Petition for Writ of Certiorari — Burton ex rel. Burton v. Wilcox

%

THE SUPREME COURT OF THE, UNITED STATES

in a

— —_—-

October, 1986 Term

MIRANDA MITZI BURTON, by her father, next

friend, and natural guardian, Carlyle

Burton; CARLYLE BURTON; and NATHANIEL

DENMAN, Petitioners

Ve

GUS WILCOX; ALLOO DARA BAPUJI PEDERSEN

BURTON ADAMS; JERRY D. ADAMS; ADAM, FLAKE

& HRNCIR, a Law Partnership; FRENY BAPUJI;

JOHN HRNCIR; JOE E. KELLY; PHILIP E. MOKE;

DON E. POLLACK; B. WELDON PONDER; TOM RIC-

KOFF; RAUL RIVERA; ALLAN L. WATKINS; LORR-

AINE WELLEMS; and JOHN YATES, Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR CERTIORARI

Carlyle Burton,

Nathaniel Denman

Miranda Mitzi Burton Pro Se

Pro Se P.O. Box 689

P.O. Box 34321 Falmouth MA 02541

San Antonio TX 78265 617-548-3295

A. QUESTIONS PRESENTED FOR REVIEW

1. WaS a pro se, out-of-state litigant in

a state civil trial denied his right to

put on witnesses in his behalf and was a

witness denied due process and held in

double jeopaidy, when the state rule for

sequestration of witnesses was invoked at

a hearing, both his witnesses left the

courtroom, and heard no testimony, and

discussed none, meeting the requirements

of the "Rule" but, during a recess, one

of the witnesses was called into the

Judge's chambers and told that the

witness had violated the "Rule", was

reprimanded, and an Order made that the

witness would not be allowed to testify

for the litigant, and at the end of the

hearing, after the other unreprimanded

witnesses had been allowed to testify,

while walking down the corridor outside

the courtroom, the reprimanded witness

was verbally and physically attacked by

the lawyer for the opposition, the judge

stepped out of a doorway, and ordered two

bailiffs, who had not seen the attack, to

take the witness to his chambers, where,

without a lawyer as asked for by the

witness, court reporter, notice of any

charges, witnesses or time to prepare, as

asked for by the witness, or warning of

his Miranda rights (Texas C.C.P. 15.17),

the witness was accused of attacking the

opposition lawyer, told that the

Opposition lawyer was a friend of the

judge and they had gone thru law school

and Assistant District Attorneyships

together, the opposition lawyer made a

false statement, the witness made a

recorded statement about the attack on

the witness denying the accusation, the

judge then stated again that the witness

had violated the witness "rule" and

sentenced him to three days imprisonment

for violating the "rule," which chilled

~

i Le

crete NS

Pe) all

the witness's ardor to travel in

interstate commerce to give his

testimony?

2. Did the state trial court, Appeals

Court and state Supreme Court violate the

'

Pro Se Litigant's right to an appeal when

he mailed within the 30 days allowed,

with a Certificate of Mailing, a Notice

of Appeal and a Money Order $500 maximum

Filing Fee, although he had previously

Danae e275 f£0£ @ trenscript, an

approximate $180 overcharge, the Appeals

Clerk lost or destroyed the $500 Money

Order, the litigant sent a second notice

of appeal and a letter in lieu of a

Motion for Extension of Time, which was

not forwarded to the appeals court, then

the litigant sent another $500, in the

form of a Cashier's Check, at great

personal financial damage, within the 30

days, plus 15 day extension, plus three

days allowed for mailing under the Texas

Rule of Civil Procedure No. 2la, and then

the trial court Appeals Clerk claimed the

second payment was not mailed on time,

the Appeal was not docketed, the State

Appeals Court denied his appeal and the

Pexae Supreme Court refused to review the

case?

3. Was the pro se litigant denied equal

protection of the law when he was

required to provide first a Money Order,

then a Cashier's Check, for the appeal

costs although lawyers' personal checks

were accepted as payment by the Appeals

Clerk?

4. Was the state trial court's practice

of falsely informing pro se Litigants

that the verbal order of the trial court

had not been entered, and that the Pro Se

Litigants could not file appeals until

the order was entered, a violation of due

process of law?

5. Since the Texas Appeals Courts have

- _

meen RR RTE — » : rer)

ruled that litigants cannot be forced to

pay opponents' legal fees by threat of

imprisonment for contempt, was

extortionate pressure brought on the

Litigant by the trial judge's order that

he pay the opponent's legal fees in 30

days or go to jail and the Trial Court

Clerk's informing the Litigant for 30

days that the legal fees order had not

been entered, and the state appeal court

would not allow him to file a Notice of

Appeal or Motion for Stay of Execution

until the Order Kad been entered?

6. Did the District Court err in

dismissing, with prejudice, a pro se

Further Amended Verified Complaint that

claimed violation of 28 U.S. Code, Sec.

1738A and V.T.C.A. Texas Family Code

Sections 11.05 fabs. 21.52 t2¢S¢80ah b75

ruled enforcible in United States Courts

by the Fifth CfIrcuit, and state torts

against the pro se plaintiffs which could

be considered under the pendent '

jurisdiction principle and diversity of

a PDIP,

citizenship [all the plaintiffs had

different state cestdnice: tees all the

defendants], including the claim of

iacheki tinea infliction of emotional

distress caused by one of the defendants

taking the child plaintiff out of the

state and concealing the child, to this

date, from the plaintiff parent, denying

both the parent and the child the court

ordered mutual care, company, love and

affection to which they are entitled?

