Supreme Court of the United StatesOffice of the Clerk

Washington, DC 20543-0001

January 11, 2011

William K. SuterClerk of the Court(202) 479-3011

Mr. H. William Van Allen351 North RoadHurley, NY 12247

Re: H. William Van Allen, Christopher Earl Strunk, and John-JosephForjonev. Thomas J. Spargo, et al.Application No. 10A695

Dear Mr_Van Allen:

The application for an extension of time within which to file a petitionfor a writ of certiorari in the above-entitled case has been presented toJustice Ginsburg, who on January 11, 2011 extended the time to andincluding March 14, 2011-

This letter has been sent to those designated on the attachednotification list.

Sincerely,

William ~ 87' Clerkby [-~ -.

!Erik FossumCase Analyst

The Court Clerk's OfficeSupreme Court of the United States1First Street, N. E.Washington, DC 20643

John-Joseph: Forjone in esseChristopher-Earl: Stnmk: in ese9H. William Van Allen in essedo 351 North RoadHurley New York 12443(845)-901-6767, fax (845) 8538182

Subject: In He 28 use 2101 (c)Application for Extension of Time to FilePetition for Writ of Certiorari to the United States Court Of Appeals for theSecond Circuit Appeal 08-4323-cv under SCOTUS Rule 13.5 and Rule 22

Dear Clerk of the Court.

We, John-Joseph:Forjone in esse, Christopher-Earl: Strunk in esse, and H.William. VanAllen in esse, are self represented without one being an attorney, and jointly request a 60-day extension of time from February 3, 2011 to April 4, 2011 to file our joint Petition for aWrit of Certiorari under 28 USC 2101 (c) for 2" Circuit Appeal 08-4323-cv.

As per the requitementsofSCOTUS Rule 22, attached :furreview by the Honorable RuthBader Ginsberg, ASsoclateJustice of the Supreme Court of the United States, supemsingthe United States Court ofAppeals for the Second Circuit the following:

• One Original and two copies of the Petition for 6O.day Time Extension to file apetition for Writ of Certiorari in re 2"d CirCuit Appeal 08-4323-cv

• The Certificate of Service

Dated: January 3,2011Lake Luzern New York

2f ~Dated: January j, 2011

Brooklyn New York

Dated: January 3, 2011Hurley New York

00:

The Solicitor General of the United StatesRoom 56 14 Department of Justice950 Pennsylvania Avenue. N. W.WBabington. DC 20530-0001

Respectfully submitted,

Solicitor General of the State of New YorkOffice of Attomey General of New YorkThe CapitolAlbany, New York 12224-0341

No. _

In The Supreme Court of the United States

H. William Van Allen, John-Joseph Forjone, Christopher Earl Strunk,

Petitioners,

v.

Thomas J. Spargo, et al.

Respondent(s)

APPLICATION FOR EXTENSION OF TIME TO FILEPETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECONDCIRCUIT

John-Joseph: Forjone in esseChristopher-Earl: Strunk in esseH. William Van Allen in esseself represented without an attorneyclo 351 North RoadHurley New York 12443(845)-901-6767, fax (845) 853 8182

Respondents:

Solicitor General of the United StatesRoom 561 4 Department of Justice950 Pennsylvania Avenue. N.W.Washington. DC 20530-0001

Solicitor General of the State of New YorkOffice of Attorney General of New YorkThe CapitolAlbany, New York 12224-0341

Table of Contents Page

Petitioners Joint Declaration in support of relief for Petitioners 2

Relief Requested:

28 USC §2101(c) 60-day time extension to file a petition for a writ ofcertiorari.. . 2

SCOTUS Rules:

Rule 13.5. application for 60-day time extension to file a petition for a. f . . 3writ 0 certiorari. .

