Petition for Writ of Certiorari — Quiroz v. Windham

oo

’

“y)

91-1865 _—

NO. | MAY 19 1992

OF THE CLERK

——

Buprame Court, US

FILED

IN THE .

UNITED STATES SUPREME COURT

OCTOBER TERM, 1991

ae :

RONALD J. QUIROZ

ef Appellant

a ij

"lan\\ aes VS.

QY/ — FORT WORTH POLICE CHIEF

THOMAS WINDHAM, et al

Respondents

Petition for Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

DANNY D. BURNS*

115 N. Henderson

Fort Worth, Texas 76102

(817) 870-1544

Bar No. 03443800

RICK BOWMAN

400 East Weatherford

Fort Worth, TX 76102

(817) 335-3338

Bar No. 02751400

~ * Attorney of Record

QUESTIONS PRESENTED

(1) Is the Petitioner denied the Due Process

guaranteed under the United States Constitution when

his appeal to the Circuit Court is dismissed for late

filing of his brief and the Circuit Court doesn't discuss

the applicable Federal Rules of Appellate Procedure

(F.R.A.P.) in making its decision to dismiss?

(U.S. Constitution, Fifth and Fourteenth Amendments).

(2) Is the Petitioner denied the Equal Protection

of the Law guaranteed under the United States

Constitution when his appeal to the Circuit Court is

dismissed for late filing of his brief and the Circuit

Court doesn't discuss the applicable statutory Fereral

Rules of Appellate Procedure in making its decision to

dismiss? (U.S. Constitution, Fourteenth Amendment).

(3) Does F.R.A.P. Rule 26(c) extend for an

additional three days the date for filing a brief when the

Petitioner received by the U.S Postal Service a written

order of the Circuit Court granting Petitioner's motion

for extension of time to file the brief?

(4) Does F.R.A.P. Rule 25(a) mean that a brief

that is mailed by the U.S. Postal Service Overnight

Express is deemed filed on the day it is piaced in the

hands of the U.S. Postal Service?

LIST OF INTERESTED PERSONS

Petitioner:

Respondents:

RONALD J. QUIROZ of

Fort Worth, Texas

THE CITY OF FORT WORTH, TEXAS

THE POLICE DEPARTMENT OF THE

CITY OF FORT WORTH, TEXAS

THOMAS WINDHAM, Police Chief

of the City of Fort Worth

RUSSELL BUTLER, Detective for the

City of Fort Worth

R.B. WALTERS, Detective for the City

of Fort Worth

WEST SIDE STORIES, INC., located in

Fort Worth, Texas

MIKE LEWIS of Fort Worth

employee of West Side Stories

PAT LEWIS of Fort Worth

employee of West Side Stories

CRAIG BURKETT of Fort Worth

employee of West Side Stories

THOMAS RAY SCOTT of Fort Worth

employee of West Side Stories

rt oe ee mamma

a

Counsel for Petitioner:

RICK BOWMAN of Fort Worth

Counsel for Respondents:

RICHARD E. HENDERSON of Fort Worth

STEPHEN MAXWELL of Fort Worth

TABLE OF CONTENTS

ITEM: PAGE:

QUESTIONS PRESENTED FOR REVIEW ......... |

LIST OF INTERESTED PERSONS............. |

RELEVANT ORDERS OR JUDGMENTS......... Vl

GROUNDS FOR JURISDICTION.............. vil

STATUTES ANDLAWS ................... vill

STATEMENT OF THE CASE AND

oo) ee ee 1

ARGUMENT AND AUTHORITIES............. 6

eT Le EL EEE Te

oo ee 2S a 12

APPENDIX

A. DENIAL OF MOTIONS FOR REHEARING

B. ORDER DISMISSING THE APPEAL

AUTHORITIES

CASES: PAGE:

Chicago Commodities, inc. v. Commodities

Futures Trading Com.

