# Reply Brief — Melendrez v. Seib

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1305%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 821

## Text

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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1305%3A09. Public record. Not legal advice.