¥a Since the defendants committed

several acts to injure the plaintiffs,

within a 10-year period, for which they

could be indicted under state or federal

law and the plaintiffs were Pro Se, did

the District Court err in not finding

that it had jurisdiction of the Complaint

under the “RICO" Act, 18 USC Sec. 1961?

a

B. TABLE OF CONTENTS

Page

A. Questions Presented for Review .... 1

Da REEe OE CORGGRES o6 4d e244 2 68 Kee eS 7

C«- FORO CE AVSCHOSCTCOS ssh icuk ewe ee se 7

D. Reports of the Decisions below .... 10

E. Grounds on which Jurisdiction of

this Court is Invoked ...ccccecr 10

F. Constitutional provisions, U.S.

Statutes, and Texas Constitutional

provisions and statute involved ... 11

G.- Statement Gf Che CASE «sis sess snce ss 24

Pe 8 Sa eer renee ar eee 39

C. TABLE OF AUTHORITIES

Case Page

Armco Industrial Credit Corp. v. SLT

Warehouse CO., 782 F.2d 475

Po PE oN Pers cerTeT errr ere 53

Couture v. Hyatt,

748 Pua Bane {23905. 5S Creche) «cee 54

Crowe v. Lucas, 595 F.2d 985, 993

Boe, Se Sp SS Bee ea eae ae eee 46

Cunningham v. Ingram,

Pree. bei we soa be eee ee eee ee 43

Davis v. Broughton,

Le oe ie SS eee ee ere a ee ee 49

Escobedo v. Illinois, 378 U.S. 478

Gault,

Application of,

BF Bceee BEZE, £438 - casas 39, 41,

Griffen v. Breckenridge,

es eee Se hwahanshacdises ckdatas

Griffen v. Illinois

(i We Fo; PO CO oe eee ee eee

Haines v. Kerner, '

oa Mak es 594 2 So 4 ear ere

Heartfield v. Heartfield,

749 F.2d 1 138 (1985, 5 C.A.)

Hoffman-La Roche v. Greenberg,

Lees? Se ee Pe |: | See

Holstien v. Grier,

202 SeMs2G S956 {1954) cconescese

Howell

Petroleum Corp. v. Weaver,

7

Hunt Vv.

62

76 PizG@ 1302 (2965, 5 Ck.)

weatnerbe:,

® FP. Bape. 1097 (1986) dcsccuns

James v. Mienke,

T78 F.2d. 200 (1965; -6-CiA,)

Hayperry v.- Pomna.,. 91. S.Ct. 499 acaas

‘Miranda v. Arizona,

SO Del Ga, +h 2 5o ecko sae

Prevost

,» Bx Parte,

598 S.W.2d 310, (2979), su... 35,

Pulliam v. Allen, 104 S.Ct. L3TG swves 52

Raftery v. Scott,

a8 F.aa@ 335 (1905, 4 €.A.) «+ 44, 33

Ridgeway v. Baker,

720 F.2d 1409, 1415 (1983, 5 C.A.)

sa eae es ara si. . 3a

Sedima SPRL v. Imrex Co. Inc.,

Ee a od SS yy Le a ee 53

U.S. v. Price,

86 S.Ct. 1152, 1130, Fuhet? save $9

Statute Page

Sth AMENGMENE cdccecedecsnecwnanccesees La

6th AMENGMOENE ciovedecesenescsceews 12, 41

L4tH AMONGMENE cecsccescsecess igs 41, 49

to UVuiSshin. 2. sr cactaaketsseccecivcanses 36

Ld 0.3. EPOL) sawiwes sasns ewes S&, 372.22

is ¥.8.¢ POL hsb eu sesisdens ensue iy 22

26 98.8.C Fi. Bec e Tee CECE TC CTT 11

28 Ushsc. 4 TIGA. -c00kxe oe boy Sie ase 2A

42 U.S.C 7. & ee ee eee i>; 326

42 4.3.C oo a or ee ee i>, a6

2 ae oe Oe 2) ee ee ee 2 ee ee 36

ae a eee E.G) ar eee ee 7%: ‘29

Texas Rule of Civil Procedure #2la

Texas Rule of Civil Procedure #267

a.k.a. "Rule"

teks is Ge Bale BOs ate aee SB, 41

Texas Code of Criminal Procedure i14.01

Sera ae ee ee 18, 44, 45

Texas Code of Criminal Procedure 14.02

a ee ee ee 18, 44, 45

Texas Code of Criminal Procedure 15.17

eee ee ee ee ee y me fe

TOROS Civil Statute 3200-1 .ccccvsvcoss zi

D. REPORTS OF DECISIONS BELOW

The final decision of the United States

District Court in Burton, et al v.

Wilcox, et al, No. SA-81-CA-275 was not

reported. The Decision of the United

States Court of Appeals for the 5th

Circuit in the Appeal Burton et al vv.

Wilcox et al, was ordered not to be

reported. They are reproduced in the

Appendix, as is the Denial of the

Petition for Rehearing.

E. GROUNDS ON WHICH THE JURISDICTION

OF THIS COURT IS INVOKED.

(i) The Order of the United States

District Court for the Western District

of Texas dismissing the action with

prejudice was entered May 15, 1985.

(ii). The Order of the United States

Court of Appeals for the 5th Circuit

affirming the judgment of the United

States District Court without hearing was

dated June 30, 1986 and entered August

iS, i996.

(iii). The Order denying the

Appellants' Motion for Rehesrine was

dated August 15, 1986 and entered August

15, 1986, the Mandate was issued on

August 18, 1986. This Court granted an

extension of time in which to petition

for certiorari to December 12, 1986.

(iv). Title 28, U.S. Code, Section

1254 confers jurisdiction on this Court

to review the Mandate and other decisions

of the United States Court of Appeals.

F. CONSTITUTIONAL PROVISIONS,

U.S. STATUTES, AND

TEXAS CONSTITUTIONAL PROVISIONS

1]

AND STATUTES INVOLVED.

