STATEMENT OF CASE

The overarching question that swallows all of the sub issues is the sovereignty of the individual. “The foundation rock of American Constitutional Law is the Declaration of Independence for it established as a basis for our government and our legal system the theory of equality and of basic human rights. The Declaration did not declare the independence of America. It declared the independence of the individual.”[1] This sovereignty of the Individual is even more clearly acknowledged by the Texas Constitution where the Bill of Rights is in Article I, stated as inviolate, and excepted from the powers of government. This is the ideal of our Texas State and Federal government as an egalitarian society dedicated to Ordered Liberty.

What the Appellees’ choose to call an issue of abuse of discretion is, in this case, more properly a question of whether the Individual in the State of Texas has any Substantive Rights under the Texas Constitution and the United States Constitution to the protection of the law.

This boils down to a straightforward issue facing this Court:

PROCEDURAL POLICY vs. SUBSTANTIVE RIGHTS

Appellant contends the Honorable Kenneth Hoyt abused his discretion in denial of the motion because his prior judgment misled Heimlich to believe he could re-file his complaint, or the judgment would be void, upon reversal of the conviction. Appellees’ contend the procedural policy of the Fifth Circuit Court is superior to pro se complaints of violations of Substantive Rights enumerated in the Constitutions and Substantive Law of Title 42 of the United States Code. They attempt to convert vague procedural policy into a right to free them from any accountability to Substantive Law and free Texas from the Mandates and Requirements of the Constitution. Countenance to this proposition is clearly an abuse of the discretion granted to the “judicial Officers, both of the United States and of the several States…to support this Constitution.”

This case began when Appellant advised a Deputy Constable he was not following the law. The Deputy Constable’s response was “I am the Law”. In other words; Appellant advised him he was “abusing his discretion” and he replied his discretion was absolute. Appellant called the Houston Police Department and asked the Harris County District Attorney’s Office for the protection of the law. These individuals, under color of the entities that employ them, then abused their discretion in conspiracy to concur with the Deputy Constable that their discretion was absolute. The State Judge abused his discretion in conspiracy of concurrence. The Federal Judge abused his discretion in concurrence. The true issue in this appeal is not whether the Federal Judge abused his discretion but, rather, whether this Court of Appeals will abuse theirs in concurrence that a deputy constable, and all others employed to enforce the law, have replaced the law with arbitrary, and capricious, unbridled authority that is absolute.

JURISDICTION

Defendants/Appellees consist of the State of Texas, governmental subdivisions of the State of Texas, and various individuals in both their official capacity as employees of the State of Texas and in their individual capacities acting under color of law of the State of Texas. Both the Attorney General of the State of Texas and the County Attorney for Harris County have filed briefs as counsel for the defendants and The State of Texas has assumed responsibility for all individuals in both capacities. Hereinafter they will be referred to collectively as “Texas”. This Court of Appeals has jurisdiction over Texas under the Fourteenth Amendment to protect the rights of the sovereign from Texas. This court also has pendent jurisdiction. Both the Texas Constitution and the United States Constitution protect the jurisdiction of the individual from a State, judge, prosecutor or any others from exercising powers of government in a way that would confer upon them absolute powers to act in ways contrary to Substantive Rights or Substantive Law.

STANDARD OF REVIEW

Review is required of this courts’ duty under Article VI in contrast to Substantive Rights of the Individual, in Article I, §9 & §10, the Fifth, Sixth and Fourteenth Amendment, among others, as Supreme to any grant of discretionary authority permitted by the Constitution.

“It would be an understatement to say that this circuit’s case law regarding so-called “Fourth Amendment malicious prosecution” claims under § 1983 is both confused and confusing.” See, e.g., Kerr v. Lyford, 171 F.3d 330, 342-43 (5th Cir. 1999) (Jones, J., concurring). Deciding the issue presented in this case forces us to return to first principles.” Gordy v. Jefferson Parish Sheriff’s Department; ET AL. (5^th Cir. 2002) Article VI of the United States Constitution is the first principle that must be returned to as a standard for review. Both the United States and Texas are secular. The written law, beginning with the Constitutions, is the only relevant standard, as the only objective standard, for the determination of Actual Innocence in a case involving malicious prosecution.

