Petition for Writ of Certiorari — Amaya v. Pitner (No. 05-1015)

Commonwealth, 325 U.S. 279, 281

B. Due Process & Equal Protection Constitutional

Cuarantees

|. A deed for property is not considered property until it

is recorded / filed with Register of Deeds. Once a deed is

recorded it has validity and force and is guaranteed and

protected by the due process clause of the United States

Constitution and the Wisconsin Constitution. This is well

known 1n all states and counties under the recording laws of

each state. Respondents sheriff sale and recording of the

sheriff deed has no force because it was recorded after my

quit claim deed and without due process for Amaya. Under

the Wisconsin Statutes 706.08 Respondents sheriff deed is void

because it was recorded after my quit claim deed on the same

real estate. Nonrecording effect. (1)(a) Except for patents

issued by the United States or this state, or by the proper

officers of either, every conveyance that is not recorded as

provided by law shall be void as against any subsequent

purchaser, in good faith and for a valuable consideration, of

the same real estate or any portion of the same real estate

whose conveyance is recorded first. 706.08 Wis. Stat

2. As stated by the United States Supreme Court,

property rights are defined from an independent source such as

state law. A lis pendens ts a notice. It is not a title / deed /

conveyance. Any transfer of title / conveyance / deed under

state law, Wis. Stat. 706.08, is void if not recorded before

another conveyance against the same property. “they are

created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as

state law..... Board of Regents v. Roth, 408 U.S... at 577. See

also Paul v. Davis, 424 U.S. 693, 709 (1976)

3. The law was not followed under Wis. Stat. 708.06

regarding deeds, titles, conveyances and land patents. The

courts are to enforce the law according to statute. The sole

function of the court is to enforce the law according to statute.

Carey v. Piphus, 435 U.S. 247, 266 (1978)

4. The District Court opinion and Court of Appeais

4

opinion cited J.& S. Corp. v. Mortgage Assoc’s., Inc. 164

N.W.2d 221, (Wis. 1969) which cites Munger v. Beard, (1907),

79 Neb. 764, 113 W.W. 214, because the case involves a lis

pendens statute similar to Wisconsin’s, and the opinion 1s

helpful in understanding the purpose and proper meaning of

such a statute. This case also states that a deed has validity and

force only when it is recorded and it confirms that a person 1s

only part of the case/record if evidenced by the record and only

if evidenced by the record. ...it is the privilege of the

legislature to say that no deed or instrument affecting real

estate shall be of any validity or orce whatever until it is

recorded, and, when possessed of this power... Munger v.

Beard (1907), 79 Neb. 764, 113 N.W. 214

5. The intent of the legislature was not to avoid

establishing personal jurisdiction/notice/opportunity to

defend for those who recorded their interest in property. The

intent of the legislature, via a lis pendens, was also to warn

prospective purchasers of “buying a lawsuit”. 840./0 has

additional objective of giving prospective purchasers and

encumbrancers notice of pending actions so they may avoid

“buying a lawsuit”. 4 34 citing Belleville State Bank v. Steele,

117 Wis. 2d 563, 571, 345 N.W.2d 405 (1984).

6. The state cannot authorize the courts to mean it any

other way or it would violate the protections guaranteed by the

United States Constitution, established law and decisions of

this court, and Wisconsin Nonrecording effect, supra. The

state of Wisconsin cannot vest state courts with the power to

violate the Constitution, this courts established law on due

process, equal protection, jurisdiction, and the power of the

federal land patent. The states cannot, in the exercise of

control over local laws and practice, vest state courts with

power to violate the supreme law of the land. Kalb v.

Feurerstein, 60 §.Ct. 343, 308 U.S. 433, 84 L.Ed. 370 (1940).

7. The Supreme Court of the United States has stated the

right to due process 1s guaranteed by the Constitution. | have

constitutional nghts to due process and equal protection of the

laws of this country. “Property” cannot he defined by the

procedures provided for its deprivation any more than can life

or liberty. The right to due process “is conferred, not by

7

legislative grace, but by constitutional guarantee. Arnett v.

Kennedy, 416 U.S. 134 (1974) at 167

8. Respondents — Defendants state that “Amaya had

constructive notice and did nothing to intervene in

Bartkowiak’s suit and admits she did not have the ability to pay

the judgment.” | admitted | was aware, long after the judgment

was rendered against Jeffery Bartkowiak, which 1s why it was

“recorded so late. (EXHIBIT 2, Second and third full

paragraphs, page 22).

9. Respondents — Defendants cannot assume someone

will not be able to pay the judgment and/or have a defense and

therefore avoid providing an individual with due process and

equal protection under the United States Constitution. The

right to due process does not depend on a demonstration of

certain success. ..... and the right to a hearing does not depend

on a demonstration of certain success. Carey v. Piphus, 435

U.S. 247, 266 (1978)

10. Respondents argument 1s repugnant to our country.

Their interpretation would violate the Supreme law of the land.

The United States Supreme Court has stated that frequently

words of general meaning are used in a statute, words broad

en ugh to include an act in question but make it unbelievable

that the legislature intended to include the particular act.

“frequently words of general meaning are used in a Statute,

words broad enough to include an act in question, and yet a

consideration of....makes it unreasonable to believe that the

legislator intended to include the particular act."" Church of

Holy Trinity v. United States, 143 U.S. 457, 459. These words

guided our construction of the statute at issue in Public Citizen

v. Department of Justice, 491 U.S. 440, 454 (1989)

11. the law on due process requirements 1s well

established. The United States Supreme ‘ourt has stated that

essential elements of due process of law are adequate

procedures appropriate to thenature of the case. This ts not to

be interpreted to avoid other United States Supreme Court law

and laws on obtaining personal jurisdiction for courts to act as

detailed in U.S. Supreme court cases cited earlier. ....... an

essential principal of due process is that a deprivation of life,

liberty, or property “be preceded by notice and opportunity

6

for hearing appropriate to the nature of the case. Mullane v.

Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)

Memorandum of Law on Due Process

Due process requires reasonable notice and a fair opportunity

to be heard. See Cleveland Bd. Of Educ. V. Loudermill, 470

U.S. 532, 541. 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985) The

essential elements of due process of law are notice and

opportunity to defend; Simon v. Craft, 182, U.S. 427. As the

Supreme Court stated in Palko v. Connecticut, 302 U.S. 319,

325, 82 L. Ed. 288, 58 S. Ct. 149 (1937), the Due Process

Clause imposes requirements of decency and fairness because

they are “implicit in the concept of ordered liberty”. In Rochin

v. California, 342 U.S. 165, 96 L. Ed. 183, 72 §. Ct. 205 (1952)

Property rights are paramount, Not only does the US

Constitution protect property rights, but the laws of the federal

government does also.” Stella Hughes v. State of Washington,

389 U.S. 290 (1967). “Property does not have rights. People

have rights. The right to enjoy property without unlawful

deprivation, no less than the right to speak or the right to

travel, is in truth a “person” right, whether the “property” in

question be a welfare check, a home, or a savings account. In

fact, a fundamental interdependence exists between the

personal right to liberty and personal property right. Neither

could have meaning without the other. The rights in property

are the basic civil rights has long been recognized. Congress

recognized these rights in 1871 when it enacted the

predecessor of 42 U.S.C. 1983 and 1343(3). We do no more

than reaffirm the judgement of congress today. Due proces»

means fundamental fairness. Hampton v. United States, 96 S

Ct. 1646, 1652 note 6 (1976). The United States Supreme

Court .... where a particular amendment provides an explicit

textual source of constitutional protection against a particular

sort of government behavior, that Amendment, not the more

generalized notion of substantive due process, must be the

euide for analyzing these claims.”” County of Sacramento v

Lewis, §23 U.S. 833, 118 8S. Ct. 1708, 1714 (1998)(citations

omitted). Eternalist Foundation, Inc_v. City of Platteville, 225

as

Wis.2d 759, 593 N.W.2d 84, 1999. 447 In a procedural due

process claim, it is not the deprivation of property of liberty

that is unconstitutional; it is the deprivation without due

process of law. Arneson v. Jezwinski, 225 Wis. 2d 371, 592

N.W.2d 606 (1999). Ifa clearer holding is needed,

we provide it today. The point is straightforward: the Due

Process Clause provides that certain substantive rights -- life,

libekty, and property — cannot be deprived except pursuant to

constitutionally adequate procedures. The categories of

substance and procedure are distinct. ... The right to due

process "is conferred, not by legislative grace, but by

constitutional guarantee. While the legislature ...... may not

constitutionally authorize the deprivation of ....an interest, ....

without appropriate procedural safeguards." Arnett v.

Kennedy, 416 U.S. 134 (1974) at 167 An essential principle of

due process is that a deprivation of life, liberty, or property "be

preceded by notice and opportunity for hearing appropriate to

the nature of the case." Mullane v. Central Hanover Bank &

Trust Co., 339 U.S. 306, 313 (1950). We have described "the

root requirement” of the Due Process Clause as being "that an

individual be given an opportunity for a hearing before he is

deprived of any significant property interest. nl” Boddie v.

Connecticut, 401 U.S. 371, 379 (1971) (emphasis in original);

see Bell v. Burson, 402 U.S. 535, 542 (1971). This principle

requires "some kind of a hearing" prior to the discharge of an

employee who has a constitutionally protected property

interest in his employment. Board of Regents v. Roth, 408 U.S.,

at 569-570; Perry v. Sindermann, 408 U.S. 593, 599 (1972). As

we pointed out last Term, this ruie has been settled for some

time now. Davis v. Scherer, 468 U.S. 183, 192, n. 10

(1984);....and the right to a hearing does not depend on a

demonstration of certain success. Carey v. Piphus, 435 U.S.