1. United States Constitution Articles

and Amendments

Article VI. Section 3. «e+ ail

executive and judicial officers, both of

the United States,and the of the several

states shall be bound by oath or

affirmation to support this Constitution,

Amendment V. ..., nor shall any

person be subject for the same offense to

be twice put in jeopardy of life or limb,

Amendment XIV. Section I. .... No

state shall make or enforce any law which

Shall abridge the privileges or

immunities of citizens of the United

States; nor 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 law.

2. TITLE 28, UNITED STATES CODE

Section 1738A ~- Parental Kidnapping

(a) The appropriate authorities of every

State shall enforce according to its

terms and shall not modify except as

provided in subsection (f) of this

section, any child custody determination

made consistentiy with the provisions of

this section by a court of another State.

(c) A child custody determination made by

acovrt of a State is consistent iwth the

provisions of this section only if --

(1) such court has jurisdiction under the

law of such state; and

(2) one of the following conditions is

met:

(A) Such state (1) is the home state of

the child on the date of the commencement

of the proceedings, .... and the child is

absent from such State because of his

removal or retention by a contestant or

for other reasons, and a contestant

continues to live in such State; ....

(ad) The jurisdiction of a court of a

State which has made a child custody

determination consistently with the

provisions of this section continues as

longs as the requirement of subsection

(c) (1) of this section continues to be

met and such State remains the residence

of the child or of any contestent.

(e) Before a child custody determination

is made, reasonable notice and

opportunity to beheard shall be given to

the contestants, .... and any person who

as physical custody of the child,

(g) A court of a State shall not exercise

TEL ASSGLCEICN Af. OOH ... vas custody

determination commenced during the

pendency of a proceeding in a court of

another State where such court of that

State is exercising jurisdicition

consistently with the provisions of this

14

SOctian «<<.

3. TITLE 42, UNITED STATES CODE

Section 1983 - Civil Action For

Deprivation of Rights

' Every person who, under color of

any statute, ordinance, regulation,

custom, Or usage, of any State or

Territory, subjects, or causes to be

Subjected, any citizen of the United

States or other person within the

jurisdiction thereof to the deprivation

of any rights, privileges, or immunities

secured by the Constitution and laws,

Shall be liable to the party injured in

‘an action at law, suit in equity, or

other proper proceeding for redress.

Section 1985 - Conspiracy to Interfere in

Civil Rights

(2) Obstructing justice; intimidating

party, witness, or juror. senate SE AE

two Or more persons conspire- for’ the

purpose of impeding, hindering,

a

obstructing, or defeating, in any

manner, the due course of justice in any

State or Territory, with intent to deny

to any citizen the equal protection of

the laws, or to injure him or his

property for lawfully enforcing, or

attempting to enforce, the right of any

person, or class of persons, to the equal

protection of the law.

(3) Depriving persons of rights or

privileges.

If two or more persons in any state or

Territory conspire, or go in disguise on

the highway or on the premises of

another, for the purpose of depriving,

either directly or indirectly, any person

or class of persons of the equal

protection of the laws, or of any equal

privileges or immunities under the laws,

or for the purpose of preventing or

hindering the constituted authorities of

any state or Territory from giving or

securing to all persons within such State

=

16

Or Territory equal protection of the

laws; eee; In any case of conspiracy

set forth in the section, if one or more

persons engaged therein do, or cause to

be done, any act in furtherance or the

object of such conspiracy, whereby

another is injured in his person or

property, or deprived of having and

exercising any right or privilege of a

citizen of the United States, the party

so injured or deprived may have an action

for the recovery of damages, occasioned

by such injury or deprivation, against

any one or more of the conspirators.

Section 1988 - Proceedings in Vindication

of Civil Rights.

The jurisdiction in civil and criminal

matters conferred on the district courts

by the provisions of this chapter and

Title 18, for the protection of all

persons in the United States in their

Civil rights, and for their vindication,

shall be exercised and enforced in

conformity with the laws of the United

States so far as such laws are suitable

to carry the same into effect; but in all

cases where they are not adapted to the

object, or are deficient in the

provisions necessary to furnish suitable

remedies and punish offenses against law,

the common law, as modified and changed

by the constitution and statutes of the

State wherein the court having

jurisdiction of such civil and criminal

cause is held, so far as the same is not

inconsistent with the Constitution and

laws of the United States, shall be

extended to and govern the said courts in

the trial and disposition of the cause,

and, if it is of a criminal nature, in

the infliction of punishment on the party

found guilty.

4. TEXAS CODE OF CRIMINAL PROCEDURE-

ARTICLE 14.01 - Offense Within View

(a) A peace officer or any other

person, may, without a waseuek arrest an

offender when the offense is committed in

his presence or within his view, if the

offense is one classed as a felony or as

an offense against the public peace.

(b) A peace officer may arrest an

offender without a warrant for ary

offense committed in his presence or

within his view.

ARTICLE 14.02 - Within View of Magistrate

A peace officer may arrest, without

warrant, when a felony or breach of the

peace has been committed in the presence

Or within the view of a magistrate, and

such magistrate verbally orders the

arrest of the offender.

ARTICLE 15.17 Duties of Arresting Officer

and Magistrate

(A) In each case enumerated in this Code,

the person making the arrest shall

without necessary delay take the person

|

arrested or have him taken before some

magistrate of the county where the

accused was arrested. The magistrate

shall inform in clear language the person

arrested of the accusation against him

and of any affidavit filed therewith, of

his right to retain counsel, of his right

to remain silent, of his right to have an

attorney present during any interview

with peace officers or attorneys

representing the state, of his right to

terminate the interview at any time, of

his right to request the appointment of

counsel if he is indigent and cannot

afford counsel, and of his right to have

an examining trial. He shall also inform

the person arrested that he is not

required to make a statement and that any

statement made by him may be used against

him. The magistrate shall allow the

person arrested reasonable time and

opportunity to consult counsel and shall

admit the person arrested to bail if

,

allowed by law.

