STATEMENT OF JURISDICTION

This appeal arises from a civil rights action brought by appellant Edmund B. Heimlich (“Heimlich”) in federal district court pursuant to Sections 1981, 1983, 1985 and 1986 of Title 42 of the United States Code. The federal district court had jurisdiction over Heimlich’s federal claims pursuant to 28 U.S.C. § 1343. Heimlich’s complaint also states several related state law causes of action over which the district court had pendent jurisdiction.

On December 20, 2001, the federal district court issued an order of denial of Heimlich’s motion to vacate the Final Judgment. Heimlich gave notice to the court of his intent to appeal in his Motion Re-Urging the Court to Vacate the Judgment before the order of denial. Heimlich filed formal notice of appeal on January 16, 2001.

Heimlich previously filed a notice of appeal on the judgment he has now sought to be vacated. The Court of Appeals did not have jurisdiction, as the judgment was not final pursuant to Fed. R. Civ. P., Rule 54(b); although, other district courts could accept it as a final judgment pursuant to Fed. R. Civ. P, Rule 60. This Court acknowledged, in this Courts opinion in USDC No. H-00-CV-866, it did not have jurisdiction to hear that appeal pursuant to Fed. R. App. P. 3(c)(1)(B); Ingraham v. United States, 808 F.2d 1075, 1080 (5^th Cir. 1987), and implicitly instructed Heimlich to pursue the Motion to Vacate the Judgment. This court did not have jurisdiction to hear the merits of the first appeal pursuant to this Court’s ruling in Lee v. Wetzel (00-30266, 5^th Cir. March 7, 2001, not yet reported). The appeal was dismissed. This Court now has jurisdiction to review the order of denial of Heimlich’s Motion to Vacate the Judgment and to review the merits of the judgment sought to be vacated.

ISSUES PRESENTED

1. WHETHER THE DISTRICT COURT ABUSED IT’S DISCRETION IN DENIAL OF THE MOTION TO VACATE THE JUDGMENT PURSUANT TO RULE 60(b)(6)

2. WHETHER THE DISTRICT COURT ABUSED IT’S DISCRETION IN DENIAL OF THE MOTION TO VACATE THE JUDGMENT PURSUANT TO RULE 60(b)(6)

3. WHETHER THE DISTRICT COURT ABUSED IT’S DISCRETION IN DENIAL OF THE MOTION TO VACATE THE JUDGMENT PURSUANT TO RULE 60(b)(6)

4. WHETHER THE DISTRICT COURT ABUSED IT’S DISCRETION IN DENIAL OF THE MOTION TO VACATE THE JUDGMENT PURSUANT TO RULE 60(b)(1) AND (3) WITH EXCUSABLE NEGLECT AND EQUITABLE TOLLING.

5. WHETHER THE DISTRICT COURT ABUSED IT’S DISCRETION IN DENIAL OF THE MOTION TO VACATE THE JUDGMENT PURSUANT TO RULE 60(b)(1) AND (3) WITH EXCUSABLE NEGLECT AND EQUITABLE TOLLING.

6. WHETHER THE REFUSAL OF COMPENSTION FOR THE DENIAL OF INDIVIDUAL RIGHTS, SECURED BY THE CONSTITUION, IS AN ABUSE OF DISCRETION. WHETHER THE INDIGENT AND PRO SE LITIGANT HAS ANY RIGHTS IN THE FIFTH CIRCUIT?

7. WHETHER THIS IS A NATION UNDER THE RULE OF LAW

STATEMENT OF THE CASE

At issue in this case is whether the United States of America is a Nation under the Rule of Law. Whether the protection of the law, an internationally recognized right of the individual, exist in the Fifth Circuit Court of Appeals for the United States of America. This case reveals an ongoing cover-up utilizing bold lies and intentional hypocrisy in the Texas Judiciary and deliberate ignorance in the United States Federal Judiciary. What has become all too obvious is an intentionally feigned lack of ability to exercise simple logic and the inexcusable, deliberate appearance, of an inability to comprehend the most basic, fundamental, principles of Law to excuse the refusal to enforce the Rule of Law.

The instant issue is the denial of a motion to vacate a judgment on a claim for denial of due process and denial of constitutionally protected rights of the individual to be free of ex post facto laws, laws impairing the obligation of contracts and preference in the regulation of commerce, pursuant to Article I, §9 and §10 of the United States Constitution. Heimlich was subjected to loss of privacy, property, liberty, reputation and liberty, through an ongoing conspiracy that continues to this day to cause him humiliation, oppression, and loss. Their purpose is to obstruct justice, abrogate the rights of the individual, and abolish the Rule of Law in Harris County and the State of Texas, a political subdivision under the jurisdiction of this Court of Appeals.

In the process of giving a preference in the regulation of commerce, in a total disregard for due process of law, defendants violated, individually, and in conspiracy with others, numerous other constitutional privileges, immunities, and RIGHTS, developed to establish the Rule of Law and provide the protection of the law to all, individually, as well as collectively. In today’s language it is known as statutory exclusion; that is, the right to be free from arbitrary rule imposed on the individual that has not violated any law. It is the most basic, fundamental, right of the individual to the protection of law and an internationally recognized RIGHT of the INDIVIDUAL.

Heimlich has repeatedly been subjected to deliberate ignorance obvious to anyone with a basic understanding of contract law. Deliberate ignorance of licensed attorneys who have achieved the status of Judges and Justices has been utilized to excuse what is obvious hypocrisy to frustrate Heimlich’s repeated attempts to secure protection of the law and compensation to which he is entitled for the denial of his right to protection of the law.

Heimlich has been subjected to the classical means by which totalitarian governments abrogate the Rule of Law. They deny the individual the protection of the law. Then; after the sentence has been served, the individual oppressed for life with losses that can never be recovered, claim “justice has been served” by a simple reversal of the original conviction on paper and deny any compensation. The people and the International Court of Human Rights will not allow it.

The most recent decision from which the appeal is taken is the district court’s denial of a motion to vacate a judgment pursuant to Rule 60 of the Federal Rules of Civil Procedure. Appx 12 (Motion to Vacate Judgment); Appx 13 (Motion Re-(Urging the Court to Vacate the Judgment); Appx 3 (order of denial)

The denial of the motion to vacate the judgment is an abuse of discretion granted the district court pursuant to the Supremacy Clause of the United States Constitution and International Law requiring the United States to provide Heimlich with an enforceable means of compensation for unlawful arrest or detention.

INTRODUCTION TO STATEMENT OF RELEVANT FACTS

Twice, in the same year, in Harris County of the State of Texas, Heimlich was subjected to unlawful seizure of his property and charged with a criminal offense to excuse the unlawful seizures. Heimlich was convicted on each in separate trials. The Appellate Court for the State of Texas reversed the second and dismissed the criminal charge. Appx. 6 (Majority Opinion and Mandate of Acquittal and Dismissal of Indictment). To simplify this brief Heimlich will focus on facts of the second seizure and arrest, conviction reversed, as sufficient justification for the remand of this case back to the district court with mandate to vacate the judgment at issue.

“Mankind are more disposed to suffer, while evils are sufferable, than to right themselves”. In the case on appeal Heimlich complained of two incidents where his “equal station to which the Laws of Nature and of Natures God entitled him”[1], his Constitution Rights to life, liberty, happiness, property, safety, respect, and privacy were denied. To simplify this appeal he will focus on the second. This was the point at which the evils became insufferable.

The record, combined with the supplemental record, leaves no dispute of the repeated abuse of discretion utilized to deny justice to Heimlich and to all.

STATEMENT OF RELEVANT FACTS

Heimlich apparently became a target of the government of the State of Texas after making complaint of the illegal seizure and assault by a deputy constable. Six months later, partially in retaliation for that complaint, Heimlich was again subjected to the illegally seized of his property.

The second seizure was by the State of Texas through defendant John Boone, a prosecutor for the State of Texas as Assistant District Attorney for Harris County, by, ex post facto, declaring the placement of a stop-pay, on a post-dated check, on an alleged obligation, arising under a contract, a crime.

1.) The placement of a stop-pay on a check is a legal act.

2.) Pursuant to the Texas penal code, then and know, issuance of a post-dated, or a hold, check is not subject to prosecution.

3.) Both the United States and Texas Constitution prohibit impairing the obligation of contracts.

4.) The Texas Bill of Rights prohibits imprisonment for debt (obligation).

Defendant John Boone created a fraudulent affidavit for seizure. Appx. 10 (Affidavit). The affidavit refers to the contract which immediately tells anyone with an understand of basic Contract Law, or the Fundamentals of the United States or Texas Constitution, there is no probable cause for a seizure or criminal charge!

