Petition for Writ of Certiorari — José Yeyille, Petitioner v. Miami-Dade County Public Schools, et al.
Supreme Court briefApr 21, 2020
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IN THE
SUPREME COURT OF THE UNITED STATES
JOSE YEYILLE —PETITIONER
vs.
MIAMI-DADE COUNTY PUBLIC SCHOOLS; et al—RESPONDENTS
ON PETITION FOR A WRIT OF CERTIORARI TO
UNITED STATES ELEVENTH CIRCUIT COURT OF APPEALS
PETITION FOR WRIT OF CERTIORARI
Jose Yeyille
5505 SW 135th Court
Miami, Florida 33175
786-201-6142
QUESTIONS PRESENTED
1. Whether the district court appropriately resolved genuine issues of
disputed facts; correctly applied legal conclusions; and provided any statement
explaining its dismissal of the Complaint that would facilitate any remotely
cut
intelligent appellate review”””. Denton v. Hernandez, 504 U.S. 25, 34 (1992).
2. Whether the summary disposition by the Eleventh Circuit Court of
Appeals of Petitioner’s Permission to Appeal In Forma Pauperis and Fed. R. App.
P. 24(a)(5) Motion to Proceed In Forma Pauperis was justified under Coppedge v.
United States, 369 U.S. 438 (1962) and Cruz v. Hauck, 404 U.S. 59 (1971).
LIST OF PARTIES
All parties do not appear in the caption of the case on the cover page.
A list of all parties to the proceeding in the court whose judgment is the
subject of this petition is as follows:
Armandina Acosta Leon
Lisa Robertson
Asuncion Valdes
Egna Rivas
Alberto Carvalho
The School Board of Miami-Dade County, Florida
(Miami-Dade County Public Schools)
RELATED CASES
Jose Yeyille v. Miami-Dade County Public Schools, et al.,
19-14895 (2020) (Without opinion)
Jose Yeyille v. Miami-Dade County Public Schools, et al.,
14-24624-CIV (2019)
Jose Yeyille v. Miami-Dade County Public Schools, et al.,
14-24624-CIV (2019) (Paperless Order without opinion regarding Judge
Altonaga’s recusal, and the Court of Appeals for the Eleventh Circuit’s mandate,
Plaintiffs Motion for reconsideration is DENIED AS MOOT)
Jose Yeyille v. Miami-Dade County Public Schools, et al.,
15-15548 (2016), 654 Appx. 394 (11th Cir. 2016)
TABLE OF CONTENTS
OPINIONS BELOW
1
JURISDICTION
1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.......2
STATEMENT OF THE CASE
3
REASONS FOR GRANTING BRIEF
12
CONCLUSION
20
INDEX TO APPENDICES
APPENDIX A (Jose Yeyille v. Miami-Dade County Public Schools, et al.,
19-14895 (2020))
APPENDIX B (Jose Yeyille v. Miami-Dade County Public Schools, et al.,
14-24624-CIV (2019))
APPENDIX C (Jose Yeyille v. Miami-Dade County Public Schools, etal.,
14-24624-CIV (2019)(Paperless Order)
APPENDIX D (Jose Yeyille v. Miami-Dade County Public Schools, et al.,
15-15548 (2016), 654 Appx. 394 (11th Cir. 2016))
TABLE OF AUTHORITIES CITED
CASES
PAGE NUMBER
Bankers Mortgage Company v. United States, 423 F.2d 73,
(5 th Cir. 1970)..............................................................................................
8,13
Bilial v. Driver, 251 F.3d 1346 (11th Cir. 2001).......................................
15
Blohm v. Comm'r of Internal Revenue, 994 F.2d 1542 (11th Cir. 1993)
9
Blonder-Tongue v. University Foundation, 402 U.S. 313 (1971)..........
10,22
Brown v. Felsen, 442 US 127 (1979)..................
9,10
Coppedge v. United States, 369 U.S. 438 (1962)
15,17,18,19,20,22,23
Cruz v. Hauck, 404 U.S. 59 (1971).....................
................... ,18,21,22
Cutter v. Wilkinson,544 U.S. 709 (2005).............
22
Denton v. Hernandez, 504 U.S. 25 (1992)..........
12,14,15,16
F. Hofpmann-La Roche, Ltd. V. Empagran, S.A., 542 U.S. 155 (2004)
.22
Farley v. United States, 354 U.S. 521 (1957)..........................................
19
Harris v. Washington, et al., 404 U.S. 55 (1971)....................................
10,22
Hazel-Atlas Glass Co., v. Hartford-Empire., 322 U.S. 238 (1944).......
20
Jefferson County v. Acker, 92 F.3d 1561 (11th Cir. 1996)...................... 16,17,19
Kerwit Med. Products v.N & H Instruments, 616 F.2d 833 (5th Cir. 1980)
9
Liljeberg v. Health and Services Acquisition Corp., 486 U.S. 847 (1988)....8,13
Louie M. Schexnayder, Jr. v. Darrel Vannoy Warden, 589 U.S.__
(2019), No. 18-8341 [Dec. 9, 2019] (The petition for a writ of
certiorari is denied)........................................................................
