Reply Brief — Melendrez v. Seib

Z RELED

No.__ 91-1794 _ JUL 8 2002

IN THE

| OFFICE OF THE CLERK

pape Sogo Ps a

Jose Meliendrez, Jr.,

Petitioner,

vs.

Francis E. Seib, Drug Enforcement Administration,

Head DEA Agent in charge of Eagle Pass, Texas, in

his official capacity; Moses Pena, Drug Enforcement

Administration, DEA Agent in Eagle Pass, Texas, in

his official capacity; Larry Leon, Drug Enforcement

Administration, former DEA Agent in Eagle Pass, Texas,

not in San Antonio, Texas, in his official capacity; Tony

Quintanilla, former County Investigator of Zapata County,

now a U.S. Border Patrol Agent in Fort Hancock, Texas, in

his official capacity; Arnoldo Ramos, Sergeant/Investigative

Department of Public Safety in Del Rio, Texas, in his official

capacity; United States of America,

Respondents.

On Petition For Writ of Certiorari

To The United States Court of Appeals

. For The Fifth Circuit

PETITIONER’S REPLY BRIEF IN OPPOSITION

TO RESPONDENT TONY QUINTANILLA

Jose Melendrez Jr.

745 Appleton Rd.

Menasha, WI 54952

(920)725-4506

In Pro Se

Attorney of Record _ Attorney of Record for Petitioner

ee:

INDEX

TABLE OF CONTENTS. i

QUESTIONS PRESENTED FOR REVIEW ii

QUESTIONS PRESENTED AND ARGUMENT....... 1-10

CONCLUSION 10

CERTIFICATE OF SERVICE 11

(i)

QUESTIONS PRESENTED FOR REVIEW

Whether the U.S. Court of Appeals was in error to

AFFIRM the lower courts decision that Plaintiff -

/Appellant/Petitioner’s lawsuit or claims were filed under

the Federal Tort Claims Act (“FTCA”), 42 U.S.C. & 1983

and Bivens v. Six Unknown named Agents, 403 U.S. 388

(1971).

Whether the U.S. Court of Appeals was in error to

AFFIRM the lower courts decision that Melendrez’s Tort

Claim did not require the tolling statute and therefore

being time-barred.

Whether the U.S. Court of Appeals was in error to

AFFIRM the lower courts decision based on HECK

RULE.

Whether the U.S. Court of Appeals was in error not to

CONSIDER Melendrez’s arguments that the district judge

should have recused himself.

Whether the U.S. Court of Appeals was in error not to

ENTERTAIN Plaintiff Petitioner’s Supplemental Motion.

REPLY BRIEF OF PETITIONER

The Petitioner hereby submits his REPLY BRIEF in the

above- captioned matter.

FIRST ISSUE

The Petitioner “OBJECTS” to Respondent, Tony

Quintanilla’s “BRIEF IN OPPOSITION”, on pages 1,2. and 3 on

Paragraph (A). The Claim is Barred by Limitations.

ARGUMENT

With respect to the tolling of statute of limitations the

Petitioner cited several case law and presented evidence to support

his allegations, but the lower Courts did not review or examine the

Petitioner’s relevant cited case law and evidence in the record..

Therefore, the Petitioner Cites Taliaferro v. Dykstra, 388

F. Supp. 957 (1975) and Mizell V. North Broward Hospital

District, 427 F.2d 468 (5* Cir. 1970) in addition, this case law was

cited on EXHIBIT # 15, entered as evidence to oppose the U.S.

Memorandum and Application for order and Substitution Motion.

In addition, the above-mentioned case law was cited by the

Petitioner on Page 6, and 7 on the Petitioner’s “OBJECTIONS” to

the REPORT AND RECOMMENDATION OF THE UNITED

STATES MAGISTRATE JUDGE (DENNIS GREEN).

Moreover, on the above-mentioned case law it clearly

states, in the matter at bar, the Court finds Plaintiff Schotta began,

(1)

