No. 24-5436

David Fink v. California

Lower Court: California
Docketed: 2024-09-03
Status: Denied
Type: IFP
Response WaivedIFP
Tags: appellate-procedure constitutional-rights due-process fourteenth-amendment ineffective-assistance-of-counsel right-of-appeal
Key Terms:
SocialSecurity Securities Immigration
Latest Conference: 2024-11-01
Question Presented (AI Summary)

Should an appellant have a voice in their own appeal when the Court of Appeal appoints counsel who fails to raise substantial constitutional claims?

Question Presented (from Petition)

No question identified. : IMPORTANT QUESTIONS OF LAW In California, the right of appeal has been veduced to a farce or a sham by appointed attorney's tactical choice to undermine the appeal with superficial issues (or watered down substantial issues) that has converted the substantial right of appeal into a "charade" complete with State actors acting out their phony roles amounting to a ¢raud on the court. The appellant is then procedurally barred from bringing his substantial claims into federal court because s/he did not include them in the appeal in which s/he had no voice. This is made possible because: (A. an appellant has no right of self-representation (Martinez v. Cal. GOA, 528 US 152 (2000)); (B. the GOA gets to "pick and choose" the appellate attorney; and (C, many consetvative COA's appoint attorneys who will not "rock the boat." (1. Should an appellant have a voice in his or her own appeal? If not, can s/he be procedurally barred for failing to raise it as here? (2. Where, as here, the COA is aware that a large part of the lower court record is missing from. the appeal; can “counsel hardly be said to have made a strategic choice when s/he ha[d] not yet obtained the facts which such a decision could be made." (United States v. Gray, 878 F.3d. , 702, 712 (3rd Gir. 1989))? (3. Should an appellate attorney include the entire lower court record in the appeal so s/he can make an informed tactical decision? And if s/he refuses to do so, should appellant be permitted to do so? (4. "Ineffective Assistante of Appellate Counsel" ("IAAC") is conclusively established where s/he failed to raise: (a. "potentially meritorious" claims; or (b. one's "stronger than those presented on appeal." (Nguyen v. Gurry, 736 F.3d. 1287, 1291 (9th Gir. 2013) and Hurles v. Ryan, 752 F.3d. 768, 783 (9th Cir. 2014)). Does the Fourteenth Amendment require the State to consider these facts when presented by an appellant during’ an appeal? (5. If an attorney refuses to raise substantial constitutional claims on appeal, does a COA err by: (1. refusing to take judicial notice of its own records of the claims brought in pretrial mandamus petitions; or (2. consider the claims brought during the appeal by the appellant? (6. If an attorney refuses to bring highly substantial claims on appeal, as here, does the substantial right of appeal require the reviewing cOA to hear the voice of the appellant, so the substantial right of appeal is is not reduced to a farce or a sham? OS id

Docket Entries

2024-11-04
Petition DENIED.
2024-10-10
DISTRIBUTED for Conference of 11/1/2024.
2024-10-02
Waiver of right of respondent California to respond filed.
2024-08-05
Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due October 3, 2024)

Attorneys

California
Kenneth Charles ByrneCalifornia Attorney General, Respondent
Kenneth Charles ByrneCalifornia Attorney General, Respondent
David Fink
David Fink — Petitioner
David Fink — Petitioner