From: GA.CJJ@forsythe.stanford.edu (Clifford Johnson)
Subject: Johnson v. White & the Parret/Hudson/Zinernon rule
Organization: Stanford University, California, USA
Date: Fri, 31 Jul 1992 01:33:24 GMT

Below, the latest installment of Johnson v. White, filed 07/27/92.
It turns out that the ability of the federal courts to correct
the most elementary procedural mistakes of the state courts
(which one would have imagined to be a fundamental due process
control) hinges on a relatively new judicial doctrine not yet
widely applied, and stated by the Supreme Court primarily as
a reason to throw out (rather than include) cases.  But the
logic is impeccable, both in terms of expedience and comity.

Comments welcome, preferably intelligent ones on the legal merits.
Thanks for all those who have expressed interest, concern, disbelief
etc. at this case, which is unusual in the persistence of its
Plaintiff, rather than in its injustices.

A number of comments have addressed skepticism as to my capacity
to write legally tolerable pleadings.  I claim no more, but here
for disbelievers of how I have been treated, is a typical
pleading, in its entirety (execpt for the elimination of a bum
reference in a footnote).



UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Clifford J. Johnson,               No. 91-16626
Plaintiff-Appellant,
vs.                                N.D.Cal. No. C-91-2625 MHP
White, Merrill, and Strankman, Justices
of the California Court of Appeal, First
District, Division III,
Defendant-Respondents;
and the Bank of America,
Real Party In Interest.
__________________________________


ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
THE HONORABLE MARYLIN HALL PATEL, PRESIDING


APPELLANT'S PETITION FOR REHEARING AND EN BANC SUGGESTION


    TABLE OF CONTENTS

STATEMENT OF COUNSEL    1

I.  SYNOPSIS OF THE CASE.       2

II.  EN BANC SUGGESTION 3

1.  The matter is of exceptional importance because it shockingly
concerns the basic right of access to the courts, and because the
decision conflicts with the Parret/Hudson/Zinernon rule, inter alia.

2.  The matter is of exceptional importance because it shockingly
concerns the basic right to the protection of the law against
invasion of reputational interest, and the right of appeal.     6

III.  PETITION FOR REHEARING    8

1.  Summary.    8

2.  This court relies wholly on Feldman and Allah.      9

3.  Feldman and Allah are overwhelmed by the alleged unfairness of
procedures in the state courts.      10

4.  Feldman and Allah do not apply to the Eighth  Count because it
has not been decided.        10

5.  Feldman and Allah do not apply to the Seventh Count because it
has not been responsively adjudged.  10

6.  Feldman and Allah do not apply to the first six counts.     11

A.  Under Roundebush, the mistakes challenged are not judicial in
nature.       11

B.  Under Parret and England, the procedural due process
deprivations required prior exhaustion of state court remedies.

CONCLUSION      15

    STATEMENT OF COUNSEL

Plaintiff-Appellant Clifford Johnson, hereafter Plaintiff, suggests
that there be a rehearing en banc on the grounds that the matter is
of exceptional importance because the decision conflicts with the
_Parret/_Hudson/_Zinernon rule, infra, re basic procedural
due process rights, and because the right to the protection of law
against invasion of reputational interest is at stake.[1]

Plaintiff-Appellant Clifford Johnson brings this petition for
rehearing in good faith, under FRAP Rule 40.  The decision filed
July 10, 1992 wholly relies upon two new authorities, Feldman and
Allah, infra.  In parallel, the stated ground for dismissal has been
significantly refined.[2]  Whereas the trial court dismissed the
action in accordance with what it deemed an absolute lack of
jurisdiction over state court decisions, this court affirmed on the
narrower ground that jurisdiction over state court decisions was
precluded in this case because the federal issues raised had already
been raised and decided in the state courts.

This court has not hitherto considered Plaintiff's below points of
fact and law regarding the application of Feldman and Allah, and
regarding the narrower ground for dismissal, because these grounds
were introduced for the first time in this case by the July 10, 1992
decision.  Two main points are that: (1) the decision overlooks the
facts that the seventh and eighth counts were not decided in the
state courts; and (2) the first six counts are dismissed in conflict
with the Parret/Hudson/Zinernon rule that procedural due process
deprivations must be litigated to finality in the state courts prior
to filing a $ 1983 claim in the district court.  See the
summary at 8 below.