247, 266 (1978)

C. Land Patent -highest form of title (Memorandum of

Law on Land Patent - APPENDIX 1)

|. This Court must reverse Court of Appeals decision

and immediately restore Petitioner Amaya, to possession

Ss

of her property and bring an end to Petitioners irreparable

injury. The power of Congress to dispose of its land cannot be

interfered with, or its exercise embarrassed by state legislation,

nor can such legislation deprive the grantees of the United

States of the possession and enjoyment of the property

granted by reason of any delay in the transfer of title after the

initiation of proceedings for the acquisition. State statutes

that give lesser authoritative ownership of title than a patent

cannot be brought into federal court. Langdon_v. Sherwood,

124 U.S. 74 80; Gibson v. Chateau, 80 U.S. 92.

2. The land patent is the foundation of title at law and

immediate possession without further delay and reversal of

District Courts decision is the only remedy without further

violating Appellants rights and equal protections. “ A Patent

for land is the highest evidence of Title, and is conclusive

evidence against the Government and all claiming junior

patents or titles. U.S. v. Stone, 167 U.S. 178. In Federal

Courts, the patent is held to be the foundation of title at law.

The plaintiff in ejectment must in all cases prove the legal title

to the premises in himself title will be sufficient for recovery.

The practice of allowing ejectments to be maintained in State

courts upon equitable titles cannot effect the jurisdiction of the

courts of the United States. Fenn v. Holme, 21] HOWARD 48.

3. All judges and states are bound by the power and the

validity of the land patent. A// judges in all States shall be

hound as to the power and validity of the patents. U.S. v.

Debell, 227 F 760 (1915) ...neither town nor its officers have

any right to appropriate or interfere with private property.

Mitchell v. City of Rockland, 45 ME 496

li. Respondents, the District Court, and the Court of

Appeals stated that Appellants — Plaintiffs, relief requested

cannot be granted without reviewing the state court case

which is barred by the Rooker-Feldman doctrine.

A. The 7" Circ. Ct. affirmed allowing Bartkowiak’s state

court case to be reviewed which was the basis of

Respondents argument; contradicting its own opinion.

in addition, this doctrine is inapplicable due to the lack

9

of personal jurisdiction and case for Petitioner Amaya

1. Respondents entire argument is based on facts from

review of Jeffery Bartkowiak’s state court case that Petitioner

Amaya never appeared in. The District Court did review

Bartkowiaks, the prior owners, state case; yet the Rooker

Feldman and Younger Abstention doctrine is inapplicable due

to the lack of any court proceedings, lack of personal

jurisdiction, over Petitioner Amaya. It makes no sense, using

this reasoning, any case of another individual could be used to

justify constitutional violations.

2. Petitioner Amaya raised the issue of bad faith. Moore

v. Sims, 99 S.Ct. 2377, 2378 (1979) The “Younger abstention

doctrine,” prohibits a federal court from interfering in a state

court proceeding unless the state court proceeding is conducted

in bad faith. Absolute lack of personal jurisdiction, complete

absence of any court proceedings, prima facie evidence of

denial of due process and equal protection constitutional rights,

is bad faith. Allowing review of Bartkowiaks case, as both the

District Court and 7" Circuit Court of Appeals did, which

clearly should not have been, as already detailed, should have

easily added clarity that Petitioner Amaya’s constitutional

rights were violated. See Younger v. Harris, 91 S.Ct. 746, 752

(1971).

3. The Seventh Circuit Court of Appeals reviewed the

state court case 1n Soldal v. Cook County, yet states it does not

have jurisdiction to rule in Petitioners favor despite the fact that

Bartkowiak’s state court case has been reviewed by the courts

defending Respondents argument that a lis pendens notice is

considered property just as a conveyance and giving this notice

the same power as a title / deed / conveyance. The 7" Circuit

Court of Appeals ruled in that case that the eviction of a

defendant before the first hearing was more of a taking/due

process violation rather than an illegal search and seizure

violation and ruled against Soldal, the plaintiff, and in favor of

the defendants, Cook County. This court reversed agreeing

with Petitioner Soldal that it was also an unreasonable search

and seizure. Soldal vy. Cook County, 113 S. Ct. 538, 121 L. Fd.

2d 450, 61 U.S.L.W. 4019 (1992)

10

4. The Court of Appeals applied its decisions unequally

to Petitioner in this case. The Respondents, believe that if they

continue to say it is their property and what they have done ts

legal, it will make it so. Painting black lines on the side of a

horse and calling it a zebra does not make it one. United

States v. Vazquez-Rivera, 135 F.3d 172, 177 (1" Cir. 1998)

5. Respondents wish their argument was true but this

court must rule on the basis of what the law 1s rather than what

a party wishes it to be. {/W/e rule on the basis of what the law

is rather than what a party wishes it could be._In re Barshak,

106 F.3d 501, 506(3 Cir. 1997)

B. The Court of Appeals stated District Court could not

give Appellant — Plaintiff Amaya relief she is seeking

without in effect reviewing and disregarding the state

court’s judgment. Relief could have been given without

District Court reviewing Bartkowiak’s case by the sheer

evidence of the exhibits and lack of any jurisdiction /

proceedings over Appellant - Plaintiff Amaya.

|. As already stated the Distriét Court and Court of

Appeals has in essence reviewed Bartkowiaks state court case,

contradicting its own decision yet ruling in Respondents favor.

The review of Bartkowiak’s case makc it clear that the

judgments are void and have no standing. /f Wisconsin has

rendered a valid judgment, the Constitution not only requires

every State to give it full faith and credit, but 28 U.S.C. sec.

1738, referring to such judicial proceedings, commands that

they ‘shall have the same full faith and credit in every court

within the United States and its Territories and Possessions as

they have by law or usage in the courts of such State, Territory

or Possession from which they are taken.”’..... The only escape

from obedience lies in a holding that the judgment rendered in

Wisconsin, ....., is void and entitled to no standing even in

Wisconsin. It is void only if it denies due process of law...... ...

Wisconsin's courts had no jurisdiction to make such a decree

hinding upon appellant. Baker v. Baker, Eccles & Co., 242

U.S. 394, 401; Esenwein v. Commonwealth, 325 U.S. 279, 28]

4. The District Court or the Court of Appeals did not

V1

have to review the facts in the state case to see the absence of

due process. The names and the dates of the recordings of the

sheriff deed and the quit claim deed, are prima facie evidence

of the denial of due process and equal protection, as detailed in

Wisconsin statute 706.08, Nonrecording effect, supra.

5. The courts are enforcing a void judgment and void

sheriff deed that has no power or authority over Amaya’s quit

claim deed and land patent.

_ 6. This court is putting a lis pendens, a notice of pending

lawsuit, above a recorded quit claim deed and the power and

validity of a land patent, the foundation of title in property law.

7. The District Court and Court of Appeals decisions /

orders go against the very core of our constitution, country, and

society. Innocent until proven guilty. This court’s view is

adopting the presumption that everyone is guilty and there is no

due process. That through a recording of a lis pendens, you

can gain another’s property, before the owner even gets a

chance to defend his/her property. No matter how you look at

this case, it is clear to see that Amaya’s rights were violated.

The sheriff deed, writ, and 24 hour eviction notice are void.

They are fraudulent. They are completely unenforceable.

8. Respondents, the District Court, and the Court of

Appeals refuse to see the truth and obey the law. The United

States Supreme Court, at Mitchum v. Foster, 92§ ¢. 2151

(1972), made an observation that 1s directly applicable to

Petitioner Amaya’s situation and stated as follows: “/f the

State courts had proven themselves competent ....to maintain

law and order, we should not have been called upon to

legislate...We are driven by existing facts to provide for the

several states in the South what they themselves have been

unable to fully provide for themselves; i.e., the full and

complete administration of justice in the courts....Sheriffs

having eyes to see, see not; judges having ears to hear, hear

not; witnesses conceal the truth or falsify it; grand and petit

juries act as if they might be accomplices.. (A)ll the

government and justice were crimes and feared detection.

Among the most dangerous things an injured party can do is to

appeal to justice.” Mitchum, supra at 2161

|?

os

Memorandum of Law on Void Judgments

Void judgment is one entered by court without jurisdiction of

parties or subject matter or that lacks inherent power to

make or enter particular order involved and such a judgment

may be attacked at any time, either directly or coilaterallv.

People v. Wadz, 506 N.W.2d 954,(1987). A void judgement is \

one rendered in absence of jurisdiction over subject matter or

parties. Lange v. Johnson, 204 N.W.2d 205 (1973). A void

judgment is one where ....1) subject matter jurisdictional

failings... violation of due process, Johnon v. Zerbst, 304 U.S.

458, 58 S.Ct. 1019-1938) ). Jurisdiction depends not whether

the relief asked for is avaiiable, but on whether the court has

the power to hear the kind of action brought. Murphy v.

Miller Brewing Co., 50 Wis. 2d 323, 184 N.W.2d 141].

Wisconsin's courts had no jurisdiction to make such a 279, 281

lil. Immunity does not protect defendants if they act on

void judgments, void instruments or completely

lack jurisdiction

|. The defendants were notified on several occasions as

admitted that the facts were not in dispute detailed in District

Courts order(APPENDIX 1). On notice and fully informed

acted in clear absence of jurisdiction. Civil rights, municipal

liability — must show defendants were on notice of pattern of

constitutional violations, failure to train tantamount to

deliberate or conscious decision to allow violations. Hirsch v.

Burke, 40 F.3d 900, 904 (7 Cir. 1994). _Municipalities and

their agencies can be held liable for civil rights violations by

its employees under § 1983 when the violations result from “a

government's policy or custom.”’ Monell v. New York City

Dept. of Soc. Serv., 436 U.S. 658, 694 (1978); Sloman yv.

Tadlock, 21 F.3d 1462, 1470 (9 Cir. 1994).

2. Since the defendant’s all acted without jurisdiction,

under color of law and violated and clearly denied plaintiff/s of

clearly established rights, the defendant/s are liable and 1s

prima facie evidence of conspiracy. 4 conspiracy is

actionable under 42 USC 1985, when there has been an

13

“actual denial of due process.” (Civil Rights) Jennings v.

Nester (1954, Ca. 7 Ill.) 217, F.2d 153, CERT DEN 349 U.S.

958, 99 L.Ed. 1281, 75 S.Ct. 888.

3. The Eleventh Amendment immunity does not protect

from lack of jurisdiction and violation of equal protection.