even prior to the official termination of her employment by VPI on

June 6, 1971, to pursue the only administrative remedy then

available to her. Moreover, throughout the ensuing nearly two-year

period prior to instituting this action, she made numerous

attempts to accelerate the investigation HEW had undertaken

in response to her complaint. The Court also finds that the

DEFENDANTS were PLACE ON NOTICE of the

INVESTIGATION no later than November 8, 1971, the day on

which defendants were FURNISHED a copy of Plaintiff

Schotta’s complaint upon the arrival of HEW’S investigators

on the campus. Citing Taliaferro v. Dykstra, 388 F. Supp. 957

(1975) and Mizell v. North Broward Hospital District, 427

F.2d 468 (5* Cir. 1970)citing Burnette v. New York Central

R. Co., 380 U.S. 424, 428, 85 S.Ct.1050, 1054, 13 L.Ed.2d 941

(1965). See Also Exhibit #14 and #15, entered as EVIDENCE to

oppose the U.S. Memorandum and Application for Order and

Substitution Motion, in which , EXHIBIT #14 presents a pattern of

misleading statements made by the United States Attorneys

Office in San Antonio, Texas., into allowing the filing deadline

to pass. And consequently, the Petitioner was led to believe

that the U.S. Attorney’s Office would eventually help the

Petitioner as time permitted. (See Exhibit #14 - consists of 10

pages of responses made by the U.S. Attorney’s Office in San

Antonio, Texas. In addition, the Defendants were placed on notice

of Petitioner’s complaint on June 5, 1997 less than a year after the

Petitioner was imprisoned. See Also Exhibit #14 and Exhibit #18

(2)

to prove the Petitioner’s allegations and claims. Moreover, there

are responses from the U.S Attorney’s Office in San Antonio,

Texas dated April 8, 1999 and July 12, 1999, in which it clearly

states that “Mr. Sepeda will look into the matters you allege as

time permits. As I told your sister, the Del Rio Division likely

will prosecute more than 1,000 defendants during 1999. Mr.

Sepeda or someone in his office will eventually respond to your

letter. With this in mind , the Petitioner was surely being mislead

induced and tricked by the adversary party into believing that

Petitioner’s case and allegations were surely going to be

investigated. Therefore, Petitioner was forced to file the instant

civil action a year later after waiting for the U.S.Attorney’s Office

to RESPOND to Petitioner’s claims and allegations.

Wherefore, the Petitioner followed the same pattern of

enunciated principles on the above-mentioned case law and

followed the “ONLY ADMINISTRATIVE REMEDY

AVAILABLE TO THE PETITIONER AT THAT POINT IN

TIME”. However, the lower Courts did not review or examine the

evidence in the record. The evidence in the record (29-total

exhibits entered as evidence to OPPOSE the U.S. Memorandum

and Application for Order and Substitution motion is being cited

on every OPPOSING DOCUMENT FILED by the Petitioner in the

instant case, and was cited to avoid redundance in the lower

Courts and now will also be cited in the U.S. Supreme Court to

prove and certify the Petitioner’s allegations and claims against all

of the Defendants.. (3)

In addition, the Opposing counsels’ for all of the Named

Defendants in the instant civil action never OPPOSED or

OBJECTED to the Petitioner’s 29-total exhibits entered as

evidence to OPPOSE the U.S. Memorandum and Application for

Order and Substitution Motion and were all served with this

evidence via-certified mail. See also, Petitioner’s Motion to

Supplement the Records (Certified Receipt and Certificate of

Service).

With respect to Respondent Tony Quintanilla’s claims on

page 2, paragraph | on Respondent’s Brief in Opposition, the

Petitioner “OBJECTS”, the U.S. Attorney’s Office was still

INVESTIGATING the Petitioner’s case on April 8, 1999 and July

12, 1999, according to the U.S. Attorney’s Office in San Antonio,

Texas, (Citing Exhibit #14), and was deliberately and intentionally

being mislead (induced, tricked) by the adversary party into

believing that the Petitioner’s case was being investigated.(Citing

Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (1990).

In any event, “IF” the U.S. Attorney’s Office in San

Antonio, Texas would have terminated the investigation on July

12, 1999, the Petitioner would still have ample time (July 12,

2001) to file the instant civil action because the case was still

being investigated, but since the U.S. Attorneys Office never filed

or denied the Petitioner’s claims and allegations the U.S.

Attorney’s Office in San Antonio, Texas and Del Rio, Texas were

clearly misleading the Petitioner in the instant case.

(4)

In addition, the Petitioner did file a written complaint to

the appropriate federal agency with-in the two-year statute of

limitations period(June 5, 1997) with-in a year of Petitioner's

conviction( June 6, 1996), in this case, the U.S. Attorney’s Office

in San Antonio, Texas and Del Rio, Texas. (Citing Exhibit #14

and Exhibit #18).