The seizure warrant was used to fabricated evidence of “intent” while, simultaneously, blocking any means of proving “intent” and make the charge appear plausible. Thus; Heimlich was impaired from meeting obligations of a contract with a real estate agent operating under Heimlich’s State Licensed sponsorship, IF AND WHEN, the alleged obligation would arise. Appx. 11 (broker and salesperson contract)

The seized money was then used as evidence of Heimlich’s “intent” to steal his own money! Heimlich was charge with theft of his own money. Money defendants knew Heimlich never had possession or control of! The money had actually stolen by the defendants with a to suggest an “intent” which, although not illegal, was implied as an act of a moral impropriety. Heimlich’s alleged “intent” was then presented as an “act” that was morally improper!!

Heimlich was convicted on the allegation of improper intent although at all times, and under all circumstances, his actions were legal and his intent was not subject to scrutiny by the state or any other parties involved. Even if, arguendo, Heimlich’s had exercised the intent alleged it would not have created a criminal offense under State, Federal, or International Law. The United States Constitution prohibits Texas, and the Texas Constitution prohibit any branch of it’s government, from making, or enforcing, any such offense even if one had existed at the time Heimlich was charged with theft under the theory presented by state prosecutor John Boone in the affidavit for seizure and presentment to the Grand Jury for indictment. The other defendants denied Heimlich due process at every step to cover for John Boone.

Heimlich was thus subjected to arbitrary invasion of his privacy, unlawful seizure of his property with a fraudulent warrant, arbitrary arrest with the destruction of his reputation, and wrongful imprisonment. This should have been obvious to the Judges and Justices in the State and Federal Courts throughout all the proceedings as all are required to be licensed attorneys with knowledge of constitutional and contract law.

BACKGROUND STATEMENT OF FACTS

Heimlich owned and operated a small, local, business as his source of livelihood. Heimlich had a license from the State of Texas for the operation of this business. He was 38 and educated with a degree in Business Administration and Finance. He had been licensed for over 10 years and operating his own business as a Broker for five years. Heimlich had a bank account and made complaint of the Bank’s interference with a contract he had with an agent under the licensed sponsorship of Heimlich and the Bank’s violation of Federal Law in a hold placed on Heimlich’s account.

This complaint led to the unlawful seizure of Heimlich’s money, the accusation of a crime of stealing his own money, and imprisonment. Almost six years later his conviction was reversed with an order of he be acquitted on legal insufficiency (found innocent as a matter of law – no probable cause) and the indictment, the criminal charge, against him, ordered dismissed.

Indisputable facts show that, from the very beginning, there was no probable cause for seizure of Heimlich’s money used as a pretense for the criminal charge. Nor was there probable cause for the indictment. The seizure, the false arrest, and the wrongful conviction were part and parcel of a conspiracy. An employee of a Bank, Betty Kristoffersen, and an administrator of law for The State of Texas, John Boone as Assistant District of Harris County, a political subdivision of Texas choose to grant themselves authority they never legitimately possessed. They then engaged perjury they cannot now deny. They engaged in a cover-up bringing in others, including state court Judges, who joined the conspiracy. All involved clearly exceeded the discretion, the legitimate authority, they possessed under the law, resulting in further denials of due process, additional constitutional violations, and denial of the right of the individual to protection of the law. Their motive was to obstruct justice for the benefit of John Boone, a career bureaucrat in the employ of Harris County, Texas, by securing a conviction of a man they all knew, and were required by law to know, was innocent under the law.

Both, Betty Kristoffersen and John Boone, during the course of the prior proceedings, have admitted to perjury and violations of law. Neither could deny these violations as the obligations of the parties are clearly specified in contracts, written law, underlying the relationships of all involved. Both have escaped justice by joining an alleged victim, knowingly or unknowingly, State Court Judges, and others, including the federal district courts, in conspiracy to abrogate the inalienable rights of the individual, and abolish the Rule of Law, denying Heimlich protection of the law. The evidence shows they were all motivated by a malicious avarice for power, an arrogant illusions of moral superiority, and belief of entitlement to place themselves above the law on the premise Heimlich had no rights that secured to him the protection of the law.

All have admitted Heimlich DID NOT violate any law. All have pointed to the others, and sought to shift the blame, as an excuse for a grant of privilege, immunity from responsibility or accountability, in the abrogation of basic rights they knew Heimlich had, and knew they had violated, in repeated attempts to excuse the denial of Heimlich’s right to protection of the law, ie; the Rule of Law, and his right to compensation for loss and suffering for their failure to respect Heimlich’s right to protection of the law.

A. CONTRACTS THAT CREATE INDISPUTABLE FACTS

The criminal case underlying this cause of action is unique among criminal cases. In almost all criminal cases the relationship between the alleged victim and the accused is open to question. This is a case where there is a contract between the accused and the alleged victim. The terms of their relationship, ie; obligations of each party to the contract, are clearly specified in an unambiguous contract. The obligations of this contract are further stipulated by State Law regulating the business of the accused and the alleged victim constituting a contract between Heimlich and the State under the terms of a real estate broker’s license. The alleged complainant was also under contract with the state under the terms of his real estate agents’ license, a license that is subordinate to the broker’s license between the state and Heimlich. This is in addition to the contract between Heimlich and the State of Texas under the terms of the States Constitution’s Bill of Rights. The business in which the accused and the alleged victim were engaged required both to be licensed by the State to prove they both knew and understood the obligations of the contract between them.

B. CONTRACT BETWEEN THE HEIMLICH AND ALLEGED VICTIM

The terms of this agreement cannot be disputed because: (1) the terms of this agreement are further specified in State Law, The very State that took it upon itself, through John Boone, to intervene in this relationship, And; (2) the two individuals, the parties, to this agreement were licensed by this State. The requirements for obtaining this license required that the parties pass a test that showed they clearly understood the terms of the relationship in which they later, voluntarily and knowingly, entered in this contract. The alleged complaint of the alleged victim was clearly groundless. The victim has testified it was not his desire or intent to file a criminal complaint but was encouraged by the conspirators to do so. ROA.

C. CONTRACT BETWEEN THE HEIMLICH AND THE BANK

At the same time there was a contract between the Appellant and the Bank in which Betty Kristoffersen was employed. This contract was also clear and unambiguous in it’s terms. The U.S. Constitution limits the authority of Banks and States to define legal tender for payment of debts. A passbook check is not legal tender. See UCC, provisions governing commercial paper, generally. The terms of this agreement are also stipulated in Federal Law limiting the authority of banks and imposing requirements on them. The Bank, as is true of all Banks operating in the United States, is required by law to know and comply with the UCC and Federal Law. Yet; In cause no. USDC 00-3418, Heimlich v. First Bank, The same District Judge, whose order is on appeal herein, repeatedly denied Appellant’s requests for judgment as a matter of law with instructions to the jury on jury nullification of the law while keeping relevant law from them!

The Bank clearly violated the terms of their contract with the Appellant, and Federal Law, and joined in a conspiracy with the State of Texas to bring a criminal charge against the Heimlich. Their purpose was to cover the extreme violations of basic fundamental law that both, Betty Kristoffersen of the Bank, and the Administrator of Law, John Boone Assistant District Attorney of Harris County Texas, unquestionably, and undeniably, knew, and were required to know, they had committed.

D. CONTRACT BETWEEN HEIMLICH AND THE STATE

Heimlich had a contract with the State, a license, to act as a real estate broker. This contract gave him discretion to manage the real estate agents under his sponsorship. The stop-pay on a check to an agent under his sponsorship was legal and it was a right Heimlich possessed by license granted by the State of Texas. The State of Texas arbitrarily breeched their contract with Heimlich established under the terms of the license the State granted to him. A license from the State is a direct contract between Heimlich, as an individual, and the State. The State of Texas has become very adept at circumventing the Social Contract of the Texas Constitution. Here the State has arrogantly disregarded even a direct contract between an individual and the State.

Clearly, at this point, the violations of the most basic rights enumerated in the Constitution beginning with individual rights established prior to the adoption of the Bill of Rights are Constitutionally intolerable. At issue is the status of the Social Contract between the government and the governed. At issue is THE RULE OF LAW.

E. THE UNITED STATES CONSTITUTION AS A SOCIAL CONTRACT

The inalienable rights of the Constitution form a Contract between each individual citizen of the United States of America and their government. This Contract is not a contract between a collective that can be discarded by a jury selected as representatives of the collective. That is communism, fascism, TOTALITARIANISM. The United States and Texas are both Republics established with the Rule of Law as their base of authority. The collective, through due process, through the democratic process, can change the Constitution. However; until it is changed the contract remains one between each individual and the government. The Federal Judiciary is duty bound to enforce it. International Law also recognizes the Rule of Law, the enforcement of the law as it is written, under a hierarchy of laws to avoid circumvention of the law, as a basic, inalienable, right of each individual to protection of the Rule of Law.