“Under Ex Parte Young and its progeny, a suit seeking

prospective equitable relief against a state official who has

engaged in a continuing violation of federal law is not deemed

to be a suit against the State for purposes of state sovereign

immunity; Ex Parte Young, 209 U.S. at 159-160, 28 S.Ct. 441;

Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 n. 10, 109

S.Ct. 2304, 105 L.Ed.2d 45 (1989)(stating that “official-

capacity actions for prospective relief are not treated as

actions against the State.”’). Since the State cannot authorize

its officers to violate federal law, such officers are “stripped of

[their] official or representative character and [are] subjected

in [their] person to the consequences of [their] individual

conduct.” Ex Parte Young, 209 U.S. at 160, 28 S.Ct. 441...Ex

Parte Young gives life to the Supremacy Clause, as remedies

designed to end a continuing violation of federal law are

necessary to vindicate the federal interest in assuring the

supremacy of that law.”

4. There was no action involving private property owner,

Graciela Amaya. They skipped that process, depriving plaintiff/s of a

clearly established constitutional right of which any reasonable person

would have known. Liability may be premised upon a failure to act.

United States v. City of Yonkers, 96 F.3d 600, 613( 2” Cir.

1996)(Leonard Sand).

5. They have violated a clearly established constitutional right of

which a reasonable person would have known. Emplovee....is entitled

to qualified immunity....if employee's conduct “does not violate

cleariy established statutory or constitution rights of which a

reasonable person would have known.” See Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982).

6. Defendant/s acted in ‘clear absence of all jurisdiction’

and therefore would not qualify for any immunity. Judges are

absolutely immune for their judicial acts from civil suits for

damages. See Stump v. Sparkman, 435 U.S. 349, 355-56

(1978). Judicial immunity is premised upon the “general

14

principle of the highest importance to the proper

administration of justice that a judicial officer, in exercising

the authority vested in him, [should] be free to act upon his

own convictions, withoiu apprehension of personal

consequences to himself.” See id., 435 U.S. at 355, quoting

Bradley v. Fisher, 13 Wall 335, 347, 80 U.S. 335, 20 L. Ed.

646 (1871). “A judge will not be deprived of immunity

because the action he took was in error, was done maliciously,

or was in excess of his authority; rather he will be subject to

liability only when he acted in the ‘clear absence of all

jurisdiction.” See id. At 356 — 57, quoting Bradley, 13 Wall

at 35].

7. State law immunities such as quasi-judicial immunity

do not supercede federal law, 42 USC § 1983. State law

immunities don't override 42 U.S.C. § 1983 deprivation of

federal rights. Jane Monell v. D.S.S. City of New York, 436

U.S. 658, 98 §.C1. 2018 (1978). 42 U.S.C. § 1983 “...’on its

face does not provide for any immunities. (judicial immunities

included)"” Heck v. Humphrey, 114 S. Ct. 2364, 2375-2376 n.

1 (1994) 42 U.S.C. sec. 1983 trumps state law. Kimes vy.

Stone, 84 F.3d 1121, 1127 (9 Cir.)(1996) Qualified immunity

does not protect the plainly incompetent in § 1983 action.

Reasonable police officers would not have been deaf and blind

before two women insisting they were wrong. Henderson vy.

Mohave County, 54 F.3d 592 (9 Cir, 1995).

IV. Petitioner may represent her children’s

interests in this action.

1. Under F.R.C.P. 17 (cc ) a minor must be represented

by a competent adult, ordinarily a parent or relative. ... minor

child must be represented by a competent adult, ordinarily a

parent or relative. TW. hy Enk y. Brophy, 124 F.3d 893, 895

(7" Cir. 1997); FRCP. 176)

2. A parent has a constitutionally protected right to

advocate for her children. These are claims which are

decisions that a parent makes every day. The federal rules all

make statements throughout for individuals, pro se, who

represent their children. Why ts this decision different than

1S

any other decision. I did not request appointed counsel, |

decided to represent both my children and I. Respondents

argument applies for those who wish and request counsel and

/or do not know that they are entitled to legal representation on

certain claims/issues/situations. Respondents argument is not

applicable in this instant action. | am their parent and am

entitled to represent their interests as stated under F.R.C.P. 17 (

¢ ). A parent has constitutionally protected rights to the care,

custody, and management of a child. In Interest of J. L.W.,

102 Wis. 2d 118, 306 N.W.2d 46 (1981).

3. Memorandum of Law on Parental Liberty Rights

(APPENDIX 2)

REASONS TO SUPPORT WRIT OF CERTIOARI:

1. The panel’s decision conflicts with many decisions of

the United States Supreme Court including Kalb v.

Feurerstein, U.S. v. Stone, Reynolds v. Stockton, Stella

Hughes v. State of Washington, Langdon v. Sherwood, Gibson

v. Chateau, Cleveland Bd. Of Educ. v. Loudermill, Simon v.

Craft, and other United States Supreme Court cases, other

United States Court of Appeals cases, state supreme court

cases and other Seventh Circuit Court of Appeals decisions

listed in this petition.

2. The facts and law in this case is simple to see is

unlawful. The Seventh Circuit Court of Appeals cannot over-

rule the United States Supreme Court. Almost this whole

petition is quoting the United States Supreme Court. The Dist.

Ct. and the 7" Cir. Ct. are ignoring the law and over-ruling this

court and therefore conflicting with other courts which scem to

respect the Constitution and this court, the highest court.

... well settled that a Court of Appeals cannot over-rule the

United States Supreme Court. Kitowski v. United States, 931

F.2d 1526, 1529(11" Cir, 1991).

3. No court has the right to violate the supreme law of

the land. ...the courts, possess no power not derived from the

Constitution. Ex parte Quirin, 63 S.Ct. 2, 10 (1942).

4. Courts do not have any power not derived from the

Constitution established by the people, in which officials, are

16

obligated to obey. /7/he Constitution [is] the supreme law

established by the people. Muskrat v. United States, 31 S.Ct.

250, 254 (1911).

5. The actions are clearly and completely

unconstitutional, violating the supreme law of the land. If this

court does not grant certiorari and correct the orders for

whatever reason, it 1s giving courts the power to violate the

supreme law of the land. ....cannot, in the exercise of control

over local laws and practice, vest state courts with power to

violate the supreme law of the land. Kalb v. Feurerstein, 60

S.Ct. 343, 308 U.S. 433, 84 L.Ed. 370 (1940).

6. The Supreme Court of the United States has stated the

right to due process is guaranteed by the Constitution. Unless

this court grants certiorari, this court will send the message that

our laws do not mean anything. Therefore, this court must

correct the guarantees Petitioner Amaya has under the

constitution. The right to due process “is conferred, not by

legislative grace, but by constitutional guarantee. Arnett v.

Kennedy, 416 U.S. 134 (1974) at 167

7. The judgments are void and must be vacated. When

rule providing for relief from void judgments is applicable,

relief is not discretionary matter, but is mandatory. Orner vy.

Shalala 30 F.3d 1307(1994). See Green v. United States, 355

U.S. 184, 187-88(1957). ...supervisory writ if he can show that

there was in fact a defect in subject matter or personal

Jurisdiction. State v. Webb, 160 Wis.2d 622, 632, 467 N.W.2d

108, 112, cert. denied, 112 S.Ct. 249 (1991) defects in subject

matter jurisdiction cannot be waived and do survive the

Judgment of conviction. See e.g., Chicago & N.W.R. Co. v. La

Follette, 27 Wis.2d 505, 512, 135 N.W.2d 269(1965).

Also...legitimate challenges to the personal jurisdiction of the

circuit court, ..... "State ex rel. Zdanczewicz v. Snyder, 131

Wis. 2d 147, 151, 388 N.W.2d 612 (1986). Void judgment is

one entered by court without jurisdiction of parties or subject

matter or that lacks inherent power to make or enter particular

order involved and such a judgment may be attacked at any

time, either directly or collaterally. People v. Wade, 506

N.W.2d 954.0198 +) A void judgment is ene rendered in

absence of jurisdic.von over subject matter or parties. Lange v.

17

Johnson, 204 N.W.2d 205 (1973). A void judgment is one

where ....1) subject matter jurisdictional failings...violation of

due process, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019

(1938)

8. The highest court of Wisconsin must grant petition for

jurisdiction because it raises issues that create new and

important problems. The shocking number and boldness of

the lawless acts by the state of Wisconsin of clearly established

law, must be addressed to sustain public confidence. What

message will the highest court of this state send if it does not

accept certiorari? As this court stated before, “crime is

contagious’. If the government becomes a lawbreaker, it

breeds contempt for law; it invites every man to become a law

unto himself; it invites anarchy. To declare that in the

administration of the criminal law the end justifies the means—

to declare that the government may commit crimes in order to

secure the conviction of a private criminal—would bring

terrible retribution. Against that pernicious doctrine this court

should resolutely set its face.’ Olmstead v. United States, 277

U.S. 433, 485 48 §.Ct. 575 (1928). Mitchum v. Foster, 92 S.Ct.

2151, 2161 (1972)

9. Homelessness is a serious tragedy and problem. With

the recent natural disasters adding to this problem in our

country, the importance of this case 1s imperative. This court

must send a loud message that there will be no tolerance for

individuals creating such serious nightmares through unlawful

behavior.

WHEREFORE, for all these facts / reasons / argument and

memorandum of law in support of petition in regards to this

case, petitioner requests the Supreme Court of the United

States to grant certiorari and mandate as follows:

RELIEF REQUESTED

Petitioner requests mandate for reversal of District Courts and /

or 7" Circuit Court of Appeals decision as stated in this

petition and for relief requested in amended complaint filed in

District Court as well as appropriate and effective action to

18

restore Petitioners to their home / property / land immediately.

Date 22-5-OG

Sincerely,

>

Graciéla@mays,-Pétitioner/s

Petitioner Amaya, believes oral argument is unnecessary and

requests opinion to be published.