21
Napier v. Preslicka, 314 F.3d 528 (11th Cir. 2002)....................
11,15,18
Neitzke v. Williams, 490 U.S. 319 (1989)....................................
....12,17
Retirement Plans Committee of IBM, et al. v. Larry W. Jander,
et al., 589 U.S.
(2019), No. 18-1165 [January 14, 2020]
22
Romer v. Evans, 517 U.S. 620 (1996).................................................
18
Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir. 1978).................
8,10,13
Standard Oil of California v. United States, 429 U.S. 17 (1976).....
9,14
Turmey v. Ohio, 273 U.S. 510 (1927)..................................................
10
United States v. Beggerly, 524 U.S. 38 (1998)...................................
20,22,23
United States v. New Mexico, 455 U.S. 720, 102 S. Ct. 1373(1982)
16,17,19
Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016)........
....10,22
STATUTES AND RULES
United States Constitution, Amendment V
18,21
United States Constitution, Amendment VII
17,21
28 U.S.C. § 1915(a)(3)....
28 U.S.C. § 1915(d)........
28 U.S.C. § 1915(e)(B)(i)
11,13,15
.12,13
13,16,19
FED. R. APP. P. 24(a)(5)
FED. R. CIV. P. 60(b)(6)
FED. R. CIV. P. 60(d)(1)
FED. R. CIV. P. 60(d)(3)
..11,16,19
6,8,13,22
22
22
RULE 10(C) OF THE SUPREME COURT
OF THE UNITED STATES (2019).............
OTHER
Posner: Mostjudges regard pro se litigants as ‘kind of trash not worth the
time. ’ ABA Journal, by Debra Cassens Weiss.
September 11, 2017, 11:57 AM...................................................................... 21
12
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment
below.
OPINIONS BELOW
[X] For cases from federal courts:
The opinion of the United States court of appeals appears at Appendix A to
the petition and is [X] unpublished. [This Case, February 7, 2020]
The opinion of the United States court of appeals appears at Appendix D to
the petition and is reported at 654 Appx. 394 (11th Cir, 2016) [First Appeal]
The opinion of the United States district court appears at Appendix B to
the petition and is [X] unpublished. [December 16, 2019]
The opinion of the United States district court appears at Appendix C to
the petition and is [X] unpublished. [December 2, 2019]
JURISDICTION
[X] For cases from federal courts:
The date on which the United States Court of Appeals decided my case was
February 7, 2020.
[X] No petition for rehearing was timely filed.
The date on which the United States Court of Appeals decided my first appeal
was May 31th, 2016.
1
[X] No petition for rehearing was timely filed.
The jurisdiction of this Court is invoked under 28 U.S.C. §1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
United States Constitution, Amendment V. “[N]or shall any state deprive
any person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.
United States Constitution, Amendment VII. “In suits at common law, where the
value in controversy shall exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by jury, shall be otherwise reexamined in any court of
the United States, than according to the rules of the common law.”
(
2
STATEMENT OF THE CASE
In December 8, 2014,1 Petitioner brought a lawsuit to recover $46,431 of
federal funds in unpaid salary, and for compensatory and treble damages
against The School Board of Miami-Dade County, Florida, ALBERTO
CARVALHO, Lisa Robertson, Armandina Acosta-Leon, Asuncion-Valdes,
and Egna Rivas in their individual and official capacities for their violation of
Plaintiffs civil rights—discrimination, retaliation, and harassment—and
extortion, forced labor, and human trafficking. Defendants were represented
by The School Board of Miami-Dade County, Florida’s attorney, WALTER
HARVEY. [Hereinafter “Motion/Petitions”][Motion/Petitions, page 3].
At all relevant times George Mencio Jr. was CECILIA ALTONAGA’s
husband. At all relevant times George Mencio Jr. was employed by the law firm
of Holland & Knight, LLP. [Motion/Petitions, page 3].
CECILIA ALTONAGA offered to WALTER HARVEY and ALBERTO
CARVALHO to dismiss Petitioner’s lawsuit with prejudice in exchange for their
promise to hire, and to give Petitioner’s money to, the law firm of Holland &
Knight, LLP to represent The School Board of Miami-Dade County, Florida.
i
The Motion and Petitions erroneously state the date as December 4, 2014.
3
Aware that CECILIA ALTONAGA’s husband is employed by the law firm of
Holland & Knight, LLP, WALTER HARVEY and ALBERTO CARVALHO
accepted her offer and promised her to hire the law firm of Holland & Knight,
LLP immediately; but CECILIA ALTONAGA advised them that as a precaution,
and for the sake of appearances, that they should wait until after she dismissed
Petitioner’s lawsuit with prejudice. WALTER HARVEY and ALBERTO
CARVALHO agreed with CECILIA ALTONAGA’s concerns and promised her
to hire, and to give Petitioner’s money to, the law firm of Holland & Knight,
LLP as soon as possible after she dismissed Petitioner’s lawsuit with prejudice.