        I.  SYNOPSIS OF THE CASE.

The Complaint for Prospective Injunctive Relief, hereafter the
Complaint (CR 1; included in the Excerpts), was brought against the
Defendant-Respondents, hereafter Defendants, acting in their
official capacities under color of state law, expressly under 28
U.S.C.  1343, and 42 U.S.C.  1983, 1988 (Civil Rights Act).[3]
The Complaint seeks an injunction to compel named justices of the
California court of appeal to reinstate appeals brought by the
Plaintiff in a defamation lawsuit against the Bank of America, and
prohibiting the severe sanctions promised should Plaintiff persist
in the litigation.

The state courts' final decision in the entire litigation comprises
the Order and Opinion issued by Defendants dated July 24, 1989.
(Exhibit A to the Complaint, CR 3.)  Plaintiff alleges an outrageous
sequence of some eighteen basic mistakes[4] against Plaintiff,
made by the state courts, all of which the state courts finally
refused to correct by this decision.  In most pertinent part, this
final decision is quoted in paragraph 14 of the Complaint, as
follows:

    None of the errors alleged were .  .  .  in violation of due
    process. . . .  [W]e must emphasize for appellant's benefit
    that further litigation of these settled issues will
    certainly not be viewed as charitably in the future.
    Appellant should be aware that the patience of the courts is
    not inexhaustible.  His continued misuse of judicial
    resources could cost him a great deal.

The so-called "errors," which, due to their elementary nature,
Plaintiff calls "mistakes," deprived Plaintiff of some six vital
procedural protections, and consequently of property, respectively
giving rise to the first six counts of the Complaint.  The Seventh
Count is based on the accumulation of these mistakes, and the Eighth
Count is based on the evident bias of Defendants against Plaintiff's
pro se status in making the final state court decision.

In deciding this appeal, this court must assume the truth of all the
allegations.  However, it is pertinent that the burdens of discovery
and proof are slight.  The facts are limited to the face of the
record in the state courts, and they are in most counts trivial,
comprising the dates of filings, and the literal reading of
statutes, formal motions, notices, and orders.

    II.  EN BANC SUGGESTION

1.  THE MATTER IS OF EXCEPTIONAL IMPORTANCE BECAUSE IT SHOCKINGLY
CONCERNS THE RIGHT OF ACCESS TO THE COURTS, AND BECAUSE THE DECISION
CONFLICTS WITH THE PARRET/HUDSON/ZINERNON RULE.

This petition raises the exceptionally important question as to
whether, under the due process or equal protection clauses of the
Fourteenth Amendment, the federal courts require that state courts
adhere to minimal standards: (1) in the clerical or procedural
processing of cases; and (2) of fairness towards pro se litigants.

Unfortunately, as the record now stands, the second question appears
to carry over to the federal courts, for the decision dismisses the
case without any opposition filings, even though the trial court's
dismissal has been significantly amended to correct its erroneously
absolute grounds for dismissal.  Given that the Plaintiff's argument
against the trial court's absolute grounds has been vindicated, one
might have thought that this court would accord Plaintiff a better
opportunity for rebuttal of new authorities than is available
through this suddenly required last-ditch petition.  As for the
merits of the decision, the court has not distinguished the counts,
at least one of which was not litigated in the state courts.  With
regard to the counts that were litigated in the state courts, the
decision conflicts with the _England-_Parret-_Hudson-_Zinernon line
of cases, described below, which require exhaustion of remedies in
the state courts prior to and without prejudice to a  1983 action in
the district court, where procedural deprivations are alleged.

The Complaint alleges that each of the four appeals in the
defamation action was dismissed without any hearing of their merits,
thus squelching the entire action, owing to a shocking series of
procedural and clerical mistakes made by the state courts.  The crux
of this action is the challenge to the four mistaken dismissals of
the original appeals as respectively alleged in the first four
counts, for the remedy sought is neither more nor less than the
(sanctions-free) reinstatement of the original four appeals in the
defamation action.

Surely none will dispute that the allegations of mistake, which must
all be taken as true for the purposes of this appeal from a Rule 12
dismissal, are shocking.  Here is a resume of them:

First Count:  Plaintiff's appeal from summary judgment was
mistakenly dismissed as untimely, whereas it was timely.[5]

Second Count:  Plaintiff's appeal from part of the award of costs
was mistakenly dismissed as abandoned, whereas it was not abandoned,
all fees having paid, and the brief and record having been timely
filed.[6]

Third Count:  Plaintiff's appeal from an appealable order denying a
motion to set aside the summary judgment was mistakenly denied on
the ground that the Notice of Appeal did not include it, whereas
said notice did include it by date, title, and subpart.[7]

Fourth Count:  Plaintiff's appeal from an original post-judgment
award of sanctions was mistakenly dismissed without clear reason,
but presumably on the irrelevant ground that the denial of the
motion giving rise to the sanctions was deemed nonappealable, as no
other reason appeared.[8]

