Motion to Void Judge Howard’s Judgment Dismissing Wake Court Felonies

NOW COMES Plaintiff Donna Pilch, Pro se, who moves to VOID and VACATE Judge Malcolm Howard’s dismissal of these cases on the following grounds:

 I. 42 USC §1983 and RULES 16, 56, 60(a) and (b) (4)

Judge Malcolm Howard’s exercise of jurisdiction over these cases constitutes egregious jurisdictional errors and violation of his oath to honor and enforce the United States Constitution and U.S. Code.  His judgment is also void under Rule 60(b) (4) since it was entered in absence of all jurisdiction and complete violation of due process of law.

Judge Howard’s failure to curb the egregious constitutional violations in the Wake County Court constitutes reckless and callous indifference to Plaintiff’s constitutional rights and a class of others who ever were, are and will be similarly situated: victims of fake court documents fraudulently certified and unlawful court procedures. Plaintiff is in a class with potentially everyone who has ever been a misdemeanor defendant in North Carolina, and it is urgent for a law-abiding federal judge to take urgent action.

II. LAW AND ARGUMENT

1. This Court violated Fed. R. Civ. P. Rule 16 which requires the Court to complete discovery and to schedule a hearing.

1. Plaintiff provided  Judge Howard with concrete  and indisputable evidence of federal felonies and constitutional violations including:

-         Fake “Transfer and Appeal” court document fraudulently notarized by Wake County Court Clerk Lorrin Freeman and her staff.

-         Fake “Motion to Continue” court document signed by Judge Kristin Ruth. (Per NCGS §15A-606, the only pre-trial motion allowed in district court is a probable cause hearing).

-         Evidence of perjury and false statement by SBI notary Joyce Davin (state and federal felonies. See 18 USC §494).

-         Evidence that SBI misdemeanor serology unit left serology sample at room temperature for over three months without preservative.

-         Evidence that serology sample did not belong to plaintiff.

-         Letter from AG office stating that SBI doesn’t use preservatives for DWI serology samples at all.

-         Court Clerk Tonya Woodlief unlawfully changing cases status from disposed back to pending and setting new court dates, triggering unlawful orders of arrest with excessive bail, by Wake Court Clerk Lorrin Freeman.

-         Court Clerk Sandra Meyer charged Plaintiff for someone else’s DWI and costs in excess of what is allowed by law.

-         Judge Donald Stephens dismissed and concealed all of the above evidence and denied Pilch relief, acting in absence of all jurisdiction and violating numerous U.S. Codes.

-         Screenshot showing that no court form exists to allow a defendant to plead NOT GUILTY to misdemeanor in NC district courts (denial of due process).

-         AOC Court form allowing murder trials in district court at first setting (violation of NCGS §15A-606 and NCGS §7A-196).

-         Corrections to AOC Court Form AOC-G-106 which allows murder trials at first setting in district court.

1. Except in categories of actions exempted by district court rule as inappropriate, the district judge, or a magistrate judge when authorized by district court rule, shall, after receiving the report from the parties under Rule 26(f) or after consulting with the attorneys for the parties and any unrepresented parties by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that limits the time (1) to join other parties and to amend the pleadings; (2) to file motions; and (3) to complete discovery.

1. Judge Malcolm Howard never completed discovery or scheduled a hearing for these cases thereby violating the Federal Rules for Civil Procedure and Plaintiff’s constitutional right to due process.

1. Summary judgment is appropriate in cases where the pleadings, depositions, answers to interrogatories, along with other discovery material and any affidavits, demonstrate there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law.  N.C. Gen. Stat. § 1A-1, Rule 56(c); Meadows v. Cigar Supply Co., 91 N.C. App. 404, 371 S.E.2d 765 (1988).  The issue is denominated ‘genuine’ if it may be maintained by substantial evidence.”  Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897 (1972).

1. Plaintiff Pilch provided this court with clear and cogent evidence of numerous FELONY violations of state and federal law and constitutions by all defendants which impact a class of others who were, are and will be similarly situated and is clearly entitled to Summary Judgment.

1. Where a party has moved for summary judgment, the non-movant may not rest on the allegations of his complaint.  “Once the movant indicates the absence of genuine issues of material fact, the non-movant, if [he] bears the burden of proof, is obligated to come forward with evidentiary materials of record sufficient to survive a motion for directed verdict.”  Miller v. Aluminum Co. of Am., 679 F. Supp. 495, 498 (W.D. Pa. 1988), aff’d, 856 F.2d 184 (3d Cir. 1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. d 265 (1986)). 