19

APPENDIX I

Memorandum of Law on Civil Rights and the Federal Land

Patent

7" Cir. Ct. order denying rehearing 7-8-05

7" Cir. Ct. order affirming Dist. Ct. decision 4-4-05

U.S.D.C. order from 6-2-04 hearing dismissing case

APPENDIX II separate cover

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

GRACIELA AMAYA, by and on behalf of

Herself and, JAIME L. AMAYA, CARLOS

J. AMAYA, TOMAS V. AMAYA, RYAN A.

HANLEY, minors,

Plaintiffs,

V. Case No.: 03-C-1277

JAY J. PITNER, GRAY & END, LLC,

MICHAEL GUOLEE, WORLD SAVINGS

BANK, MILWAUKEE COUNTY, SUSAN

WITCLIFFE, MILWAUKEE SHERIFFS

DEPARTMENT, UNKNOWN GRAY & END

EMPLOYEES, UNKOWN DETECTIVES OF

SHERIFF’S DEPT., UNKNOWN WORLD

SAVINGS BANK EMPLOYEES,

Defendants.

DECISION AND ORDER DISMISSING CLAIMS OF

PLAINTIFF MINOR CHILDREN WITHOUT PREJUDICE,

GRANTING DEFENDANT MICHAEL GUOLEE’S

MOTIONTO DISMISS, GRANTING JAY J. PITNER, GRAY

& END LLC, WORLD SAVINGS BANK EMPLOYEES’

MOTION TO DISMISS, DENYING PLAINTIFFS’

MOTIONS TO STRIKE DEFENDANTS’ MOTION TO

DISMISS (DOCS. ##23, 35), GRANTING MILWAUKEE

COUNTY, SUSAN WITCLIFFE, MILWAUKEE SHERIFF’S

DEPARTMENT AND UNKNOWN DETECTIVES OF

SHERIFF’S DEPARTMENT’S MOTION TO DISMISS, AND

DENYING AS MOOT PLAINTIFF’S MOTION FOR

RELIEF (DOC. #39)

On November 25, 2003, Graciela Amaya, by and on

behalf of herself and her minor children, Jaime L. Amaya,

Carlos J. Amaya, Tomas V. Amaya, and Ryan A. Hanley, filed

an amended complaint alleging claims pursuant to 42 U.S.C.

§§ 1983, 1985(3) and 1986, and a request for declaratory relief

pursuant to 28 U.S.C. §3 2201 and 2202, as well as 28 U.S.C. §

1651. In addition, the complaint asserts claims for fraud, civil

conspiracy, fraudulent misrepresentation, fraud in the factum,

fraudulent concealment and execution, mail fraud negligence,

intentional infliction of mental distress, negligent infliction of

mental distress and trespass.

In pertinent part, the complaint states as follows:

27. Plaintiff receives letter in mail addressed to

occupant from sheriff's department approximately two to

three weeks ago, it states twenty-four hour eviction

notice.

25. A couple days later, detective, Susan

Witcliffe, came to plaintiff's home. Plaintiff asked them

to wait and returned to the side door screen porch

entrance with a recorder. ;

26. Plaintiff calls and gets a recording at the

sheriff's department and leaves message. No one ever

returned plaintiff/s phone message.

27. At approximately 10-11 AM on Friday,

November 14, 2003, plaintiff/s main front door was

destroyed with a crow bar (or something to that affect

that broke it) and defendant’s detective (Nielson ?) from

the sheriff's department stormed into home along with

many others. 3

28. Detective (Nielson ?) yelled “Sheriff's

Department”, plaintiff came to front entrance and asked

them what they were doing?

29. Detective (Nielson ?) stated “we are evicting

you.” Plaintiff requested to see the writ and requested

copies of the writ. Another man said he would make

them for me and would not allow me to touch them.

30. I explained to Detective (Nielson ?) that this

was illegal and Jeffery Bartkowiak is not the owner. |

told him he needed to investigate this. He stated “I am

?

not supposed to investigate anything, just follow the writ

orders”.

31. Desperate, plaintiff, Graciela Amaya, started

calling news stations pleading for help, that her

belongings were being taken from her, Nazi style,

without due process of law, here in Milwaukee.

32. Plaintiff was able to call only two stations

when Detective (Nielson 7?) directs one of the movers to

pack up my phones.

33. Once a news station reporter arrived and

spoke to plaintiff while camera man was recording the

seizure of my personal property, he began stating many

facts that he supposedly didn’t know earlier when I told

him this was a mistake and illegal, he was trying to

convince the reporter and camera man that this was a

legal activity.

34. Detective (Nielson ?) later stated | was being

very difficult. | told him “you have had plenty of time to

investigate, I told detective Witcliffe the same thing, if

you go through with an eviction, you will be depriving

me of due process and equal protection of the laws, you

don’t care but the records at the register of deeds is

obvious, it takes a couple minutes to make a call.”

35. Plaintiff, Graciela Amaya, left to go to the

courthouse to check records and make copies at the

register of deeds. Some clerks helped plaintiff as she

explained the nightmare that was occurring at her home

as they spoke. They stated, “those attorneys had plenty

of time to know the property was yours, you should file

criminal charges with district attorney, that is just piain

wrong, I hope those news stations Tet people know, they

may do it to others.”

36. When plaintiff went home to meet her boys

coming back home from being dropped off from school,

the outside of plaintiff's home was littered with garbage

and pieces of plaintiff's clothing. The door was broke

due to forced entry. Inside of home was also trashed,

spilled soda from empty soda cans and McDonalds food

litter in various areas. Most everything was gone. Some

Pe

large items such as the 48” large screen television, the

40” fish aquarium, the “real” 5’ tree, and’ master bedroom

bathroom items were still there along with some missed

closets and cabinets. All plainti@@s food was left in boxes

outside of home and broken, leaving a mess.

37. Plaintiff's began cleaning up and a World

Bank representative arrived in a van and stated he needed

to do an inspection. He went back to his van and made

some calls. Shortly thereafter, River Hills police officer

arrived.

38. Plaintiff, Graciela Amaya, was almost

arrested but she agreed to leave and the police let her go.

The sergeant stated “if you come back, | will have to

arrest you.”

39. Plaintiff's left their home and spent the night

in a hotel.

40. The plaintiffs are Mexican Americans.

The complaint identifies the defendants in their official

and unofficial capacities, as Jay J. Pitner, an attorney, Gray &

End, LLP, agent for World Savings Bank, another defendant,

Susan Witcliffe, a detective, the Milwaukee Sheriff's

Department, Michael Guolee, Milwaukee County, Unknown

Gray & End attorneys, unknown World Savings Bank

employees, and unknown Milwaukee County Sheriff's

Department detectives.

Defendant Guolee filed a motion to dismiss on December

8, 2003, along with a supporting brief asserting that he is

shielded from liability on the grounds of judicial immunity,

Eleventh Amendment immunity, qualified immunity, the

Rooker-Feldman doctrine and failure to state a claim on which

relief may be granted. Pitner, Gray & End, World Savings Bank,

the Unknown Gray & End Employees, and the Unknown World

Savings Bank Employees filed Rule 12(b(4) and 12(b)(6)

motions to dismiss on December 10, 2003. These motions,

which are accompanied by a supporting brief and the affidavit of

Christopher M. Avery, one of the movants’ attorneys, cite Civil

Local Rules 7.1 and 56.1 and set forth Fed. R. Civ. P. 56. A

Certificate of Service was filed on the same date showing that the

plaintiffs were duly served with the aforementioned documents.

4

Amaya filed a notice of Motion and Motion on January 5,

2004, asking the court to strike the defendants’ motions. All

pending motions were considered on Wednesday, June 2, 2004.

Amaya appeared at the hearing pro se and presented arguments

and factual assertions in opposition to the defendants’ motions.

This case arises out of a mortgage foreclosure and

eviction. Amaya and her minor children resided at 9333 Upper

River Rd., River Hills, Wisconsin, 53217. Amaya believes she is

the rightful owner of that property pursuant to a Quit Claim Deed

dated May 3, 2001, and a federal land Patent signed by President

John Tyler in 1843. However, the documents which were

attached to plaintiffs’ amended complaint reveal that Jeffery S.

Bartkowiak held a warranty deed recorded in the Register’s of

Deeds Office for Milwaukee County, Wisconsin, August 31,

2000; that World Savings Bank initiated a foreclosure

proceeding against Bartkowiak on December 4, 2001; and that a

Lis Pendens was filed December 4, 2001. Amaya, by her own

admission, did not record a Quit Claim Deed to the Upper River

Road property until June 19, 2003.

Amaya appeared before this court in another action,

Amaya v. McManus, Case No 03-C-986 (E.D. Wis.), during

which the court explained that she must have counsel to bring

suit on behalf of her children. Fed. R. Civ. P. 17(c); see Navin v.

Park Ridge Sch. Dist., 270 F.3d 1147, 1149 (7" Cir. 2001) (per

curiam). Thus‘as the inception of this case, Amaya was aware

that she can not represent her children and file suit in their

names. The choice to appear pro se is not a “true choice” for

minors who cannot determine their own legal actions;

consequently, minors are entitled to trained legal assistance so

that their rights may be fully protected. See Cheung v. Youth

Orchestra Found of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.

1990). The court granted Amaya leave to retain counsel in this

action on behalf of her children. However, rather than retaining

counsel, Amaya filed notice of appeal. Because Amaya may not

act as her minor children’s attorney, the claims brought by her

children will be dismissed without prejudice.

Next, the court inquired about the factual basis for

Amaya’s motion for leave to amend filed January 27, 2004.

Mindful that leave to amend shall be granted freely when justice

5

so requires, the court considered Amaya’s arguments in support

of her request to amend the complaint, but heard nothing that

would warrant amendment of the complaint at this stage. Fed. R.

Civ. P. 15(a). Civil L.R. 15.1 (E.D. Wis.) requires that a party

attach the proposed amended pleading to the motion to amend,

but no such pleading was filed. The motion itself states nothing

more than a desire to include the “most recent overt events

arising out of the transaction and/or occurrence set forth or

attempted to set forth in original complaint.” During the hearing

on June 3, Amaya could not identify any factual basis for the

amendment or claims related to those presented in the first

amended complaint filed November 25, 2003. After giving

Amaya additional opportunities to argue in favor of the proposed

amendment, the court denied her request as unwarranted.