Fifth Count:  Plaintiff was ordered to pay the substantial cost of
Real Party's pre-trial expert witness fees against all precedents,
by a court that refused to provide any special justification.[9]

Sixth Count:  Plaintiff was ordered to pay all costs claimed by Real
Party, including a double-billed line item, and including a couple
of line items which his uncontradicted affidavits attested were for
services that were never rendered.[10]

Plaintiff also argued before Defendants in the state court that,
even assuming arguendo that each error individually did not violate
due process, the errors cumulatively violated due process, both
because of their sum damage (the squelching of Plaintiff's entire
action and the award of disallowed, punitive costs), and because of
a consequent prima facie statistical proof of bias against
Plaintiff.[11]  Defendants ignored this argument, which is
reasserted as the Seventh Count in the Complaint.

The Eighth Count alleges that Defendants evidenced prejudice against
Plaintiff's pro se status, making it a decisive issue in the state
court's final decision, and at the hearing Defendants held on June
21, 1989.

2.  THE MATTER IS OF EXCEPTIONAL IMPORTANCE BECAUSE IT SHOCKINGLY
CONCERNS THE BASIC RIGHT TO THE PROTECTION OF THE LAW AGAINST
INVASION OF REPUTATIONAL INTEREST, AND THE RIGHT OF APPEAL.

The root issue herein is the most basic right to a cause of action
for defamation.  The Complaint herein alleges the defamation action
in detail (CR 1 at 2-3), including Plaintiff's loss of employment
due to the defamations, disputed facts as to whether Plaintiff's
work recommendations had been technically correct, and preliminary
evidence of falsification of corroboratory measurements by the Bank
of America.  Attached to the defamation complaint, and as an Exhibit
to the Complaint herein (CR 3 at 12), is a letter from the Bank of
America to a prospective employer of Plaintiff, providing a
one-sentence job reference, which was: "His separation was
involuntary and his work was unsatisfactory."  How can a technical
expert (or any worker) ever be secure in a profession, if a big
employer may not fire him not only at will, but also on pretext, and
then with impunity publish false reports of his performance to
prospective employers who require a job reference?

Plaintiff's Opening Brief (at 36-37) not only points out that the
right to any property-based common-law cause of action is federally
guaranteed under both the Fourteenth Amendment and under the
American Declaration of the Rights and Duties of Man,[12] but goes
on to point out (at 38-40) that the same instruments particularly
guarantee the right to a basic cause of action for defamation.
Although the federal courts are not asked to rule on the merits, or
even on the sufficiency, of Plaintiff's defamation claim, that
action will remain squelched unless the federal courts acknowledge
jurisdiction herein.  Plaintiff prays that the appeals of the
dismissal of his defamation lawsuit be reinstated in the state court
of appeal.  It would then be the duty of the state court to consider
their merits, having due regard for Plaintiff's reputational
interests.

This appeal is exceptionally important, because it represents the
final pleading that the federal courts are required to address on
its merits.  If he exhausts national remedies, Plaintiff may then
petition the Inter-American Commission on Human Rights for an
advisory opinion as to compliance with the American Declaration.[13]
It is bad enough that Plaintiff's challenge to defamations
comprising intolerable job references was dismissed by a trial court
that refused to provide a particular reason.  It is far worse that
this denial of trial might be submitted to an international tribunal
together with the above catalog of procedural deprivations, and
together with the fact that attempts to correct them were met with
stern findings of frivolous litigation, and with sua sponte
dismissals.

Also at issue is the well-established federal due process guarantee
of the right to appeal, whenever it is regularly allowed by a state.
This is per se of exceptional importance, because the right of
appeal is plainly a key procedural safeguard in almost all
litigations.  In this litigation, it is especially important,
because, under California law, a particular reason for dismissing an
action prior to trial is required only from the court of appeal,[14]
and because the trial court dismissed Plaintiff's defamation action
without a particular reason or finding, and then expressly denied
Plaintiff's motion for a courtesy statement of the reason for the
dismissal.  Thus, the the mistaken dismissal of his appeals deprived
Plaintiff of all opportunity to obtain a particular reason for the
dismissal of his defamation action.  Further argument re the
importance of the right to appeal is presented in Plaintiff's
Opening Brief at 26-30.