Consequently, the Petitioner’s claims are based on Abuse

of Process and Negligent Misrepreseatation because the law

was established in the Fifth Circuit Court of Appeals in 1965,

which clearly states that there can be no indictable conspiracy with

a government informer (Citing SEARS V. UNITED STATES 343

F.2d 139 (5* Cir.1965). If the Law was well established since

1965 not to convict the Petitioner of Conspiracy to Distribute

Marijuana with Guadalupe Garza and others it was foreseeable not

only to the Defendants but to the U.S. Attorney’s Office, U.S.

Magistrate Judge, and the U.S. District Judge not to convict the

Petitioner on a conspiracy charge, however, the Defendants and

the lower courts deviated from the enunciated principles set-forth

in Sears v. United States, 343 F.2d 139(Sth Cir.1965), and that is

why the Petitioner is charging the Defendants with Abuse of

Process and Negligent Misrepresentation. (See also Exhibit #1).

Consequently, there is no record that the Defendants and

lower Courts opposed, objected, or ruled on the Petitioner’s

above-mentioned case law. And have deliberately overlooked the

Petitioner’s claims, allegations and relevant case law.

(5)

SECOND ISSUE

With respect to Respondent Tony Quintanilla’s Brief in

Opposition, the Petitioner “OBJECTS” on pages 3 And 4

Paragraph (B) The Courts below Properly construed Petitioner’s

allegations.

ARGUMENT

Consequently, Defendant Tony Quintanilla claims that no

theory of liability was made against him by the Petitioner and

therefore should be deemed to have waived any such claim. In

such case, he no longer has any cause of action against

Quintanilla.

Consequently, Respondent Tony Quintanilla is very well

mistaken and it is clear that Quintanilla did not read the

Petitioner’s arguments on Petitioner’s Jose Melendrez Jr’s

Opposition to Defendant Tony Quintanilla’s Original Answer on

pages 17, 18, and 19 paragraph (23). In which, it clearly addresses

Quintanilla’s involvement with federal law enforcement agencies

(lending credebility to the governments case against the

Petitioner). In addition, Respondent Quintanilla was working in

concert with the DEA Government agents and the Petitioner cited

several case law starting with Thompson v. United States, cite as

504 F. Supp 1087 (1980), Martarano v. United States, 231 F. Supp |

805 (D.Nev. 1964), and United States v. N.A. Degerstrom, Inc. |

408 F.2d 1130 (th Cir. 1969), which falls within the ambit of 28

U.S.C.A && 1346(b), 2671. To support Petitioner’s claims and |

allegations.

(6)

Consequently, the lower courts did not review, examine,

or ruled on whether Respondent Tony Quintanilla was working as

an “Employee of the Government”, in addition, there is no record

that the lower courts ever questioned Quintanillas involvement in

the instant case, however, the lower Courts did manage to state

that Petitioner was trying to assert a 28 U.S.C.A & 1983 claim

against Respondent Tony Quintanilla, when in reality, the

Petitioner never did file under 1983. The Petitioner raised the

ISSUE that Respondent Tony Quintanilla was an “Employee of

the Government”, as OPPOSED to a 1983 Civil Action.

THIRD ISSUE

With respect to Respondent Tony Quintanilla’s Brief in

Opposition, the Petitioner “OBJECTS” on page 4 and 5 paragraph

C. Petitioner has no Tort Claim so long as conviction stands.

ARGUMENT

With respect to HECK RULE , Heck v. Humphrey,

(1994), 512 U.S. 477, 129 L.Ed.. 383, 114 S.Ct 2364m the

majority states clearly that Justice Souter’s discussion of abuse of

process, post, at 494-495, 129 L.Ed., at 399, does not undermine

this principle. It is true that favorable termination of prior

proceedings is not an element of that cause of action - but neither

is an impugning of those proceedings one of its consequences. The

gravamen of that tort (Abuse of Process) is not the wrongfulness

of that prosecution, but some extortionate perversion of lawfully

initiated process to illegitimate ends. ID. At 394 NOTE 7(b).

)

That’s exactly the Petitioner’s Jose Melendrez Jr., instant

civil lawsuit is based on abuse of process where the Defendants

deviated from the instructions of Sears v. United States, 343 F.2d

139, 142 (5* Cir. 1965) (Fifth Circuit Court of Appeals). Not to

seek an indictment against the Petitioner Jose Melendrez Jr.,

based on Conspiracy with Guadalupe Garza and said others.

In addition, the Petitioner cited HECK RULE on Petitioner’s

Petition for Writ of Certiorari on page 16, 17 and 18.