[Motion/Petitions, page 3 and 4].
In June 15th, 20152 judge CECILIA ALTONAGA dismissed Plaintiffs
lawsuit with prejudice. (Yeyille v. Miami-Dade County Public Schools, et al.,
U.S. District Court Case No. 14-24624-CIV ALTONAGA/O’Sullivan (S.D.
Fla. 2015) [Motion/Petitions, page 4],
In July, 2015, WALTER HARVEY, the School Board Attorney, “requested
proposals from qualified law firms to provide...legal services” for The School Board
of Miami-Dade County, Florida. (G-5: Authorization for the School Board
2
The Motion and Petitions erroneously state the date as May 15, 2014.
4
Attorney to Retain Public Private Partnership Legal Counsel)(“Emphasis”).
WALTER HARVEY and Superintendent ALBERTO CARVALHO
“agreed that the most qualified law firms were Greenberg Traurig, PA, and
Holland & Knight, LLP.” (Ibid) (Emphasis)[Motion/Petitions, pages 4 and 5].
In November 6th, 2015 HARVEY and CARVALHO made a request to The
School Board “to retain Greenberg Traurig and Holland & Knight to provide legal
assistance and to represent the School Board in developing public private
partnerships and to be compensated at a blended rate of $425 per hour to partners
and associates.’’(Ibid) [Motion/Petitions, page 5].
In November 16th, 2015 CARVALHO informed the Honorable Chair and
Members of The School Board of Miami-Dade County, Florida that: “At the
request of Mr. Walter J. Harvey, School Board Attorney, the attached Agenda
Item G-5 is being withdrawn from the November 18, 2015 Agenda for further
consideration.” (WITHDRAWN—11-16-15 G-5) [Motion/Petitions, page 5].
In November 20th, 2015 HARVEY and CARVALHO “recommended the
selection of the law firm Holland & Knight, LL.P. The proposed compensation
is a blended rate of $394 per hour for both partners and associates. Another very
qualified firm, Greenberg Traurig, already has an existing agreement with the
Board at the same rates. Authorization is therefore requested to retain Holland
5
& Knight, LL.P.” (G-2 Revised: Authorization for the School Board Attorney
to Retain Public Private Partnership Legal CounseD(Emphasis) [Motion/
Petitions, page 5].
In December 2nd, 2015 the School Board authorized HARVEY “to retain
Holland & Knight LL.P to provide legal assistance and to represent the
School Board in developing public private partnerships and to be compensated
at a blended rate of $394 per hour for partners and associates.” (Excerpts
from Unofficial Minutes of December 2, 2015 School Board Meeting).
WALTER HARVEY retained Holland & Knight LL.P to provide legal
assistance and to represent the School Board in developing public private
partnerships and to be compensated at a blended rate of $394 per hour for
partners and associates. Since then HARVEY and CARVALHO have
continuously compensated Holland & Knight LLP in an amount higher than
$10,000 and threaten to continue to do so. [Motion/ Petitions, page 6].
In October, 2019 Plaintiff learned about the facts and occurrences in
paragraphs 6 and 14 (svpra.) [Motion/ Petitions, page 6].
In December 4, 2015 Petitioner submitted a Motion pursuant to Fed.R.Civ.P.
60(b)(6) demanding the retroactive disqualification and recusal of judge
ALTONAGA pursuant to 28 U.S.C. 455(a) and Relief of her Order dismissing
6
Petitioner’s Third Amended Complaint with prejudice. In December 4, 2015
judge ALTONAGA denied Petitioner’s Motion; whereupon Petitioner appealed.
[Motion/Petitions, page 6].
In April, 2016, the United States Court of Appeals for the Eleventh Circuit
issued an Order, signed by Circuit Court Judge Frank Hull, denying Plaintiffs
Request to Correct or Modify the Record with the exhibit containing facts alleged
in paragraphs 12 and 13 (svpra.). Affirming judge ALTONAGA’s refusal to
recuse and vacate her judgment, the panel of the Court of Appeals composed of
Circuit Judges Wilson, Martin, and Jill Pryor denied Petitioner’s motion to
supplement the record on appeal [pages 2-3—footnote 2—, and page 5)
[APPENDIX A] [Motion/Petitions, pages 12 and 13]:
On appeal, Yeyille also moved to supplement the record with
a school board memorandum and meeting minutes. We may
allow a party to supplement the record on appeal if this would
“aid [in] making an informed decision.” Schwartz v. Millon
Air, Inc.. 341 F.3d 1220, 1225 n.4 (11th Cir. 2003).
Neither of these documents would aid in making our decisions.
