# Petition for Writ of Certiorari — Burton ex rel. Burton v. Wilcox > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2354%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 484 U.S. 849 ## Text % 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2354%3A1. Public record. Not legal advice.