811 F2d 1262 (9th Cir. 1987)........... g

Guam Sasaki Corp. v. Dianas Inc.

881 F.2d 713, 716 (9th Cir. 1989)........ 6

Lashley v. Ford Motor Company

$16 F2d 749 ( Sth Cir. 1975) .......-+- ras.

Prince v. Poulos, 876 F2d 30

(5th Cir. 1989)..... rE Oo or a

RULES

F.R.A.P. 25(a) 68-11

F.R.A.P. 26(c) 6-8,11

Fae eee oe ee eee 3,6

ADVISCRY COMMITTEE NOTES:

NOTES OF ADVISORY COMMITTEE ON

APPELLATE RULES Concerning F.R.A.P. Rule 25... 10

REFERENCES:

Webster's New Collegiate Dict onary (1973) .... 10

iia

- Wi «-

RELEVANT ORDERS OR JUDGMENTS

Denial of Motions for Rehearing and

Rehearing En Banc to the Fifth Circuit . App. A

Dismissal of Appeal. .......... .. App. B |

- WH --

GROUNDS FOR JURISDICTION

(i) Order of Dismissal: Filed January 24, 1992.

Denial of Rehearing: Filed February 19, 1992.

(ii) The Fifth Circuit's decision dismissing Petitioner's

appeal is in conflict with the decision of the Ninth

Circuit in Chicago Commodities, Inc. v. Commodities

Futures Trading Com., 811 F2d 1262 9th Cir. 1987),

and in conflict with its own decision in Prince V.

Poulos, 876 F2d 30, (5th Cir. 1989)

-- Vill --

STATUTES AND LAWS

UNITED STATES CONSTITUTION

Fifth Amendment

"No person shall be held to answer for a capital, or

otherwise infamous, crime, unless on a presentment or

indictment of a grand jury, except in cases arising in

the land or naval forces, or in the militia, when in

actual service, in time of war, or public danger; nor

shal! any person be subject, for the same offence, to

be twice put in jeopardy of life or limb; nor shall be

compelled, in any criminal case, to be a witness

against himself; nor be deprived of life, liberty, or

property, without due process of law: nor shall private

property be taken for public use, without just

comoensation."

=ourteenth Amendment

"Sect. 1. All persons born or naturalized in the United

States. and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

whic n 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

dre process of law, nor deny any person within its

jurisciction the equal protection of the laws."

= = A.P. Rule 25(a) states in pertinent part:

“Pacers required or permitted to be filed in a court of

appeals shall be filed with the clerk. Filing may be

acccmplished by mail addressed to the clerk, but filing

o- 1K --

shall not be timely unless the papers are received by

the clerk within the time fixed for filing, except that

"briefs and appendices shall be deemed filed on the

day of mailing if the most expeditious form of delivery

by mail, excepting special delivery, is utilized."

*.

F.R.A.P. Rule 26(c) states:

"Whenever a party is required to do an act within a

prescribed period after service of a paper upon that

party and the paper is served by mail, 3 days shall be

added to the prescribed period."

Ae

Page One

STATEMENT OF THE CASE

AND MATERIAL FACTS

Ronald Quiroz filed a pro-se complaint on May 2,

1990, complaining of a beating and other actions

takenby private citizens by themselves and in concert

with members of the Police Department of the City of

Fort Worth. Texas occurring on May 7, 1988. (R. 1). An

order Granting the Motion for Leave to Amend was

signed on Cctober 25, 1990 (R. 50), and Appellant

filed an Arernded Complaint on October 26, 1990 (R.

67). Tre’e was entered into the record an ORDER

SETTING SC3EDULE on February 28, 1991 (R. 66),

but on Marcn 11, 1991, the trial judge entered a

MEMORANO YY OPINION AND ORDER (R.-76-82) and

JUDGMEN™ =. 83) dismissing the case.