The memorandum is a slightly revised version of one Yeyille
included in his Rule 60(b) motion, and none of the revisions
are relevant to Yeyille’s recusal claim. The meeting minutes
show that the law firm of Holland & Knight was ultimately
retained by the school board, but this fact does not aid in
considering Yeyille’s recusal claim.” (pages 2-3)................
Yeyille’s motion to supplement the record on appeal is
DENIED, (page 5).Yeyille v. Miami-Dade County Public
Schools, No.15-155548 (5-31-2016).
7
In November 27, 2019, Petitioner submitted a Fed. R. Civ. P. 60(b)(6) Motion
for Retroactive Disqualification and Recusal of judge ALTONAGA pursuant to
28 U.S.C. §455(a)3 and 28 U.S.C. §455(b)(l)(4)(5)(iii); and Petitions for her
retroactive disqualification and recusal, and for relief of her Order, and the U.S.
Eleventh Circuit Court’s judgment, dismissing Petitioner’s Third Amended
Complaint with prejudice pursuant to Fed.R.Civ.P. Rule 60(b)(6), 60(d)(1)4, and
60(d)(3)5. [Motion/Petitions, pages 6-7-8-9]6.
3 Liljeberg v. Health and Services Acquisition Corp., 486 U.S. 847, 861-4
(1988).
4 Bankers Mortgage Company v. United States, 423 F.2d 73, 77-78 (5th Cir.
1970)
5
Rozier v. Ford Motor Co., 573 F.2d 1332,1338 (5th Cir. 1978).
6 Petitioner’s Fed. R. Civ. P. 60(b)(6) Motion sought retroactively to disqualify
and recuse judge Altonaga and assign Plaintiffs case to another judge (Liljeberg
v. Health and Services Acquisition Corp., 486 U.S. 847, 863-4 (1988)).
Petitioner’s Petitions requested that the District Court, and the U.S. Eleventh
Circuit Court of Appeals exercise their supervisory power over its judgment
pursuant to Fed. R. Civ. P. 60(d)(1) “to entertain an independent action to relieve
a party from a judgment, order, or proceeding.” Bankers Mortgage Company v.
United States, 423 F.2d 73, 77-78 (5th Cir. 1970); and Fed. R. Civ. P. 60(d)(3)
to “set aside” the Circuit Court of Appeals’ “judgment for fraud on the court”
retroactively to disqualify and recuse judge Altonaga and assign Plaintiffs case
to another judge, and reopen his case. Rozier v. Ford Motor Co., 573 F.2d 1332,
1337-1338 (5th Cir. 1978).
8
In addition to the factual allegations in paragraphs 12 and 13 (svpra.)—which
the Circuit Court rejected and ignored—, Petitioner’s Motion/Petitions include
factual allegations of criminal activity between judge ALTONAGA, HARVEY,
and CARVALHO in paragraphs 6 and 14 (svpra.) unknown to Plaintiff before
October, 2019, to-wit: bribery, obstruction of justice, money laundering, engaging
in monetary transaction derived from them, and conspiracy to accomplish them.
[Motion/Petitions, page 13].
The District Court judge does not need appellate leave to reopen a case which
has been reviewed on appeal. Standard Oil Co. of California v. United States, 429
U.S. 17,18 (1976). The court takes as true the movant's factual assertions for the
purpose of evaluating a Rule 60(b) motion. Kerwit Med. Products v.N & H
Instruments, 616 F.2d 833, 836 (5th Cir.1980) [Motion/Petitions, page 8].
Wielding binding United States Eleventh Circuit’s precedent7, and this Court’s
commands8 , Petitioner providently contended that the new Motion/Petitions were
7 Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235,1238 (11th Cir. 1999). In re
Piper Aircraft Corp. 244 F.3d 1289,1295 (11th Cir. 2001) (res*ivdicata).
Blohm v. Comm'r of Internal Revenue, 994 F.2d 1542,1553 (11th Cir.
1993)(collateral estoppel).
8
Brown v. Felsen, 442 US 127,132 (1979):
9
not barred either by res«ivdicata and/or collateral estoppel.
U.S. District Court judge Altonaga has committed, and is committing, fraud
upon the court, consisting in, but not limited to, the “egregious misconduct” of
“bribery of a judge.” Rozier v. Ford Motor Co., 573 F.2d 1332,1338 (5th Cir.
1978). Judge Altonaga had, and has, a “direct, personal, substantial, pecuniary
interest in reaching a conclusion against” Plaintiff. Turmey v. Ohio, 273 U.S.
510, 523 (1927) [Motion/Petitions, page 15].
In November 27, 20019 judge ALTONAGA duly recused and “refe[r]red the
matter to the Clerk of Court for reassignment in accordance with 28 U.S.C. section
455 for permanent reassignment to another judge...” [Document 59].