This appeal arose from the district court denial of a Rule 60(b) Motion to Vacate a Judgment granted by sue sponte grant of summary judgment on grounds of immunity in a civil rights action brought under §1983, §1985 of U.S.C. Title 42 and other Substantive Law for violations of Substantive Rights. Review of precedent indicates Rule 60 is to be liberally construed in favor of a full trial on the merits consistent with the Sixth Amendment. De novo review is required and review of the underlying judgment is appropriate and necessary to prevent a manifest miscarriage of justice.

Appellant, Edmund B. Heimlich, (“Heimlich”) is pro se. Pursuant to directive of the United States Supreme Court liberal construction is required by Haines v. Kerner, 404 U.S. 519 (1972). Heimlich chooses to rely on the Constitution for authority. As a member of the sovereign under the Constitution liberal construction is required in any review of the rights of the Individual as a member of the sovereign.

Appellant claims, contends, and asserts that his Rights under the Constitution are sovereign to any grant by the Constitution of discretion to any Court to deny the motion. Texas looks to this court of appeals for a grant of absolute authority under the euphemism of “immunity”. What the courts have chosen to call “absolute immunity” is a misnomer in a state and nation under the rule of law. The concept of immunity began as a well-intentioned policy to protect state prosecutors and judges from harassing litigation brought for purposes of retaliation for the exercise of their lawful duties. As the Supreme Court made clear in Kalina v_ Fletcher, 522 U_S_ 118 (1997) “These cases make it clear that the absolute immunity that protects the prosecutor’s role as an advocate is not grounded in any special “esteem for those who perform these functions, and certainly not from a desire to shield abuses of office, but because any lesser degree of immunity could impair the judicial process itself.” Malley, 475 U.S., at 342. Thus, in determining immunity, we examine “the nature of the function performed, not the identity of the actor who performed it.” Forrester v. White, 484 U.S. 219, 229 (1988).

Texas relies on a ruling by this court of appeals in Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 471(5th Cir. 1998) with select quotations. A full reading of this case finds:

“Halicki contends that having properly considered the rule 60(b) motion, the district court was required to pay special solicitude to her claim because she never had an *471 "examination of the full merits of the cause," which, in her view, means a trial. Indeed, "where denial of relief [under rule 60(b) ] precludes examination of the full merits of the cause, even a slight abuse of discretion may justify reversal." Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. Unit A Jan.1981) (citation omitted).

FALSE STATEMENTS IN APPELLEE’S FACTS

The following are material fact issues not established as facts.

The alleged report to the Harris County District Attorney’s Office: Texas says “He (Pettorino) reported the matter to the Harris County District Attorney’s Office. R-207”. Page 207 of the Record on Appeal does not establish Pettorino as making a report to the Harris County District Attorney’s Office. R-207 alleges the Bank employee, Kristoffersen, may have contacted the Harris County District Attorney’s Office and directed Pettorino to them to cover the Bank’s violation of Federal Statute in placing an illegal hold on Heimlich’s account.

Pettorino, the alleged complainant, testified it was not his desire or intent to file a criminal charge against Heimlich. Evidence and testimony establish as fact the seizure of Heimlich’s property took place prior to the filing of any complaint. See Pettorino’s sworn testimony, in cause no. 674066 and in cause no. H-00-3418, [R-277] now on appeal in this court as case no. 01-21244, was that he did not visit with defendant/appellee John Boone until the after the seizure. This has been confirmed by Pettorino’s signature on a complaint dated August 30 [R.E. 25(“Record Excerpts”)]. This complaint reveals an absence of any jurisdiction by any of the defendants they now attempt to create with a false statement of facts that followed the complaint.

Pettorino’s testimony indicate he was coerced to sign a complaint AFTER the seizure of Heimlich’s money which was the source for the payment of a claim to money he alleged was, or would be, coming due to him. In fact; the only victim in this entire ordeal was Heimlich, the taxpayers, and the reputation of our system of justice.

Boone claims he did not instruct the bank to maintain a hold on the account after Heimlich complained to the bank that this was illegal. The Bank claims they maintained the hold on instructions from Boone.

Alleged presentment to, and indictment by, a Grand Jury:

Texas says “Appellee John Boone, an Assistant District Attorney, presented to a grand jury an indictment against Heimlich…R-206” No where is this said in page 206 of the ROA or anywhere else in the ROA(“Record on Appeal”)! This is not a “fact”. The record in cause H-00-0866, previously appealed to this court in 01-20082, show it highly doubtful Boone ever presented this case to a grand jury. Evidence indicates John Boone fabricated documents to present the appearance his actions had been consecrated by a grand jury. An objective fact finder, a jury, could find the alleged presentation to a grand jury never occurred.