Rule 22. application to a single associate justice 3

Cases:

WMCA, Inc. v. Lomenzo, 377 U.S. 633 (June 15, 1962) 3

Statutes:

28 USC §2284 - Three Judge Panel42 USC 1973-C - Voting Rights Act review of procedure changes (VRA)42 USC 1973 gg - 1993 National Voter Registration Act (NVRA)

New York State Constitution

New York State Constitution (NYSC) Article 3 redistricting .4NYSC Article 9 Local Municipal Government .4

ATTACHMENT:

2nd Circuit Mandate filed November 5, 2010 in 08-4323-cv

1

APPLICATION FOR EXTENSION OF TIME TO FILEPETITION FOR WRIT OF Certiorari TO THE

UNITED STATES COURT OF APPEALS FOR THE SECONDCIRCUIT

To the Honorable Ruth Bader Ginsberg, Associate Justice of theSupreme Court of the United States, supervising the United StatesCourt ofAppeals for the Second Circuit.

We, John-Joseph: Forjone in esse, Christopher-Earl: Strunk in esse, and

H. William Van Allen in esse state, under penalty of perjury with 28

USC §1746.

That We, John-Joseph: Forjone in esse, Christopher-Earl: Strunk

in esse, and H. William Van Allen in esse, are self represented without

one being an attorney, and jointly request a 60-day extension of time

from February 3, 2011 to April 4, 2011 to file our joint Petition for Writ

of Certiorari under 28 USC 2101 (c) for 2" Circuit Appeal 08-4323-cv.

That the Appeal Case 08-4323-cv final judgment and Mandate

dated November 5, 2010 (see attached) from the United States Court of

Appeal for the Second Circuit entered November 5,2010 after denial of

reconsideration on October 5, 2010, and that the date Petition for Writ

of Certiorari will expire February 3,2011.

2

That this application under Rule 22 is being filed 14 days prior to

that due date.

Pursuant to Rule 13.5, this application to extend the time to tile a

petition for a writ of certiorari is respectfully submitted for the

following reasons:

We require additional time to become familiar with the 2010

Census allotment issued on or about December 24, 2010, as it effects

upon the various Plaintiffs resident within municipalities and the

ability of Petitioners to jointly prepare the petition for certiorari.

a. By 1966, WMCA, Inc. v. Lomenzo, 377 U.S. 633 (June 15, 1962)

cases pre-cleared New York State Constitution (NYSC)

redistricting / suffrage practice.

b. The 2002 arbitrary practice of redistricting w/o NYSC

redistricting I suffrage rules done without section 5 pre-clearance

for the Voting Rights Act of 1965 (VRA).

c. 1992 redistricting Hamilton County elected with Fulton County

but not in 2002; and each subdivision to receive at least one

Assembly seat as a metric for increase of the Assembly under one

person one vote requirements using all the inhabitants including

3

citizens and permanent resident aliens of any age.

d. The 1993 National Voter Registration Act (NVRA)nationalizing of

the State Voter Database was never pre-cleared to replace NYSC

redistricting practice with primary use of the Decennial Census

tracts per se, is a discernable claim.

e. Court neglected to review the NYSCArticle IX §2(e)as to the NYC

"territory" .

f. 28 USC §2284 three-judge panel applies with 42 USC §1973-C

violation.

g. Circuit may not modify Three-Judge Panel decision w/o SCOTUS

direction.

h. Declaratory Judgment and equity relief is required regarding the

arbitrary change of NYSCredistricting rules done w/o section 5

pre-clearance for VRA.

This case presents a significant aspect of the present government

crisis in New York as a result of unconstitutional redistricting practice

done by the New York State Legislature and Executive starting no later

than the April 2002 redistricting ofAssembly, Senate and New York

U.S. House ofRepresentative districts effecting the election of State

4

Justices and thereby undermines citizen subsidiarity in their local

municipal Homerule guarantee with NYSC Article 9 and related law.

Based upon the foregoing We state under penalty of perjury with 28

use §1746, request a 60-day extension of time to file Petitioners' joint

Petition by April 4. 2011. Respectfully submitted,

Dated: January 3, 2011Lake Luzern New York

IfDated: January j, 2011

Brooklyn New York

Dated: January 3, 2011Hurley New York

Christopher-Earl: Strunk in esse

£~~self represented without an attorneyc/o 351 North RoadHurley New York 12443(845)-901-6767, fax (845)853 8182

00:

Respondents:Solicitor General of the United StatesRoom 561 4 Department of Justice950 Pennsylvania Avenue. N.W.Washington. DC 20530-0001

Solicitor General of the State of New YorkOffice of Attorney General of New YorkThe CapitolAlbany, New York 12224-0341

5

08-4323-cvLoeber v. Spargo

UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT

SUMMARY ORDERRULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDERFILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OFAPPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDERIN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR ANELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARYORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at theDaniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,on the zr: day of August, two thousand ten.