5. TEXAS CIVIL STATUTES

ARTICLE 320a-1 - State Bar Act

Section 2. The State Bar of Texas

established under the laws of this state

is continued as a public corporation and

an administrative agency of the judicial

department of government. it is

designated as the State Bar. This

va

legislation is in aid of the judicial

department's powers under the

constitution to regulate the practice of

law and not to the exclusion of those

powers. The Supreme Court of Texas, on

behalf of the judicial department, shall

exercise administrative control over the

State Bar under this Act.

Section 4. - Seal; suits and contracts;

gifts.

The State Bar may sue and be sued in its

Own name. For the purpose of carrying

into effect and promoting objectives of

21

this Act, the State Bar may enter into

contracts and do ail other acts

incidental to the foregoing that are

necessary or expedient for the

administration of its affairs and'‘the

'

attainment of its purposes. ....

6. TEXAS RULES OF CIVIL PROCEDURE

Rule #2la - Notice.

oeeee Whenever a party has the right

Or is seinived to do some act or take

some proceedings within a prescribed

period after service of a notice or other

paper upon him and the notice or paper is

served upon him by mail, three days shall

be added to the prescribed period. .....

Rule #267 - Witnesses Placed Under the

Rule

At the request of either party, in a

Civil case, the witnesses on both sides

may be sworn and removed out of the court

room to some place where they cannot

hear the testimony as delivered by any

other witness in the cause. This is

termed placing witnesses under the rule.

Neither party to the suit shall be placed

under the rule. Where a corporation is a

party to the suit, the court may exempt

from the rule an officer or other

representative of such corporation to aid

counsel in the presentation of the case.

If any party be absent the court in its

discretion may exempt from the rule a

representative of such party. Witnesses,

when placed under the rule, shall be

instructed by the court that they aie not

to converse with each other or with any

person about the case other than the

attorneys in the case, except by

permission of the court, and that they

are not to read any report of or comment

upon the testimony in the case while

under the rule. Any person violating such

instructions may be punished for contempt

of court.

BEST AVAILABLE COPY

G. STATEMENT OF THE CASE.

(1) Facts of the Case.

As stated in the Verified Further

Amended Complaint, Respondent Alloo Dara

Bapuji Pedersen Burton Adams, hereinafter

Alloo Adams, took Petitioner Miranda

Burton, hereinafter the minor child,

daughter of Petitioner Carlyle Burton,

hereinafter Burton, from Georgia to

England, dagsobeying the Georgia court

order providing for visitation between

Burton and his 5-year old daughter. When

Burton went to England in 1976, to see

his child, who was alleged to have

English citizenship, he was allowed only

1 hour per day with his child, in the

presence of Respondent Alloo Adams,

COntrary to the court order fer

visitation, after he was forced to loan

Respondent Alloo Adams $2,200 to get to

see his child, which sum Alloo Adams has

refused to fully repay. After his return

to Air Force duty in Georgia, Respondent

Alloo Adams wrote false statements to his

Commanding Officer in an attempt to have

a him punished by discharge, demotion or

other punishment. Burton retired from the

Air Force in 1979, and moved to

Connecticut. Respondent Gus Wilcox,

hereinafter Wilcox, filed a motion in the

Bexar county divorce court for an

increase in child support payments,

without adequate notice to Burton. He

retained a Texas lawyer, Respondent B.

Weldon Ponder, who failed to tell Burton

he could enforce the favorable Georgia

court order in Texas, but instead had

him submit to the jurisdiction of the

Bexar County, Texas divorce court in

order to get reasonable visitation with

his child. Respondent Ponder only filed a

general answer to the motion, and failed

to protest the inadequate notice of the

motion. Burton could not afford other

counsel, so Burton-had to proceed pro se.

On January 26, 1981, Burton

accompanied by his wife, Patricia Burton,

and Petitioner Nathaniel Denman, of

Massachusetts, went to the Bexar County

Texas Courthouse, and they observed

Respondent Wilcox go to the assignment

clerk's desk and shift case folders

about. It was then announced that the

case had been assigned to Respondent

Judge John Yates, hereinafter Yates, for

trial. AS soon as the hearing commenced,

Respondent Wilcox stated he was invoking

the "Rule", which the Petitioners learned

later was T.R.C.P. #267. Without any

explanation of what the Rule was,

Respondent Yates ordered Petitioner

Denman and Patricia Burton out of the

courtroom before any evidence had been

presented. Denman and Patricia Burton did

not discuss any evidence while waiting

out in the corridor to be called.

P

26

-

In the courtroom, Respondent Wilcox

prompted his witness, Respondent Alloo

Adams, while she was on the stand under

oath, passed her notes on the stand, and

interrupted Burton in his testimony,

protested by Burton, all without

correction from Respondent Yates.

During the recess for lunch,

Respondent Yates and Respondent Wilcox

took Burton to the court chambers and

threatened him with reduced visitation

and increased support if he did not agree

to an immediate settlement of the case.

When Burton refused, Respondent Yates

ordered Denman brought into his chambers

from the courthouse corridor, informed

him that he had violated the "Rule";

Denman stated that he could not have, and

did not, discuss any evidence with

Patricia Burton, but Respondent Yates was

adamant, reprimanded Denman, and ordered

that Burton was denied Denman's

testimony.