F. PROPERTY RIGHTS

Of all rights under the law; property is the most obvious as a creation, not of nature, but of man. Property rights do not exist absent the law. America was able to avoid the scourge of communism by providing equal justice under the law that secured the right of property ownership to those of little property as well as those of wealth. Property rights are only created by law and cannot be secure absent equal protection of the law. When one group, or class, steals the property of another under the color of law the inevitable result is retaliation and destruction of the law. This will appear in higher incidents of both petty thefts and thefts on the magnitude of the Enron scandal. Eventually; It will be displayed in reactionary political philosophy leading to domestic terrorism.

Heimlich’s right to the property in question was his as a matter of clearly established law of contract, law of license, and law of the Constitution. The alleged complainant had no “right” to the property but only a claim, by contract, to a payment of money at a later date. The defendants excused their violation of Heimlich’s property rights by pretending to act to protect the right of property of the complainant. There is a plain and fatal argument in this alleged justification. Property Rights require a recognition of the difference between a Right and a Claim to property.

If, arguendo, the complainant had a “right” to the property; the acts of the defendants violated the rights of the complainant as well as the rights of Heimlich. As a result the complainant was denied, for over two (2) years, property he would have had in a matter of a few days. However; pursuant to the law of the contract, state license, and stare decisis, the alleged complainant forfeited his claim to the property at issue by violation of the terms of the contract by which he held any claim to payment at a later date. The defendants encouraged, aided, and abetted the alleged complainant in the violations that forfeited his contractual claim to the payment.

G. TOTAL LACK OF PROBABLE CAUSE – NO IMMUNITY

The people expect a modicum of honor among their judiciary. In Texas there is none. This is clearly revealed by a review of the Opinions, including the Dissenting Opinion, that was published when the conviction was reversed and the indictment ordered dismissed by their attempt to excuse the actions of the defendants.

A good example of obvious, intentional, lies to justify deliberate ignorance is the dissenting opinion of Harvey Hudson of the Fourteenth Court of Appeals. Appx 4 . The brief of Scott Durfee, counsel for the Appellees as individuals in H-00-0866, enjoyed using this obviously flawed opinion in his effort to excuse the clear, obvious, and intentional violation of basic fundamental law by the defendants.

Harvey Hudson’s opinion repeatedly refers to the Appellant, Heimlich, as “obtaining” the check under false pretenses, and the Appellant, Heimlich, “depositing” the check. This is a bold face lie fabricated by Hudson. This is clearly evident because 1) The written complaint of the complainant, 2) the affidavit for the seizure, and 3) the testimony of the complainant at trial 4) the testimony of the bank clerk at trial and as referred to in the affidavit, 5) and the testimony of defendant John Boone; all prove, conclusively, that the alleged complainant had, at all times, possession of the check that, Harvey Hudson admits, was payable to Heimlich, and only the complainant could deposit Heimlich’s check.

Hudson is accusing Heimlich of obtaining the check that was payable to Heimlich under false pretenses!! Again; Heimlich is accused of stealing his own money. Simple logic tells anyone with half a brain this is illogical nonsense that can only be sold to the ignorant under the color of law that makes the other half of a brain blind to obvious facts.

The undisputable fact is this; it was the complainant that was given a post-dated check on the promise the complainant would deposit in Heimlich’s account, the check that was payable to Heimlich. This is stated by the complainant, himself, in his complaint. The only “false-pretenses” possible was the false pretenses of the complainant.[2]

Furthermore; Harvey Hudson claims “Appellant’s subsequent actions show he actually had no intention of transferring the money to complainant’s account.” The undisputable obvious fact is 1) the complainant had no account, 2) Appellant (Heimlich) had no duty to make any such transfer to complainant’s account even if there had been one, and 3) there was nothing to transfer as there was; first, a hold on the deposit when the check, payable to Heimlich, was deposited and; second, the seizure of Heimlich’s money before it was ever available to Heimlich!

It is apparent to any objective observer that defendant John Boone was well aware of these facts: 1) the complainant obtained a post-dated check from Heimlich, 2) the complainant forced Heimlich to provide him with a post-dated check the complainant was not entitled to 3) the complainant did so with the promise that if Heimlich did so the complainant would then deposit the check payable to Heimlich in Heimlich’s account. The complainant, himself, admitted, and swore, to all of these facts in the written complaint he gave to John Boone prior to the affidavit and seizure of Heimlich’s money by Harris County and, again by the complainant, under oath in the criminal trial.

The lack of honor in Texas Courts is also apparent in even the majority opinion, Appx 4, that overturned the conviction. In a contradiction to their own ruling the majority attempts to excuse the illegal acts of the Harris County officials involved with the absurd suggestion they, somehow, did Heimlich a favor and saved him from himself! In the Appellee’s brief to the Court of Appeals they provided this quote from the majority brief:

“Admittedly, the situation raised somewhat of a catch-22. If the complainant was afraid Heimlich would steal the funds, he needed to act quickly so that the funds were not squandered by Heimlich.”

What funds are they refereeing to? The fund of which, they admit, Heimlich was the owner of. Again; Heimlich is accused of stealing his own money!! The claim “the complainant needed to act quickly so the funds were not squandered” is absurd and slanderous attempt to hide and excuse the obvious. The complainant voluntarily entered a contract with Heimlich. It was not within the prerogative of the complainant, by virtue of either the contract or the licensed relationship between the two, to have any involvement with Heimlich’s private financial affairs. It was Heimlich’s right to do with his own money as he wished pursuant to the United States Financial Privacy Act and International Law.

The complainant had nothing more than a contractual claim to a POSSIBLE payment, providing the complainant complied with other terms of the contract and the requirements of his license from the State, at a FUTURE date that never arose because the funds from which the payment would come from were never COLLECTABLE, as required before payment could come due. This was pursuant to the terms of the contract and as acknowledged as understood by the complainant in sworn trial testimony. It is in the contract defendant John Boone had a copy of and referred to in the affidavit presented to the magistrate, defendant, Ted Poe. According to the seizure warrant; defendant Ted Poe reviewed it. It is obvious; if he has knowledge of contract law, Ted Poe did not read the affidavit or contract or choose to allow John Boone to impose arbitrary rule on Heimlich.

The alleged criminal complaint was for payment that was not yet due, and never has been due, pursuant to the terms of the contract, as well as pursuant to the terms of the State license under which both Heimlich and the complainant were operating.

The majority then states; “In the end, the complainant’s swift action may have been the factor that kept Heimlich from committing the alleged crime”. Again we see absurd logic in an attempt to save John Boone, other state officials, and the State of Texas from accountability and liability. Even if Heimlich had never paid anything to the complainant there would not have been any crime under the law. This is true under State, Federal and International Law to which the United States is a signor. Heimlich did not, at the time, have any debt to the complainant. Under the terms of the contract; a debt to the complainant could have accrued at a later date. Even then it would have been nothing but a debt to a consenting creditor. The Texas Constitution’s Bill of Rights, in Article I, Section 18, provides “No one shall ever be imprisoned for debt”.[3]

The State aided and abetted the person they presented as a complainant in a theft of Heimlich’s money. Never; throughout the entire series of events, was there even a possibility that Heimlich had, or would have, committed a crime pursuant to the most fundamental principle of the Rule of Law internationally recognized, that of statutory exclusion, known in the United States and Texas Constitution as prohibiting ex post facto laws, prohibiting laws impairing the obligation of contracts, and prohibiting Bills of Attainder. These were embodied in Article I of the United States Constitution even before the adoption of the Amendments titled the Bill of Rights and specified in the Texas Constitution as EXCEPTED FROM THE POWERS OF GOVERNMENT; TO FOREVER REMAIN INVIOLATE!!

“Probable cause” has become another phrase used to confuse the ignorant and attempt to justify arbitrary rule absent the Rule of Law or protection of the law to the Individual.

SUMMARY OF BACKGROUND FACTS

In a clear indication the United States is slouching towards totalitarianism, Heimlich was convicted in spite of written, clear, undisputable, evidence known and obvious to all involved from the beginning - the obligations of the contract between the parties - supported by State Licenses, State Statutes, and Federal Statutes, that show defendant John Boone, and all who joined him in the conspiracy to invade Heimlich’s privacy, seize Heimlich’s property, deny Heimlich due process of law, deny Heimlich his liberty, destroy Heimlich’s reputation and happiness, were acts done without any cognizable authority granted to them by the Texas State Law, Federal Law, the Texas or United States Constitution, or International Law.

A review of the case reveals these undisputable, undeniable facts. Heimlich DID NOT violate any law. Betty Kristoffersen DID violate the law. John Boone DID violate the Law. Betty Kristoffersen did so in her capacity as an officer for a bank, operating in a position of trust. She violated the law under the color of authority granted to her by her position at the Bank. John Boone violated the law under color of authority granted to him in a position of trust as Assistant District Attorney in Harris County, a prosecutor for the State of Texas. These two individuals did so in conspiracy to deny Heimlich the protection of the Law. They brought others in who violated the law, brought dishonor on the courts, the state, the nation, and dishonor on the law. But the cover-up goes on.