Turning to the motion to dismiss filed by Milwaukee

County Circuit Judge Michael Guolee, Amaya stated that Judge

Guolee “was wrong” in issuing a writ of assistance. The court

gave Amaya numerous opportunities to state more than her belief

that Judge Guolee should have conducted a more thorough

inquiry before issuing the writ. She admitted that she did “not

know what he did” but speculates that there must have been a

conspiracy.

Vague and conclusory allegations that a conspiracy

existed are not sufficient to state a claim; a complaint must

contain factual allegations suggesting that defendants reached a

meeting of the minds. Ryan v. Mary Immaculate Queen Ctr.,

188 F.3d 857, 860 (7 Cir. 1999). Furthermore, Judge Guolee is

absolutely immune from suit for his judicial act of issuing the

writ of assistance, See Brokaw v. Mercer County, 235 F.3d 1000,

1015 (7" Cir. 2000), and any damages claim against him arising

from his official actions is a suit against the State of Wisconsin

and is barred by the Eleventh Amendment. See Meadows v.

State of Indiana, 854 F.2d 1068, 1069 (1968). As a result, the

court concluded during the June 3, 2004, hearing that Judge

Guolee’s motion to dismiss should be granted.

The next group of defendants, Jay Pitner, Gray & End.

World Savings Bank, Unknown Gray & End Employees, and

Unknown World Savings Bank (collectively World Savings

Bank defendants). filed a motion to dismiss pursuant to Rules

6

12(b)(4) and (6), and provided Amaya with notice respecting the

applicability of Federal Rule of Civil Procedure 56(e) and (f) and

Civil Local Rule 56.1 (E.D. Wis.).

If matters outside the pleadings are presented, a district

court may exclude those documents and continue under Rule 12

or convert the motion into a summary judgement motion and

proceed under 56. Although Amaya asked that this motion be

denied, she never responded to the proposed findings of fact filed

by the World Savings Bank defendants, nor otherwise filed an

affidavit or evidentiary material in support of her claims. Thus,

the proposed findings of facts are undisputed and the court finds

as follows:

On August 18, 2000, Jeffery S. Bartkowiak borrowed

from World Savings Bank the sums of $471,750.00. (Aff.

Avery, Ex. A) World Savings accepted a mortgage and note from

Bartkowiak, which was secured by property located 9333 Upper

River Road, River Hills, Wisconsin 53217. (Aff. Avery, Ex. B)

On December 11, 2001, World Savings Bank, FSB, commenced

a foreclosure action as Milwaukee County Circuit Court case No.

01-CV-001706. (Aff. Avery, Ex. D) The complaint identified the

defendants as Jeffery S. Bartkowiak and Jane Doe Bartkowiak,

residing at 9333 N. Upper River Road, River Hills, WI, 53217.

(/d.) ALis Pendens was recorded on the same date, December

11, 2001, by the Milwaukee County Register of Deeds as

Document No. LP132629. (Aff.Avery, Ex. F) On May 9, 2002, a

judgement of foreclosure was entered on behalf of World

Savings Bank, FSB, and the property was sold by the Milwaukee

County Sheriff on July 28, 2003. (Aff. avery, Ex. E) Milwaukee

County Circuit Court Judge Michael D. Guolee confirmed the

Sheriff's sale on September 8, 2003, and granted World Savings

Bank, FSB, a Writ of Assistance for the removal of the

defendants and/or tenants/occupants. Aff. Avery, Exs. G, I)

' Amaya’s Quit Claim Deed from Bartkowiak was recorded on

June 19, 2003.

In responding to the motion to dismiss, or, alternatively,

motion for summary judgement, plaintiff maintains that she has

stated claims under §§ 1983, 1985(3) and 1986. A claim for

conspiracy under 42 U.S.C. § 1985(3) requires: (1) the existence

of a conspiracy; (2) for the purpose of depriving any person or

class of persons of the equal protection of the laws or of equal

privileges and immunities under the laws; (3) an act in

furtherance of the conspiracy, and (4) an injury to person or

property or as deprivation of a right or privilege granted to U.S.

citizens. Brokaw, 235 F. 3d at 1024. In addition, Section 1985(3)

requires “some racial or perhaps otherwise class-based,

invidiously discriminatory animus behind the conspirators’

actions.” Griffin v. Breckenridge, 403 U.S. 88,102, 91 S.Ct.

1790, 29 L. Ed. 2d 338 (1971); Brokaw, 235 F.3d at 1024.

Claims under Section 1986 derive from claims under

Section 1985. Section 1986 imparts liability on those who know

of a Section 1985 conspiracy and do nothing to prevent it,

despite their power to do so. Bell v. City of Milwaukee, 746 F.2d

1205, 1233 (7" Cir. 1984). When a § 1985 claim cannot be

sustained, the § 1986 claim fails also. Rodgers v. Lincoln Towing

Service, inc., 771 F.2d 194, 203 (7" Cir. 1985).

The hurdle for Amaya is that there are no facts suggesting

that the defendants had a meeting of the minds, or that she was

subject to treatment that varied from the treatment of any other

individual who may be is deemed a subsequent purchaser of

property. It is undisputed that at the initiation of the foreclosure

action against Jeffrey Bartkowiak, a title search revealed that

Bartkowiak was the sole owner of the property. Moreoever, it is

undisputed that Amaya filed her Quit Claim Deed | 2 years after

commencement of the foreclosure action, and a month after the

judgement of foreclosure was entered. Hence, Amaya recorded

her Quit Claim deed with notice of foreclosure action, yet failed

to intervene in further state court proceedings concerning the

foreclosure.

Amaya’s rights are controlled by her failure to record the

Quit Claim Deed and sec. 840.10, Wis. Stats., which states that

after a lis pendens is filed: every... encumbrancer whose

conveyance or encumbrance is not recorded or filed shall be

deemed a subsequent purchaser or encumbrancer and shall be

bound by the proceedings... as if he [or she] were made a party

thereto. The legal effect to parties who are not holders of a

recorded interest in property at the time of the filling of a lis

pendens is that the parties are bound and concluded by the

foreclosure judgment to the same extent and in the same manner

8

as if they had been joined and served as parties thereto. J. & S.

Corp. v. Mortgage Assoc’s, Inc., 41 Wis.2d 418, 423, 164

N.W.2d 221, 223-24 (1969).

With respect to her due process claims under § 1983,

Amaya has not identified any process she was due beyond what

she was afforded. Defendants World Savings Bank, Pitner, Gray

& End, initiated the foreclosure action based on Bartkowiak’s

mortgage and note, as well as a title search. Consequently,

Amaya was not entitled to receive notice of foreclosure because

she had not recorded her Quit Claim deed. Moreover, nothing

suggests that defendants had any knowledge of Amaya prior to

the filing of her Quit Claim deed. In addition, World Savings

was entitled to the Writ of Assistance issued by Judge Guolee

pursuant to Wis. Stat. § 846.17 because it was the highest bidder

at the Sheriff's Sale held on July 28, 2003. The sale was

confirmed on September 8, 2003 by the Milwaukee County

Circuit Court in its Order Confirming Sale. Upon confirmation

of the sale, title passed and vested in World Savings Bank which

thereby secured the right of possession. It is noted that the

judgment of foreclosure, which was entered before Amaya filed

the Quit Claim Deed, states:

That after the sheriff's sale, the sheriff shall make due

report thereof to the court, and the purchaser shall be let

into possession of the premises upon confirmation of the

sheriff's sale and all parties to this action or other persons

securing possession after the date the lis pendens was

recorded shall deliver possession to said purchaser.

(Aff. Avery, Ex. E) Regardless, it is clear that the World

Savings Bank defendants satisfied Judge Guolee that they

complied with Wisconsin law in foreclosing Bartkowiak’s

mortgage and in requesting a writ of assistance to obtain physical

possession of the Upper River Road property. Moreover, the

World Savings Bank defendants have shown the steps they took

with respect to the foreclosure action and Amaya has presented

no proof that they engaged in any fraud, conspiracy, material

misrepresentation or violations of any civil right laws. Hence,

the motion to dismiss or, in the alternative, motion for summary

judgement filed by the World Savings Bank defendants will be

granted. See Hishon v. King & Spaudling, 467 U.S. 69, 73, 104

9

S. Ct. 2229 81 L. Ed. 2d 59 (1984)(citing Conley Gibson, 355 US

41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957)).

The final group of defendants, Milwaukee County, Susan

Witcliffe, the Milwaukee Sheriff's Department and unknown

detectives of Sheriff's department, argue that they acted in

reliance upon a facially valid court order. In Henry v. Farmer

City State Bank, 808 F. 2d 1228, 1238-39 (7" Cir. 1986), the

Seventh Circuit extended absolute quasi-judicial immunity to a

sheriff who allegedly entered plaintiff's home and seized

personal property because the sheriff was “at all times acting

pursuant to an official court order to enforce a validly entered

judgement.” /d., 808 F.2d at 1283-39. In so ruling, the court

found that the sheriff's enforcement of the order was intimately

related to the judicial process. /d., 808 F.2d at 1239. (“i]t is

difficult to think of a task more intimately related to a judicial

proceeding than that of enforcing a money judgment entered by a

court”). Here, Judge Guolee entered the writ of assistance,

which was executed by the Milwaukee County Sheriff's

Department. Although Amaya acknowledges Judge Guolee’s

orders, she asserts that she told the deputy sheriffs who evicted

her that she was the owner of the property. However, the

untenable result of her position would require “sheriffs and other

court officers who enforce properly entered judgments pursuant

to facially valid court orders to act as appellate courts, reviewing

the validity of both the enforcement orders and the underlying

judgments before proceeding to collect on them.” See Richman

v. Sheahan, 270 F.3d 430, 436-38 (7" Cir. 2001).

Additionally, in her motions to strike defendants’ motion

to dismiss, Amaya asserts that she “stated that plaintiffs property

was taken without due process and they were illegally evicted.”