Alleged presentment of an affidavit for a search warrant

Texas says the Milton Ojeman presented an affidavit for a search warrant to Judge Ted Poe. Sworn testimony by John Boone in the trial of cause no. 9308270, in trial of cause no. H-00-3418, now on appeal as 01-21244, and the Affidavit of John Boone in H-00-0866, appealed to this court as case no. 01-20080, reveal the fact that John Boone drafted the warrant and John Boone has repeatedly stated he was the one that presented it to Judge Ted Poe.

Alleged presentment of the affidavit to a Magistrate

Texas says the affidavit for a search warrant was presented to Judge Ted Poe. The evidence suggests this is NOT a “fact” but a material fact issue. It has become known that there has existed a practice in Harris County of Magistrates signing blank warrants for the District Attorney’s Office to use at will. The affidavit is clearly fraudulent on it’s face. The affidavit refers to a contract that clearly shows the absence of any jurisdiction for investigator Milton Ojeman, Assistant District Attorney John Boone, or Judge Ted Poe.

The record of sworn testimony in prior proceedings and the affidavit of defendant John Boone in H-00-0866, appealed as case no. 01-20080, establish the fact that John Boone prepared the affidavit for a search warrant R.E 24. The record of sworn testimony of Milton Ojeman in H-00-3418 [R-277] now on appeal before this court as case no. 01-21244 reveal an absence of input from, or knowledge by, Milton Ojeman in the creation of the affidavit. It is a material fact issue that John Boone knew the affidavit was fraudulent, knew there was an absence of probable cause and no jurisdiction for the seizure, and, therefore, ordered Milton Ojeman as his subordinate to sign the affidavit.

See also Plaintiff/Appellant’s First Amended Complaint, paragraph 125, makes the forgoing allegation of this material fact issue and supplied an attached Exhibit labeled “C” copy of the affidavit. R-221

When Pettorino learned of the stop pay on the check:

Texas says; “When Pettorino attempted to cash the check, he learned of the existence of the stop pay order”. This is not established anywhere in any of the Records on Appeal. To the contrary; Pettorino’s sworn testimony in criminal cause no. 9308270, and later in 674066, presented as an exhibit in cause no. H-00-3418, now on appeal as 01-21244 before this court, and as part of the record of that appeal [incorporated herein by reference R-277], reveal that Pettorino asked the bank to allow him to cash the check prior to the date on the post-dated check and prior to the deposit being posted to the account. Pettorino did not learn of the existence of the stop pay until AFTER he had already attempted to cash the check and his request denied because he had not yet deposited the check upon which the post-dated check was to be drawn.

It was proven as fact, in cause no. H-00-3418, now on appeal as 01-21244 before this court, the stop-pay was issued because Pettorino was a day late in making the deposit of funds on which the post-dated check was to be paid. In H-00-3418, R-277, it was proven that both Pettorino, and the bank lobby manager, lied about the date on which Pettorino made the deposit creating a material fact issue they did so to secure a conviction as cover for their own errors and crimes.

STATEMENT OF FACTS

The record is undeniable. See ROA generally. Heimlich’s Actual Innocence was obvious prior to the illegal seizures and sham trials that followed. Heimlich clearly advised the District Court of this in pleadings. [R.E. 15 and 16, R- 95, 92, 91] Heimlich was the victim of two thefts committed by the Texas utilizing ex post facto law and impairing the obligation of Contracts[2] entered into under State Statute regulating Real Estate Licensees. “Seizure” is an improper euphemism. The seizures are properly defined as thefts because they were executed outside of the jurisdiction of authority granted to the State, or those employed by the State, under both Constitutions of Texas and the United States. The absence of an actus rues cognizant as a crime reveals the State, County, and individual defendants were engaged in conduct that was outside of the jurisdiction of any discretionary authority granted to the State, and those employed by the County and State, under either Constitutions. R- 11, 10, 18, 19 & 22]

Heimlich’s actual innocence[3] under the law was obvious to all defendants involved prior to the execution of the illegal seizures and arrests without probable cause and throughout the proceedings that followed. R- 174, 173] In one of the underlying causes of action this was later substantiated and confirmed by the Fourteenth Court of Appeals for the State of Texas in a reversal of the conviction. [R.E. 6, as referred to in R-277]. These were convictions that could only be secured by a theft of Heimlich’s property, denial of Substantive due process, and other Substantive Rights of a person to the protection of the law[4], by Texas. The district court was clearly advised of this denial of due process before the trial, after the trial, and again in trial against co-conspirator in which the same judge of the district court presided, and incorporated by reference in R-277.

