Beruflich Dokumente
Kultur Dokumente
18-55461
__________________________________________________________________
BILLY Z. EARLEY,
Plaintiff-Appellant,
v.
Defendants-Appellees,
Billy Z. Earley
Appearing in Propria Persona
2144 Wembley Lane, Corona CA 92881
Telephone: (714) 615-4956
E-mail: bze2101@aol.com
Page
VII. CONCLUSION…………..………………………….…………………....…14
CERTIFICATE OF COMPLIANCE…………………………………..…….…N/A
CERTIFICATE OF SERVICE…………………………..…………….……......N/A
i
TABLE OF AUTHORITIES
Page(s)
Federal / Circuit Cases
Bank of N.Y. v. First Millennium, Inc.,
607 F.3d 905, 919 (2d Cir. 2010)……………………………………. 9
Bauer Schweitzer malting Co. v. City and County of San Francisco
(1973) 8 Cal.3d 942, 946)……………………………………………. 13
Brady v. Maryland,
373 U.S. 83 (1963)…………………………………………………….4
Buck v. Davis,
580 U.S. 137 S. Ct. 759, 778 (2017).………………………………… 5
JOHNNY BACA V. DERRAL ADAMS,
No. 13-56132 (9th Cir. 2015)…………………………………………11
Katzberg v. Regents of University, California,
29 Cal. 4th 300 (2002)……………………………………………….. 13
Kenner v. Comm'r,
387 F.2d 689, 691 (7th Cir.1968)……………………………………. 9
Leger v. Stockton Unified School Dist.
(1988) 202 Cal.App.3d 1448, 1454…………………………………... 11
Mitchell v. City of Moore,
218 F.3d 1190, 1202 (10th Cir. 2000)…………………………. …….. 7
Morgan v. Covington Twp.,
648 F.3d 172, 177–78 (3d Cir. 2011)………………………………… 9
Mosk v. Superior Court,
(1979) 25 Cal. 3d 474, 493……………………………………. …….. 13
Oakland Paving Co. v. Hilton
ii
(1886) 69 Cal. 479, 484.)…………………………………………….. 13
Obrey v. Johnson,
400 F.3d 691, 699 (9th Cir. 2005)…………………………………… 7
Pacific Lumber Co. v. State Water Resources Control Bd.
(2006) 37 Cal. 4th 921……………………………………………….. 10
People v. Sims, Supra,
32 Cal.3d at p. 484…………………………………………………… 9
Phillips/May Corp. v. United States,
524 F .3d 1264, 1267 (Fed. Cir. 2008)………………………………. 6
Rawe v. Liberty Mut. Fire Ins. Co.,
462 F.3d 521, 529–30 (6th Cir. 2006)………………………………... 7
Sail’er Inn, Inc. v. Kirby
(1971) 5 Cal.3d 1, 8……………………………………………………13
Smith v. Potter,
513 F.3d 781, 783 (7th Cir. 2008)…………………………………… 9
United States v. Banks,
36 M.J. 150 (C.M.A. 1992)…………………………….……………. 8
United States v. Beltran-Rios,
878 F.2d 1208, 1210 (9th Cir. 1989…………………………………… 6
United States v. Fitch,
659 F.3d 788, 797 (9th Cir. 2011)…………………………………… 7
United States v. LaPage,
231 F.3d 488, 492 (9th Cir. 2000)…………………………………… 7
United States v. Lui,
941 F.2d 844, 847 (9th Cir. 1991)…………………………………… 6
United States v. Rahm,
993 F.2d 1405, 1415 (9th Cir. 1993)………………………………… 7
iii
United States v. Wells,
No. 14-30146 (9th Cir. 2017)…………………………………........... 6
Univ. of Tenn v. Elliott,
478 U.S. 788, 799 (1986)…………………………………………….. 8
ADDITIONAL INFORMATION
iv
I. REASON FOR GRANTING PANEL REHEARING AND/OR
REHEARING EN BANC
The panel decision conflicts with a decision of the United States Supreme
Court, federal rules of procedure, and state law that protect citizens from police
abuse by giving victims of police misconduct a pathway to file suit under Section
1983 of the Civil Rights Act of 1871. The panel decision also conflicts with State
law and statutory provisions giving rise to public citizens seeking to sue State law
officers are engaged in pervasive misconduct and the regulatory agency is sending
out letters to the victims claiming they cannot stop the misconduct, due to client-
attorney privilege. The DOJ says it cannot take action against Medical Board Police
agencies. This issue is extremely important for panel rehearing because Senate Bill
304, the Medical Board Reform, signed by Governor Jerry Brown in 2013, created a
binding relationship between the MBC law enforcement and DOJ personnel.