         III.  PETITION FOR REHEARING

1.  SUMMARY.

The trial court's reasons for dismissal were that it had "absolutely
no jurisdiction" over the decisions of the state courts, and that
the Defendants were "absolutely immune from suit" because they were
judicial officers.  (CR 4, at 2; emphasis added.)   The trial
court's two authorities supposedly supported these broad assertions,
but did not.  Plaintiff rebutted them with authorities definitively
holding otherwise, notably _Mitchum v. Foster, 404 U.S. 225
(1972), and _Pulliam v. Allen, 466 U.S. 522 (1984).  However,
this court's primary ground for dismissal is that the district court
had no jurisdiction over the state court decision in this case
because the particular federal causes of action had already been
litigated to judicial finality in the state courts.  To support this
principle, this court introduced two new authorities, Feldman and
Allah.

Below, Plaintiff rebuts this ground for affirming dismissal by
introducing material points of fact and law overlooked in the
decision, including that: the alleged unfairness of the procedures
in the state courts overwhelms Feldman and Allah (_Haring v.
Prosise, 462 U.S. 306, (1983); _Robinson v. Ariyoshi, 753 F.2d
1468 (9th cir. 1985)) the Eighth Count is an original cause of
action alleging unconstitutional prejudice against Plaintiff's pro
se status in the making of the state court's final decision; the
Seventh Count was not responsively adjudged in the state court, so
that the district court has jurisdiction to decide it (Robinson,
supra) the first six counts (the first four being most important)
challenge decisions that are non-judicial in essence (Feldman ,
Allah, and Robinson, supra; _Roudebush v. Hartke, 405 U.S. 15
(1972) ) and the first six counts, because they challenged
procedural due process deprivations, require that Plaintiff first
exhaust his remedies in the state courts, without prejudice to this
 1983 action (_Parret v. Taylor, 451 U.S. 527 (1980) ).

2.  THIS COURT RELIES WHOLLY ON FELDMAN AND ALLAH.

The court relies wholly on two completely new authorities for its
July 10, 1992 decision on the merits of the appeal, which is fully
reproduced as follows (at 2-3):

    The United States district courts have subject matter
    jurisdiction over general challenges to rules promulgated by
    state courts in nonjudicial proceedings which do not require
    a review of a final state judgment in particular cases.
    _District of Columbia Court of Appeals v. Feldman, 460 U.S.
    462, 486 (1983).  " 'As courts of original jurisdiction,
    however, they do not have jurisdiction over direct
    challenges to final decisions of state courts, even if those
    challenges allege that the state court's action was
    unconstitutional.' "  _Allah v. Superior Court, 871 F.2d
    887, 890 (9th cir. 1989) (quoting Feldman, 460 U.S. at 486).
    This rule applies even though the direct challenge may be
    anchored to alleged deprivations of federally protected due
    process and equal protection rights.  Feldman, 460 U.S. at
    485; Allah, 871 F.2d at 891.  The proper court in which to
    obtain a direct review of state-court determinations is the
    United States Supreme Court.  28 U.S.C.  1257(a) Allah, 871
    F.2d at 891.

    Here, Johnson requested the district court to declare void
    an adverse judgment of the California Court of Appeals in
    his wrongful termination and defamation action.  Because
    Johnson requested the district court to conduct a direct
    review of the various rules and procedures in his state
    court case, the district court lacked subject matter
    jurisdiction over his complaint.  See Allah, 871 F.2d at
    890.  Accordingly, the district court properly dismissed the
    action.

Plaintiff contends that, properly applied, Feldman and Allah require
that this appeal be granted.

First, he reminds this court that the Complaint cannot be dismissed
in its entirety unless each of the counts is deemed invalid.

3.  IN VIEW OF THE ALLEGED UNFAIRNESS OF PROCEDURES IN THE STATE
COURTS, HARING AND ROBINSON OVERWHELM FELDMAN AND ALLAH.

The unfairness of procedures alleged in the Complaint beyond doubt
is sufficient to qualify the Complaint as an exception to the
general rule of Feldman and Allah.  As the court observed in
_Haring v. Prosise, 462 U.S. 306, 317-318 (1983):

    [Re a] $ 1983 claim.  As a general matter, even
    when issues have been raised, argued, and decided in a prior
    proceeding, and are therefore preclusive under state law,
    "redetermination of (the) issues (may nevertheless be)
    warranted if there is reason to doubt the quality,
    extensiveness, or fairness of procedures followed in prior
    litigation."  Montana v. United States, 440 U.S. 147, 164,
    n. 11 (1979).[15]

This case is cited and reaffirmed in this particular principle in
_Robinson v. Ariyoshi, 735 F.2d 1468, 1472 (9th cir. 1985).

Plaintiff is of the opinion that, given the shocking allegations of
procedural deprivations taken as true herein, and recounted in n.
5-10 at 4-6 above, this court need not reach the points presented
below, which contest the application of Feldman and Allah per count.