To the extent that her complaint rests on what she maintains was

an illegal eviction, Amaya’s injuries are inextricably intertwined

with the judgment of foreclosure, the writ of assistance. and the

ensuing notice of eviction. Determining the validity of these

state court actions would require the court to engage in appellate

review. However, the Rooker Feldman doctrine precludes

federal courts from engaging in appellate review over state court

decisions. Long v. Shorebank Dev. Corp., 182 F.3d 548, 553 (7™

10

\

Cir. 1999). “A plaintiff may not circumvent the effect of the

Rooker-Feldman doctrine simply by casing [her] complaint in

the form of a civil rights action.” Remer v. Burlington Area Sch.

Dist., 205 F.3d 990, 997 (7" Cir. 2000). With that mind, and

taking into consideration Amaya’s written and oral arguments, it

is clear that Amaya’s real injury derives from the writ of

assistance and ultimate eviction from the property.

Finally, Amaya has sued Milwaukee County, which can

only be liable for depriving an individual of his or her

constitutional rights if the deprivation was the result of official

policy, custom or practice. Wilson v. Giesen, 956 F.2d 738, 744

(7" Cir. 1992) (citing Monell v. Department of Social Services,

436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)). The

court can discern no policy or custom that might have caused a

constitutional violation.

Now, therefore,

IT IS ORDERED that the claims brought by plaintiff

Graciela Amaya’s minor children are dismissed without-

prejudice.

IT IS FURTHER ORDERED that defendant Michael D.

Guolee’s motion to dismiss is granted. (Doc. #6)

IT IS FURTHER ORDERED that defendant Jay J. Pitner,

Gray & End, LLC, World Savings Bank, Unknown Gray & End

employees, and unknown World Savings Bank Employees’ Rule

12(b)(4) and (6) motion for an order to dismiss is granted. (Doc.

#14)

IT IS FURTHER ORDERED that plaintiffs motion to

strike the defendants’ motions for dismissal is denied. (Doc.

#23) :

IT IS FURTHER ORDERED plaintiff's motion for leave

to amend is denied. (Doc. #26)

IT IS FURTHER ORDERED that defendants Milwaukee

County, Susan Witcliffe, the Milwaukee Sheriff's Department

and unknown detectives of Sheriff's Department’s motion to

dismiss is granted. (Doc. #33)

IT IS FURTHER ORDERED that plaintiffs 2" Motion

to Strike Defendant B’s Motion to Dismiss is denied. (Doc. #35)

IT IS FURTHER ORDERED that plaintiff's emergency

motion for relief pending outcome of trial is denied as moot,

i

inasmuch as the court rescheduled the hearing set for March 17,

2004, to June 2, 2004, when Amaya was available. (Doc. #39)

Dated at Milwaukee, Wisconsin, this 27" day of July,

2004.

BY THE COURT

C.N. CLEVERT, JR.

U.S. District Judge

This 28" day of July, 2004, pursuant to Rule 77(d) Federal Rules of Civil

Procedure, copies of this document were mailed by M. Jones to the following

parties:

Graciela Amaya

5552 S. O’Brien Ave. — Apt. |

Cudahy, WI 53110

Michael M. Riley

Gray & End

600 N. Broadway — 3" FI.

Milwaukee, WI! 53202-5009

David C. Rice

WI Dept. of Justice

Office of the Attorney General

17 W. Main St.

P.O. Box 7857

Madison, WI 53707-7857

Emile H. Banks, Jr.

Emile Banks & Associates LLC

2600 N. Mayfair Rd. - Ste. 1120

Milwaukee, WI 53226

Memorandum of Law pursuant to Civil Rights

and The Federal Land Patent

mS the Land Patent is a contract between the patentee and

U.S.. U.S. v. Beggerly, 97 US 731 (1998). The land grant /

patent is a contract between the patentee and the U.S.

ARTICLE | Sec. 10, States shall pass no law impairing the

obligation of contracts FLETCHER v. PECK, 10 U.S. 87, 3

L.Ed. 162. A patent certificate, or patent issued, or

confirmation made to an original patent issued, or

confirmation made to an original grantee or his legal

representative, embraces representatives of the grantee or

assignee by contract as well as by law. HOGAN v. PAGE, 17

L.Ed. 854. “Property does not have rights. People have

rights. The right to enjoy property without unlawful

deprivation, no less than the right to speak or the right to

travel, is in truth a “person” right, whether the “property” in

question be a welfare check, a home, or a savings account. In

fact, a fundamental interdependence exists between the

personal right to liberty and personal property right. Neither

could have meaning without the other. The rights in property

are basic civil rights has long been recognized. Congress

recognized these rights in 1871 when it enacted the

predecessor of 42 U.S.C. 1983 and 1343(3). We do no more

than reaffirm the judgment of Congress today. Lynch vy.

Household Finance Corp., 405 U.S. 538 (1972) 42 U.S.C.

1983 provides that every person who, under color of any

statute, ordinance, regulation, custom or usage, of any State or

Territory, or the District of Columbia, subjects, or causes to be

subjected, any citizen o f the United States or other person

within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and the

laws, shall be liable to the party injured in an action at law,

suit in equity, or other proceedings for redress. 42 U.S.C.

1983 “The covenants run with the land, but only those that are

in the patent proceedings." Covenants must have been

presented in the original patent proceedings or are forever

barred." SUMMA vy. CALIFORNIA, 466 U.S. 198 (1984)

“Owner is free to do with his property what he wills, absent

criminal intent, constitutional limitations, or liability for

tortuous activities in connections therewith” 214N. SUPER

275 (Feb 14, 1990) The claimant of the land patent holds

superior interest and title to the property so patented.

According to 63C Am Jur 2d pg. 422. “Nothing passes by

intendment or implication, and the grant will cover only that

which is conveyed in clear language.” 63C Am Jur 2d pg. 423.

In federal Courts, the patent is held to be the foundation of

title law law. FENN v. HOLME, 21 HOWARD 481. The U.S,

Land patent prevails over state constitution . Property rights

are paramount. Not only does the constitution protect property

rights, but the laws of the Federal Government does also.

STELLA HUGHES v. STATE OF WASHINGTON, 389 U.S.

290 (1967). “This patent like all patents cannot be collaterally

attacked, patents cannot be changed from the original” U.S. vy.

CORONADO BEACH Co., 255 U.S. 427 (1921). “COLOR OF

LAW STATUTES” have no force and effect on the land patent.

The state of Wisconsin, the County of Milwaukee do not have

the subject matter jurisdiction on the lands transferred under

Federal Land Patents. Article 1 Sec 10, States shall pass ‘NO’

law impairing the obligation of contracts. Any claims by a

state to impose interest, control and jurisdiction over patented

lands must be provided within the patent or is forever barred.

SUMMA v. CALIFORNIA, 466 U.S. 198 (1984). Terms of the

patent are complete. So even changes in the land itself do not

effect the patent. KLAIS v. DANOWSKI, 373 MICH. 262, 29

N.W. 2d 414. KLAIS v. DANOWSKI, 373 MICH. 281, 129

N.W. 2d 423. The land patent is a contract between the

patentee and U.S. “Article 1 Sec. 10, States shall pass no law

impairing the obligation of contracts” U.S. v. BEGGERLY, 97

U.S. 731 (1998). A patent is not subject to collateral attack.

WEST v. STATNDARD OIL CO., 278 U.S. 200, 73 L.Ed. 265,

49 §.Ct. 138. A covenant or easement added after patent

proceeding would be a collateral attack on the patent. U.S. v.

CORONADO BEACH CO., U.S. 427 (1921). The power of

Congress to dispose of its land cannot be interfered with, or its

exercise embarrassed by sate legislation, nor can such

legislation deprive the grantees of the United States of the

possession and enjoyment of the property granted by reason of

any delay in the transfer of title after the initiation of the

proceedings for the acquisition. State statutes that give lesser

authoritative ownership of title than a patent cannot be

brought into federal court. LANGDON v. SHERWOOD, 124

U.S. 74 80; GIBSON v. CHATEAU, 80 U.S. 92. The

“Warranty Deed” is merely “Color of Title". HOWTH v.

FARRAR, 94 F. 2D 654. Color of title means: “That is a

semblance or appearance of title, but not title in fact or in law”

Black's Law Dictionary, 6" Ed. A patent for land is the

highest evidence of Title, and is conclusive evidence against

the Government and all claiming junior patents or titles. U.S.

v. STONE, 167 U.S. 178. In Federal Courts, the patent is held

to be the foundation of title at law. The plaintiff in ejectment

must in all cases prove the legal title to the premises in himself

title wiil be sufficient for recovery. The practice of allowing

ejectments to be maintained in state courts upon equitable

titles cannot effect the jurisdiction of the courts of the United

States. FENN v. HOLME, 21 HOWARD 481. Congress has

the sole power to declare the dignity and effect of titles

emanating from the Unites States and the whole legislation 24

Government in reference to the public lands declare the pateni

to be superior and conclusive evidence legal title. Until it

issues, the fee is in the Government, which by patent passes to

the grantee, and he is entitled to enforce the possession in

ejectment. All who claim under patent are entitled to the

same rights as the patentee. BAGNELL v. BRODERICK, 13

PETER 436. A patent certificate, or patent issued, is

confirmation made to an original grantee or his legal

representative, embraces representatives of the grantee or

assignee by contract as well as by law. HOGAN v. PAGE, 17

L.Ed. 854. Since road was not provided for in the original

land grant, even though undisputed historical evidence for

such was presented, the land owner won the quiet title suit on

appeal. HOAGLAND TRUST v EMMET & CHARLEVOIX

COUNTY ROAD COMMISIONS, No. 204409 Charlevoix

Circuit Court LC No(s). 96-077818 Cll (Michigan court of

appeals reversal order eff, Jan. 2000) Since road WAS

PROVIDED for in the land patent. Bernal won the right of

access to his property. BERNAL v. JOEKS ET AL, 997 p.2d

1192; 2000 Ariz. Appi LEXIS 423; 317 Ariz. Adv., Rep. 25

(Arizona Ct. of Appeals 3/16/2000)

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

July 8, 2005

Before

Hon. William J. Bauer, Circuit Judge

Hon. Richard A. Posner, Circuit Judge

Hon. Frank H. Easterbrook, Circuit Judge

Nos. 04-2510 and 04-2603

Graciela Amaya, Appeal from the U.S. Dist.