The DOJ blanket letters that they are sending out to California citizens who
have been subjected to State police misconduct is real. The MBC police officers
have the DOJ as their “protectors” and many dishonest police officers are
committing heinous acts against California citizens. The Administrative Courts and
1
the Office of Administrative Hearings (“OAH”) are commonly used agencies where
DOJ Prosecutors and MBC police investigators (“MBPI”) have easy access to
The “urgency” for review and rehearing en banc is that the panel decision to report
or try to resolve the police misconduct with MBPI’s and DOJ Prosecutors will set a
The reason the Ninth Circuit should grant rehearing is because California has
39.54 (2017) million citizens and all of their Constitutional and Due Process Rights
are compromised by legislative intent, teaming-up and partnering the DOJ with
Police Officers. The panel decision for victims of police misconduct by DOJ/MBPI
officers sets a conflicting precedent for citizens seeking to file state or federal suit
for police misconduct by deciding that law enforcement abuse under color of law
used against citizens in the OAH cannot be persued and the victims must work out
panel rehearing in banc because the panel’s decision is conflicting with federal and
state laws regulating law enforcement and police misconduct. Mr. Earley identified
six State and local police officers engaging in willful misconduct: (1) Altering
Video Evidence; (2) Altering Subpoenaed Charts; (3) Making False Reports; (4)
perpetrators is extremely dangerous and Police statistics shows that 1, 129 deaths
were reported in 2017 and 718 fatalities to nonviolent offenses, such as traffic stops.
The record reflect that Mr. Earley requested a criminal investigation into the
six police officers, in November of 2017, 8 months before the OAH hearings had
started and the letter from the AG Chief Deputy was sent to the Petitioner stating the
DOJ cannot investigate the State police because they are their clients. The
Administrative Court and Due Process to 39.54 million citizens in the state of
2018. See the AG’s blanket letter stating that they cannot investigate State police
misconduct sent out to the victims. Dkt. 38, Exhibit 14, filed January 27, 2017.
case against a victim of police misconduct without the complete support of the
evidence and Prosecutorial concealment and fraud on the Court. The factual
evidence is proof that the DOJ Prosecutor hid and concealed two significant
hearings occurred. This is a diabolical atrocity designed to rob the Courts from
3
Justice and weep havoc on innocent families and patriotic Americans by tampering
with evidence and providing it to the OAH and State Courts, stripping people of
their property, wealth, integrity, and some of the very lives. See Mr. Earley citizen’s
complaint against the six police officers, filed in November of 2015, eight months
before the first OAH hearing took place. [(RJN - 01/27/17) pg.29-31], also see five
of Mr. Earley’s clinic employees made serious complaints about the DOJ/MBPI’s
team and absolutely no investigation ensued. See Optional Brief [(RJN – 01/27/17)
pg.37-44]
exculpatory evidence, and creating a false narrative to convict and harm Mr. Earley
DOJ/MBPI’s have zero oversight, since the DOJ is the Government Agency that
on fraudulent cases against unsuspecting citizens and robbing them of the Due
and targeting. The panel’s decision reflects why Brady v. Maryland, 373 U.S. 83
Pursuant to Government Section 11500, the OAH does not have authority or
delegation to bench or regulate police officers or police misconduct. The ALJ does
not have the authority or jurisdiction to provide a remedy against police abuse and
Zackery Morazzini is a “top” DOJ Supervisor who is in charge of the OAH and the
concluded in December of 2014. As evidenced, the DOJ/ MBPI are a team working
Undercover Video Evidence, (2) Subpoenaed Charts, (3) Made False Reports, (4)
Concealed Evidence, (5) Prosecutorial Misconduct, and (6) The DOJ/MBPI used
one of Mr. Earley’s employees as a paid Confidential Informant and the record
shows that she altered chart records that was subpoenaed by the Appellees.
Mr. Earley was targeted because he was a Black Man and the transcripts from
interview, said, Mr. Earley’s patents were “all” NAACP Members and Laughed.
The statement was not true and a racial slur used against Black people. However,
Chief Justice Roberts recently confirmed, “Our law punishes people for what they
do, not who they are.” Buck v. Davis, 580 U.S. 137 S. Ct. 759, 778 (2017). Mr.