In November 27, 20019 judge ALTONAGA duly recused and “refe[r]red the
matter to the Clerk of Court for reassignment in accordance with 28 U.S.C. section
Because res judicata may govern grounds and defenses not previously
litigated, however, it blockades unexplored paths that may lead to truth.
For the sake of repose, res judicata shields the fraud and the cheat as
well as the honest person. It therefore is to be invoked only after careful
inquiry.
Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292, 2305-2306 (2016)
(res«ivdicata).
Harris v. Washington, etal., 404 U.S. 55, 56 (1971). Blonder-Tongue v.
University Foundation, 402 U.S. 313, 329 (1971) (collateral estoppel).
10
455 for permanent reassignment to another judge...” [Document 59].
In December 2, 2019 judge Williams issued a paperless Order (which was
never mailed to Petitioner) “denying as moot.. .Motion for Recusal; denying as
moot.. .Motion for Reconsideration. In light of Judge Altonaga’s recusal.. .and the
Court of Appeals for the Eleventh Circuit’s mandate.. .Plaintiffs motion is
DENIED AS MOOT.” [APPENDIX C]
In December 9, 2019 Petitioner filed a Notice of Appeal including a Motion for
Leave to Appeal in Forma Pauperis.
In December 16, 2019 judge Williams issued an Order denying Petitioner’s
Motion for Leave to Proceed in Forma Pauperis because “[u]pon review of the
motion and the record, the Court finds that Plaintiffs appeal is indisputably
meritless.. .Plaintiff s appeal is not taken in good faith as required by 28 U.S.C.
§ 1915(a)(3).” [APPENDIX B]
In December 17, 2019 Petitioner submitted a Motion to Proceed in Forma
Pauperis pursuant to Fed.R.App.P. 24(a)(5), including an Affidavit
Accompanying Motion for Permission to Appeal In Forma Pauperis to the
United States Eleventh Circuit Court of Appeals, wherein Petitioner requested
permission to submit a brief. [Hereinafter “Motion/Permission].
In February 7, 2020 judge Luck, citing Napier v. Preslicka, 314 F.3d 528, 531
11
(11th Cir. 2002), denied Petitioner’s Motion for Leave to Proceed on Appeal In
Forma Pauperis “because the appeal is frivolous.” [APPENDIX A]. Petitioner
received this Order without opinion on March 2, 2020.
REASONS FOR GRANTING THE PETITION
The United States Eleventh Circuit Court of Appeals has decided an important
federal question in a way that conflicts with relevant decisions of this Court.
Sup. Ct. Rule 10(c) Rule 10(c) (2019).
I.
THE UNITED STATES DISTRICT COURT AND THE UNITED
STATES ELEVENTH CIRCUIT COURT IGNORED THIS COURT’S
COMMAND IN DENTON v. HERNANDEZ. 504 U.S. 25. 34 (1992).
STANDARD OF REVIEW
“[A] [28 U.S.C. §] 1915(d)9 dismissal is properly reviewed for an abuse of
discretion.” Denton v. Hernandez, 504 U.S. 25, 33 (1992)(emphasis).
STANDARD OF FRIVOLITY
“[A] Complaint, containing as it does, both factual and legal allegations and
legal conclusions, is frivolous where it lacks an arguable basis either in law or in
fact.” Denton at 31. quoting from Neitzke v. Williams, 490 U.S. 319, 325 (1989).
9
Petitioner notices that current 28 U.S.C. § 1915(d) states:
12
THE ARGUMENT
In November 27, 20019 judge ALTONAGA duly recused and “refe[r]red the
matter to the Clerk of Court for reassignment in accordance with 28 U.S.C. section
455 for permanent reassignment to another judge..[Document 59].
In December 2, 2019 judge Williams issued a paperless Order (which was
never mailed to Petitioner) “denying as moot.. .Motion for Recusal; denying as
moot.. .Motion for Reconsideration. In light of Judge Altonaga’s recusal. ..and
the Court ofAppeals for the Eleventh Circuit’s mandate.. .Plaintiffs motion is
DENIED AS MOOT.” [APPENDIX C] [Emphasis]
Petitioner contends here that the District Court erred in rendering his Motion/
Petitions—particularly his demands to reconsider and reopen the case10—, moot
on account of judge ALTONAGA’s recusal. As Petitioner stated in his Motion/
“The officers of the court shall issue and serve all process, and perform
all duties in such cases. Witnesses shall attend as in other cases, and the
same remedies shall be available as are provided for by law in other
cases.” [Source: Legal Information Institute, Cornell Law School, 2020].
In current context, Denton appears to refer to 28 U.S.C. § 1915(a)(3) and
28 U.S.C. §1915(e)(2)(B), not 28 U.S.C. § 1915(d).
10
In addition to Plaintiffs Fed. R. Civ. P. 60(b)(6) Motion retroactively
to disqualify and recuse judge Altonaga and assign Plaintiffs case to another
judge (Liljeberg v. Health and Services Acquisition Corp., 486 U.S. 847,
13
Petitions, District Court judges do not need appellate leave to reopen a case which
has been reviewed on appeal. Standard Oil of California v. United States, 429
U.S. 17,18 (1976)(Motion/Petitions, page 8).