To date the Courts have refused to impose any punishment, civil or otherwise, apply any deterrent, for the unlawful acts of defendant John Boone and the other conspirators. 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 John Boone, and the others they brought into the conspiracy in a cover-up. The inability of Heimlich to secure, in spite of his best efforts and the expense of hired counsel, compensation for the loss and suffering imposed on him leads to an inevitable conclusion of abuse of discretion that cannot be denied.

INTRODUCTION TO PROCEDURAL HISTORY

Prior to filing the motion to vacate Heimlich hired counsel when the conviction was overturned. Heimlich’s counsel chose to file a new complaint against the defendants, cause no. 00-0866, now part of the supplemental record in this appeal. Heimlich’s Motion to Vacate the Judgment followed the appeal of the judgment in that cause to this Court of Appeals in Case No. 01-20080. In that case a different Judge, from the same District Court, granted Summary Judgment to the Defendant’s on grounds of res judicata. Appx. 8. Heimlich appealed and this Court of Appeals held the District Court did not abuse it’s discretion in allowing the defendants to amend their answer and raise the res judicata defense or in granting the motion for summary judgment on the grounds of res judicata. This Court of Appeals further held the reversal of the conviction did not give rise to a NEW legal cause of action. Appx 9.

Therefore, following the directions of this Court, and the rulings of the same district court judge in the case against the co-conspirator, Heimlich asked the Judge of the PRIOR cause to vacate the judgment that gave rise to the res judicata defense used to excuse Heimlich’s cause in the new legal cause of action. The denial of that motion gives this court jurisdiction to hear this appeal. Thus; procedural maneuvering and repeated abuse of discretion, that has placed Judge made rules of procedure and stare decisis the Supreme Law of the Land over the Supremacy Clause of the Constitution, has led us all back to the case that is, again, underlying this appeal. We are now back to the original complaint underlying this appeal in which they were originally combined.

STATEMENT OF FACTS OF PROCEDURAL HISTORY

Heimlich’s property was seized and he was charged with the crime of stealing his own money in September of 1993. Heimlich was appointed defense counsel and waited for over two years for resolution or trial. Heimlich first made complaint when his right to counsel was denied, by withdrawal of his appointed defense counsel, shortly before trial and it became apparent he was about to be subjected to a shame trial. Heimlich filed H-95-346, a petition to have the case removed to the district court, with complaint of the on-going constitutional violations and conspiracy in the denial of his right to due process and protection of the law. Appx. 14 (petition for removal), The district court refused to intervene claiming lack of jurisdiction. Appx 7 (order).

A wrongful conviction and imprisonment was the result. Heimlich then brought complaint, H-96-2556, against the defendants upon his release from prison in 1996 of the same due process violations and conspiracy in denial of protection of the law. Appx 15 (original complaint). The same District Court, with the same District Judge, then accepted jurisdiction and allowed the constitutional violations, the denial of due process, and conspiracy to be covered up with a judgment granting defendants immunity citing the success of the conspiracy in securing a conviction. Appx 8 [Memorandum and Opinion].

Some of the defendants answered. Others responded with a motions to dismiss raising a claim of immunity with the success of their conspiracy in securing a conviction of Heimlich as their only evidence in support their counter-claim of immunity from prosecution. Appx 17 through 21. Heimlich responded with an Amended Complaint, a Motion to Retain and Brief in Support of his Motion to Retain. Appx. 16 (amended complaint); Appx. 22 (Motions to Retain); Appx. 23 (brief in support of). In each of these filing Heimlich advised the Court of the appeals of the convictions pending in State Court. However; the district court now accepted jurisdiction and intervened with a grant of judgment for the defendants on their counter-claim of immunity. Appx 4. [Memorandum Opinion] The district court, sue sponte, granted judgment to the other defendants without any request from the court that the court do so dismissing Heimlich’s allegations as “conclusory” without the required review of the merits of the case. Therefore; When the conviction was overturned proving the allegations were not “conclusory” but well grounded in undeniable fact, Heimlich re-filed.

The memorandum opinion granting the judgment that should be vacated made several errors. Chief among these was reference to the convictions that had not been overturned. The conviction was overturned, Appx. 6, and is, among other grounds, relied on as cause to vacate the judgment in the interest of justice and allow Heimlich to proceed to enforce Heimlich’s internationally recognized right to compensation for the denial of protection of the law. Heimlich did not further challenged the judgment earlier as it misled Heimlich into believing he would be able to re-file upon final and successful adjudication of the appeal of the conviction pending in the Texas state court. A review of cases cited in the memorandum and judgment indicated this to be consistent with stare decisis in effect at that time and contributed to misleading Heimlich to forgo further action at that time.

THE SUPPLEMENTAL RECORD

Heimlich’s original complaint underlying this appeal involved both of the two separate incidents in which he was subjected to unlawful seizure of his property followed by arrest without probable cause to in a conspiracy to cover-up the unlawful seizure. When the conviction on one was overturned, to appease hired counsel, the original complaint was split into two new actions, H-00-0866 and H-00-3303. Heimlich continued to allege these incidents were related and the initial unlawful seizure was the motive for the second unlawful seizure and arrest without probable cause. At the urging of Heimlich’s hired counsel Heimlich dismissed H-00-3303 without prejudice. Heimlich’s hired counsel was of the belief this action, although meritorious, was irritating the district court and prejudicing the district court against him in cause no. 00-0866.

At the same time Heimlich was pursuing cause no. 00-0866 he was prosecuting a co-conspirator, Betty Kristoffersen (“the bank”) in cause no. 00-3418. The case fell before the same District Court Judge whose ruling is at issue in this appeal. In that case the Judge admitted to the constitutional violations of the bank and the co-conspirators in the case that is the subject of this appeal. The district court judge acknowledged the conspiracy to violate Heimlich’s constitutional protections and allowed the case to proceed to trial. That case is now, also, on appeal before this Court and is now part of the supplemental record in this appeal.

ISSUE ONE RESTATED

WHETHER THE DISTRICT COURT ABUSED IT’S DISCRETION IN DENIAL OF THE MOTION TO VACATE THE JUDGMENT PURSUANT TO RULE 60(b)(6)

SUMMARY OF ARGUMENT

Rule 60(b)(6), of the Federal Rules of Civil Procedure, provides for relief from judgment for “any other reason justifying relief from the operation of the judgment.” The error of the Court in it’s refusal to vacate this judgment is plain.

Heimlich moved to vacate the judgment granting immunity to the defendants, to allow the cause on appeal before this Court, 96-2556, to go forward. The claim of an immunity defense of many, if not all, of the defendants has been clearly, unequivocally, undeniably, disproved by similar and related actions in State Courts, in the same District Court, by admission of the Defendants, before the same District Court Judge, and known by the Judge from which this appeal is taken!

The interest of justice requires the defendants be held accountable for the loss and suffering inflicted upon Heimlich by violations of the Supreme Law of the Land. Anything less is an abuse of discretion.

ARGUMENT

The defendants, individually and in conspiracy, violated basic constitutional law. The defendants violated basic, internationally recognized, standards of due process of law. The defendants were thus able to both hold the Heimlich to a standard of guilty until proven innocent while insuring the State Court and the Jury would presume guilt while blocking any possibility of proving innocence.

THE EVIDENCE IS INESCAPABLE

The record in this action has been supplemented by the record in cause no. 00-3418 now on appeal before this Court in case no.01-21244. The Judge that granted the initial ruling in the case, now also on appeal, admitted the original conspiracy claims of in this related case brought against a co-conspirator of the defendants, First Bank, in that case. That case involved the same transaction, violations, and conspiracy, this Judge previously, and prematurely, dismissed as “conclusory allegations” in his grant of immunity in H-96-2556.

In a very similar case, Sherry Monsanto vs. Harris County, and The District Court Judge to which the Motion to Vacate the prior judgment was presented has admitted, in open Court and written opinion, the same “custom and practice”, violations and conspiracy of the same defendants in this action. The case included some of the same defendants, the District Attorney and his Office, deputy constables, and was virtually identical to the first arrest Heimlich was subjected to and complained of. The same district court judge admitted to an identical “custom and practice” allegation. The only difference between the two was Sherry Monsanto is Black, as is the District Judge, and was well financed by her employer in the pursuit of her action. Heimlich is white and indigent. This is indicative of reverse discrimination and discrimination against the poor.

These facts reveal the denial of the motion to vacate the prior judgment as plain error and abuse of discretion. The grant of Heimlich’s Motion to Vacate the Judgment is clearly required in the interest of justice, pursuant to the Judge’s and Justices’ Oath and Affirmation of Office “in pursuance of” the Constitution, in the interest of preserving the Honor of the Courts, and in preserving the moral value of the Law.