4.  FELDMAN AND ALLAH DO NOT APPLY TO THE EIGHTH COUNT BECAUSE IT
HAS NOT BEEN ADJUDGED.

The Eighth Count alleges that the state court of appeal was
prejudiced against Plaintiff's pro se status, in the making of the
final judgment of the highest state court.  (CR 1 at 16-17.)  No
prior order or statement of the court had made any issue of
Plaintiff's pro se status.  This count is original to this action,
not having been raised by Plaintiff prior to the final state court
decision.  Accordingly, Feldman's and Allah's relitigation bar
simply does not apply.

5.  FELDMAN AND ALLAH DO NOT APPLY TO THE SEVENTH COUNT BECAUSE IT
HAS NOT BEEN RESPONSIVELY ADJUDGED.

The Seventh Count alleges that the cumulative aggregation of
taken-as-true procedural mistakes made by the state courts
constitutes a prima facie proof of bias, in violation of Plaintiff's
equal protection and due process rights, on account of the highly
significant statistical improbability, under the hypothesis of no
bias, that all such mistakes would fall against the Plaintiff, and
none against the Defendant Bank of America.  (CR 1 at 15-16.)  This
separately stated cause of action was not mentioned in any of the
state court decisions, even though the Plaintiff separately argued
it.  The supposedly required final judicial determination re this
count has yet to materialize.[16]  Certainly, the state court judgment
was not at all responsive to this cause of action.  Accordingly, it
may be relitigated in the district court.  _Robinson v. Ariyoshi,
735 F.2d at 1472, 1473 (9th cir. 1985).

6.  FELDMAN AND ALLAH DO NOT APPLY TO THE FIRST SIX COUNTS.

A.  UNDER ROUNDEBUSH, THE MISTAKES CHALLENGED IN THE FIRST SIX
COUNTS ARE NOT JUDICIAL IN NATURE.

Both Feldman and Allah concerned cases in which the state court had
with procedural propriety and by exercise of judicial discretion
denied a Plaintiff's application for relief.  In brief, these cases
depended on the alleged due process deprivations being substantive.
As described below, Feldman, which is this court's primary case,[17]
affirms the availability of actions in the district court to remedy
deprivations due to state court decisions of a non-judicial
character.  In this case, the applications Plaintiff seeks to have
reinstated in the state court are appeals allegedly dismissed
without any hearing on the merits, owing to procedural mistakes made
by the court of appeal, of a non-judicial character, as detailed
below.

In Feldman, the application to the state court was for a waiver from
a qualification required to practice law, which had been denied
after due consideration of the merits.  The decisive conclusion of
the Feldman court was that the at issue decision had been judicial
in character.  This was adduced only after describing in detail (at
479-480) the substance of the rejected application, and thus of the
state court's deliberations.  Feldman  affirmed that: an
unconstitutional state action of a non-judicial character is
generally reviewable; whether an act is non-judicial in character is
a question for the federal court to decide; and this decision
depends on the nature of the proceeding rather than on whether a
court is the actor.  Feldman, at 476-479.

In citing several general authorities on the distinction between
judicial and non-judicial actions (at 477), Feldman's first-listed
and most recent case was _Roudebush v. Hartke, 405 U.S. 15, 20-22
(1972).  In that case, a decision taken by a court was at issue,
but the challenged decision was found to be non-judicial in
character, and so reviewable in the district court.  Common-sense
was the guide to deciding whether an act was judicial, as follows
(at 21):

    The process of determining that the recount petition [the
    at-issue state application] is correct as to form -- that it
    contains the proper information, such as the names and
    addresses of all candidates, and is timely filed -- is
    clearly not a judicial proceeding.

Likewise, under state law, an error is "clerical" even though made
by the court, if it "cannot reasonably be attributed to the exercise
of judicial discretion."  _Bowden v. Green, 128 C.A.3d 65, 71
(1982).

Re the First Count, namely, the mistaken dismissal of a timely
appeal as untimely, that such a determination is non-judicial is
explicitly stated in the above Roundebush quotation.  That this case
is no subtle exception to the rule is plain from the fact that the
filing date is in plain literal compliance with the timeliness
statute, as detailed in n. 5 at 4 above, which is sufficient to
prove timeliness.

Re the Second Count, namely, the mistaken dismissal of an appeal as
abandoned when it was in fact vigorously and without default
prosecuted, the determination that the appeal is not abandoned is
again an automatic and per se sufficient process.  As described in
n. 6 at 4 above, there are five actions to be taken in order to
perfect an appeal, all of which are matters of record.