The District Court’s paperless Order did not appropriately resolve either
genuine issues of disputed facts or any facts; it erroneously applied legal
conclusions; and did not bother to provide any statement explaining its dismissal
of the Complaint that would facilitate any remotely ““intelligent appellate review””.
{Denton at 34). Thus, it ran afoul of the command issued by this Court in
Denton v. Hernandez, 504 U.S. 25, 33 (1992).
The District Court’s subsequent Order did not improve upon its mysterious
paperless Order11.
863-4 (1988)), Plaintiff petitions this Court, and the U.S. Eleventh Circuit Court
of Appeals, to exercise their supervisory power over its judgment pursuant to
Fed. R. Civ. P. 60(d)(1) “to entertain an independent action to relieve a party
from a judgment, order, or proceeding.” Bankers Mortgage Company v. United
States, 423 F.2d 73, 77-78 (5th Cir. 1970); and Fed. R. Civ. P. 60(d)(3) to “set
aside” the Circuit Court of Appeals’ “judgment for fraud on the court”
retroactively to disqualify and recuse judge Altonaga and assign Plaintiffs case
to another judge, and reopen his case. Rozier v. Ford Motor Co., 573 F.2d 1332,
1337-1338 (5th Cir. 1978). [Motion/Petitions, pages 8 and 9].
11
Hitherto Petitioner did not know that Paperless Orders existed.
14
In December 16, 2019 the District Court issued an Order denying Petitioner’s
Motion for Leave to Proceed in Forma Pauperis because “[u]pon review of the
motion and the record, the Courtfinds that Plaintiff’s appeal is indisputably
meritless...Plaintiff’s appeal is not taken in goodfaith as required by 28
U.S.C. §1915(a)(3).” [APPENDIX B](Order, page 2) [Emphasis].
As Petitioner noted in his Motion/Permission to the United States Circuit
Court of Appeals, the District Court’s certificate denying Plaintiffs leave to
Proceed in»forma«pavperis is arbitrary and abusive, and definitively not
conclusive 12 . It is also carelessly written and poorly supported; and an example of
circvlvm*in»probando: “An issue is frivolous when it appears the legal theories
are anundisputably meritless 999999 ...[Order, Document 64, 12/16/2019, page 1]...
Upon review of the motion and the record, the Courtfinds that Plaintiff’s
appeal is indisputably meritless.” [Order, Document 64, 12/16/2019, page 2]
[APPENDIX B],
In February 7, 2020 United States Eleventh Circuit Court of Appeal judge Luck
denied Petitioner’s Motion for Leave to Proceed on Appeal In Forma Pauperis
“because the appeal is frivolous” citing Napier v. Preslicka, 314 F.3d 528, 531
12
Coppedge v. United States, 369 U.S. 438, 446 (1962)
15
(11th Cir. 2002) which refers to 28 U.S.C. §1915(e)(2)(B)(i) in particular.
[APPENDIX A]. Petitioner received this Order without opinion on March 2,
2020.
Napier purports to obey this Court’s command in Denton,13 but in its Order
denying Petitioner’s Motion for Leave to Proceed on Appeal In Forma Pauperis
circuit judge Luck flouted its command.
In deciding that Petitioner’s Motion for Leave to Proceed on Appeal In Forma
Pauperis was frivolous, judge Luck declined to decide, as is his judicial duty
commanded by Denton v. Hernandez, 504 U.S. 25, 34 (1992), that the district
court failed to resolve am “genuine issues of disputed fact”; that the district
court “applied erroneous legal conclusions” (i.e. “Plaintiff sappeal is indisputably
meritless”)(Svpra.) regarding Petitioner’s Motion/Petitions; and that the district
court did not bother to provide any statement explaining its dismissal of the
Complaint that would facilitate any remotely ““intelligent appellate review””.
Petitioner notices that the district court’s Order referred only to frivolity
regarding “legal theories”, not factual allegations. And the summary disposition
of Petitioner’s F. R. App. P. 24(a)(5) Motion/Permission including Affidavit
13 Bilial v. Driver, 251 F.3d 1346,1348 (11th Cir. 2001).
16
Accompanying Motion for Permission to Appeal In Forma Pauperis to the
United States Eleventh Circuit Court of Appeals is silent regarding either one.
[APPENDIX A].
Petitioner’s Seventh Amendment’s right to a jury trial: Although the
district court neither specifically nor impliedly referred to the factual allegations
(it considered only “it appears the legal theories are ““undisputablv
meritless””. Order pages 1 and 2) in Petititioner’s Motion/ Petitions regarding
whether it considered them equally meritless or frivolous, Petitioner, in an
abundance of caution, contends that judge Williams14 would have violated
Petitioner’s Seventh Amendment right to a trial by jury if she had based her
Order upon disbelief of the factual allegations in Petitioner’s Motion/Petitions15.