The hearing continued in the

afternoon, with further interruptions and

prompting of witnesses by Respondent

Wilcox. After the testimony, Respondent

Yates announced that he would rule that

Burton must pay $250.00 per month child

support, up from $150.00, and ordered

Burton to pay attorney fees of $300.00 to

Respondent Wilcox, increased the

visitation, and stated that Respondent

Wilcox was to write the order.

In the corridor, late in the

afternoon after the hearing, Respondent

Wilcox started talking to Burton and

Denman, and made false statements about

Denman, Denman asked him to retract them,

| and Respondent Wilcox attacked Denman,

shoving him off balance and attempting to

strangle him with his tie. Court

spectators and Burton separated them;

Respondent Yates then appeared out of the

28

courtroom doorway, and instructed Bailiff

Respondent Moke, hereinafter Moke, who

had not seen the incident, but started an

investigation of the incident as a deputy

sheriff, to take Denman into custody, and

into 'the Judge's chambers, where

Respondent Yates, in the presence of

Respondent Wilcox {who had not been

required or requested to come along},

after the Bailiff left, told Denman that

he and Respondent Wilcox had been very

good friends for years, had gone to law

school together, been Bexar County

Assistant District Attorneys together,

and that he was not going to allow Denman

to interfere. He then had Respondent

Wilcox make a statement. without

recording Respondent Wilcox's’ false

statements, and, without warning of any

Miranda Rights, told Denman to make a

statement. A court reporter, Respondent

Don Pollack, hereinafter Pollack, was

eS

brought in and Denman made a statement,

correcting Respondent Wilcox's statement

about what happened in the courthouse

corridor. Respondent Yates then

criticized Denman again for violating the

"Rule" about sequestered witnesses, and

sentenced Denman to three days

imprisonment for violating the "Rule".

Denman pointed out that he wanted to

appeal and move for stay of execution of

the sentence pending appeal, but

Respondent Yates stated that he would

have to serve the sentence immediately.

Respondent Watkins arrived in the Jury

room and begin to assist Respondent Moke

in preparation of Denman for jail when

Denman was taken to the unused jury room

by Respondent Moke and ordered to give up

his belt, tie and all funds. Denman did

so, and "informed" the Respondents/

Defendants Moke and Watkins of two

previous incidents of false arrest and

unconstitutional detention which Denman,

in the course of his civil rights work,

had taken to Federal court and won. One

of the bailiff left the jury room, and

came back, stating the Judge (Respondent

Yates) wanted to see him (Denman) again;

Denman went, sans belt and tie.

Respondent Yates informed him that he had

reconsidered, and would not require

Denman to serve the three days if he

"apologized" to Respondent Wilcox.

Denman, who had obtained scarce

reservations from San Antonio to Mexico

City to see his son, daughter-in-law, and

granddaughter Iolante, who he hadn't seen

in over two years, and his new

ereadtausnter.. Tanya, he had never seen,

and in fear of additional false charges

and incarceration, was coerced into

agreeing.

Burton returned to Connecticut, and,

failing to get the copy of the Order

Respondent Wilcox was ordered to prepare

and send to Burton for acceptance as to

form, called the Bexar County District

Clerk's office often, to find out if the

Order had been filed; each time he was

told it hadn't been filed. The order was

filed February 11, 1981, despite recorded

telephone statements from the Bexar

County indexing clerk that the Order had

not been filed and entered, and that

Burton, unlike lawyers, could not

deposit a personal check for the appeal

costs. Burton then filed by mail, with a

Certificate of Mailing, a notice of

appeal accompanied by a Money Order for

$500.00 on February 27, 1982, although

the $500.00 was more than he was supposed

to pay. The Appeals Clerk, Respondent

Wellems, hereinafter Wellems, stated she

had not received a "Money Order" for

$500.00, and Burton, within 30 days pius

15 days extension of time plus 3 days for

service by mail as allowed in the Texas

Rules of Civil Procedure, No. 2la, mailed

a second notice of appeal and letter in

lieu of Motion for Extension of Time to

file the costs. No action was ever taken

on the Motion for Extension of Time in

the Texas courts. On March 27, 1981,

Burton mailed a timely Cashier's Check

for $500.00, secured at great financial

hardship. Respondent Pollack, the court

reporter, charged $2.75 per page, when

the lawful charge was $.84 per page for

the transcript of the hearing of January

26, 1981 and Denman's second “trial”.

This was another financial hardship on

Burton, who was earning a modest income

as a computer programmer.

Respondent Wellems and Bexar County

District Clerk Tom Rickoff, hereinafter

Rickoff, refused to file the Notice of

Appeal, and Burton appealed this to the

Texas Appeals Court, where his appeal was

Fe

denied because of his alleged failure to

pay the $500.00 on time. Burton sought a

Writ of Error from the Texas Supreme

Court, which was denied without comment.

Burton and his wife, Patricia

Burton, moved from Connecticut to Texas

to be near his daughter because of the

continued denial of court ordered

visitation and filed a writ of habeas

corpus to gain visitation with his

daughter. Respondent attorney John

Bracir, hereinafter Hrncir, and

Respondent Judge Joe Kelly, hereinafter

Kelly, denied the application for writ

of habeas corpus without allowing the

entry of evidence. Prior to court

beginning Burton saw Respondent Hrncir

leave the court chambers of Respondent

Kelly only seconds before Respondent

Kelly went to the courtroom and denied

the application for writ of habeas

corpus.

|

Prior to the beginning of a hearing

.

before Respondent Judge Raul Rivera,

hereinafter Rivera, Burton saw Respondent

Wilcox exit the chambers of Respondent

Rivera just prior to the contempt being

assigned to Rivera on September 10, 1981.

Burton attempted to invoke.the principle

that he could not be forced to pay the

ordered lawyer's fee by threat of jail,

but this was denied, and he was ordered

to pay an attorney's fee to Respondent

Wilcox within 30 days on pain of jail.