Re the Third Count, namely, the mistaken dismissal of an appeal for
failure to include the at issue order in the notice of appeal, when
in fact it is included by title, date, and subpart specification,
this constitutes a determination of informational content that the
above quotation rules to be of a non-judicial nature.  Remarkably,
in this case the clerk of the state court correctly recorded, and
formally notified the parties and the state court of appeal, that
the notice of appeal specified the very order which was later deemed
not included in it, as described in n. 7 at 5 above.

Re the Fourth Count, namely, the mistaken dismissal of an appeal
from an award of sanctions as implied by the dismissal of a
concomitant appeal, this is a surely a matter of form too trivial
and automatic a matter to be deemed an exercise of judicial
discretion.  See n. 8 at 5 above.

Re the Fifth Count, namely, the state court's mistaken award of
pre-trial expert witness fees as costs, given that the record
contained no precedent in which this had been allowed, but contained
binding precedents disallowing them, this would again seem to be a
mistake of a non-judicial nature, as it depends upon the elementary
determination of information on the record.  See n.9 at 5 above.

Re the Sixth Count, namely, the mistaken award of certain costs that
uncontradicted affidavits on the records declared to include a
double-billed line item, and a couple of line items for services not
rendered, this again represents an elementary determination of
information on the record.  See n. 10 at 6 above.

B.  UNDER PARRET AND ENGLAND, THE PROCEDURAL DUE PROCESS
DEPRIVATIONS REQUIRED PRIOR EXHAUSTION OF STATE COURT REMEDIES.

The Complaint alleges the first six causes of action per original
dismissal, and the remedy sought is the reinstatement of Plaintiff's
original appeals.  These six counts cannot properly be construed as
directed against a judicial decision by virtue of their attack upon
the state courts' final denial of Plaintiff's applications to set
aside the original appellate dismissals, in which Plaintiff's
arguments under the Fourteenth Amendment (re these counts) were
heard and judicially decided.[18]  This is because Plaintiff had an
obligation to exhaust his state court remedies prior to filing this
$ 1983 action, due to the fact that the original
deprivations were of procedural due process.

As a matter of comity and expedience, it is plain that the state
courts should be presumed able, and are of course readiest, to
correct their own clerical or procedural sorts of mistake on the
proper application of an injured party.  Indeed, it is disallowed
for a litigant to file a complaint in the district court as soon as
a state court makes a procedural mistake, and it would negate 
1983 if not to do so meant losing the right to review in the
district court.  Only as a very last resort should an application
for procedural correction of a clerical or procedural sort of
mistake be made to a district court, let alone be reserved for the
Supreme Court.

This reasoning is mandated by the Parret/Hudson/Zinernon rule,[19]
which holds that the exhaustion of state court remedies is required
prior to filing a $ 1983 action in the district court,
wherever a procedural due process deprivation is the original state
delict.  This is an exception to the general rule not requiring an
exhaustion of state remedies, expounded in _Patsy v. Board of
Regents of the State of Fla., 457 U.S. 496 (1982).  The law of
these cases is neatly summarized in _Simmons v. Chemung County
Dept. of Social Services, W.D.N.Y.1991 770 F.Supp. 795, 799,; as
follows (emphasis in original):

    The [Patsy] rule is inapplicable and exception exists,
    however, where, as here, the plaintiffs allege claims based
    on violations of procedural due process.  For these claims,
    the existence of state remedies is relevant because the
    constitutional violation of a protected interest without due
    process of law -- does not occur "until and unless the State
    fails to provide due process." [_Zinernon, at 982.]  . . .
    In these cases, the courts have "held that a statutory
    provision for a post-deprivation hearing, or a common law
    tort remedy for erroneous deprivation, satisfies due
    process." Id.

In _Parret and _Hudson, the court rejected $ 1983
suits because the plaintiffs had not first availed themselves of the
tort remedies available in the state courts, and went on to state
that due process would have been satisfied as long as those remedies
were adequate.  There was no suggestion that, by so exhausting state
remedies, a subsequent  1983 action would be barred.  Indeed, the
courts' characterizing the rule as one of exhaustion of remedies
proves otherwise.

In any case, it is settled that such required proceedings in the
state courts do not prejudice the right to a $ 1983 suit in
the district court.  This was decided in _England v. Medical
Examiners, 375 U.S. 411 (1963), after the Plaintiff had first been
required to exhaust his remedies in the state courts, in the course
of which he had naturally urged his constitutional arguments, and
promised to litigate in the district court if unsuccessful.[20]
Herein, all Plaintiff's subsequent applications to reinstate his
defamation appeals comprised required exhaustions of remedies in the
state courts.  No precedent before this court has elevated a
procedural deprivation to the level of a judicial error by virtue of
the denial of a Plaintiff's diligent applications to the state
courts for what ought to be automatic correction.  This court's
dismissal of the first six counts is clearly in conflict with the
_Parret/_Hudson/_Zinernon rule.