1. In addition, Rule 56(e) of the North Carolina Rules of Civil Procedure requires that affidavits filed in opposition to a motion for summary judgment must “set forth such facts as would be admissible in evidence.”  N.C. Gen. Stat. § 1A-1, Rule 56(e). 

1. When a motion for summary judgment is made and supported as provided in Fed. R. Civ. P.  56, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

1. None of Pilch’s defendants came forward with evidence to defend themselves as required by state and federal law or to make amends. Instead, all filed motions to dismiss, demonstrating reckless, willful and deliberate violation of her constitutional rights (and a class of other who were, are and will be similarly situated) and continued personal, professional and financial harm originating from FELONY violations of state and federal law by color of law actors in the Wake County Court.

1. Failure of Judge Malcolm Howard to provide Plaintiff Pilch with relief pursuant to the United States and North Carolina Constitutions and state and federal law constitutes bias and prejudice under 28 USC  § 455.

1. Judge Malcolm Howard is obliged to honor his oath to honor the U.S. Constitution pursuant to 28 USC  § 453 which states: Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States. So help me God.”

1. If Judge Malcolm Howard cannot or will not honor his oath to the United States Constitution, then he must recuse himself from the cases referenced herein because his impartiality may be questioned. See 28 U.S.C. § 455(b).

1. “When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost.” Rankin v. Howard, (1980) 633 F.2d 844, cert den. Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326.

1.  Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction.” Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872).

1. No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.” Ableman v. Booth, 21 Howard 506 (1859).

1. Finally, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”United States v. Reyes-Bosque, 596 F.3d 1017, 1035 (9th Cir. 2010); United States v. Miranda-Lopez, 532 F.3d 1034, 1040 (9^th Cir. 2008). Plaintiff provided Judge Howard with concrete evidence of felonies by the color of law defendants and detailed the harm caused to her and to a class of others who ever were, are or will be similarly situated.

III. PRAYER FOR RELIEF

Plaintiff Pilch is entitled to compensatory and punitive damages from all defendants for egregious, willful and continuous constitutional violations which have caused personal, professional and financial harm spanning over three years.  The violations of law also impact a class of others who ever were, are and will be similarly situated and potentially everyone who has ever been a misdemeanor defendant in N.C.

Pursuant to NCGS 1D, Plaintiff asks this Court to review her fiscal calculations for relief including compensatory and punitive damages and award damages accordingly.

  TABLE OF DISCOVERY/EVIDENCE

Civil Actions No. 5:11-CV-334, 335, 352, 360, 382-H

1. Fake “Transfer and Appeal” court documents fraudulently notarized by Wake County Court Clerk Lorrin Freeman and her staff.

1. Fake “Motion to Continue” court document signed by Judge Kristin Ruth. (Per NCGS §15A-606, the only pre-trial motion allowed in district court is a probable cause hearing).

1. Court Clerk Tonya Woodlief unlawfully changing cases status from disposed back to pending, setting new court dates triggering unlawful orders of arrest with excessive bail by Freeman.

1. Court Clerk Sandra Meyer charged Plaintiff for someone else’s DWI  and costs in excess of what is allowed by law.

1. Evidence of perjury and false statement  by SBI notary Joyce Davin.

1. Serology sample document contains 2 citation numbers; neither belonged to Plaintiff.

1. Evidence that SBI misdemeanor serology unit left serology sample at room temperature for over three months  without preservative.

1. Letter from AG office stating  that SBI doesn’t use preservatives  for DWI serology samples.

1. Screenshot showing that no court form exists to allow a defendant to plead NOT GUILTY in NC district courts (denial of due process).

1. AOC Court form AOC-G-106 allows murder trials in district court at first setting (violation of NCGS §15A-606 and NCGS §7A-196 and due process).

1. Corrections to AOC court form AOC-G-106.

1. Judge Donald Stephens ORDER dismissing Pilch’s Motion for Relief.

1. NCGS §7A-105, 109: Wake Court recordkeeping duty of Lorrin Freeman & Donald Stephens.

1. N.C. Notary Laws: NCGS Chapter 10B.

1. Federal laws violated & referenced: 18 USC §494, §505, §514, §1001.

1. NCGS §1D: Compensatory and Punitive Damages

1. Whitepaper: How to Write a Judgment.