Burton sought to appeal, under the ruling

Of Ex Parte Prevost, 598 S.W.2d 310

(1979), that he could not be held in

contempt for nonpayment of legal fees,

but was told that he could not file the

notice of appeal until the Order of

Respondent Rivera was entered, and it had

not been entered. On the 29th day of his

grace period, in fear of losing his job

and because of his poor health, he paid

| )

the legal fees, and Rivera's order was

entered, but changed, deleting the order

that Burton pay the legal fee.

(2) Statement of the Proceedings in the

Courts Below.

On May 29, 1981, Burton, on behalf

of himself and his daughter Miranda, then

7 years old and his wife, Patricia, and

Denman filed suit in the United States

District Court, Western District of

Texas, San Antonio Division, seeking

redress of these grievances, against the

defendants, all residing in Texas. The

adult Burtons resided in Connecticut,

Miranda had English citizenship, and

Denman is a Massachusetts resident. The

Verified Complaint, and the later amended

Complaints, which were all verified by

affidavit, made claims for injunctive

relief and money damages under 42 U.S.C.

Sections, 1983, 1985, 1986 and 1988 and

Title 15 U.S.C. Sections 1 et seq.

Sufficient factual statements were made

36

showing the District Court also had

diversity jurisdiction and jurisdiction

under the R.I.C.0. Act, 18 U.S.C. 1961,

1962. On December 7, 1981, a hearing on

defendants' motions to dismiss was held.

Later the presiding United States

District Judge disqualified himself and

the plaintiffs submitted a Verified

Amended Complaint.

Respondent Alloo Adams then

disappeared with Petitioner Miranda

Burton, in February 1982, and is believed

to have gone to Alaska, violating the

court-ordered visitation between

Petitioners Carlyle and Miranda Burton,

and 28 U.S.C. 1738A. Defendant Jerry

Adams went to Hawaii. Plaintiffs stated

this in a Verified Further Amended

Complaint, which was accepted by the

District Court. Petitioner Burton was

told that a state habeas corpus action

could not be brought against Respondent

. 37

atlanta

Alloo Adams to reguire that Petitioner

Miranda Burton be returned to Texas

without personal service Om Respondent

Alloo Adams, which was impossible, her

whereabouts being unknown.

_ Petitioner Burton and his wife,

Patricia, sought to locate petitioner

Miranda Burton, but have been

unsuccessful to date. They were not

allowed to have Respondent Alloo Adams,

represented in the state and federal

courts by Respondent Wilcox, charged with

failure to return Miranda to the District

Court"’s jurisdiction, aithnoagn 28

U.S.Code, Section. 1738A provided for

enforcement of the Texas Family Court

orders in Texas.

On November 1, 1984, attorneys for

Defendants/Respondent Moke and Watkins

had an unrecorded ex parte "conference"

lasting an hour with the District Judge's

law clerk, of which none of the

oT

Petitioners were notified, and the next

day, November 2, 1984, a United States

Magistrate was assigned the case for

review. He recommended that the Verified

Amended Complaint be dismissed, although

it had been superseded by the Verified

Further Amended Complaint. Plaintiffs

fiied an Opposition to the

recommendation, but, without a hearing,

the Verified Further Amended Complaint

was dismissed with prejudice; the

plaintiffs appealed and the appeal was

denied without a hearing. Plaintiffs/

Appellants petitioned for rehearing, aad

this was denied.

H. ARGUMENT

QUESTION 1 ARGUMENTS

A litigant has a due process right

to the testimony of witnesses in his

behalf. Application of Gault, 87 S. Ct.

1428,. 1435. Burton and his daughter

Go

Wo

Miranda, were denied this right when his

witness, Denman, was wrongfully accused

of violating Texas Rules of Civil

Procedure No. 267, (the "“Rule"), by

discussing testimony Denman had never

heard, since he was excluded from the

courtroom before the testimony began.

Also, it has been ruled in Texas that the

litigant is not to be punished for any

alleged wrongdoing of a witness under the

"Rule" (Holstien v. Grier, 262 S.W.2d 954

(1954)). Burton was wrongfully denied

testimony from Denman; Burton was not

permitted in the chambers to protect his

rights, pro se, an tee District Court

should have set aside the state court

decision for these denials, rather than

dismissing the federal complaint.

Denman was improperly punished by a

‘reprimand, in his first “in chambers"

hearing because he had not violated the

rule. In the second "trial" of Denman, he

40

was again denied counsel ((Escobedo v.

Illinois, 378 U.S. 478 (1964); Miranda v.

Arizona, 86 S.Ct. 1602 (1966); Ridgway v.

Baker, 720 F.2d 1409 (1983, 5 C.A.});

notice, any production of witnesses in

Nis behalf, a transcript of all

proceedings, and an effective appeal

(Application of Gault, supra, at 1435.)

He was held in double jeopardy of the

alleged "Rule" violation, contrary to the

6th Amendment, made binding on the States

by the 14th Amendment. This was the

intentional infliction of emotional

distress, as was the taking of his belt,

tie, and money, and the sentence of 3

days imprisonment. Raftery v. Scott, 756

v. £28 395:

Respondent Yates' informing Denman

that he and Respondent Wilcox had gone to

law school together, and were Assistant

District Attorneys together, and were

very good friends, and that Yates was

41

displeased with Denman for acting

contrary to Wilcox's interests by

attempting to help a pro se litigant,

Burton, was also very emotionally painful

to Denman, since Denman was aware that

Yates should have disqualified himself

before the Burton trial, under Mayberry

v. Penna, 91S Ct 499.