Petiticver filed a Motion for Reconsideration on ;

April 10. 122° .R. 90), which was denied on April 29,

1991 (R.1Cz_ = Petitioner filed his NOTICE OF APPEAL

Page Two

on May 28, 1991 (R. 103), and filed his Designation of

Record on Appeal on June 7, 1991 (R. 105). The

record on appeal was transmitted to the Fifth Circuit

Court of Appeals by the United States District Court

for the Northern District of Texas, on June 27, 1991.

Petitioner's Brief was not filed by August 11, 1991, and

on August 22, 1991, the panel dismissed Petitioner's

Appeal. Before receiving notice of the dismissal, the

Petitioner had mailed a request for an extension of

time to file his brief on August 23, 1992. Upon

receiving notice of the dismissal, Petitioner filed a

Motion to Reinstate Appeal and re-submitted his

Motion for Extension on August 30, 1991. Petitioner's

Motion to Reinstate Appeal was granted on September

18, 1991.

The Petitioner was given until September 20.

1991.to file his Brief. The Petitioners Brief did not

arrive at the Clerk's Office until February 24, 1991.

Page Three

The Appellees made motion to dismiss the appeal

under Rule 31(c) on the grounds that the Brief was

filed late. The Motion to Dismiss was granted under

Rule 31(c) on the grounds that the Petitioner's Brief

was filed too late.

In the Fifth Circuit the Petitioner adopted and

repeated the allegations of the Appeliee’s Motion to

Dismiss as being factual. Any comments or additions

of Petitioner are placed in italics:

EEE EEE EEE EEE EEE EEE EEE ee

APPELLEE'S MOTION TO DISMISS

1. As appears from the files of this cause, the

record on appeal was transmitted to this Court by the

United States District Court for the Northern District of

Texas, on June 27, 1991.

2. Under the provisions of Rule 31 (a) of the

Federal Rules of Appeliant (sic) procedure, Appellant

was required to serve and file his Brief within 40 days

from the date of filing of the Record

Page Four

on appeal with this Court, which would have been

August 11, 1991. Appellant's Brief was not filed by

August 11, 1991. and accordingly, on August 22,

1991, this Honorable Court dismissed Appellant's

Appeal. (Before receiving notice of the dismissal, the

Appellant mailed a request for an extension of time on

August 23, 1991. Upon receiving notice of the

dismissal the Appellant filed a Motion to Reinstate and

resubmitted his Motion for Extension of Time to File

Appellant's Brief on August 30, 1991).

3. Thereafter, Appellant filed his Motion to

Reinstate Appeal. on or about August 30, 1991. By

order of United State’s Circuit Judge John M. Duhe’,

Appellant's Motion to Reinstate Appeal was granted on

September 18. 1991; however, Appeliant was clearly

given and specifically given until September 20, 1991,

to file his Brief (This extension was granted on

September 18. 1991, most probably mailed on

Page Five

September 18, and was received by Appellant on

September 20, 1991, a Friday.)

4. On September 23, 1991, Appellant advised the

Clerk of the United States Court of Appeals that his

Brief was being filed and copies forwarded to counsel

for Appellees. (Appellant mailed his Brief on

September 23, 1991, by U.S. Postal Service Express

Mail Next Day Service). Even if Appellant's assertion

that the Brief was being filed on that date was correct,

such date still was 3 days after the deadline

established by this Court for the filing of said Brief. In

fact said Brief was not delivered to counsel for

Appellees until September 25, 1991. (By letter dated

September 25, 1991, Appellant explained to the Clerk

that there were problems with the company preparing

the Record Excerpts and that the Briefs and Excerpts

were not actually delivered to the Appellees until that

day, instead of the anticipated

Page Six

tion to Dismiss)

ARGUMENT AND AUTHORITIES

The Fifth Circuit's Order of January 24, 1992.

dismissing Petitioner's appeal states in full:

By written order of this Court, appellant was

given an Extension until September 20, 1991 to file

his brief. The brief was mailed by appellant's counsel

on September 23, 1991. and was therefore untimely.