The record in cause no. 00-0866 and case no. 01-20080 of this Court of Appeals has supplemented the record in this action and is relied upon. It is important and revealing to note the defendants amended their answer, raising the res judicata defense, only after the defendants had failed in their effort to have summary judgment granted on their claim of immunity. The claim of an immunity defense was proved to be lacking any merit in the same District Court, in cause no. 00-0866, against some of the same defendants, and is known to this Court of Appeals.

It is no longer equitable that this judgment should have prospective application. If the judgment is void it is a legal nullity. (1) There is no time limit in which the moving party must seek relief. (2) Furthermore, the moving party need not show it has a meritorious defense. (3)

(1) Jordan v. Gilligan, 500 F.ed 701 (6^th Cir. 1974), cert denied, 421 U.S. 991 (1975)

(2) United States v. Williams, 109 F. Supp. 456 (W.D. Ark. 1952)

(3) Hertz Corp. v. Alamo Rent-a-Car, 16 F.3d 1126 (11^th Cir. 1994)

ISSUE TWO RESTATED

WHETHER THE DISTRICT COURT ABUSED IT’S DISCRETION PURSUANT TO RULE 60(b)(5) OF THE FEDERAL RULES OF CIVIL PROCEDURE

SUMMARY OF ARGUMENT

Rule 60(b)(5), of the Federal Rules of Civil Procedure, provides for relief from judgment when: “it is no longer equitable that the judgment should have prospective application.” To deny Heimlich his Motion to Vacate the Judgment is an intolerable violation of the Equitable provisions of Article I of the United States Constitution and the Fourteenth Amendment to the Constitution. To deny Heimlich his Motion to Vacate the Judgment is a denial of the Equal Rights, Section 3, and Equality Under the Law, Section 3a, and other provisions of the Texas Constitution Bill of Rights in Article I which, pursuant to Section 29 of this Bill of Rights, are EXCEPTED FROM THE POWERS OF GOVERNMENT; TO FOREVER REMAIN INVIOLATE. This Court has pendent jurisdiction and these rights are no longer enforceable in the State of Texas.

In 1995 Heimlich went to the district court complaining of the denial of his right to counsel in a criminal proceeding in Harris County Texas. Lacking financial resources he was forced to do so pro se. The district court quickly dismissed the petition claiming lack of jurisdiction. When Heimlich returned with the same complaint the district court then accepted jurisdiction. This contradictory application of jurisdiction shows an obvious bias against, and abuse of, Heimlich because he was indigent and/or pro se contrary to “equitable application” of the judgment.

ARGUMENT

The Court abused it’s discretion in it’s IMPROPER exercise of jurisdiction in ruling on the immunity defense of the defendants and misled Heimlich in the wording of the order to cause him to believe he would be able to renew his cause of action against the defendants upon final adjudication in the State Courts.

At the time this action was filed in 1995 the Supreme Court was undecided on the question of jurisdiction, when a “cognizable claim” existed to create jurisdiction, on civil rights claims pursuant to Title 42. The Supreme Court has made some progress on clarifying when jurisdiction exists but the Appellate Courts still have varying interpretations on when a claim should, or must, be brought. It has been left to the discretion of the District Courts, under the supervision of the Courts of Appeals, to choose when the exercise of jurisdiction is PROPER.

In 1996 Heimlich return to the district court; Indisputable facts, supported by evidence, were dismissed as “conclusory allegations” in an initial pleading that, under well established law of the Supreme Court and Fifth Circuit, does not require more than allegations to survive a Rule 12(6)(b) motion to dismiss. Even more telling was the, sue sponte, grant of judgment to defendants that did not even ask for dismissal. However; the Court referred to conviction not yet overturned, and referred to stare decisis of the time, that provided Heimlich with belief he would be able to re-file or re-vive his complaint.

In 1999 the conviction was overturned with conclusive proof Heimlich allegations were not conclusory. Heimlich’s allegation were now also supported by the concurrence of the majority of justices in the Fourteenth Court of Appeals for the State of Texas. How, now, could the district court deny him justice? The worst of all the injustices inflicted on Heimlich is the injustice of the Court telling Heimlich his trust in the Courts, the patience wait for justice, a wait that the Court asked and encourage him to indulge in, is now an error and can be used as an excuse to deny justice to him.

The grant of Heimlich’s Motion to Vacate the Judgment is clearly required in the interest of justice, pursuant to the Judge’s and Justices’ Oath and Affirmation of Office “in pursuance of” the Constitution, in the interest of preserving the Honor of the Courts, and in preserving the moral value of the Law.

ISSUE THREE RESTATED

WHETHER THE DISTRICT COURT ABUSED IT’S DISCRETION IN DENIAL OF THE MOTION TO VACATE THE JUDGMENT BECAUSE, PURSUANT TO RULE 60(b)(4), THE JUDGMENT IS VOID

SUMMARY OF ARGUMENT

Rule 60(b)(4) differs from the rest of rule 60 in that here the court has no discretion. If the judgment was not valid, either because the court lacked jurisdiction over the parties, lacked jurisdiction over the subject matter, the subject matter was handled contrary to due process, or judgment was rendered contrary to due process, then the court must vacate the judgment. The judgment was not valid, and is now void, because it was rendered contrary to due process.

1. It was not properly certified pursuant to Rule 54(b),

2. It did not address all of the parties,

3. It did not properly address the subject of immunity claims of the defendants,

4. The Court did not have, or was improper, in it’s exercise of jurisdiction over the parties and/or the subject matter, And;

5. The Court of Appeals did not have jurisdiction to review the judgment

ARGUMENT

In the Fifth Circuit; “When, as here, the record clearly indicates that the district court failed to adjudicate the rights and liabilities of all parties, an order cannot be presumed to be final irrespective of the district court's intent”. See Witherspoon v. White, 111 F.3d 399, 402 (5th Cir. 1997); Harris v. Rivera Cruz, 20 F.3d 507, 511-12 (1st Cir. 1994).

Also in the Fifth Circuit: (“[W]e are reluctant to construe a judgment ambiguous on its face as a final judgment where it could plausibly be read as non-final, where extrinsic evidence does not wholly resolve the uncertainty, and where reading it as final could unfairly forfeit the rights of a party.”). Burge v. St. Tammany, Parish of, St. Tammany District Attorney’s Office, Et Al, (5^th Cir) August 25, 1999, cause no. 97-30241

The memorandum opinion of the judgment sought to be vacated noted: “The plaintiff was convicted by a jury and the convictions have not been overturned”. It appeared the dismissal by the Court was an application of the abstention doctrine the Supreme Court has applied to §1983 cases at least since Heck v. Humphrey; "We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid,⁶ a §1983 plaintiff must prove that the conviction or sentence has been [overturned]." 512 U. S., at 486-487 (emphasis added). Edwards v. Balisok (95-1352), 520 U.S. 641 (1997)

Not all parties address in the judgment

The order does not address claims brought against Harris County or the State of Texas as defendants. The county’s motion for dismissal apparently remains live. The State of Texas did not file a motion for dismissal and it, too, apparently remains a live party.

The face of the order appears unclear as to whom the district court is referring when it states "several defendants assert that they are immune from prosecution” The order addressed the defendants as “officials” and refers to their “official acts”. It is unclear if the order is addressing the defendants in their official or individual capacity. The “objectively reasonable” standard is used for addressing defendants in their individual capacity. The standard of official immunity requires official act in “good faith” in the “course, scope and duty of their office”. It appears the Judge is applying the standards for individual capacity immunity to claims that challenge official immunity. The confusion of capacities and the immunities attached to each make it impossible for either the appellant, or the Court of Appeals, to review the merits of the judgment.

Not all subject matter address in the judgment

The face of the order appears directed toward the claim brought pursuant to 42 U.S.C. §1985, for conspiracy, in reference to the “custom and practice” allegation of the District Attorneys Office. The judgment does not address any of the other constitutional violations brought under 42 U.S.C. §1983, §1986, §1988, and claims over which the court had direct or pendent jurisdiction. Many of these claims would not challenge the validity of the conviction, however; others would have challenged the convictions. Furthermore; 42 U.S.C. 2000aa does not allow for the assertion of an immunity defense. This claim was not addressed in the judgment. This lack of clarity makes it impossible for either the appellant or the Court of Appeals, to review either the jurisdiction or the merits of the judgment.

Jurisdiction not proper or not address in the judgment

Of the defendants that did raise the immunity defense no answer was ever filed. Rather, they filed a motion to dismiss for failure to state a claim upon which relief can be granted. The gravemen of Conspirators’ motion was that the case was precluded by the criminal convictions in the State Courts. The defendants who raised the immunity defense are the same defendants raised the convictions as grounds for dismissal. Heimlich responded by advising the court of the pending appeals. Therefore; the court lacked jurisdiction to render judgment on the immunity claim of these defendants.