An objective review of the opinions of the Fourteenth Court of Appeals reveals there was no jurisdiction and no probable cause pursuant to the terms of Contract between Heimlich and the licensed real estate agents who Texas says initiated the actions by claim of a debt. Law of the Uniform Commercial Code, the Texas Real Estate Licensing Act, and other applicable substantive laws of which the defendants were required to know are codified, of record, and indisputable. The district court was advised of this absence of jurisdiction with even the applicable law stated in full in R- 95,92,91. The district court knew all actions of the defendants were nonjudicial in nature and were actions that were taken in complete absence of any jurisdiction within the province of the defendants.

Heimlich brought these same facts to the district court when he sought Federal Protection in a Petition for Removal before Hoyt citing both Fifth and Fourteenth Amendments prior to the conviction. [R.E. 7 and 14 incorporated by reference on R-277]. Heimlich again cited these same facts when he brought suit before Hoyt pursuant to 42 USC § 1983 for the individual deprivations and pursuant to 42 USC § 1985 for the collective deprivations by conspiracy among the defendants. Heimlich made his claim against all, individually and collectively, under 42 USC § 1986 for failure in their duty to protect him among other complaints for violations of Heimlich’s Right to protection of the law. R- 10, 11 & 19, 20. Hoyt has refused to acknowledge his errors even when the conviction was overturned on one of the charges and the indictment ordered dismissed for lack of probable cause! R-277.

Heimlich, acting pro se and indigent, was confused by contradictory rulings by Hoyt on jurisdiction in the petition for removal and subsequent identical complaint brought after the conviction, confused by the memorandum opinion of the district court R-248, and further confused by pronouncements of this court of appeals and the United States Supreme Court. Heimlich, doing what he believed Hoyt and the courts had instructed of him, engaged in political activity to raise awareness while awaiting exhaustion of the pending appeal of his conviction.

Upon reversal of the conviction Heimlich hired counsel that brought a similar action, H-00-0866, R-277, in which the immunity defense of defendants was defeated. However; a different Judge of the district court granted summary judgment on res judicata [R.E. 8]. Heimlich appealed and, following the instructions of this court of appeals [R.E. 9], made motions to vacate the judgment [R- 275-260, 278-276] the denial of which is the cause of this appeal. It appearing from the ruling of this court of appeals, in case no. 01-20080, [R.E. 9, R-277] that pursuant to Rule 60(b), the judge was required to consider the judgment final as Rule 60(b)(4), mandating the judgment is void pursuant to Rule 60(b)(5), apparently applies only to the judge that issued the original judgment.

SUMMARY OF APPELLEES’ BRIEF

Both Texas briefs are essentially the same. Both point to “abuse of discretion” as the only issue and both cite the same cases of this court of appeals as their only authority in support of their position. Both attempt to “blame the victim” to excuse the State and all other defendants from accountability to the law or consequences for violation of the law. Texas attempts to utilize this court’s procedural policy to provide justification for this Court of Appeals to override the clear meaning and intent of their own Constitution, of the State of Texas, and the United States Constitution. Texas attempts to make an end run around Substantive Rights, the Fifth and Fourteenth Amendments, and substantive law, Rule 54(b) and Rule 60(b) of the Federal Rules of Civil Procedure, to provide an excuse for this Court of Appeals to disregard it’s duty to honor Article VI of the Constitution.

Regardless of how often or how loudly the Appellees, and the courts in their attempt to protect the defendants, call Appellant a “bad guy” Substantive Law reveals their hypocrisy. The strategy of blaming the victim provides only a temporary success and will ultimately fail regardless of the outcome of this appeal. Equal Justice under the Law, as carved in stone above the United States Supreme Court, is the fundamental law of both the State of Texas and the United States with their Constitutions established as the Supreme Law of the Land.

In a repeat of their strategy of hiding their theft by pointing at the victim of the theft; Texas now attempts to hide their end-run by accusing Heimlich of attempting an end run. It is another example of “hypocrisy in application of the law to circumvent the law” that has become the national and international reputation of the State of Texas. Texas utilizes linguistic hypocrisy to make the contradictory claim of an “end run” of the appellate process in the course of the appellate process.