See Guam Sasaki Corp. v. Diana's Inc., 881 F.2d 713,

716 (9th Cir. 1989): Fed. R. App. p. 31(c). Although

the Clerk's office filed the brief, it must be stricken.

Appellee has moved for dismissal of the appeal

pursuant to Fed. R. App. P. 31(c), which motion is

hereby granted. (Emphasis added).

I.

Guam Sasaki Corp. v. Diana's Inc. is not on point

since it concerned the remedy for the failure to file a

new briefing schedule after a remand order. In that

case there was no attempt whatsoever to file the new

driefing schedule. therefore, there could be no

\

discussion of the application of Rules 25 and 26 to a

date of filing a brief and how the rules affected the

Page Seven

timeliness as is necessary in the case at bar.

Rule 26(c) states:

Whenever a party is required to do an act within a

prescribed period after service of a paper upon that

party and the paper is served by mail, 3 days shall be

added to the prescribed period.

HI.

In this case, the Petitioner received written notice

in the mail September 20, 1991, that his motion for

extension of time was granted, and that the extension

was granted until that same day, September 20, 1991,

a Friday. Petitioners Brief was not mailed until

Monday, September 23, 1991, by US Postal Service

Express Mail Next Day Service.

III.

It was. and is, Petitioner's position that his brief was

timely filed due to tne additional three days allowed by

F.R.A.P. Rule 26(c) for responding to an order after

that order is servec by mail, i.e., by written order.

Page Eight

The only cases Petitioner has found construing Rule

26(c) are those that point out that the three day

extension does not apply to filings and notices of

appeals. See Lashley v. Ford Motor Company, 518

F2d 749 ( 5th Cir. 1975). There are no cases that

Petitioner can find that hold that Rule 26(c) does not

mean exactly what it says when applied to briefs.

IV.

waa aee- Application of Rule 25(a) --------

The Petitioner was not able to mail his brief until

Monday. September 23, 1991. and did so by mailing

via US. Postal Service Express Mail Next Day

Service. This was not done by Federal Express, UPS, or

any other method. It was done by the most

expeditious form of delivery by the U.S. Postal

Service. -

.¥

Rule 25(a) states in part: “Papers required or

permitted to be filed in a court of appeals shall be filed

with the clerk. Filing may be accomplished by mail

addressed to the clerk. but filing shall not be

Page Nine

timely unless the papers are received by the clerk

within the time fixed for filing, except that briefs and

appendices shall be deemed filed on the day of

mailing if the most expeditious form of delivery by

mail,excepting special delivery, is utilized."

(Emphasis added).

IV.

The cases that Petitioner has found discussing Rule

25(a) usually concerns filing appeals and notices of

appeals late. which is specifically stated to be untimely

under the rule. See Chicago Commodities, Inc. v.

Commodities Futures Trading Com., 811 F2d 1262 9th

Cir. 1987). The Petitioner has found one case directly

on point which supports Petitioner's position. In

Prince v. Poulos, 876 F2d 30, (5th Cir. 1989), one

party moved :o dismiss the cause on the grounds that

the other pary's brief was not timely filed. On page 32

of Prince. i footnote 1, the Court discussed Rule

25(a) as it apolies to briefs:

The appeliant moved to strike the appellee's brief

on the grounds that it was not timely filed. Appellees’

brief was cue on March 29, 1989. Appellees mailed

Page Ten

their brief via certified registered mail on that date.

Rule 25(a) of the Fed.R.App.P. provides that "briefs . .

. shall be deemed filed on the day of mailing if the

most expeditious form of delivery by mail, excepting

special delivery, is utilized." The appellant contends

that certified mail is not first class. The Post Office

disagrees. The appellant further contends that Federal

Express, not first class, is the most expeditious form of

mail. Webster's defines mail as “. . . letters . .

conveyed under public authority." Webster's New

Collegiate Dictionary (1973). Since Federal Express is

not a public authority, they are not a form of “mail” and

need not be utilized under Rule 25(a). The appellees’

brief was timely filed and the appellant's motion to

strike is denied. (Id. p. 32).