14
“When performing federal judicial duties, a federal judge performs the
functions of government itself’” Jefferson County v. Acker, 92 F.3d 1561,
1572 (11th Cir. 1996), en banc, quoting from United States v. New Mexico, 455
U.S. 720, 735, 102 S.Ct. 1373, 1383 (1982). (Emphasis). Thus, the judge is the
government.
((((
15 Neitzke v. Williams, 490 U.S. 319, 327 (1989): “What Rule 12(b)(6) does
not countenance are dismissals based on a judge’s disbelief of a complaint’s
factual allegations. District court judges looking to dismiss claims on such
grounds must look elsewhere for legal support.” (emphasis).
17
Petitioner’s rights under the Fifth Amendment Due Process Clause (Equal
Protection): Congress enacted the in forma pauperis statute to assure “equality
of consideration for all litigants.” Nietzke v. Williams, 490 U.S. 319, 329
(1989). The district court16 by arbitrarily dismissing Plaintiffs motion for leave
to proceed in»forma«pavperis, treated Plaintiff differently from paving
1H
Plaintiffs submitting the same Motion/ Petitions, violated his fundamental
right of access to the courts Romer v. Evans, 517 U.S. 620, 633 (1996), and
arbitrarily deprived him of “the considerable benefits of the adversary
proceedings contemplated by the Federal Rules [of Civil Procedure/.”
Nietzke at 330. (emphasis).
II. THE UNITED STATES ELEVENTH CIRCUIT COURT IGNORED
THIS COURT’S COMMAND IN COPPEDGE v. UNITED STATES,
369 U.S. 438 (1962) AND CRUZ v. HAUCK. 404 U.S. 59 (1971).
STANDARD OF REVIEW
“The District Court's certificate [denying Petitioner’s Leave to Appeal
16 Footnote 14, Svpra. The judge is the government.
17 Coppedge v. United States, 369 U.S. 438,446 (1962).
18
In Forma Pauperis] is not conclusive, although it is, of course, entitled
to weight.. .Nevertheless, if from the face of the papers he has filed, it
is apparent that the applicant will present issues for review not clearly
frivolous, the Court of Appeals should then grant leave to appeal in
forma pauperis.. .and proceed to consideration of the appeal on the merits
in the same manner that it considers paid appeals.” (Coppedge at 446).
lemphasisl.
ARGUMENT
In February 7, 2020 United States Eleventh Circuit Court of Appeal judge
Luck denied Petitioner’s Motion for Leave to Proceed on Appeal In Forma
Pauperis “because the appeal is frivolous” citing Napier v. Preslicka, 314
F.3d 528, 531 (11th Cir. 2002) which refers to 28 U.S.C. §1915(e)(B)(i) in
particular. [APPENDIX A]. Petitioner received this Order without opinion in
March 2, 2020.
For the reasons stated in this Petition for Writ of Certiorari, Petitioner
contends that the Eleventh Circuit Court of Appeals did not assure equality of
consideration to Petitioner that it affords paying litigants. Coppedge at 447.
The United States Eleventh Circuit Court of Appeals summarily disposed of
the December 17th, 2019 Petitioner’s Motion to Proceed in Forma Pauperis
pursuant to Fed.R.App.P. 24(a)(5), including an Affidavit Accompanying
Motion for Permission to Appeal In Forma Pauperis wherein Petitioner
requested permission to submit a brief [Motion/Permission] without allowing
19
Petitioner to submit a brief. Copy edge at 453. Farley v. United States, 354 U.S.
521, 523 (1957).
Because Petitioner’s Motion/Petitions are submitted against the government
1o
(disqualification and recusal of a federal judge on account of her criminal
conduct), they are analogous to a criminal case where a prisoner sues the
government and/or government actors. Therefore,
[It] is not the burden of the petitioner to show that his appeal has merit,
in the sense that he is bound, or even likely, to prevail ultimately. He is
to be heard, as is any appellant in a criminal case, if he makes a rational
argument on the law or facts. It is the burden of the Government, in
opposing an attempted criminal appeal in forma pauperis, to show that
the appeal is lacking in merit, indeed, that it is so lacking in merit that
the court would dismiss the case on motion of the Government, had the
case been docketed and a record been filed by an appellant able to afford
the expense of complying with those requirements. Coppedge at 448.
Circuit court judge Luck denied Petitioner’s Motion for Leave to Proceed on
Appeal In Forma Pauperis without an opinion thereby arbitrarily and deliberately
denying Petitioner’s “rights of equal access to judicial machinery.” Cruz v.
Hauck, 404 U.S. 59, 61 (1971)19.
18
Footnote 14, svpra. The judge is the government.
