irregularities of its officer and compel him to perform his duty’ ” (citing Griffin v. Thompson, 2 How. 244, 257, 43 U.S. 244, 11 L.Ed. 253 (1844). Therefore, it seems clear that congressional intervention is needed. And, if Congress would require the identification of specific types of matters within the single Justice’s authority, it would at least lessen the complete discretion that the clerk presently has. And, there should be criminal civil rights ramifications for when the clerk’s misconduct is directed to people of color, similar to 18 U.S.C. sec. 242. If nothing else, it will cause clerks to reflect on their decision when dealing with people of color.
Finally, while the Eight Circuit suggested that resort to a district court for mandamus relief might be a possible remedy for Supreme Court clerk misconduct if the Supreme Court denies review, my search reveals that most lower courts (district courts and court of appeals) will refuse to grant such relief.
OVERALL RELIEF SOUGHT
The specific relief that I’m seeking of course is the restoration of my rights to file my applications to Justice Kennedy, and to file a petition for a writ of certiorari, if I choose to file one.
Beyond that, I also have a right to file a petition for a writ of mandamus against the Ninth Circuit, but because the IFP motion was not docketed and granted, that right has been denied as well. The compelling question is: What body is or should be charged with review of actions by the Supreme Court of the United States when it is alleged that the Supreme Court itself has violated statutory rights and U.S. Constitutional rights of United States citizens ? I believe Congress should establish a “special” court to review actions by the Supreme Court, especially actions involving violations of the law, and most especially actions regarding violations of provisions of the U.S. Constitution .
Finally, the ultimate relief I am seeking is the return of my home- law office in Ventura, California (and damages for its unlawful and invidious shutdown and the years of non-use following the shutdown; and damages and injunctive relief for my district court claims in Bray v. Department of Justice), that was taken pursuant to racial discrimination . As I have attempted to obtain relief through the courts, rather than pursue the course that Christopher Dorner did, all I have received is further racial discrimination in the California courts (state and federal). Like Christopher Dorner, when I was wrongfully and racially evicted from my home-law office, I had to move in with my mother and sister; and like Christopher Dorner, because of the loss of my law office (and I was unable to secure another law office since—having to improvise with the use of other office facilities to maintain my limited practice), I’ve been unable to start a family as well. So, while I never met him, I know Christopher Dorner , and I know racial discrimination (and the affect and effect of racial discrimination) in America.
I would appreciate a prompt reply Senator.
Sincerely yours,
Laurack D. Bray, Esq.
P.S. This will be an open and public letter.
Enclosures
cc : Dianne Feinstein, Senator for California
John Conyers, Congressman, and the Congressional Black Caucus
I will await a response.
UPDATE--March 26, 2013
I contacted Senator Boxer's office last week to inquire as to whether she had received my letter or not. Her assistance answered the phone to her office and told me that the Senator had not received the letter (notwithstanding confirmation by the postal service that the letter had been delivered to the Senator's office--the assistant stated that the the delay was probably due to security checks). I said that I would try again. However, the next time that I try it will be sufficient time that I will assume and presume that the letter was received, even if it wasn't.
**UPDATE--February 21, 2014
Well, I did finally get a response from Boxer, but it was the same as no response. It didn't address the issues that I raised and wanted addressed.
So, I have now filed a federal criminal Complaint in the U.S. Attorney's Office, two days ago (February 19, 2014) for criminal actions arising from the processing of this case (Bray v. Dept. of Justice). The named Defendants are : Chris Sawyer and judges Christina A. Snyder and Cormac J. Carney of the USDC, Cent. Dist. of Cal.; Jay S. Bybee, Richard R. Clifton, and William A. Fletcher of the Ninth Circuit Court of Appeals; and William K. Suter, Clerk, and Jeffrey Atkins and Jacob C. Travers, deputy clerks, of the U.S. Supreme Court. The general charges for most of them are the denial of constitutional rights under color of law and obstruction of justice.
*BLAME BOXER AND FEINSTEIN.
We'll see what happens with the so-called "separation of powers" law and the so-called "checks and balances". Most of what I've seen and experienced is the executive branch and judicial branch helping each other rather than "checking" on each other and independently fulfilling their duties and responsibilities.
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Shakespeare once quoted, that we are one another. Thus, If so be the case, we all can see ourselves as relatives. In the field where one is versed in Law practice.
Our quest to attain relative justice is always incontrovertible. Therefore, as relatives to the Law which we must practice. This, must be seen to serve for all, as an inseparable quality. Thus, which is left to be attained, through the working of good and fair judges.
God Bless
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