Earley submitted over 100 pages of convicting evidence proving the Government
Section § 11500 by ruling that the res judicata is properly applied to a case where
Earley’s Administrative hearing was for overprescribing and he filed suit for police
misconduct and evidence tampering. The “concealed” record proves that the
The panel’s decision directly conflicts with prior Ninth Court of Appeals
rulings and opinions. One of the circuit judges on this panel provided a Partial
Concurrence in United States v. Wells, No. 14-30146 (9th Cir. 2017). Judge
Tashima concurred, “Every defendant has a right to be tried based on the evidence
against him or her, not on the techniques utilized by law enforcement officials in
investigating criminal activity.” United States v. Lui, 941 F.2d 844, 847 (9th Cir.
1991) (quoting United States v. Beltran-Rios, 878 F.2d 1208, 1210 (9th Cir. 1989)).
The Hon. Judge Tashima was the subject of government tactics being used to
Panel’s decision only reflects the misconduct offered by the Government. The
power, to assure that defendants receive fair trials.” United States v. LaPage, 231
F.3d 488, 492 (9th Cir. 2000) (addressing a prosecutor’s duty when he knows that
his witness commits perjury). The DOJ Prosecutors have adopted policies and
procedures not consistent with the California Constitution and the United States
harmless error review, just like all other evidentiary errors. See United States v.
Rahm, 993 F.2d 1405, 1415 (9th Cir. 1993). However, reversal is required “only if
the error affect[ed] a substantial right of the party,” Fed. R. Evid. 103(a), meaning,
“We require a finding of prejudice,” Obrey v. Johnson, 400 F.3d 691, 699 (9th Cir.
2005). The DOJ Prosecutor has put on a “show” of lies for the Ninth Circuit.
Additionally, the Ninth Circuit Appeals Court has ruled that in order to
reverse a district court’s factual findings as clearly erroneous, [the court of appeals]
must determine that the district court’s factual findings were illogical, implausible,
or without support in the record.” United States v. Fitch, 659 F.3d 788, 797 (9th Cir.
2011) (internal quotation marks and citation omitted). The DOJ/MBPI team is very
slick and the findings are not located in [record] stripping the Court of Justice.
7
III. THE PANEL’S OPINION OF THE RES JUDICATA CONFLICTS
AND ABROGATE WITH GOV. CODE § 11500
The Panel’s decision must be reconsidered because it interprets - and –
Administrative Quasi-Judicial court, the victim has to file a lawsuit or police report
with the Administrative Judge or OAH. The Panel’s decision abrogates Section §
11500, and will set a dissent precedent by allowing Police misconduct and civil
civil suits against police. The Panel relied on Univ. of Tenn v. Elliott, 478 U.S. 788,
799 (1986), in their decision that the res judicata was applied correctly. The Panel
unanimously agreed that Mr. Earley’s claims were raised, or could have been raised,
and a final judgement was based on the merits. Mr. Earley is requesting a hearing in
banc because these findings are not consistent with the record or fact. Tenn’s case
In Tenn Univ., the case involved a Black person who was discharged from his
job for inadequate work and misconduct. Elliott filed an Administrative court filing
against his employer Tenn Univ., and then he filed suit in federal court for
discrimination under 42 U.S.C. § 1983. The Administrative Court found that Elliott
was not discriminated against and he returned to the Federal court were the
8
Petitioner Tenn Univ., filed for summary judgement and the Court ruled that Elliott
decision to grant the res judicata relied on Tenn Univ v. Elliott, 478 U.S. 788, 799
(1986), which has nothing to do with police misconduct and providing tainted
Kirchmeyer, et.al, No. 18-55461 (9th Cir. December 05, 2018), cannot be compared
with Tenn Univ. v Elliott because Mr. Earley’s case involves government overreach,
and never becomes final.” Kenner v. Comm'r, 387 F.2d 689, 691 (7th Cir.1968). The
Supreme Court has held that claim preclusion does not apply to claims that accrue
after the filing of the operative complaint, specifically “An issue is actually litigated
[w]hen [it] is properly raised, by the pleading or otherwise, and is submitted for
A number of other circuits have adopted a “bright-line rule that res judicata
does not apply to events post-dating the filing of the initial complaint.” See Morgan
v. Covington Twp., 648 F.3d 172, 177–78 (3d Cir. 2011); see also Bank of N.Y. v.