Texas, in contradiction to it’s States own bill of rights, asserts that Heimlich must know and comply with the intricate details of procedural policy to assert Rights that are, under the Texas Constitution, “excepted from the powers of government” to disregard and are to “forever remain inviolate”.

SUMMARY OF ARGUMENT

Texas makes another attempt to divert the attention away from this issue by, again, puting Heimlich on trial for an act or failure to act. Heimlich asserts his actual innocence, which cannot be disputed, and the misleading directives of Hoyt and the courts, constitute abuse that relieves Heimlich of any required action.

When the State charges an innocent individual with the commission of a crime it is the State that is on trial. When the case is brought to the attention of the federal district court the federal judiciary is on trial. And now; the only real issue is the honor of this Court of Appeals pursuant to Article VI of the United States Constitution, the “Supremacy Clause”, which holds:

“This constitution, and the laws of the United States which shall be made in Pursuance thereof; …shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in this Constitution or Laws of any State to the Contrary notwithstanding.

…and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”

Heimlich asserts that; pursuant to the “We the People” title of the United States Constitution, and “the people of the State of Texas” preamble of the Texas Constitution, this Court of Appeals has only a grant of limited authority. All procedural policy and rules of this Court of Appeals, as law of the Fifth Circuit, must be “IN PURSUANCE OF” and “SUPPORT” the United States Constitution as the Supreme Law of the Land. Any policy or law to the contrary is void and must be held of null affect or is, itself, an abuse of the discretion granted by the Constitution.

A. The individual has rights, as a sovereign, under Article I, Section 9 and Section 10, and the Fifth and Fourteenth Amendment to the United States Constitution, as unalienable, self-evident truths[5], to the protection of the law. These same rights are also expressed in the Texas Constitution and, in Article I, Section 29, “excepted from the powers of government; to forever remain inviolate…and all laws to the contrary thereto shall be void”. Heimlich, as a “person” under the Fifth and Fourteenth Amendment, and as a citizen of the State of Texas, is a member of a “protected class” with rights that are exempt, in Texas at least, from any law or policy contrary to their enforcement.

B. Each of the individual defendant, referred to collectively as Texas, holds positions in professions that require they possess a license as proof they know the Constitution and Substantive Law. Each is required to swear by Oath to honor their duty to know and respect the Substantive Rights of the individual, as a member of the sovereign, as self-evident truths, excepted from the jurisdiction of their powers as government employees and forever to remain inviolate. Oath, License, and Substantive law required each individual defendant to know and abide by the law that limits the jurisdiction of their discretionary authority.

C. Ignorance or error is not a bona fide excuse to claim their acts were “objectively reasonable”. Regardless of how “reasonable” they may make their actions appear they were not “objective” under the law as the only relevant standard of what is “reasonable”. The Constitutions mandate these individuals, by acceptance of their official capacity and public pay, be held to a higher standard of compliance with the law then the sovereign individuals the law was created to protect.

D. The Fifth Amendment mandates that Heimlich, as a person, be compensated for deprivation of life, liberty, or property, without due process of law and for private property taken for public use without just compensation. The Fourteenth Amendment mandates this Court of Appeals hold the State of Texas, and those entities and individuals acting under the color of law of the State of Texas, accountable for their denial of the individuals’ Substantive Right to equal protection of the law. The Fifth Amendment mandates consequences as a deterrent to deprivations of life, liberty, and property by the State in violation of equal protection regardless of an individual’s ability to purchase or comprehend legal linguistics for compliance with the intricacies of procedural policy.

E. The utilization of procedural policy to circumvent, to end-run, the statutes of congress, known as the civil rights act of 1871 (42 U.S.C. §1983, §1985, §1986, and later additions), is, in this case, a clearly intolerable violation of the separation of powers. “Stare decisis is a principle of policy, not a mechanical formula of adherence” Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 -408 (1932) Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791, 2808-2816 (1992)

F. The sue sponte grant of summary judgment was an abuse of discretion that was clearly misleading to Heimlich. Pursuant to Rule 54(b) this Court of Appeals did not have jurisdiction to dismiss Heimlich’s appeal for want of prosecution. It was, rather, a voluntary dismissal made upon what Heimlich was actively led to believe was the directive of the courts to await ruling on his appeal of the conviction. Pursuant to Rule 54(b) and Rule 60(b)4 the District Court did not have discretion to deny Heimlich’s Motion to Vacate the Judgment made void by the reversal of the conviction. It follows that a dismissal of an appeal for want of prosecution is also void when the judgment is made void pursuant to Rule 60(b).