Ct. for the Eastern Dist. of WI

Plaintiff — Appellant,

Vv. No. 03 C 1277

Jay J. Pitner, Gray & End Charles N. Clevert, Jr.,

LLC, World Savings Judge.

Bank, et al.

Defendants -- Appellees.

ORDER

On June 20, 2005, plaintiff-appellant filed a petition for

rehearing (determination) en banc in connection with the above

referenced case. No judge tn active service has requested a

vote on the petition for rehearing en banc and all of the judges

on the original panel have voted to deny rehearing. It is,

therefore, ORDERED that the petition for rehearing en banc is

DENIED.

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 30, 2005

Decided April 4, 2005

Before

Hon. William J. Bauer, Circuit Judge

Hon. Richard A. Posner, Circuit Judge

Hon. Frank H. Easterbrook, Circuit Judge

Nos. 04-2510 and 04-2603

Graciela Amaya, Appeal from the U.S. Dist.

Plaintiff — Appellant, Ct. for the Eastern Dist. of WI

v. No. 03 C 1277

Jay J. Pitner, et al., Charles N. Clevert, Jr., Judge

Defendants -- Appellees.

ORDER

Graciela Amaya filed this pro se lawsuit on behalf of

herself and her children alleging that Milwaukee sheriffs

executing a state court writ wrongfully evicted her from

property she says she owns. She does not dispute that World

Savings Bank won a state court foreclosure judgment on the

property in 2002, when it was owned by Jefferey Bartkowiak.

Nor does she dispute that she did not record her interest in the

property — a quitclaim title from Bartkowiak — until over a year

later. Nonetheless, she believes that she owns the property and

contends that the sheriff therefore violated her federal

constitutional rights as well as state law in selling to another

party and evicting her. The district court dismissed Amaya’s

Nos. 04-2510, 04-2603 Page 2

children’s claims without prejudice because she declined to

obtain counsel for them. Turning to Amaya’s claims, the court

found a host of fatal defects, among them that the Rooker-

Feldman doctrine barred subject matter jurisdiction. See

Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Ct. of

Appeals v. Feldman, 460 U.S. 462 (1983). On appeal Amaya

argues that Rooker-Feldman does not apply because she was

not a party to the foreclosure proceedings.

Rooker and Feldman hold that federal jurisdiction to

review State court decisions in civil litigation — and claims that

are “inextricably intertwined” with such decisions — is limited

to the Supreme Court’s certiorari power under 28 U.S.C. §

1254. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 2005

WL 711586, at *4-5, No. 03-1696 (U.S. March 30, 2005).

Lower federal courts lack jurisdiction if the alleged injury

resulted from the state court judgment itself. Fredericsen v.

City of Lockport, 384 F.3d 437, 438 (7" Cir. 2004),

Amaya does not claim title independent of Bartkowiak,

only through him. But the state court foreclosure judgment

vested Bartkowiak’s title in the bank. Thus the premise of

Amaya’s suit to recover the property is necessarily that the

foreclosure judgment was erroneously entered. The district

court could not give her the relief she seeks without in effect

reviewing and disregarding the state court’s judgment. See

Newman v. State of Indiana, 129 F.3d 937, 942 (7" Cir. 1997).

Moreover, because the bank filed a lis pendens before

Amaya recorded her interest in the property, she is deemed a

subsequent purchaser and the state court’s foreclosure

judgment transferring title to the bank binds her as if she were

a party to those proceedings. See Wis. Stat. § 840.10; J. & S.

Corp. v. Mortgage Assoc’s. Inc., 164 N.W.2d 221, 223-24

“Wis. 1969). All of Amaya’s alleged injuries stem from her

eviction, which directly resulted from that judgment. Thus, she

cannot prevail without upsetting the state court’s judgment, a

step that would exceed the federal court’s jurisdiction. See

Fredericksen, 384 F.3d at 438.

Amaya also continues to assert that she is entitled to

advocate on behalf of her children. Though as guardian of her

minor children she may sue on their behalf, Fed.R.Civ.P.17(c),

she may not do so without counsel, see Navin v. Park Ridge

Sch. Dist, 270 F.3d 1147, 1149 (7"" Cir. 2001). Their claims

were properly dismissed.

AFFIRMED.

* After examining the briefs and the record, we have

concluded that oral argument is unnecessary. Thus, the appeal

is submitted on the briefs and the record. See Fed. R. App. P.

34(a)(2).

No.: 04-2510 & 04-2603 Loi ec |

In The

Supreme Court of the United States

+

GRACIELA AMAYA, by and on

behalf of herself, and, JAIME

L. AMAYA, CARLOS J.AMAYA,

TOMAS V. AMAYA, RYAN A. HANLEY, minors

Petitioners — Appellants — Plaintiffs

v.

JAY J. PITNER, WORLD SAVINGS BANK,

MILWAUKEE COUNTY, SUSAN WITCLIFFE,

MICHAEL GUOLEE, in official and personal capacities

Respondents — Appellees — Defendants

¢

On Writ of Certiorari

To The United States Court of Appeals

For The Seventh Circuit

¢

PETITION FOR REHEARING

os

Graciela Amaya -

5790 S. Packard Ave., #1

Milwaukee, WI 53110

(414)243-8177

Pro Se

QUESTIONS PRESENTED FOR REVIEW

1. Can this high court overrule its prior decisions or

precedence without granting writ of certiorari?

2. Does this high court or any court have the jurisdiction

to deny petitioner her guaranteed constitutional and unalienable

rights?

3. Article 6 Clause 3 of the US Constitution of 1787

says, “All ...judicial Officers,...of the United States, shall be

bound by Oath or Affirmation, to support this Constitution.”,

Petitioner requests declaration of what jurisdiction of

government this Court is a legal entity of, and who and what its

oath is to?

CERTIFICATE

I, _Graciela Amaya _, certify under penalty

of perjury under the laws of the United States of

America that the foregoing is true and correct: that

this petition for rehearing of writ of certiorari is

restricted to the grounds specified in Rule 44(2) and

that it is presented in good faith and not for delay.

Executed on: 05-02-2006

Sincerely,

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........-.

ef ae ee ee me ae ee

JURISDICTIONAL STATEMENT ......

STATEMENT OF THECASE ........

STATEMENT OF FACTS. ... 2. ee es

ARGUMENT & MEMORANDUM OF LAW:

RELIGFRBQUBSTED .. . ww ee

ORAL ARGUMENT MAY BE NECESSARY. .

OPINION SHOULD BE PUBLISHED... . .

Se Cee: 5 cera os

AR Oe Oe 8 a ey

iil

a . .

INDEX OF AUTHORITIES

U.S. CONSTITUTION of 1787(original): Page No.

Fifth Amendment,

Sixth Amendment,

Fourteenth Amendment,

Article | Sec. 10,

Article 1 Sec. 8, Clause 17 (1:8:17),

Article 3,

Article 4 Sec. 3, Clause 2 (4:3:2),

Article 6, Clause 3,

CASES:

American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511 (1828)

Balzac _v. Porto Rico, 258 U.S. 298 at 312 (1921),

42 S.Ct. 343, 66 L.Ed. 627 (1921)

Brushaber v. Union Pacific Railroad Co., 240 U.S. 1 (1916)

Downes v. Bidwell, 182 U.S. 244

Dred Scott v. Sanford, 19 How. 393, 404 (1856)

Ex parte Quirin, 63 S.Ct. 2, 10 (1942)

Hooven & Allison Co. vs Evatt, 324 U.S. 652 (1945)

iv

Howard v. Sinking Fund of Louisville, 344 U.S. 624,

73 S.Ct. 465, 476, 97 L.Ed. 617 (1953)

Kitowski v. United States, 931 F.2d 1526, 1529

(11" Cir. 1991).

Loughborough vs Blake, 15 U.S. (5 Wheat.) 317 -

5 L.Ed. 98 (1820)

Muskrat v. United States, 31 S.Ct. 250, 254 (1911).

Schwarts v. O'Hara TP School District, 100 A 2d. 621,

625, 375, Pa. 440

Smith v. O’Grady, 61 S.Ct. 572, 312 U.S. 329, 85 L.Ed.

859(1941)

Summa v. California, 466 U.S. 198 (1984)

Texas v. White, 7 Wallace 700 (1869)

U.S. v. Bevans, 16 U.S. (3 WHEAT) 336 (1818)

U.S. v. Stone, 167 U.S. 178.

OTHER AUTHORITIES & STATUTES:

4 U.S.C. Sections 105 through 113

26 U.S.C. Sections 3306 and 589)

28 U.S.C. Sections 1746(1) and 1746(2)

Black’s Law Dictionary, 6" Ed.

F.R.A.P. 31(d)

JURISDICTIONAL STATEMENT

This court has jurisdiction under 28 U.S.C. § 1257 and / or in the

alternative § 1251 and / or under the original U.S. Constitution of

1787.

STATEMENT OF THE CASE

Petitioner Amaya filed the original action in the Eastern Dist. Ct.

of Southeastern WI around Nov. 19, 2003 and the amended

complaint on Nov. 25, 2003. The case was ordered dismissed by

the Dist. Ct. at the hearing held on June 6, 2004. The 7" Cir. Ct.

affirmed the Dist. Ct’s. decision on April 4", 2005. Petitioner

Amaya filed a petition for rehearing en banc which was denied

on July 8, 2005 by the 7" Cir. Cts. original panel.

STATEMENT OF FACTS

1. In October of 2005, petitioner sent her petitions

for writ of certiorari to this high court and to the respondents

attorneys in this case.

2. In February of 2006, clerk sent Amaya a letter

detailing case was docketed and included a waiver form.

Clerk detailed that a notice that case was docketed and the

waiver form were to be sent to respondents.