The convictions were still pending and, therefore, the district court did not have jurisdiction because the statutory provision of 28 USC 1738 requires that judicial proceedings of any state court, which are authenticated pursuant to statutes, “shall have same full faith and credit in every court within the United States as they have by law or usage in the courts of such state”. Now that the conviction has been overturned the judgment is made void by the reference to it made by the defendants and the district court.

Judgment not appealable

Heimlich previously filed a notice of appeal on the judgment he has now sought to be vacated. The Court of Appeals did not have jurisdiction, as the judgment was not final pursuant to Fed. R. Civ. P., Rule 54(b). However; other district courts could accept it as a final judgment pursuant to Fed. R. Civ. P, Rule 60 providing “A motion under this subdivision (b) does not affect the finality of a judgment or suspend it’s operation”. Therefore; this Court of Appeals refused to address arguments beyond that of the discretion of the court in accepting the jurisdiction and finality of the prior judgment.

This Court of Appeals did not have jurisdiction to hear the merits of the first appeal pursuant to this Court’s ruling in Lee v. Wetzel (00-30266, 5^th Cir. March 7, 2001, not yet reported). The appeal was dismissed without review of the merits.

This Court acknowledged, in this Courts opinion in USDC No. H-00-CV-866, it did not have jurisdiction to hear the previous appeal pursuant to Fed. R. App. P. 3(c)(1)(B); Ingraham v. United States, 808 F.2d 1075, 1080 (5^th Cir. 1987), and implicitly instructed Heimlich to pursue the Motion to Vacate the Judgment. Therefore Heimlich went back to the district court that rendered the original judgment and moved to vacate the judgment with notice to the Court the judgment lacked the required finality.

The district court’s “Final Judgment” order lacks finality. Therefore; pursuant to 28 U.S.C. § 1291, the appellate court lacks jurisdiction and the order could not be appealed. Therefore District Court retained jurisdiction and the Judgment should have been vacated upon notice to the court, through Heimlich’s motion to vacate, of the lack of finality in the judgment. The order of denial was an abuse of discretion.

The district court has refused to provide the finality requested or vacate the judgment it has alleged to be a final judgment. This Court now has jurisdiction to review the order of denial of Heimlich’s Motion to Vacate the Judgment and to review the merits of the judgment sought to be vacated.

Judgment now Void

The district court has now refused to either vacate the judgment or properly certify the judgment pursuant to Rule 54(b) to which the court was given notice of in Heimlich’s Motion to Vacate Judgment. Therefore judgment is now void.

Until the district court makes an express determination that no just reason for delay exists and expressly directs entry of judgment, finality will not attach to an order that disposes of some but not all of the defendants. See Fed. R. Civ. P. 54(b); see also Kelly v. Lee's Old Fashioned Hamburgers, Inc., 908 F.2d 1218, 1220 (5th Cir.1990) (en banc) (interpreting Rule 54(b) as requiring the language of the order appealed from to "reflect[ ] the district court's unmistakeable intent to enter a partial final judgment under Rule 54(b)"). See Thompson, 754 F.2d at 1245 (holding that absent a Rule 54(b) certification, a partial disposition of a multi-party action is not a final decision under § 1291); Brookens v. White, 795 F.2d 178, 179 (D.C.Cir.1986) (stating that it is "elementary that a grant of summary judgment as to some parties in multi-party litigation does not constitute a final order unless the requirements of Fed.R.Civ.P. 54(b) are met").

Thus, when the district court fails to clearly indicate that a judgment disposing of less than all parties was entered pursuant to Rule 54(b), the judgment is not considered final. See Thompson, 754 F.2d at 1245 (holding that absent a Rule 54(b) certification, a partial disposition of a multi-party action is not a final decision under § 1291); Brookens v. White, 795 F.2d 178, 179 (D.C.Cir.1986) (stating that it is "elementary that a grant of summary judgment as to some parties in multi-party litigation does not constitute a final order unless the requirements of Fed.R.Civ.P. 54(b) are met").

CONCLUSION

The judgment resolves less than all of the claims asserted and was not certifiable as required by Rule 54(b) of the Federal Rules of Civil Procedure regardless of the District Court’s intent. The decision of the court, while not technically final, could be certified as final pursuant to Federal Rule of Civil Procedure 54(b). See Thompson v. Betts, 754 F.2d 1243, 1245 (5th Cir.1985). In certifying a decision as final, for appellate jurisdiction purposes, the district court must comply with the requirements set out in Rule 54(b). Pursuant to Rule 60(b)(4) the judgment was not a final judgment and therefore void. This Court of Appeals should correct this error with remand and mandate to the District Court to vacate the judgment.

ISSUE FOUR RESTATED

WHETHER THE DISTRICT COURT ABUSED IT’S DISCRETION IN DENIAL OF THE MOTION TO VACATE THE JUDGMENT PURSUANT TO RULE 60(b)(1) AND (3) WITH EXCUSABLE NEGLECT AND EQUITABLE TOLLING.

SUMMARY OF ARGUMENT

When the instant cause of this action occurred in 1993 Heimlich had limited knowledge of the “intricacies” of the law. Heimlich did know the Constitution and the ideals on which it was based. Heimlich also knew contract law, business law, and bank law. This was knowledge he had acquired in the course of securing a degree and was required for the business in which he was licensed by the State.

Heimlich knew severe Constitutional violations had been perpetrated against him. His property had been stolen and his business destroyed by the actions of the defendants. Heimlich did not have the means to hire counsel. He went to Court, pro se, armed with the knowledge he possessed at that time. Heimlich did not know, but would later learn, the “intricacies” of stare decisis, Judge made law, that had granted “immunity”, in one degree or another, to the defendants. Heimlich did not know the “intricacies” of jurisdiction, sovereignty, and procedural manipulation that are also used to exempt defendants from the rule of law, to deny Heimlich the protection, and deny compensation to him for the failure of his government to provide him the protection of the law.

ARGUMENT

Heimlich clearly made efforts, as a responsible citizen, to know the law and abide by the law. Prosecuting attorneys for the State of Texas even used Heimlich’s knowledge of the law as a means to vilify him before the jury! Defendant Baldwin Chin presented the argument to the jury that those who “fancy themselves as someone who knows the law” is using the law to commit acts of immorality. It is, as if, only the state may know the law, citizens must not, so that the citizens can be “protected” by the arbitrary application of the law by those who know best. This arrogant attitude of moral superiority is the anti-theme of the founding of this nation, and this State, as the underlying theme of both Constitutions. It has, repeatedly, led to the fall of past social orders including empires.

The “immunity” and the “abuse of discretion” to which Heimlich has been burdened with overcoming are held to a standard that Heimlich must not only prove the abuse of discretion but must also prove the “intent” to abuse discretion to have a cause of action. At the same time Heimlich’s property was seized on the presumption of Heimlich’s “intent” and then, with the seizure of the Heimlich’s money as circumstantial evidence fabricated by the conspirators, used as evidence of Heimlich’s “intent” while preventing Heimlich from any means of proving his innocence.

This confederate approach to the law, that allowed the oppression of minorities, is now promulgated by Judges and Justices from these minorities, as justification for the oppression, and subtle enslavement, of not only the minorities but of all citizens under the yoke of arbitrary rule known as the “color” of law.

Heimlich trusted in his nations system of government to correct the errors. Heimlich has found the government of Harris County, the State of Texas, and district courts of the Southern District of Texas are not worthy of this trust. This case now comes to this Court to correct the errors of executive branch of these lower government subdivisions and the errors of the judicial branch under your jurisdiction.

ISSUE FIVE RESTATED

WHETHER THE JURISDICTION OF THE COURTS PROVIDES DISCRETION TO ABROGATE THE RIGHTS OF THE INDIVIDUAL.

SUMMARY OF ARGUMENT

If the protection of the law is an inalienable right of the individual as embodied in the Constitution is the Supreme Law of the Land with all other laws required to be in pursuance[4] of the equal protection of the individual’s rights, and the violation of the individual’s right to protection of the law is blatantly obvious, as it is in this case, any excuse of the Court be if of statute, procedural court rules, or stare decisis used to deny to the individual his rights, and refuse compensation for the denial of his rights, is an abuse of discretion. It is contrary to the “in pursuance thereof” provision of the Constitution.

The Constitution prohibits, it does not grant discretion, to the Court to utilize any law subordinate to the Constitution to deny justice to the individual. The Courts of a Nation under the Rule of Law recognize the limits the Law places on their own discretion. The individual has the RIGHT to justice, secured by protection of the law; the Courts have only a GRANT of limited discretion.

The denial of justice to the individual is a denial of justice and the “interest of justice” cannot be said to have been served regardless of any language to the contrary. This is now an internationally recognized human right. Both the United States, in it’s Constitution and in USC Title 42, and the International Community through International Law recognize Heimlich’s right to compensation for the denial of his right to the protection of the Law.