G. Pursuant to Article VI of the U.S. Constitution, the Supremacy Clause, this Court of Appeals does not now have discretion to deny Heimlich’s claim for just compensation under the Fifth Amendment and the Civil Rights Act of 1871.

Utilization of procedural policy as “law” to end-run, circumvent, the limitations of Article VI, and linguistics utilized to cover-up or disguise what is a grant of juridical absolutism to the Judges of the District Courts, Judges of the Texas Courts, and prosecutors for the State of Texas, is an intolerable violation of the Supremacy Clause of the United States Constitution and the Texas Constitution’s Bill of Rights. This would be an abuse of discretion that will bring dishonor on our very system of government.

The reversal of the conviction reveals plan error in Hoyt’s grant of summary judgment, a manifest injustice in Hoyt’s refusal to vacate the judgment, and error in the procedural policy of this court of appeals holding that it is appropriate to resolve questions of immunity before reaching a Heck Analysis. A review of others circuits reveal the opposite practice as their policy. A review of clarifications by the United States Supreme Court reveal this is an intolerable Constitutional violation denying a citizen their right to petition for redress and their right to trial by jury.

ARGUMENT

The issue raised by Heimlich in his brief is whether the pro se litigant has any substantive rights, a right to the Rule of Law (ie: protection of the Law), in that portion of the United States under the jurisdiction of the Fifth Circuit Court of Appeals. Texas refers to this issue as “abuse of discretion”.

That the crimes of Texas were committed on state property, or while individual defendants were receiving compensation from the State for their time, or that the government of the State of Texas has chosen to indemnify and defend the individuals involved in both their individual and official capacities, does NOT magically confer jurisdiction or legitimacy to their actions in violation of Substantive Law. Illegal acts are not magically made legitimate because they were done while defendants were on the public time with assistance of public resources. Acts outside the jurisdiction of their authority are not magically placed within a new discretionary boundary because the actions were performed on public property. Rather; These violations of public trust make their actions all the more abhorrent. The actions complained of were nonjudicial in nature or were actions taken in the complete absence of all jurisdiction. Mireless v. Waco, 112 S.Ct. 286, 288 (1991).

The State, by and through those acting as the State of Texas, hid their thefts by calling it a seizure and pointing to Heimlich as a “bad guy” while denying Heimlich Substantive Rights of Due Process of Law.

The ability of a special interest group of those employed as police, prosecutors, and state judges to pressure the legislature to have the public pay to indemnify and defend their illegal acts does not make their actions legal. Rather; It reveals a systemic problem this Court of Appeals should address to maintain the reputation of this nation as a nation under the rule of law.

Texas cannot blame the victims for their violations of Oath, Duty, and Honor to the Supreme Law of the Land. The Constitution does not require their victims know intricate details of procedural policy to be en-titled to protection of the law and equal justice under the law. Attempts by Texas to shift the burden from individual government employees and utilization of government subdivisions to provide cover for known illegal acts by these individuals is an abuse of the jurisdiction granted by the United States Constitution to the State of Texas. This conspiracy to abolish government of, by, and for the people as sovereign makes the defendants not only criminals; but, also traitors to both Constitutions. The County and State’s defense of these individuals is itself a violation of the Constitutions. See Fourteenth Amendment § 3 “insurrection and rebellion against the same or giving aid and comfort to the enemy thereof”.

The defendants knew their actions were taken in complete absence of jurisdiction but knew the state would pay for any potential consequences and, worse yet, believed the federal judiciary under the jurisdiction of the Fifth Circuit would protect their actions regardless of how blatantly contrary to the concept of a nation under the rule of law.

Texas contends the policy of this Court of Appeals is to aid and abet government employees in the very conspiracy complained of by imposing procedural hurdles and then using the failure of the victim of violations of the Supreme Law of the Land to cross every T and dot every I in the process of overcoming these hurdles as an excuse to deny to the individual that which both the United States Constitution and the Texas Constitution hold as “unalienable”[6], “inviolate”[7], Rights of the Sovereign. Texas contends Heimlich must establish or prove he has that which is “self-evident”[8] and overcome the power that is “excepted from the powers of government”[9] to sustain his claim. Thus; the defendants, by virtue of their titled, should freed from any and all accountability to any Constitutional requirements and restraints of law that might give those who are not a member of their titled class the protection of the law.

