No. 19-8427

Dillard James McNeley v. Sheppard, Mullin, Richter and Hampton LLP, et al.

Lower Court: Ninth Circuit
Docketed: 2020-05-14
Status: Denied
Type: IFP
Response WaivedIFP
Tags: attorney-misconduct civil-procedure civil-rights constitutional-rights due-process extrinsic-fraud fraud-upon-court rooker-feldman section-664.6 standing state-court-judgment
Key Terms:
DueProcess Privacy
Latest Conference: 2020-09-29
Question Presented (AI Summary)

Did the District Court err in denying McNeley Request for an Evidentiary Hearing Motions in light of the 5th and 14th Amendment constitution rights violated

Question Presented (OCR Extract)

question presented is The subornation of perjury by an attorney and/or the intentional concealment of documents by an attorney are actions which constitute “extrinsic fraud upon the court”. intentionally and unintentionally or just intentionally protected or unprotected by immunity or is detected “fraud upon the court” predominantly voidable to set aside judgment within appellate courts’ review of a state-courts’ decree or final judgment order overrule frivolous defiance? 3. The question is whether the intentional perjury and/or concealment of documents by an attorney are actions which constitute extrinsic fraud. See Chewning v. Ford Motor Co., 354 S.C. 72 (2003) 579 S.E.2d 605. A lawyer should not suppress evidence that he or his client has a legal obligation to reveal or produce.” ABA Code, 102 (a) (3) States that while representing a client, a lawyer shall not conceal or knowingly fail to disclose that which he is required by law to | reveal. .. See 5. Williston, Life and Law 271-72 (1940). (Bus. & PROF] CODE 6103 | gy (West 1974), a violation of the Oath or Duties of an attorney is a cause for discipline. Section 6068 (d) Makes it the duty of an attorney (“[nJever to seek to mislead the judge or any judicial officer by an artifice or false statement of a fact or law.” 4. An allegedly tortious act occurring long after the state-court rendered its judgment cannot be [barred] by Rooker-Feldman because there was [no] opportunity to complain about the allegedly injurious act in the state-court proceedings. See Kougasian v. TMSL, Inc., 359 F. 3d 1136, 1141 (9" Cir. 2004). The underlying concept is that “[a] state-court judgment is subject to collateral attack if the statecourt lacked jurisdiction over the subject matter or the parties, or the judgment was procured through (“extrinsic fraud.”) Lake v. Capps (In re Lake), 202 B.R. 751, 758 (9" Cir. BAP 1996). Also see Davis v. Davis, 236 S.C. 277, 113 S.E.2d 819 (1960), ; the Court considered the effect of an attorney’s statement to the lower court during a divorce action. The Court determined that, by representing to the court that a party was in default when she was not, “[t]his reasonably was held to have been “extrinsic fraud” upon her and upon the State-court” and vacated a prior judgment as a result. Id. S.C. at 281, 113 S.E.2d at 821 (1960). The Court [noted] the attorney’s representation was a “bona fide mistake” and, “therefore, constructive, rather than actual, fraud.” id. at 281, 113 S.E.2d at 821-22. also See Riverisland Cold Storage, Inc. v. Fresno-Madera Prod. Credit Ass’n55 Cal.4™ 1169, 151 Cal.Rptr. 3d 93, 291 3s P.3d 316(2013). California law protecting against extrinsic fraud. The parol evidence rule should [not] be used as a shield to prevent the proof of extrinsic fraud. 5. When Fraud is proven, it cannot be maintained that the parties freely entered ‘into an agreement reflecting a meeting of the minds. “extrinsic evidence” to prove an agreement contract is void or voidable for mistake, extrinsic fraud, duress, undue influence, illegality, alteration, lack of consideration, or another invalidating cause does not contradict the terms of an effective integration, because it shows that the purported instrument has [no] legal effect. . Extrinsic fraud on a court is, by definition, not an error by that court. It is, Rather, a wrongful act committed by the party or parties who engaged in the Fraud. Rooker-Feldman There does not bar subject matter jurisdiction when a Federal plaintiff alleges a cause of action for extrinsic fraud on a state-court and Seeks to set aside a state-court judgment obtained by extrinsic evidence Kougasian v. TMSL Inc 9" Cir.2004 The Judgment Is “Void” on its Face Because The Personal Leave of Absent For 30-Days Did Not Comply With the Requirement of Section 664.6. McNeley claims that the judgment filed in 2012 is void because it did not comply with the requirements of Code of Civil Procedure Section 664.6. As a consequence, he contends, th

Docket Entries

2020-10-05
Petition DENIED.
2020-06-18
DISTRIBUTED for Conference of 9/29/2020.
2020-06-11
Waiver of right of respondent Sheppard, et al. to respond filed.
2020-05-04
Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due June 15, 2020)

Attorneys

Dillard J. McNeley
Dillard J. McNeley — Petitioner
Sheppard, et al.
Karin Dougan VogelSheppard Mullin Richter Hampt., Respondent