ARGUMENT

What are the limits of Judicial Discretion to abrogate these rights or deny compensation for the denial of these rights in the United States of America? The limit is clearly specified in the United States Constitution. At issue is the question of who has the right to play GOD. It is a basic question for any who study the law and the history of law as it relates to the history of humanity. This question was answered in the founding of both the State of Texas and the United States of America. The answer is readily found in the Declaration of Independence and in the first line of the Constitution.

WE HOLD THIS TRUTHS TO BE SELF-EVIDENT,

THAT ALL MEN ARE CREATED EQUAL,

ENDOWED BY THEIR CREATOR WITH CERTAIN

INALIENABLE RIGHTS.

From there they went on to write their Constitution granting LIMITED authority to government. The Constitution begins with the words: WE, THE PEOPLE, …abolishing the idea that Kings, and their “titled” Nobles, had exclusive or privileged access to God that allowed them to rule arbitrarily. America re-enforced the Rule of Law, long recognized, prior to the establishment of the United States, as necessary for the preservation of any sovereign in any form of government, including the Monarchies that were able to avoid the calamities of revolution. America abolished all Titles of Nobility to secure equal protection of the law to all INDIVIDUALS. America secured this right, that all possessed as INDIVIDUALS, by prohibiting ex post facto laws, Laws Impairment of the Obligation of Contracts, Bills of Attainder, and preference in the regulation of commerce in Article I, §9 and §10 even before the Bill of Rights were added as Amendments. America established the RULE OF LAW by making the Constitution the SUPREME LAW OF THE LAND in Article VI. Any law, be it’s origin in the executive, legislative, or judicial branch of government, by statute, decree of stare decisis, that subordinates the Constitution to that statute or decree, is a violation of the Constitution, the principle of the Rule of Law, the individuals right to protection of the law.

The people of the United States of America, and least of all the State of Texas, (by legitimate due process) have never given anyone, regardless of their wealth, status, or position, authority, that is legitimate authority, to act without the limits of the law. The Constitution of the State of Texas enumerates more rights than the United States Constitution and hold these rights as “excepted from the powers of government; to forever remain inviolate to guard against transgressions of the high powers delegated [to the Courts]”

None have the right to play GOD. This is true of Judicial Officers be they elected or appointed to their position. This Court, as is true of all Courts within the United States of America, is a Court of limited jurisdiction and limited discretion. The authority of this Court is established, and LIMITED, by Article VI of the Constitution.

JUDICIAL OFFICERS, BOTH OF THE UNITED STATES AND OF THE SEVERAL STATES, SHALL BE BOUND BY OATH OR AFFIRMATION, TO SUPPORT THIS CONSTITUTION.

THIS CONSTITUTION, AND THE LAWS OF THE UNITED STATES WHICH SHALL BE MADE IN PURSUANCE THEREOF; AND ALL TREATIES MADE, OR WHICH SHALL BE MADE, UNDER THE AUTHORITY OF THE UNITED STATES SHALL BE THE SUPREME LAW OF THE LAND;

AND THE JUDGES IN EVERY STATE SHALL BE BOUND THEREBY, ANY THING IN THE CONSTITUTION OR LAWS OF ANY STATE TO THE CONTRARY NOTWHITHSTANDING.

It is important in the instant cause to note that the United States Constitution TWICE makes reference to the binding of the Judicial Officers, the Judges and Justices, of the States. The Founders gave absolute judicial immunity to the Federal Judiciary through appointment for life. However; it appears the founders never intended the Federal Judiciary to confer this immunity to State and Local Judges knowing it could, or would, result in the total abrogation of the rights of the individuals and abolish the Rule of Law.

The Individual’s right to the protection of the law is now internationally recognized, and codified in International Law, as a basic Human Right necessary for the Rule of Law. The Rule of Law prohibits any administrator of the Law, including the Justices of this Court of Appeals, from granting to any lower administrators of the Law (Judges, prosecutors, and police), or the conspirators who may join with them, despotic, absolute, power to declare themselves God with the right to disregard the law to impose their moral judgment, vigilante justice, on others who have not violated any law.

The right to petition the government for redress has always existed in the United States. It was codified in USC Title 42, following a bloody civil war, to encourage the Federal Judiciary to secure the Rule of Law and provide an additional aid to the individual to secure their basic Human Right to protection of the Law. The Constitution does not grant state judges any discretion to disregard the Constitution as the Supreme Law of the Land. It is the duty of this Court to enforce the rights of the individual. Only in this way are the rights of the collective, and the government, be secured.

ISSUE SIX RESTATED

WHETHER THE REFUSAL OF COMPENSTION FOR THE DENIAL OF INDIVIDUAL RIGHTS, SECURED BY THE CONSTITUION, IS AN ABUSE OF DISCRETION. WHETHER THE INDIGENT AND PRO SE LITIGANT HAS ANY RIGHTS IN THE FIFTH CIRCUIT?

ARGUMENT

Why should the Court do anything for a pro se litigant? Because; the pro se litigant is the true believer in the law.

It is the belief in the law that gives the law it’s greatest power and makes it a relevant, operative, force within society. Discretion is acceptable only when there is no written law to guide the Court. Discretion cannot be allowed to excuse the arbitrary application of the law because arbitrary application of the law destroys belief in the law and brings dishonor on the Courts. As a result the moral force of the law, it’s greatest power, is diminished and brute force becomes the only means of enforcement of the law. The State is reduced to a Police State that oppresses and terrorizes individuals till all but the despot is enslaved.

The true believer in the law asks that the Rule of Law be imposed on all, including the despot and their Judges; so that all individuals are liberated and protected by the law to the greatest extend possible. The only reason the pro se litigant enters the Court is because of their belief in the Honor of the Court, a belief that the Judges and Justices of the Courts, while also human and fallible, are also true believers in the Law. Believing they recognize the Law has a moral value, and desire to give honor to the Law, the Justices will use their power to make it the Rule, to preserve their own honor. It is belief that the honor of the Judges and Justices of the Courts is proven by the display of maturity that will not countenance a biased and prejudicial attitude toward the pro se litigate that blinds them to the logic and reasoning of the pro se brief with the arguments dismissed as “frivolous” without explanation. It is a belief their wisdom enables them to possess a willingness to correct the errors of the Court below, and their own errors, when the exercise of their discretion is found to be abusive in it’s application and contrary to the limits imposed by the principles and ideals specified as the Supreme Law of the Land in the United States Constitution. It is a belief in their wisdom to accept and honor the limits of their own discretion.

If the Justices of this Court believe in the Constitution as the Supreme Law of the Land, the Justices of this Court will use their discretion to pursue the purpose of the Constitution. That is; to secure the protection of the law to each INDIVIDUAL as a self-evident, inalienable, right. The Justices will recognize the INDIVIDUAL as sovereign over the idea of the State as Sovereign. The State, in this case, has become lawless. It has shown itself to be nothing but a collection of bureaucrats, acting under color of law, to confer upon themselves despotic powers by claim the absolute sovereignty of the state gives them the right to deny Individuals the protection of the Law. The Justices of this Court must hold the defendants and the lower courts accountable for the abuse of discretion that stole from Heimlich his protection of the law and put him to the task of “proving” his right to possess what is his by nature as a self-evident truth.

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, the bureaucrats 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 rules or obscure stare decisis above the Constitution in the hierarchy of Laws to the extent the Constitution has been rendered “frivolous” and the Rule of Law abolished. That is an abuse of discretion.

The interest of justice will never be served until Heimlich has received the compensation to which he is entitled pursuant to USC Title 42 or international law.

ISSUE SEVEN RESTATED

WHETHER THE UNITED STATES A NATION UNDER THE RULE OF LAW?

ARGUMENT

What the LAW is appears to be obvious. However; Either the Judges and Justices of the Courts of the Courts use the appearance (color) of law to defeat the law, Or; they have become so mired in the minor intricacies they lose site of the forest for the trees. A reminder of what the law IS may help them to regain their understanding of what the Rule of Law is so the nation can, again, become a Nation under the Rule of Law and progress in the pursuance of the ideals of law embodied in the Constitution. Carved in stone above the building in which our Supreme Court are these simple words:

EQUAL JUSTICE UNDER THE LAW

It is now internationally recognized that this can only be achieved through the Rule of Law. It is also known as the promise of the protection of the law to all as individuals as the only means of providing the protection of the law to all collectively. Today, in America, The Rule of Law has been twisted by propaganda with to give a connotation that is contrary to, in fact the opposite, of what the Law is and who has the right to Rule. What the Rule of Law is can be understood by separately explaining what the Law is and what Rule is:

I. WHAT IS THE “LAW” IN THE “RULE OF LAW”?

This question has been debated throughout history. It varies depending on different perspectives of the original source of law whether it comes from nature, from the divine, or from the minds of men. In the final analysis the law is simple.