As a result the true

STATEMENT OF ISSUE PRESENTED FOR REVIEW,

what is on trial before this court is:

THE HONOR OF THE UNITED STATES COURT OF APPEAL

FOR THE FITH CIRCUIT

Does this Court of Appeals abuse it’s discretion to elevate procedural policy above Constitutional Rights and Substantive Law to circumvent, to “end-run”, the Constitutions with a strategy of keeping the victims in truncated and convoluted proceedings until they acquiesce to the abrogation of all Substantive Rights? Will this Court of Appeals utilize new phrases, yet to be clearly defined or “interpreted” as linguistic cover for the end-run?

Neither the Judge of the District Court, nor this Court of Appeals, had or has discretion to circumvent the mandates of the United States and Texas Constitutions with procedural policy, to make an end-run around, the individual’s sovereign Constitutional Rights.

The People cannot, and will not, maintain any more respect for those with titles in this Court of Appeals than the Court gives to the Individuals’ title as a Human Being, with the absolute Rights of a sovereign under the Texas Constitution and the United States Constitution. Both give the Individual title to the protection of Substantive Rights and Substantive Law as members of the Sovereignty. However; The titles conferred upon the members of this Court are limited by a duty to honor the unalienable[10], inviolate[11], Rights of the Individual as a Sovereign. As self-evident truths, excepted from the powers of government, these Rights require no proof for recognition, nor do they require compliance with circuitous procedure to assert. It is the duty of this Court to recognize and assert these Rights of the sovereign. The honor of this court is dependent upon it.

DEFINING DISCRETION

Heimlich had discretionary authority under the Constitution and Substantive Law regulating his business as a Real Estate Broker. His discretion was protected by both Constitutions. The individuals known collectively as Texas clearly abused their discretion by exceeding the limits of governing their authority under the jurisdiction of their title.

The law of nature has endowed every human with more discretion then many recognized. Every Individual can exercise their discretion to become a suicide bomber and, in the process, kill many other individuals. To the laws of some this is an abuse of discretion. To the laws of others it is not only their right but also their duty under the law of their God. The vast majority of humans VOLUNTARILY limit the exercise of their discretion. They do so out of a sense of honor to humanity and to the law. Some do not have this same sense of honor. To them; human relations are decided solely by power. They will not allow any limit on the use of their personal discretion without the threat of another power as a deterrent. This is the environment in which man has created laws and, in the course of the policy for applying these laws, either used or misused laws.

In a nation under the Rule of Law, where none are “en”-titled with superior rights of nobility, holding that individuals are sovereign, “en-titled”, to the equal protection of the law; It is not Constitutionally tolerable to provide a liberal use of discretion by those with government titles that abrogates all discretion, liberty, of the individual. To insure this protection our Constitution has secured to the sovereign individual Rights that are superior to any grant of authority the Constitution has conferred upon those with titles. Discretion in the application of the law of our Constitution imposes a corresponding duty upon those with titles of deputy constable, lawyer, prosecutor, state judge, or federal judge. It is an abuse of discretion to allow a federal judge to mislead a pro-se litigant and then hold the pro-se litigant has abandoned rights, which cannot be abandoned, in favor of those that have no “rights” but, rather, duties of title.

The founders placed their trust in the honor of the courts to faithfully exercise their duty to enforce the Constitution as Supreme Law and maintain the Rights of the people as individual Sovereigns. Regardless of the personal political beliefs of the Judge there is no discretion to abrogate these rights. Only a Constitutional Amendment by the Sovereign can do so.

When the Courts have violated the trust placed in their honor they have failed as a peaceful forum to balance the conflicting interests among the members of this egalitarian social order. The never-ending cold war has then become a hot war with violence in the streets and even, at one point, loss of unity to a very bloody open civil war.

“America has never been united by blood or birth or soil. We are bound by ideals that move us beyond our backgrounds, lift us above our interests and teach us what it means to be citizens.” [12]

Thus it is that our Constitution is what unites us. To disregard Article VI, the Supremacy of the Constitution, by grant of juridical absolutism to Texas, is to deny that which unites us and maintains peace by securing ordered liberty.