PRESENT:ROSEMARY S. POOLERROBERT D. SACK,REENA RAGGI,

Circuit Judges.

Ronald G. Loeber, et al.,

Plaintiffs,

H. William Van Allen, Christopher Earl Strunk, John-Joseph Forjone,

Plaintiffs-Appellants,

v. 08-4323-cv

Thomas J. Spargo, individually and as Justice of theNYS Supreme Court, et al.,

Defendants-Appellees.

Christopher Earl Strunk,pro se, Brooklyn, NY,for Plaintiff-Appellant Strunk.

H. William Van Allen,pro se, Hurley, NY,for Plaintiff-Appellant Van Allen.

John-Joseph Forjone, pro se, Clarendon, NY,for Plaintiff-Appellant Forjone.

Andrew Cuomo, Attorney General of the State of New York; Denise A. Hartman,Assistant Solicitor General; Andrew B. Ayers, Assistant Solicitor General,Albany, NY,for State Defendants-Appellees.

Christopher C. Wang, Attorney; Mark L. Gross, Attorney; Thomas E. Perez,Assistant Attorney General; United States Department of Justice, Civil RightsDivision, Washington, DC,for Federal Defendants-Appellees.

Fay Ng, Assistant Corporation Counsel; Michael A. Cardozo, CorporationCounsel; The City of New York, Law Department, New York, NY,for CityDefendants-Appellees.

Todd D. Valentine, State of New York Board of Elections, Albany, NY,forDefendants-Appellees New York State Board of Elections and Kosinski.

No appearance, for Defendants-Appellees National Association of Secretaries ofState and Ostego County Board of Elections. See Fed. R. App. P. 31(c).

Appeal from a judgment and order of the United States District Court for the NorthernDistrict of New York (Kahn, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, ANDDECREED that the judgment and order of the district court are AFFIRMED.

Plaintiffs-Appellants Strunk, Forjone, and Van Allen, proceeding pro se, appeal thedistrict court's judgment dismissing their amended complaint alleging that a 2002 planreapportioning and redistricting New York State's legislative districts was unconstitutional underthe constitutions of the United States and New York State. Strunk also appeals from the districtcourt's post-judgment order denying his motion for reconsideration of the underlying July 2008dismissal order. We assume the parties' familiarity with the underlying facts, the proceduralhistory of the case, and the issues on appeal.

We review de novo a district court's dismissal for failure to state a claim under FederalRule of Civil Procedure 12(b)(6), "construing the complaint liberally, accepting all factualallegations in the complaint as true, and drawing all reasonable inferences in the plaintiff[s']favor." Chambers v. Time Warner, Inc., 282 F.3d 147,152 (2d Cir. 2002). A complaint mustplead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v.Twombly, 550 U.S. 544, 570 (2007). A claim will have facial plausibility "when the plaintiffpleads factual content that allows the court to draw the reasonable inference that the defendant isliable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

2

As an initial matter, because Appellants' opening brief fails to challenge the districtcourt's January 2008 dismissal of their claims based on the False Claims Act and the HelpAmerica Vote Act, they have waived any such challenge. See LoSacco v. City of Middletown, 71F.3d 88,92-93 (2d Cir. 1995); see also Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998)("Issues not sufficiently argued in the briefs are considered waived and normally will not beaddressed on appeal."); JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C. V., 412F.3d 418,428 (2d Cir. 2005) ("[A]rguments not made in an appellant's opening brief are waivedeven if the appellant pursued those arguments in the district court or raised them in a replybrief."). Additionally, because Appellants' opening brief does not challenge the January 2008dismissal of their claims against any defendants other than the State Defendants, they havesimilarly waived any such challenge. See Losacco, 71 F.3d at 92-93.