First Millennium, Inc., 607 F.3d 905, 919 (2d Cir. 2010); Smith v. Potter, 513 F.3d
requirements are fulfilled. (1) the issue must be identical to that decided in a former
proceeding. (2) the issue must have been actually litigated in the former proceeding.
(3) it must have been necessarily decided in the former proceeding. (4) the decision
in the former proceeding must be final and on the merits, and (5) the party against
whom preclusion is sought must be the same as, or in privity with, the party to the
former proceeding.” (Pacific Lumber Co. v. State Water Resources Control Bd.
Mr. Earley seeks rehearing in banc because the Panel’s decision states that
Morazzini met criteria for the res judicata, this is not factual, and the OAH was not a
party in the initial proceedings. The Doctrine of res judicata has been misapplied
and even if Morazzini was a party, the res judicata, still would not apply because
Mr. Earley’s suit is for violation of constitutional and due process rights by
The Ninth Circuit has long held that false statements and perjury is a very
serious offence and it is a fraud on the Court. Perjury is a crime under both federal
and California state law, as is the knowing submission of false evidence to a court.
18 U.S.C. § 1621; Cal. Penal Code § 118. Three (3) uncontested Affidavits were
submitted to the district court testifying that Morazzini made false statements to set
10
aside the entry of default, including a detached Affidavit from Margaret Frank, see
Dkt. 76, Exhibit 5. The Panel’s decision conflicts with the evidence and a rehearing
in banc is appropriate. The Supreme Court repeated that officials who knowingly
violate the law are not entitled to immunity. (quoting Ashcrof t v. Al-Kidd, 131 S.
BACA V. DERRAL ADAMS, No. 13-56132 (9th Cir. 2015), which involved a
clear violation of the Supreme Court’s decision in Napue, which holds that
prosecutors cannot put on perjured testimony, much less lie themselves. Hon.
Boomer, made false statements and fabricated evidence to set aside the entry of
default. Boomer lied and stated that she was not authorized to accept service on
behalf of Morazzini, but she did it twice, and Morazzini lied and said she was not
authorized but he knew she accepted service both times without any comments or
Motion to set aside default, April 24, 2017. The panel’s decision conflicts with the
Mr. Earley seeks review and rehearing in banc because all of the judges were
erroneously omitted this evidence that is a part district court and appellate record.
Mr. Earley, made the Court aware that he was concerned about the
Magistrate, Steve Kim fitness for duty, and the District Judge, Andre Birotte Jr.,
also filed November 22, 2017. See page 8, of the Appellant’s Opening Brief and the
ISSUES PRESENTED on page 3. Judge Andre Birotte refused to correct the record
that would have been favorable for Mr. Earley. Misconduct was identified involving
Judge Kim, his former boss, and Michael Avenatti. Mr. Earley requested his Oath
and retaliation followed. There was an altercation at the Riverside Court and Mr.
Earley saw this on the clerk screen, “PLAINTIFF REQUESTED FOR JUDGE
certificate proves that Andre Birotte, Magistrate Kim, and ALJ Adam Berg, have no
jurisdiction and their rulings are void due to critical violations of their Oaths.
12
Government Code 1363(a)(3) is strict and explicitly provides: “Each judge of
a superior court, the county clerk, the clerk of the court, the executive officer or
court administrator of the superior court, and the recorder shall file a copy of his or
her official oath, signed with his or her own proper signature...”
The Judges did not register their Oaths of office; this was not done, in direct
Oaths of justices and judges, and section 1770 (i) of the California Constitution
provides; An office becomes vacant on the happening of any of the following events
before the expiration of the term: (i) “His or her refusal or neglect to file his or her
The provisions of this Constitution are mandatory and prohibitory, unless by express
The Petitioner Mr. Earley, was targeted, falsely accused, and discriminated
against by the Government. The DOJ/MBPI violated Brady Law and stripped the
Thus, the Panel’s fact-finding process was deficient. The evidence of wrongdoing
was intentionally subverted from the record, Concealing it from the Courts: (1)
Forensic Evidence, (2) Video Tampering Evidence, (3) Perjury Evidence, (4) False
Oath Evidence, and the list goes on. The Governments targeting and punishment of
14
CERTIFICATE OF COMPLIANCE
32(a)(7)(B) because this brief contains 3,280 words, excluding the parts of the brief
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionately spaced typeface using Word Document
Date: 12-17-2018
Billy Earley
_________________________________
Billy Z. Earley
Appearances in Propria Persona
UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA
BILLY Z. EARLEY
Appellees-Defendants,
________________________________|
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.