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.

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Petition for Writ of Certiorari — José Yeyille, Petitioner v. Miami-Dade County Public Schools, et al. | Frix