19 Cruz v. Hauck, 404 U.S. 59 (1971). “Our holdings have steadily chipped
away at the proposition that appeals of the poor can be disposed of solely on
summary and abbreviated inquiries into frivolity rather than upon the
plenary consideration granted paving appellants. {Id. at 62).
20
JUSTICE SOTOMAYOR was recently concerned by the bad faith exhibited
by the judges of the Fifth Circuit Court of Appeal who “summarily rejected pro
se filings” “without so much as a glance. „20 This lamentable conduct is
widespread 21 . As circuit court judge Luck has demonstrated in Petitioner’s case,
it is also practiced by at least this judge in the Eleventh Circuit Court of Appeals.
Circuit court Judge Luck deliberately avoided elaborating about what factual,
[T]he civil courts of the United States and each of the States belong to
the people of this country and that no person can be denied access to those
courts, either for a trial or an appeal, because he cannot pay a fee... 9999
(Id. at 64) (emphasis). “It is apparent that this disparate treatment has the effect
of classifying appellants according to wealth, which, like race, is a suspect
classification ”!/a', at 65)(emphasis).
6666
20
Louie M. Schexnayder, Jr. v. Darrel Vannoy Warden, 589 U.S._____
(2019), No. 18-8341 [Dec. 9, 2019] (The petition for a writ of certiorari is denied).
21
Posner: Mostjudges regard pro se litigants as ‘kind of trash not worth the
time. ’ ABA Journal, by Debra Cassens Weiss. September 11, 2017, 11:57 AM.
“Judge cites.. .rebuffed efforts to aid pro se litigants in a new interview
explaining his decision to suddenly retire from the Chicago-based 7th
U.S. Circuit Court of Appeals.. ..In the 7th Circuit, staff lawyers review
appeals from pro se litigants, and their recommendations are generally
rubber-stamped by judges.. .Posner wanted to give the pro se litigants a
better shake by reviewing all of the staff attorney memos before they
went to the panel of judges. Posner had approval from the director of
the staff attorney program. ““But the judges, my colleagues, all 11 of
them, turned it down and refused to give me any significant role. I was
very frustrated by that.”” Richard Posner, Seventh Cir. Judge, retired.
21
and legal allegations, in Petitioner’s Complaint and Fed. R. Civ. P. 60(b)(6)
Motion/Petitions, he deemed to be frivolous in denying Petitioner’s Motion for
Leave to Proceed on Appeal In Forma Pauperis with the intention of evading
this Court’s review.
This Court should not allow it.
In Coppedge v. United States, 369 U.S. 438, 446 (1962) “the only cognizable
issue is whether a summary survey (as opposed to plenary deliberation)
suggests that a substantial argument could be presented.” Cruz v. Hauck,
404 U.S. 59, 62 (1971). (emphasis).
III. THE UNITED STATES ELEVENTH CIRCUIT COURT IGNORED
THIS COURT’S COMMAND IN UNITED STATES v. BEGGERLY.
524 U.S. 38. 46 (1998). THE DISTRICT COURT AND THE CIRCUIT
COURT SHOULD HAVE GRANTED PETITIONER’S FED. R. CIV.
P. 60(b)(6) MOTION AND PETITIONS PURSUANT TO FED. R. CIV.
P. (60)(d)(l) AND FED. R. CIV. P. (601(d)(3).
23
Petitioner’s Motion/Petitions are not barred by res judicata ; but, even if they
were, judge Altonaga’s criminal conduct (Svpra. pgs 3-6) constitutes
22
Retirement Plans Committee of IBM, etal. v. Larry W. Jander, etal.,
589 U.S.
(2019), No.18-1165 [January 14, 2020], page 3. F. Hofpmann-La
Roche, Ltd. V. Empagran, S.A., 542 U.S. 155,175 (2004). Cutter v. Wilkinson,
544 U.S. 709, 718 n.7 (2005).
23 Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292, 2305-2306 (2016)
(res*ivdicata). Harris v. Washington, etal., 404 U.S. 55, 56 (1971). BlonderTongue v. University Foundation, 402 U.S. 313, 329 (1971) (collateral estoppel).
22
uu
instances...sufficiently gross to demand a departure”” from rigid adherence to
the doctrine of res judicata.” Hazel-Atlas Glass Co., v. Hartford-Empire., 322
U.S. 238, 244 (1944). United States v. Beggerly, 524 U.S. 38,46 (1998).
RELIEF SOUGHT
Petitioner respectfully requests that this Court grant Petioner’s motion
for leave to proceed in forma pauperis and the petition for a writ of certiorari,
vacate the judgment of the Eleventh Circuit Court of Appeals, and remand it there
for consideration of his appeal “on the merits in the same manner that it considers
paid appeals” Coppedge, 446; and to consider “arguable claims.. .made by
petitioner to support his application for leave to appeal...[wherein] those
mentioned would alone have warranted the allowance of an appeal in forma
pauperis.” [emphasis]. Coppedge 454.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
JoseVeyille, PRO*SE
Date: April 7, 2020
23
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.