In my last post on October 19, I stated that there would be a constitutional crisis if the Ninth Circuit Court of Appeals did not reverse its ruling relative to my appeal. I also stated that the court's ruling was void and I had no intention of complying with it as it currently stands. Today I am posting a letter I sent to the Ninth Circuit Court of Appeals Clerk of Court Molly Dwyer and the Panel that heard my appeal. My purpose for the letter is to make it clear to the court and the City of San Jose that I will not be bullied into relinguishing my rights.
Frederick Bates
Folsom, CA 95630
(408) 510-
October
15, 2015
Molly
Dwyer, Clerk of Court
United
States Court of Appeals for the Ninth Circuit
Post
Office Box 193939
San
Francisco, CA 94119-3939
Re: Frederick Bates – Appellant v. City of San Jose;
et al – Appellees; No. 13-16397 and D.C. No. 5:06-cv-05302-RMW
To Clerk of Court Molly Dwyer and the Panel hearing
my appeal (Canby, Bea, and Murguia, Circuit Judges):
On August 14, 2015, I filed a petition
for panel rehearing. My petition argues that the ruling of this court on my
appeal is a void judgment because it relies on the written order of the
district court purported to be on the merits. As I argued in my petition, the district
court’s written order is void because the court had already granted the City a
default judgment by way of their dispositive “motion to dismiss” in the hearing
on April 26, 2013, because I failed to appear. The default judgment divested the
district court of jurisdiction to enter its written order. The district court
made an apparent attempt to reconcile the contradiction in its judgment from
the bench and its written order in a letter in October 2013, months after this
court had already acquired jurisdiction. Therefore, the district court lacked
jurisdiction to amend or modify its judgment. For this reason, the letter of the
district court does not change the default judgment it entered during the
hearing. The written order is a nullity. The judgment of this court is void as
well because it affirms the written order of the district court. There can be
no credible argument made in opposition to this fact.
The purpose of this letter is not to
reargue my petition, but to strongly encourage this court to immediately grant
my request for a rehearing and reverse the decision affirming the void judgment
of the district court based on its written order. The order of this court is nothing
more than an attempt to give legitimacy to the district court’s ruling that
granted the City’s motion for summary judgment. Unfortunately, this draws
attention away from the merits of this case and the clear and convincing
evidence of fraud perpetrated by district court officials and the City relative
to the hearing on my motion for relief from judgment. My fraud claims are
addressed in my motion to vacate judgment dated September 23, 2014.
The judgment of the district court
granting the City’s summary judgment motion will never gain legitimacy and will
always be void and unenforceable under the law; because the district court
failed to follow the mandate of Article IV, Section 1of the United States
Constitution (Full Faith and Credit Clause). Article IV, Section 1 is
implemented by 28 USC, Section 1738 (Full Faith and Credit Act). The Full Faith
and Credit Act command federal courts
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2
In affirming the written order of the
district court, this court opined that the district court properly determined
that I was not entitled to relief under Rule 60(b)(4) because the district
court’s “prior” judgment was not void due to jurisdictional error or a
violation of due process. The Supreme Court’s ruling in the Espinosa case was
cited as the authority. The Espinosa case establishes that Rule 60(b)(4)
applies only in the rare instance where a judgment is premised either on a certain
type of jurisdictional error or on a violation of due process that deprives a
party of notice or the opportunity to be heard. My motion for relief under Rule
60(b)(4) does not conflict with the Espinosa case. I argued in my motion that
the district court’s “prior” judgment is void under Rule 60(b)(4) because it
gives preclusive effect to the small claims judgment that is constitutionally
infirm. The small claims judgment is constitutionally infirm because I was
deprived of the opportunity to be heard during
the hearing in small claims court. Therefore, the order of the district court
that gives preclusive effect to the small claims judgment is void for the same
reason. It is reasonable to conclude that my motion is appropriate under Rule
60(b)(4). This argument, however, is not meant to change in any way my position
that the default judgment of the district court based on the motion to dismiss
it granted to the City is the only judgment that this court can legitimately base
its ruling. I maintain that the written order of the district court is a
nullity and the judgment of this court affirming the written order is a nullity
as well. Furthermore, there is no procedural bar to providing me relief from
the void judgment of the district court as the ruling of this court seems to
imply. As stated in my petition, my motion for relief would also have been
appropriate in an independent action; or the courts could have provided me
relief sua sponte.
Again, I encourage this court to grant
my petition for a panel rehearing and reverse its ruling on my appeal. A
failure to do so will result in a constitutional crisis because, as noted
above, it is indisputable that the ruling of this court as it currently stands
is in violation of Article IV, Section 1 of the United States Constitution
(Full Faith and Credit Clause) which is implemented by 28 USC, Section 1738
(Full Faith and Credit Act). Therefore, the current ruling of this court that
precludes my lawsuit against the City of San Jose on the basis of collateral
estoppel is a void judgment. It is unenforceable just as all of the other
judgments that preclude my lawsuit on the basis of collateral estoppel. It is
inconceivable that the courts would apply collateral estoppel in this case when
there is no record of what transpired in the small claims hearing. Both the
district court and this court have simply used creativity and wishful thinking
in applying collateral estoppel. Simply put, if there is no record, collateral
estoppel cannot apply.
Additionally, I argued in my petition,
and on appeal, that the stipulation of dismissal of Defendant Tuck Younis is
also void because it was entered without my consent, I received no benefit from
it, and it impaired my cause of action. The actions of my attorney and the City
in
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dismissing
Younis without my authorization deprived me of an absolute right. My motion for
relief from the stipulation of dismissal is also proper under Rule 60(b)(4)
because I was deprived of the opportunity to be heard on my cause of action as
to Defendant Younis. The stipulation of dismissal was not addressed by this
court.
A failure of this court to reverse
itself all but ensures that litigation will not end, because the current ruling
of this court is void by law and I am under no obligation to comply with it. I
will not be bullied by the courts or the City into relinquishing my rights in
this matter. This means that more judicial resources will be wasted; and it
will also create a very uncomfortable situation. I appeal to the conscience of
the court to provide me the relief I am due by law; because relief from a void
judgment is not discretionary, it is mandatory.
Sincerely,
Frederick
Bates
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