# Petition for Writ of Certiorari — Quiroz v. Windham

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 819

## Text

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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

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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
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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)

---

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