The hardbound voiume of U.S.C.A. containing

F.R.A.P. Rule 25 also contains "NOTES OF ADVISORY

COMMITTEE ON APPELLATE RULES." The 1967 Note

states:

The ruling that filing is not timely unless the papers

are received within the time allowed is a familiar one.

(Citations omitted). An exception is made in the case

of briefs and appendices in order to afford the parties

the maximum titne for their preparation. By the terms

of the exception. air mail delivery must be used

whenever it is the most expeditious manner of

delivery." (Emphasis added).

The present day Advisory Committee notes

following Rule 25 are unchanged. Therefore, the

- Page Eleven --

Pet tioner points out that his brief should be deemed

to have been filed in a timely manner.

CONCLUSION

The Petitioner was notified by written order

receivedby U.S. mail that the time for filing the Brief

had been extended to September 20, 1991. The

(Brief arrived at the Clerk’s office on September 24th,

after having been mailed in the most expeditious

manner on September 23, 1991. Rules 25 and 26

aoply to render the Brief timely filed on September

Pe. :oner respectfully prays that the petition for

cert c’ari to the United States Court of Appeals for the

Fiftm Circuit issue.

Resoectfully submitted,

Dery Burns Rick Bowman

173 N. Henderson St. 400 East Weatherford

Fer: Worth, Texas 76102 Fort Worth, Texas

(2-7) 870-1544 (817) 335-3338

Be No. 03443800 . Bar No. 02751400

47~ORNEY OF RECORD ATTORNEY

Page Twelve

CERTIFICATE OF SERVICE

True copies of this Petition for Writ of Certiorari

have been mailed, postage paid, to Richard E.

Henderson, assistant city attorney with the Office of

the City Attorney, City of Fort Worth, 1000

Throckmorton, Fort Worth, Texas, 76102, and to

Stephen Maxwell, 108 N. Commerce, Fort Worth,

Texas, 76102, on this the 18th day of May, 1992.

DANNY BURNS

RICK BOWMAN

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Oe

RONALD JEROME QUIROZ,

Plaintiff-Appellant,

versus

THOMAS WINDHAM, Ft. Worth Police

Chief, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Texas

ON PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

( February 19, 1992 )

Before JONES, DUHE, and WEINER, Circuit Judges.

PER CURIAM:

(X ) The Petition for Rehearing is DENIED and no

member of this panel nor Judge in regular active

service on the Court having requested that the Court

be polled on rehearing en banc, (Federal Rules of .-*

Appellate Procedure and Local Rule 35) the

Suggestion for Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/S/ DUHE

wee ee ee em mee ee mm ewe eee eee ee ee ee eee eee eee eee eee eee eee

UNITED STATES CIRCUIT JUDGE REHG-6

<é ne mm |

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-1598

USDC No. CA-4-90-327E

RONALD JEROME QuiROz.

Plaintiff-Appellant,

versus

THOMAS WINDHAM, Ft. Worth Police

Chief, ET AL..,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Texas

Before JONES, DUHE. and WEINER, Circuit Judges.

BY THE COURT:

By written order of this Court, appellant was

given an extension until September 20, 1991 to file

his brief. The brief was mailed by appellant's counsel!

on September 23, 1991, and was therefore untimely.

See Guam Sasaki Corp. v. Diana's Inc., 881 F.2d 713,

716 (9th Cir. 1989); Fed, R. App. P. 31(c). Although

the Clerk's office filed the brief. it must be stricken.

Appellee has moved for dismissal pursuant to Fec. R.

App. P. 31(c), which motion is hereby granted.

APPEAL DISMISSED. (Filed January 24. 1992)