Appellants argue that the district court erred by adjudicating their amended complaint asa single judge, instead of having it adjudicated by a three-judge panel pursuant to 28 U.S.c.§ 2284. Section 2284 provides that "[a] district court of three judges shall be convened ... whenan action is filed challenging the constitutionality of the apportionment of congressional districtsor the apportionment of any statewide legislative body." 28 U.S.c. § 2284(a) (emphasis added).Although section § 2284 is jurisdictional, "it has long been held that a single judge may dismissa claim that must normally be heard by a three-judge court if it is "insubstantial." Kalson v.Paterson, 542 F.3d 281,287 (2d Cir. 2008) (citing McLucas v. DeChamplain, 421 U.S. 21,28(1975)). "An insubstantial federal claim is not a claim validly brought under federal law." Id.(emphasis in original). The Supreme Court has described an insubstantial claim as one"'obviously without merit or clearly concluded by [the Supreme Court's] previous decisions."Id. at 288 (quoting McLucas, 421 U.S. at 28). We conclude that the claims were insubstantial,and, thus, the district court properly dismissed the amended complaint without transferring it to athree-judge panel. The claims in the amended complaint were barely comprehensible, and theonly portions of the claims that could be intelligibly discerned from it were alleged violations ofthe New York State Constitution, not federal law. See McLucas, 421 U.S. at 28; Kalson, 542F.3d at 287.

We further conclude that the district court properly dismissed the amended complaint.An independent review of the amended complaint confirms that it did not present anydiscernable federal constitutional claim related to reapportionment. While Appellants clearlyinvoked their federal constitutional rights to equal protection and substantive due process, it isdifficult to discern the theory connecting that invocation to their claim that the 2002 redistrictingshould have been limited to the "citizen voting age population," rather than the "voting agepopulation." Additionally, the amended complaint did not make clear how Appellants wereinjured by the State Defendants' actions, but appeared to imply that their votes were diluted bythe inclusion of aliens for the purposes of apportionment. In any event, the claim rests on thefalse assumption that the New York State Constitution requires that apportionment of the stateassembly and senate be based upon "inhabitants, excluding aliens." That phrase still exists in thetext of Art. 3, §§ 4 (for apportionment of senate seats) and 5 (for apportionment of assemblyseats), but Art. 3, § 5-a was subsequently amended to provide that "[fjor the purpose ofapportioning senate and assembly districts pursuant to the foregoing provisions of this article,

3

the term 'inhabitants, excluding aliens' shall mean the whole number of persons." N.Y. Const.Art. 3, § 5-a. Thus, the claim failed to plausibly state a claim upon which relief may be granted,and the district court properly dismissed it.

Appellants' other principal claim stemmed from their contention that the 2002redistricting plan's provision of26 senators to New York City violated the New York StateConstitution requirements that "[n]o county shall have more than one-third of all the senators"and "no two counties ... which are adjoining counties ... shall have more than one-half of allthe senators.'" N.Y. Const. Art. 3, § 4. As the district court correctly noted, Appellants'argument erroneously assumed that New York City was a single county. In their brief,Appellants acknowledge that New York City is more than a single county, but they argue thatNew York City's five counties are counties in name only and that, in essence, they operate as asingle entity. Even if these claims were true, the argument still fails because the relevantrequirements of Art. 3, § 4 speak only of counties, not "entities," de facto counties, or anythingelse. Thus, the claim was properly dismissed.

Finally, we review for abuse of discretion a district court's order denying a Rule 60(b)motion for reconsideration. See Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724,729 (2d Cir. 1998). "A district court would necessarily abuse its discretion if it based its rulingon an erroneous view of the law or on a clearly erroneous assessment of the evidence." Id.(internal quotation marks omitted). Relief pursuant to Rule 60(b) is available only in"exceptional circumstances." Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008)(internal quotation marks omitted).

After an independent review of the record, we conclude that the district court did notabuse its discretion in denying Strunk's reconsideration motion, and we agree with the districtcourt that the motion sought solely to relitigate issues that had already been decided. We alsoreject Strunk's arguments that the district court judge erred by failing to recuse himself andanswer certain questions about purported bias that Strunk posed in the reconsideration motion.Section 455 of Title 28, United States Code, provides in relevant part that any judge "shalldisqualify himself in any proceeding in which his impartiality might reasonably be questioned."28 U.S.c. § 455(a). The relevant question is whether "a reasonable person, knowing all thefacts, [would] conclude that the trial judge's impartiality could reasonably be questioned"United States v. Amico, 486 F.3d 764, 775 (2d Cir. 2007) (internal quotation marks omitted).However, "judicial rulings alone almost never constitute valid basis for a bias or partialitymotion," and "opinions formed by the judge on the basis of facts introduced or events occurringin the course of the current proceedings, or of prior proceedings, do not constitute a basis for abias or partiality motion unless they display a deep-seated favoritism or antagonism that wouldmake fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555 (1994).