CONCLUSION

To date this nation, by and through it’s Courts, has refused to impose any punishment, civil or otherwise, apply any deterrent, for the unlawful acts of the defendants, and the entities they work for, that TOOK from Heimlich what was his by the RIGHTS secured to him by the Constitution as the Supreme Law of the Land. The Courts have, in contrast, encouraged them to repeat the crimes they have committed and encouraged others in similar positions of trust to do the same. The Courts have even went so far as to join the conspiracy in a cover-up by utilizing vague language, hypocritical arguments, and placing subordinate procedural policy of court rules and obscure stare decisis above the Constitution in the hierarchy of Laws to the extent the Constitution has been rendered “frivolous”. That is an abuse of discretion.

If there are no constraints on the judiciary under the Constitutions the question is not one of whether substantive rights of a sovereign were violated but becomes, rather, a question of whether the individual has any rights at all with the Constitutions as the Supreme Law of the Land. Without recognition of Substantive Rights; errors, although “plain”, can then be dismissed as not sufficiently plain or not made plain enough by the victim. Arguments of the victim, although clearly supported by the Constitutions, can then be deemed frivolous. The Constitutions and the laws created under the Constitutions will, for all practical purposes, no longer exist. Law will have been effectively deemed “frivolous”. What is presumed to be law will have been reduced to arbitrary and capricious acts of power for power’s sake.

Texas asserts that the policy of this Circuit provides this absolutism has been passed down to the level where it provides absolute, unbridled, despotic powers of discretion to un-elected deputy constables, or un-elected assistant district attorneys of a county, to act as legislator in the creation of laws! With the support of the absolute, unbridles, discretion of a state judge they are allowed to also be the executioner in the enforcement of these arbitrary and capricious unwritten laws of convenience without any recourse available to the victims of their abuse. In the final analysis the law has become the opposite of it’s intended purpose!

It is too late for complete justice. The purpose of this appeal is to give justice to the law. The interest of justice will never be served until Heimlich has received some of the just compensation to which he is entitled as a Substantive Right under the Fifth and Fourteenth Amendment pursuant to USC Title 42 by this court of appeals, the U.S. Supreme court, or a Court of International Law.[13]

WHEREFORE; PREMISES CONSIDERED, Appellant prays this Court vacate the judgment in cause no. H-96-2556 with order that Heimlich be allowed to Amend his Original Complaint.

Respectfully Submitted,

_____________________________

Edmund B. Heimlich, Pro Se

6410 Rancho Blanco Court

Houston, Texas 77083

281-561-7211

fax 281-561-8122

CERTIFICATE OF SERVICE

I certify that a true and correct copy of this brief has been served on each party of interest or their counsel by regular mail of a copy and computer disk to each on this the 5^rd day of July, 2002.

___________________________

Edmund B. Heimlich

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[1] “The Law” subtitled: “The Story of Lawmakers, and the Laws We Have Lived By, from the Earliest Times to the Present Day, by Rene A. Wormser; page 340. Available in the Library of the Fifth Circuit.

[2] In Fact; the laws were not passed, as such, by the Texas Legislature but rather sue sponte “passed” by the defendants and mutually agreed upon by “Treaty, Alliance, or Confederation” in violation of Article I, Section 10, and enforced in violation of the Fourteenth Amendment of the United States Constitution.

[3] Substantive Law, beginning with the Constitution as the Supreme Law, is the objective standard for enforcement of our personal, subjective, moral standards. A conviction on the prosecution’s implication of immoral intent (mens rae) cannot be used to circumvent Heimlich’s substantive right to protection of the law where there was no actus rues. Heimlich’s actual innocence was, and is, clear to any who know contract law and property law. Substantive law required all defendants to know and honor these laws.

[4] The “Rule of Law” and “the Protection of the Law” are interchangeable and, as used herein, refer to the enforcement of the written law under a hierarchy of laws.

[5] See the Declaration of Independence

[6] See the Declaration of Independence

[7] See the Texas Constitution, Article I titled Bill of Rights, Section 29

[8] See the Declaration of Independence

[9] See the Texas Constitution, Article I titled Bill of Rights, Section 29

[10] Pursuant to the Declaration of Independence the Rights of the Individual are “unalienable” and “self-evident truths”.

[11] Pursuant to the Texas Constitution the Rights of the Individual are “inviolate” and “excepted from the powers of government”.

[12] Inaugural address of President George W. Bush

[13] “At Gibeon the Lord appeared to Solomon in a dream by night; and God said,…”Ask what I should give you.’ And Solomon said, ‘…Give your servant therefore an understanding mind.’” –1 Kings3:5-6,9 Heimlich has prayed for an understanding mind for himself and for this court of appeals.