     CONCLUSION

For the foregoing reasons, Plaintiff respectfully petitions this
Court for a rehearing, and suggests that it should be decided en
banc.

Respectfully submitted,
__________________________      Dated  __________
Clifford Johnson,
Plaintiff-Appellant pro se.

****************    notes

[1]  Part II of this petition presents the argument in support of
Plaintiff's en banc suggestion.  By and large, it draws attention to
material points of fact and law already made in Plaintiff's prior
brief, and so can be skipped over by the panel of justices in this
appeal.  The only significant addition (at 7) is Plaintiff's advice
as to his ultimate right to petition the Inter-American Commission
on Human Rights for an advisory opinion.

[2]  Development of the law of the case has been stunted by the
Defendants' failures even to appear, let alone argue, in either the
trial or this court, and by both courts' decisions to proceed
without any oral hearing.

[3]  The anti-injunction statute, 28 U.S.C. $ 2283,
provides that "[a] court of the United States may not grant an
injunction to stay proceedings in a State court except as expressly
authorized by Act of Congress . . ."  It is well-established that
the Civil Rights Act constitutes just such an exception to the rule.
It provides:
    Every person who, under color of any statute, ordinance,
    regulation, custom, or usage, of any State or Territory,
    subjects, or causes to be subjected, any . . . person within
    the jurisdiction thereof to the deprivation of any rights .
    . . secured by the Constitution and laws, shall be liable to
    the party injured in . . . suit in equity, or other proper
    proceeding for redress.
See, e.g., _Pulliam v. Allen, 466 U.S. 522 (1984); _Mitchum v. Foster,
404 U.S. 225 (1972).

[4] This count considers denials of motions to reconsider to be
separate mistakes.  Plaintiff alleges twelve essentially independent
mistakes.  (Complaint, CR 1 at 15.)

[5]  Paragraph 22 of the Complaint alleges the following details
(CR 1 at 8):
    [Plaintiff has:] (a) alleged the date of entry of the order
    in Johnson I denying the motion for new trial (July 3,
    1985), and quoted the trial court clerk's official
    Certificate confirming this; (b) quoted _Cal. Rules of
    Court, Rule 3a, which provides that "the time for filing the
    notice of appeal is extended for all parties until 30 days
    after . . . entry of the order denying the motion [for new
    trial]"; (c) alleged the date of filing of the notice of
    appeal (August 2, 1985) (d) alleged the Court of Appeal's
    plainly mistaken ruling that the filing was untimely under
    said Rule 3a; and (e) alleged that the Court of Appeal in
    Johnson I had without comment refused both to reinstate the
    appeal and to explain its dismissal on prompt motion.

[6]  Paragraph 27 of the Complaint alleges the following details
(CR 1 at 10):
    (a) Plaintiff had filed a timely notice of appeal (on
    December 13, 1985) from the final order compelling payment
    of the Real Party's pre-trial expert witness fees (filed
    November 22, 1985) (b) Plaintiff had timely paid the $200
    filing fee; (c) Plaintiff had vigorously opposed Real
    Party's motion to dismiss, which argued two points, neither
    of which was that the appeal had been abandoned; and (d)
    Plaintiff had filed a timely Opening Brief and the full
    record on appeal; (e) thereby Plaintiff had satisfied all
    the requirements necessary and sufficient to perfect his
    appeal; (f) the Court of Appeal had surprisingly dismissed
    the appeal as abandoned; and (g) the Court of Appeal had
    subsequently denied without comment Plaintiff's prompt
    motion to reinstate the appeal or to state what act or
    omission by the Plaintiff constituted abandonment.

[7] Paragraph 31 of the Complaint alleges the following details
(CR 1 at 11):
    [Plaintiff has:] (a) quoted Plaintiff's Notice of Appeal
    complaining of the "denial of Plaintiff's Motion to Set
    Aside Summary Judgment and Set Trial by order entered July
    3, 1985"; (b) quoted the trial court clerk's Notice Of The
    Filing Of The Notice Of Appeal, which was served on all
    parties and stated that the order "entered 7/3/85 denying
    motion to set aside Summary Judgment" had thereby been
    appealed from; (c) quoted the Court of Appeal's ruling that
    "The appeal from the July 3, 1985 post-judgment order is
    dismissed for failure to include the order in the notice of
    appeal"; and (d) stated that the Court of Appeal had denied
    without comment Plaintiff's prompt motion to reinstate the
    appeal from the included order or to explain its ruling.