Here, we conclude that Strunk failed to show that the district court's "impartiality couldreasonably be questioned." Amico, 486 F.3d at 775. Furthermore, nothing in the record indicatesthat the district court acted partially or "display[ ed] a deep-seated favoritism or antagonism thatwould make fair judgment impossible." Liteky, 510 U.S. at 555.

4

We have considered Appellants' remaining arguments and fmd them to be without merit.Accordingly, we AFFIRM the judgment and order of the district court.

FOR THE COURT:Catherine O'Hagan Wolfe, Clerk

5

UNITED STATES COURT OF APPEALSFORTHE .

SECOND CIRCUIT

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the DanielPatrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 13thday of October, two thousand and ten,

Before: ROSEMARY S. POOLER,ROBERT D. SACK,REENA RAGGI,

Circuit Judges.

Ronald G. Loeber, et aI.,

Plaintiffs,

-

v.

H. William Van Allen, Christopher Earl Strunk, John-Joseph Forjone,

. Plaintiffs-Appellants,

ORDERDocket Number: 08-4323-cv

Christopher-Earl Strunk having filed a petition for panelrehearing and the panel that determined theappeal having considered the request,

IT IS HEREBY ORDERED that the petition is denied.For the Court:Catherine O'Hagan Wolfe, Clerk

4~Ralph Obas, Deputy Clerk

08-4323-cvLoeber v. Spargo

UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT

SUMMARY ORDER" "

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDElNTtAt. EFFECT. CITATION TO A ·SUMMARYORDERFILED ON OR AFTER JANUARY 1, 2007, IS PERMtTTED AND IS GOVElRNED liiY FED'ERAL RULE OFAPPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. "HEN CrrlNG A SUMMARYORDERIN A DOCUMENT FILED wrre THrs COURT, A PARTY M11ST"CITEEITBERTBEFEDERAL APPENDIX OR ANELECTRONIC DATAaASE (WITH THE NOTATION "SUMMARY 'ORDER") . A PARTY C1TING TO A SUMMARYORDER MUST SERVE A COPY OF IT ON ANY PARry Nor RElPRESENTED BY COUNSelL.

At a stated term of the United States Court of APpeals for the Second Circuit, held at theDaniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,on the 27th day of August, two thousand ten.

PRESENT:ROSEMARY S. POOLERROBERT D. SACK,REENA RAGGI,

Circuit Judges.

Ronald G. Loeber, et al.,

Plaintiffs,

H. William Van Allen, Christopher Earl Strunk, John-Jeseph Forjone,

Plaintiffs-Appellants,

v. 08-4323-cv

Thomas J. Spargo, individually and as Justice of theNYS Supreme Court, et al. ,

Defendants-Appellees.

Christopher Earl Strunk, pro se, BrooklYn, NY,for Plaintiff-Appellant Strunk.

H. William Van Allen, pro se, Hurley, NY,for Plaintiff-Appellant Van Allen.

Supreme Court of the United States in re

SCOTUS Rule 13.5 and Rule 22 Application for Extension ofTime

CERTIFICATE OF SERVICE

On January 5,2011, H. William Van Allen, under penalty of perjury

pursuant to 28 USC 1746. caused the service of' Two (2) complete sets of

the APPLICATION FOR EXTENSION OF TIME TO FILE

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

endorsed January 4,2011 with annexed Exhibit as a complete set

placed in a sealed folder properly addressed with proper postage served

by USPS mail upon:

The Solicitor General of the United StatesRoom 5614 Department of Justice950 Pennsylvania Avenue. N.W.Washington, DC 20530-0001

Solicitor General of the State of New YorkOffice ofAttorney General of New YorkThe CapitolAlbany, New York 12224-0341

I do declare and certify under penalty of perjury:

Dated: January 5,2011Hurley, New York

H illiam Van Alleno 351 North Road