The denial of a "impartial tribunal"

to Burton, after Wilcox's shifting of the

case folders on the assignment clerk's

desk, was an overt act in the conspiracy

to deny Burton (and Denman) due process

of law. The offer of vacation or

suspension of the unjust sentence did not

mitigate the emotional distress of

Denman, who was shocked more than the

average person, since he had participated

in several civil rights causes, including

voting rights work in the South (See

Congressional Record, Jan. 17, 1963) and

was aware of not only his rights, but of

9

H

z

7]

‘

2

3

€

the distressing effect on litigants' and

children's rights in general if the

actions of Yates and Wilcox were not

corrected. The District Court should have

permitted the Burtons and Denman to prove

these verified allegations in discovery

and trial. The plaintiffs should have

been permitted to prove at trial that the

illegal and unconstitutional behavior of

Yates and Wilcox was also done to

discourage Denman and chill his ardor to

give testimony, Cunningham v. Ingram

F. 8Upp. _. » @ee@ Graktin V¥.

Breckinridge, 91 S.Ct. 1790. This Court

should take into consideration that what

was done to Burton and Denman by Wilcox

and Yates, and to Burton by Respondents

J. Riviera and Wilcox, inasmall way was

what Deputy Sheriff Price and his

Civilian henchmen did to discourage the

brave young people who were helping

blacks to register to vote in the South.

u. S. Vv Price, 86 S. €t. 1232, 28365

footnote 7.

The United States Court of

Appeals for the 5th Circuit, in its

review of the facts, stated that there

was a "scuffle" in the hallway. Denman

should have been permitted to prove at a

trial that Respondent Wilcox had attacked

him with no justification, instead of

having the Complaint dismissed with

prejudice.

Respondents Bailiff Moke and Watkins

had no written authority to take Denman

to jail, as required by. Texas Code of

Criminal Procedure C.C.P. 14.01 and

14.02. They had not witnessed the

incident in the corridor, and since court

was not in session, and certainly not

held in a corridor, they should have

declined to take Denman into custody, but

required Yates or Wilcox or Denman to

Swear out a complaint according to Texas

eee ee

9 wt a a ON SRT A NES.

a eine She Sa et A ee aha estiny & dD

AN ae Sta Se ST Sh Se

Pata AL Seats AW

law for misdemeanors, since the act was

not witnessed as required by C.C.P. 14.01

and 14.02, or permitted Denman an

opportunity to swear out a cross

complaint. Since they were Bailiffs and

Deputy Sheriffs, they should have been

held responsible, in the U.S. District

Court, to a knowledge of Texas criminal

law that made their actions illegal.

They knew, or should have known, that

Respondent Yates could not be a witness,

then instant prosecutor, then instant

court clerk issuing a nonexistent

Criminal complaint and warrant against

Denman, then prosecutor and judge and

jury (Denman was never asked if he waived

the right to trial by jury), and that

even if Yates could do all that, he

should have given Denman some opportunity

to obtain counsel, witnesses, and

research the law as best he could before

he was tried. That the bailiffs went

45

along with this travesty shows that at

least a tacit understanding, a

conspiracy, existed. Denman and Burton

should have been given the opportunity,

by the District Court, to show that the

defendants agreed to commit an illegal

act(s).

"This requirement must often be

met by circumstantial evidence;

conspirators rarely formulate

their plans in ways susceptible

of proof by direct evidence.

Hoffman-La Roche v. Greenberg,

447 F. 2d 872, 875 ... From this

evidence and the testimony

regarding the defendants' course

of conduct toward Crowe, the

jury could reasonably have

inferred that a conspiracy

existed." Crowe v. Lucas 595 F.

24 965, 993 (Sth Cir. 1379).

The Sth Circuit should give the

Burtons and Denman the same opportunity

to prove to the jury that a conspiracy

existed. That Denman was denied a

transcript of all proceedings against him

is indisputable, and therefore the 5th

Circuit dismissal should be reversed.

Griffin v. State of Illinois 76 S.Ct. 585

(1956).

QUESTION 2 ARGUMENT.

Since the Appeals Clerk, Respondent

Wellems, refused to accept the second

$500 mailed in the form of a Cashier's

check, in the 30 days allowed for receipt

of the appeals costs, and stated that she

had never received a "Money Order" while

Claiming no knowledge that the first

appeal costs payment was inthe form of a

Money Order, it is obvious that

plaintiffs might be able to prove, toa

jury, that the Appeals Clerk had

improperly received or concealed the

first payment of the appeals cost, and

deliberately misapplied the rules by

denying the appeal notice and costs were

filed on time. The Appeals Court, by

denying the appeal because the notice was

allegedly not filed in time, also ignored

the "3 days extra for notice by mail"

Se ee ee

Rule unconstitutionally, denying Burton

his due process right of appeal.

Application of Gault, Supra.

QUESTIONS 3 and 4 ARGUMENT.

Since the pro se prospective

appellant's personal check was not

accepted by the Appeals Clerk, Wellems,-

when she accepted personal checks for

"cost bonds" and other filing fees from

lawyers, and accepted personal checks

from pro se Burton for payment of motion

filing fees, it is obvious that she was

denying Burton the equal protection of

the law. Pro se's must be given at least

the same consideration as lawyers (Haines

v. Kerner 92 S.Ct. 594 (1972)) and pro se

pleadings must be considered without

regard to technicality. Picking v. Penna

Ry, 151 F.2d 240 (1945, 3 C.A.}); Puckett

¥,. Con, 456 P.2G@ 233, (1972, 6 C.Ac). The

false denial, to a pro se litigant, that

the judge's decision was entered, and the

4

sai eet aU Se neh te or aie a

refusal to docket his notice of appeal

because the Order was allegedly not

entered, done to deny the pro se litigant

the same treatment as a lawyer, who would

not have been lied to, are forbidden by

the 14th Amendment's prohibition against

denial of due process and equal

protection and the decisions, cited above

in this paragraph, that pro se litigants

must be treated like lawyers for all

purposes in their own cases.