[8] Paragraph 35 of the Complaint alleges the following details
(CR 1 at 12):
    [Plaintiff has:] (a) alleged that the trial court had
    awarded sanctions against the Plaintiff for bringing a
    motion for reconsideration, and that the Plaintiff appealed
    both from the denial of reconsideration and from the award
    of sanctions; (b) quoted the Court of Appeal's ruling that
    "Respondent's motion to dismiss the appeal from the order
    denying .  .  .  reconsideration with sanctions is granted
    because the motions sought a new trial and are therefore
    nonappealable"; and (c) alleged that the Court of Appeal had
    denied without comment Plaintiff's prompt motion to
    reinstate the appeal from the award of sanctions, or to
    explain it.

[9]  Paragraph 39 of the Complaint alleges the following details
(CR 1 at 13):
    In Johnson I: (a) the trial court had awarded all Real
    Party's expert witness fees ($20,672) as costs, even though
    there had been no trial, nor had any expert witness
    testimony on the case been submitted at any time by Real
    Party to the court; (b) Real Party's expert witnesses had
    not been appointed by the court; (c) Plaintiff had pointed
    out, in a motion to tax costs and in a motion for
    reconsideration, that the award of such pre-trial expert
    witness fees as costs was against binding precedent; (d)
    Real Party had produced no contrary precedent; and (e) the
    trial court not only had awarded these costs but also had
    denied without comment Plaintiff's alternative motion
    requesting a special justification for the award.

[10]  Paragraph 43 of the Complaint alleges the following details
(CR 1 at 14):
    [Plaintiff has] alleged that: (a) in a motion to tax costs
    and in motions to reconsider the award of costs, Plaintiff
    had competently declared that specific line items were
    fictitious, including that a billed interview with himself
    had not in fact occurred, and that another item was
    unreasonably billed twice; (b) the trial court had ordered
    him to pay all line items nevertheless, and had denied his
    motion requesting an explanation for awarding them; and (c)
    the trial court also denied Plaintiff's motion to compel the
    deposition of the person who generated the mistaken line
    items, who was in contempt of a subpoena that the Plaintiff
    had served for the purpose of corroborating his affidavits
    regarding these costs.

[11]  Complaint, CR 1, at 15.

[12]    Plaintiff also argues that jurisdiction over this case
arises directly from the binding (by act of Congress) American
Declaration, an issue not addressed in this court's decision.  See
the Opening Brief at 37.  Plaintiff strongly recommends
Buergenthal's Protecting Human Rights in the Americas, (3ed 1990),
which he cites in the brief as authority for the the binding
character of the American Declaration, and related matters.

[13]  Petition procedures before the Inter-American Commission on
Human Rights, which may issue advisory opinions, are described in
Protecting Human Rights in the Americas, supra.

[14]  California's summary judgment statute, Cal. Code Civ. Proc.
$ 437c, permits pro forma summary judgment.  But a written
reason is required for decisions of the state court of appeal.  Cal.
Const., art. VI $ 14.

[15]  In support of this proposition, Montana cites: Restatement
(Second) of Judgments $ 68.1; The Preclusive Effect of
State Judgements on Subsequent 1983 Actions, 78 Colum. L. Rev. 610,
640-653 (1978).

[16]  A written reason for dismissal is required in the state court
of appeal.  Cal. Const., art. VI $ 14.

[17]  The rather terse 9th circuit case Allah relied heavily on
Feldman, citing it at 890 and twice at 891.  In Allah, the
application was for relief from a procedurally proper dismissal of
an action as a form of sanction, because the Plaintiff had failed to
comply with a discovery rule.  Allah held that the district court
could not review a state court's dismissal for procedural
technicalities, where the Plaintiff, and not the state court, had
made the at issue procedural mistake.  Thus, despite using the words
"procedural technicalities," Allah addressed substantive due
process.

[18] If the wording of the Complaint overstresses the attack on the
final refusal to correct the mistakes, it could be amended to refer
to that refusal merely as an unsuccessful exhaustion of remedies,
except in the Eighth Count.

[19]  The rule was so named in Simmons, infra.  It refers to Parret
v. Taylor, 451 U.S. 527 (1980) Hudson v. Palmer, 468 U.S. 517
(1983) Zinernon v. Burch, 494 U.S. 113 (1990).

[20]  This Plaintiff could amend the Complaint to include such an
allegation, if required.
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