Therefore, the Petitioner would ask the U.S. Supreme

Court to correctly interpret the TORTS of Abuse of Process and

Malicious Prosecution for the Defendants and the lower Courts

because the Petitioner has repeatedly explained the differences on

the Petitioner’s “OBJECTIONS” to the Report and

Recommendation of the United States Magistrate Judge on pages

14 and 15. See Also Petitioner’s Petition for Writ of Certiorari on

pages 16, 17, and 18. In addition, on Petitioner’s Reply Brief in

the U.S. Court of Appeals on page 8 paragraph 2,3,4,and 5.

Consequently, the Respondent Tony Quintanilla is very

well mistaken because under Abuse of Process the Petitioner has a

Tort Claim and has a legal claim against all of the named

Defendants in this case and does not have to prove that his

conviction has been terminated in his favor.

FOURTH ISSUE

With respect to Respondent Tony Quintanillas Brief in

(8)

Opposition, the Petitioner “OBJECTS” on page 5 and 6 paragraph

(D). No entitlement to Recusal Absent Proper Motion.

ARGUMENT

This argument is well argued on Petitioner’s Petition for

Writ of Certiorari on Pages 18 & 19.

FIFTH ISSUE

With respect to Respondent Tony Quintanillas’ Brief in

Opposition, the Petitioner “OBJECTS” on pages 6 and 7

paragraph E. There was no need to supplement the Record.

ARGUMENT

This Argument is well argued on Petitioner’s Petition for

Writ of Certiorari on pages 20, 21, 22, 23 and 24. However, the

Petitioner would advice the U.S. Supreme Court to review and

examine Petitioner’s Original Motion to Supplement the Record

because according to the District Court(clerk) Petitioner did not

file Exhibits entered as evidence to Oppose the U.S. Memorandum

and Application for Order. See Petitioner’s Original Motion to

verify if all exhibits entered as evidence are in the Honorable

Court of Appeals Records filed by the Petitioner on September 18,

- 2001. See also, Petitioner’s Appendix on the Petitioner’s Petition

for Writ of Certiorari (Appendix E).

Wherefore, the Petitioner seeks 5 million dollars because

all of the Named Defendants in the instant matter did not follow

the principle enunciated by the Fifth Circuit Court of Appeals

in the case Sears V. United States, 343 F.2d 139 (1965).

(9)

Consequently, the Petitioner would have never been put

in prison for Conspiracy with Guadalupe Garza and said

others, and therefore, Petitioner SUSTAINS Mental Anguish,

Stress, Emotional Distress, and Loss of Liberties SINCE June

6, 1996 thru the Present date and further FUTURE supervised

release because of Defendants Moses Pena, Larry Leon,

Francis E. Seib, Arnoldo Ramos, and Tony Quintanilla’s

“Intentional”, “Deliberate”, and “Reckless Conduct” that

“CAUSED THE PETITIONER”S INJURIES MENTIONED

HEREIN”.

CONCLUSION

BASED ON THE FOREGOING, Petitioner respectfully

requests the U.S. Supreme Court to GRANT the Petitioner’s

Petition for Writ of Certiorari. If errors in the law were committed

by the Fifth Circuit Court of Appeals, in essence, Petitioner

respectfully requests the U.S. Supreme Court to REVERSE the

U.S. Court of Appeals (Fifth Circuit) DECISION and remand the

case back with instructions to the District Court.

DATED: July 1, 2002

CERTIFICATE OF SERVICE

This is to certify that a true copy of the Petitioner’s Jose

Melendrez Jr’s., “Reply Brief” was mailed on the date indicated

below to the following persons:

Mr. Robert L. Pittman Attorneys for Appellees:

United States Attorney Francis E. Seib

Mr. James F. Gilligan Jr. Larry Leon

Assistant United States Attorney Moses Pena

Western District of Texas

601 N.W. Loop 410, Suite 600

San Antonio, Texas 78216

Mr. Phillip A. McKinney Attorney for Appellee:

McKinney & Rodriguez-Barrera Tony Quintanilla

Attorney at Law

Professional Corporation

615 N. Upper Broadway (78477)

P.O. Box 2747

Corpus Christi, Texas 78403-0303

Mr. Seth Byron Dennis Attorney for Appellee:

Assistant Attorney General Arnoldo Ramos

P.O. Box 12548, Capitol Station

Austin, Texas 78711

The original and 40 copies of the same material have

been mailed by U.S. Postal Service and Certified Returned Receipt

on the date indicated below to the Honorable Clerk of Court for

the Supreme Court of the United States.

Dated: July _1 , 2002

Melendrez

IN PRO SE

(11)