3. Petitioner Amaya did not send out the waiver

form to respondents. Petitioner is not an attorney and

believes that if petitioner sends a form to respondents to

waive their right to respond it may unknowingly waive

petitioners right to have her case granted certiorari and/ or

heard.

4. Either way respondents should be ordered to

respond. If respondents waive their right to respond, this

court should automatically grant certiorari and rule / order in

petitioners favor. If respondents respond to petition and

argue to affirm 7” Circuit Court of Appeals ruling then

certiorari should be granted to either change this high courts

prior decisions or reverse 7” Circuit Court of Appeals and

uphold this courts prior decisions.

|

5. This is not the first time respondents have not

responded and filed its petitions on time. In the Seventh

Circuit Court of Appeals parties were ordered to respon j by

certain dates.(EXHIBIT 1) Petitioner filed her brief on time.

Respondents did not file on time and were never ordered by

the Seventh Circuit to show cause within 14 days why the

case should not be treated as ready for oral argument or

submission and the Appellees denied oral argument under

F.R.A.P. 31(d).

6. Instead the Seventh Circuit Court of Appeals

automatically granted an extension of time (EXHIBIT 2)

despite any motions / requests by Appellees for extension of

time and ignoring its own rules under F.R.A.P. 31(d).

7. This court must grant certiorari to uphold its

prior decisions and guarantee petitioner her unalienable

rights, her due process and equal protection constitutional

rights or to change precedence of its prior decisions and

therefore affirm the 7 Circuit decision.

8. The issues presented in my petition are very

serious and this court would only be able to effectively and

fairly decide the fate of this country by ordering respondents

to respond to petitioners petition for writ of certiorari.

9. Will this high court of the United States of

America follow its own rules and precedence on its previous

decisions or will it follow the U.S. District Court of Eastern

District of Wisconsin and the Seventh Circuit Court of

Appeals actions ignoring its own rules and precedence from

decisions of this high court and to put it bluntly ignore

petitioners unalienable and constitutionally guaranteed

rights?

10. This high court must grant certiorari to answer if

this court the law, the constitution and/or procedures mean

anything in this country.

11. With all due respect, certiorari must be granted.

No citizen of this country should have to ask permission from

this court, or any court, to return, restore or guarantee

constitutional and unalienable rights. They are already

guaranteed by the original constitution of 1787. The supreme

law of this country.

2

12. The United States District Court for Eastern

Wisconsin and the Seventh Circuit Court of Appeals for

some reason ruled in conflict of prior decisions of this court.

The United States Supreme Court must respond by ordering

respondent to respond and granting certiorari. This high

court is the only court that can overrule itself and change

precedence by this court. This is basic knowledge that even a

layman, like myself, can understand.

11. For all these reasons this petition for rehearing of

the writ of certiorari and the original writ of certiorari should

be granted and lower courts decisions reversed.

ARGUMENT & MEMORANDUM OF LAW IN

SUPPORT OF ARGUMENT:

I. The United States Supreme Court is the only

court that can overrule its own decisions and are bound by

oath to adhere to the constitution of 1787.

1. Lower courts cannot overrule the United States

Supreme Court, on its prior decisions and cannot ignore

precedence / decisions from this high court. Yet petitioners

arguments based on this high court were overruled in

Amayas case. It is well established law that a Court of

Appeals or any lower court cannot overrule the United States

Supreme Court. ...well settled that a Court of Appeals

cannot over-rule the United States Supreme Court. Kitowski

v. United States 93] F.2d 1526, 1529 (11" Cir. 1991),

affirmed.

2. It is well established law that the constitution is

the supreme law of the land and all judicial officers of the

United States, shall be bound by oath or affirmation. “A//

.. judicial Officers, ...of the United States, shall be bound by

Oath or Affirmation, to support this Constitution.” Article 6

Clause 3 of the US Constitution of 1787

3. This high court and all courts are obligated to

guard and enforce every right secured by the original

constitution of 1787. The Federal Constitution is the

“supreme law of the land,” and the obligation to guard and

3

enforce every right secured by that constitution rests on the

State courts equally with the federal courts. Smith y.

O'Grady, 61 S.Ct. 572, 312 U.S. 329, 85 L.Ed. 859(1941)

..the courts, posses not power not derived from the

Constitution. Ex parte Quirin, 63 S.Ct. 2, 10 (1942). [T]he

Constitution [is] the supreme law established by the people.

Muskrat v. United States, 31 S.Ct. 250, 254 (1911).

9. Pleadings must be liberally construed in petitioner

Amaya’s favor if any technicalities have been missed. Must

be liberally construed, especially where civil rights claims

are involved. Huffman v, Fiola, 850 F.Supp. 833, 836 (N.D.

Cal. 1994) cite Llugher v. Rowe, 101 S.Ct. 173, 175-176

(1980). Must be liberally construed. Moore v. McDonald,

30 F.3d 616, 620 (5" Cir. 1994) Llaines v. Kerner, 404 US

519.

10. Respondents and their attorneys are professionals of

law and have violated the laws of this country and rules of both

this court and the 7” Circ. Crt. of Appeals. (d) Failure of

Appellee to File Brief. ...clerk shall enter an order requiring ..

to show cause within 14 days why the case should not be treated

as ready for oral argument ...and.. denied oral argument...

F.R.AP. 31(@

II. A court must have jurisdiction in

order to create valid judgments

1. At 28 U.S.C. section 1746, Congress authorized

written verifications to be executed under penalty of perjury

without the need for a Notary Public. This statute identifies two

different formats for such written verifications: (1) those

executed outside the “United States” and (2) those executed

inside the “United States”. These two formats correspond to

sections 1746(1) and 1746(2), respectively. “Wherever, under

any law of the United States or under any rule, regulation, order,

or requirement made pursuant to law, any matter is required

eext such matter may, be evidenced, ....by the unsworn

declaration, ....or statement, in writing of such person which is

subscribed by him, as true under penalty of perjury, and dated, in

substantially the following form: (1) If executed without the

4

United States: “I declare (or certify, verify, or state) under

penalty of perjury under the laws of the United States of

America that the foregoing is true and correct. Executed on

(date). (Signature)”. (2) If executed within the United States,

its territories, possessions, or commonwealths: “I declare (or

certify, verify, or state) under penalty of perjury that the

foregoing is true and correct. Executed on (date). (Signature)”.

2. Clearly, the terms “United States” and “United

States of America” are both used in this same statute. They are

not one and the same. The former “ being federal jurisdiction”

U.S. v. Bevans, 16 U.S. (3 WHEAT) 336 (1818), reaff. 19

U.S.C.A., section 1401 (h); “the federal United States” ...defined

in Article I, Section 8, Clause 17 (1:8:17) and in Article 4,

Section 3, Clause 2 (4:3:2) of the Constitution extending to the

District of Columbia, and areas, zones, and districts of federal

jurisdiction over its "citizens" under the 14th Amendment,

wherever they are "resident", even if they inhabit one of the 50

States of the Union ....

3. The latter refers to the 50 States of the union that are

united by, and under, the U.S. Constitution that is the

constitutional republic, the united States of America. 28 U.S.C.

1746 is the only federal statute in all of Title 28 of the United

States Code that utilizes the term “United States of America”, as

such. It is obvious, then, that verifications made are outside the

constitutional republic of the 50 States of the Union if and when

they are executed inside the “United States” i.e. “the federal

zone’.

4. Likewise, verifications made are inside the

constitutional republic of the 50 States of the Union. if and when

they are executed outside the “United States” , i.e. “the federal

zone”. The format for signatures on Form 1040 is also the one

for verifications made inside the United States (1.e., federal zone)

and outside the United States of America.( the constitutional

republic of the 50 States of the Union)

5. Further, we find in federal law, Congress defines

various places of exclusive federal jurisdiction as "States". These

places are not "states of the Union". In Article II(a) of the

Uniform Detainers Act. "(a) ‘State’ sl.all mean a state of the

United States; the United States of America: a territory or

5

possession of the United States; the District of Columbia; the

Commonwealth of Puerto Rico.” in 1940, Congress passed the

"Buck Act” now found in 4 U.S.C. Sections 105-113. In Section

110(c), this Act authorized any department of the federal

government to create a "Federal Area" for imposition of the

"Public Salary Tax Act of 1939." This tax is imposed at 4 U.S.C.

Section 111. The rest of the taxing law is found in the Internal

Revenue Code. The Social Security Board had already created a

"Federal Area" overlay. U.S.C. Title 4 is as follows: Sec.

110(d): The term "State” includes any territory or possession of

the United States. Sec. 110(e): The term "Federal Area" means

any lands or premises held or acquired by or for the use of the

United states or any department, establishment, or agency of the

United states; and any federal area, or any part thereof, which is

located within the exterior boundaries of any State, shall be

deemed to be a federal area located within such State.

Under the "Buck Act," 4 U.S.C Secs. 105-113, the federal

government has created a "Federal area" within the boundaries of

the several states. This area is similar to any territory that the

federal government acquires through purchase, conquest or

treaty, thereby imposing federal territorial law upon the people in

this "Federal area." The Supreme Court has determined, “There

has been created a fictional federal "State (of) xxxxxx within a

state." See [loward v. Sinking Fund of Louisville, 344 U.S. 624,

73 S.Ct. 465, 476, 97 L.Ed. 617 (1953); Schwarts v. O'Hara TP

School Districi, 100 A 2d. 621, 625, 375, Pa. 440

6. Under the Provisions of 4 U.S.C. Sections 105 , the

federal "State" is defined “(also known as, "The State of

xxxxxxx.”) and in Sec. 110(d): The term "State” includes any

territory or possession of the United States. Title 26 is no

exception to the redefinition of such terms 26 USC § 3306

Definitions - For purposes of this chapter—{j)(1) State - The

term “State” includes the District of Columbia, the

Commonwealth of Puerto Rico, and the Virgin Islands.

26 USC § 5891 Structured settlement factoring transactions (c)

Definitions (6) State -The term “State” inchides the

Commonwealth of Puerto Rico and any possession of the United

States.

7. As noted in the memorandum above, the term "United

6