QUESTION 5 ARGUMENT.

The Texas Appeals Courts have ruled

in Ex Parte Prevost, 598 S.W.2d 310,

(1979), and the Missouri Supreme Court

has ruled in Davis v. Broughton, 382

S.W.2d 219, that lawyers' fees are not

enforcable by contempt procedures,

therefore respondent Rivera's oral order,

that Burton pay Respondent Wilcox a legal

fee of $250.00 or be jailed for contempt,

was improper. The scheme whereby Burton

was. faced with extortionate pressure (the

threat of jailing) if he did not pay the

$250.00 legal fees in 30 days, combined

with the denial of the filing of his

appeal on the order and a motion for stay

of execution because the "judge has not

entered the order" for 29 days, out of an

appeal notice period of 30 days, Burton's

payment of the legal fee, and the

subsequent written order deleting the

oral order to pay the legal fees, were

overt acts of the conspiracy to deprive a

pro se litigant, on a medical pension

from the Veterans Administration for

multiple service-connected disabilities,

of the due process right of appeal, and

of his property, the $250.00 fee,

illegally and unconstitutionally, and the

District Court should have allowed the

Claims to be heard.

QUESTION 6 ARGUMENT.

The District Court should not have

50

iti Celt belgie tcc a

dismissed with prejudice, nor the Appeals

Court uphold the dismissal, of the

Verified Further Amended Complaint, since

it stated claims of the Verified Further

Amended Complaint, since it states claims

of: denial of Texas family court orders

for father-daughter visitation in Texas,

enforcible under 28 U.S. Code, Sec.

LISSA, upheld in Heartfield v.

Heartfield, 749 F.2d 1138 (1985, 5 C.A.),

conflicting -with the Fifth Circuit's

upholding of the dismissal of the instant

case; denial of witnesses; denial of

counsel which the 5th Circuit forbade in

contempt cases in Ridgeway v. Baker, 720

F.2d 1409, 1415 (1983); and denial of

equal protection of the law, all verified

by affidavit, and which were not

contradicted in the affidavits submitted

by Respondents Moke and Watkins.

Yates submitted no affidavit at all;

his acts, including his ordering bailiff

~ 7

JL

Moke arrest Denman and take him into

chambers, were entirely outside his

jurisdiction, the incident he used as a

pretext having taken place outside the

courtroom when court was not in session

and not in his view. He has no immunity

for nonjudicial acts outside the

courtroom, and should have none for

conducting a hearing against Denman

without notice, proper arrest,

documentation, or jury. For those acts

for which he may have judicial immunity,

and which were improper, he has no

immunity against the requirement that he

pay attorney fees. Pulliam v. Allen, 80

L.Ed.2d 565, 104 S.Ct. 1970 (1984).

The claims against other

respondents, such as false statements by

Respondent Alloo Adams to Burton's

commanding officer, the failure to repay

the $3,000.00 loan, and most tragic, the

deprivation of Miranda's care, company,

Biase sans caheeet

love and affection, which had been ruted.

as being in the best interest of Miranda

(Raftery v. Scott, supra.), were all

under the jurisdiction of the District

Court under the pendent jurisdiction

principle and because of diversity of

citizenship between the plaintiffs and

defendants.

QUESTION 7 ARGUMENT.

This Court has ruled, in Sedima SPRL

¥. Imperx Co... Inc... 195 S.Ct. 2273 CHAt

when a person suffers damage to his

business or property by the defendant's

indictable acts occurring within 10

years, the injured party may sue under

the Racketeer Influenced and Corrupt

Organization Act, hereinafter R.I.C.O.

Act, 18 U.S.C. 1961-1968. The 5th Circuit

has foliowed this decision in Armco

Industrial Credit Corp. v. SLT Warehouse

Co., 782 F.22@ 475 (1986), James v¥.

Mienke, 778 F.2d 200 (1985), Howell

ae

Petroleum Corp. v. Weaver, 776 F.2d 1302

(1985) and Couture v. Hyatt, 774 F.2d

1350 (1985). The First Circuit has ruled

the same in Hunt v. Weatherbee, 626 F.

Supp. 1097 (Mass., 1986). The Plaintiffs/

Petitioners in the instant case have

suffered in their property, including

Burton's forced payment of legal fees,

and their businesses, since both Burton

and Denman have been forced to take time

from their regular work to defend their

liberty and their business and _ personai

reputations, and therefore the District

Court should have taken jurisdiction

under the R.I.C.0. Act.

By the Plaintiffs, pro se

Carlyle Burton, Nathaniel Denman

individually and P.O. Box 689

for Miranda Mitzi Falmouth, Ma

Burton, a minor 02541

P.O. Box 34321 617-548-3295

San Antonio, Tx 78265

U1

>

————————ee

CERTIFICATE OF SERVICE

ke , herewith certify that

I have mailed, first class, postage

prepaid, copies of the above

"Petition for Writ of Certiorari" to the

last known counsel of record for the

Appellees; Weldon Ponder, 1000 Capitol

Center, 919 Congress Avenue, Austin,

Texas 78701; District Attorney's Office,

Keith Burris, Joe Frazier Brown, Michael

Hodge, William Crow, Bexar County

Courthouse, San Antonio, Texas, 78205;

Charles L. Smith, Susan E. Callaway,

2000 Frost Bank Tower, San Antonio,

Texas, 78205; Adams, Flake & Hrncir, 1001

Pat Booker Road, Suite 200, Universal

City, Texas, 78148 on the day of

1987.

Nathaniel Denman