In the beginning The Law was for All. It is almost identical to an agreement between two people. The only difference is it is an agreement among a large group of people. Like any agreement it enables people to cooperate, to work together, for their mutual benefit. A very large group of people can choose to abide by a common set of rules in the course of their interactions, for their mutual benefit, and call this agreement on the rules the law. The purpose, like any contract, is to limit conflicts and enable the quick resolution of misunderstandings to facilitate cooperation for mutual benefit.

Law must be written

The law, as an agreement, is subject only to the interpretation of the terms of the agreement. To avoid misunderstandings in the interpretation the agreement it is written and made a contract. This gives the parties to the agreement a source of reference with stipulations of the “intent” of the parties so the misunderstandings that result from the temptation to play God, as in the presumption of the intent of another, is avoided.

Therefore statutory exclusion is internationally recognized as fundamental to the Rule of Law. It holds that absent a violation of a statute there is no crime or “probable cause” to assume a crime has or will be committed. It is a basic provision of the United States Constitution incorporated as the prohibition against ex post facto laws, laws impairing the obligation of contracts, and bills of attainder. To allow anything else is to allow the imposition of arbitrary rule.

Any government with a legislative body has the means to correct any perceived, but un-addressed, violations of moral norms by creating statutes. Until such statute is created the Rule of Law prohibits arbitrary enforcement of unwritten laws by any individual or group regardless, of their title or position within society, that claim a moral superiority as an excuse to disenfranchise others from the protection of the law.

Must have a hierarchy

For the law to be relevant it must also be subject to a hierarchy of law that recognized some laws take precedent over other laws. As an example; it is recognized that written agreements, contracts, take precedent over verbal agreements. Where the verbal agreement is in dispute the written agreement is the higher law. This is a fundamental principle of law recognized throughout all humanity and throughout all of history as necessary for the law to maintain moral value.

The value of the law, it’s moral authority, is lost when some members of the group are allowed, by a claim of superiority, to pick and choose among the laws, or arbitrarily adjust the hierarchy of laws, to fit their purposes. That is arbitrary rule that, history proves, eventually strips the law of it’s value and destroys the law as a moral force in a society, nation, or any collective of Individuals.

In the United States the Constitution is the Supreme Law of the Land. It is written and takes precedence over all other laws. Those who which to circumvent the Constitution, to deny the Constitution it’s place as the Supreme Law of the Land, try to convince others the Law is too “intricate” or difficult to understand. They utilize the “intricate” details of obscure laws elevated to a position of supremacy over the Constitution. This denial of the hierarchy of laws is a violation of the Constitutional provision that ALL laws must be made, and enforced, IN PURSUANCE OF securing the ideals of law established in the Constitution as the Supreme Law of the Land. It is a denial of the Rule of Law.

The Truth of The Intricacies Of The Law

There are many that make a profession of the practice of law. To give added power to charge for their profession they convince people it is too intricate to understand. It is not. The law has been made an art form and this is just another part of the art to confuse those of us that the law is intended to serve. This first occurred not long after law became a part of society when some clever people within the group found they could twist the intended purpose of the law. The law becomes a tool used to victimize and enslave rather than liberate and protect. It became a tool of oppression, enslavement, exploitation, and extortion. They used the law to elevate themselves to a God like status. The law was then applied to some within the group but not to others. When this happens the law ceases to provide the benefit that is the purpose for the establishment of law. It becomes the very opposite of it’s intended purpose.

MORAL POWER OF THE LAW COMES FROM

EQUALITY UNDER THE LAW

For a time it will benefit a few at the expense of the many but will lose it’s moral value as society loses the cooperative benefit of the law. The result is decline as happened in the Soviet Union, or; the oppressed will rise up in violation of the rulers and overthrow the oppressors to re-establish a new system for enforcing the law for the benefit of all as happened with the American revolution.

The founders of our nation recognized this. They had seen it repeated throughout history. Therefore they established EQUALITY under the law. The government, an employee of the government, a Judge, a jury, or any other person or group within the society, has no greater privilege than any other individual living under the same law.

The statute of lady justice provides the symbol. She is blind to the inequalities of the individual when they enter the courtroom to seek justice. It is a basic principle of the Rule of Law. The Rule of Law cannot exist if not applied equally. Equal justice cannot exist without the Rule of Law. They are inseparable halves of the very objective for which law was established. That is; to enable cooperation among humans for their mutual benefit.

II. WHO HAS RIGHT TO THE “RULE” IN THE “RULE OF LAW”

This goes to the issue of sovereignty. Does this Court recognize the sovereignty of the individual? Does this Court recognize any limits on it’s own authority? Sovereignty is also subject to a hierarchy that must be recognized to maintain it’s moral authority. When the King forgets this hierarchy and declares himself GOD above the God in heaven, he loses his moral authority and right to Rule.

Individuals, collectively, established the law to provide protection to each one as individuals. Any other approach to the law is slavery. Sovereignty ultimately belongs to the people as individuals. The people, as a collection of individuals, exercise their sovereignty through their Constitution that grants their government, and those bureaucrats working in this government, their authority. It is a limited grant of authority with sovereignty retained by the people as individuals. The people can, through due process, change or amend their Constitution.

The government, and those working in the government, do not have authority to arbitrarily change the Constitution. Until such time as the people amend the Constitution it remains a contract between each individual citizen and the government. The individual is the ultimate sovereign in a nation under the rule of law providing protection of the law to each individual and is the intended purpose for the creation of law.

State sovereignty is limited, and subordinate, to rights of the individual in the United States Constitution. State Sovereignty is next limited, and subordinate to, the rights of the individual in that State’s Constitution. The individual citizen retains rights, or sovereignty, as the authority of the State Government is limited to the grant of authority by the people as expressed in the Constitutions.

To recognize the sovereignty of the individual requires the Courts to recognize the limits of their authority, the limits of their discretion. The Courts must temper their temptation to play God by recognizing it is serving God to subordinate themselves to the law. That is Honor. The Law places limits on their own discretion to abolish the law by refusal to adhere to the hierarchy of laws as a way to find a way around the limits.

CONCLUSION

Discretion, free will, is not a right, but a grant, with limitations that each individual, including the individual justices of this Court of Appeals, must impose on their own freedom of action to be moral in the eyes of society, God, and, hopefully, their own eyes. What was made a question of my morality has become a question of your own morality.

Do the Justices of this Court of Appeals have any moral values? Do the Justices of this Court recognize the Ten Commandments, in particular the Commandment “thou shalt not bear false witness against thy neighbor”? Any excuse to deny a neighbor equal justice under the law is a false witness against that neighbor. May God have mercy on your soul and, as Jesus said from the cross; “Father forgive them for they know not what they do.”

Defendant John Boone is very proud of himself. Through the practice of his art he has used the intricacies of the law to keep Heimlich tied up in the Courts for almost a decade. The cost to society, regardless of the outcome of this case, is well beyond the cumulative wages he has received, and will receive, in his lifetime as a valued (sic) public servant worthy of all the protection the courts have granted to him. He did so even though a contract and fundamental law showed a total lack of probable cause, a total lack of discretion within the bounds of his legitimate authority, to invade Heimlich’s privacy and impair the obligations of contract Heimlich had with his agent. The errors are so plain. The abuse of discretion is so obvious. But defendant Boone, with his friends, was able to turn the law upside down and, in the process, invalidated as a moral force in society. What has been presented as the “law” has been used to destroy the law.

This case is a perfect case for answering the question of whether the United States is a Nation under the Rule of Law or an oppressive totalitarian state where the right of the individual to protection of the law abolished by juridical absolutism. The interest of justice will never be served until Heimlich has received the compensation to which he is entitled pursuant to USC Title 42 or international law.

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 3^rd day of April, 2002.

___________________________

Edmund B. Heimlich

CERTIFICATE OF COMPLIANCE

Pursuant to the 5^TH CIR. R. 32.2.7(c), the undersigned certifies this brief complies with the type-volume limitations of 5^TH CIR. R. 32.2.7(b).

1. EXCLUSIVE OF THE EXEMPTED PORTIONS IN 5^TH CIR.R32.2.7(b)(3), THE BRIEF CONTAINS (select one):

A. 13,993 words.

2. THIS BRIEF HAS BEEN PREPARED (slect one):

A. in proportionally spaced typeface using:

Software Name and Version: Microsoft Word 2000 (version 9) in (Typeface Name and Font Size: Times New Roman 14 point,

3. THE UNDERSIGNED HAS SUPPLIED AN ELECTRONIC VERSION OF THIS BRIEF.

4. THE UNDERSIGNED UNDERSTANDS A MATERIAL MISREPRESENTATION IN COMPLETING THIS CERTIFICATE, OR CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN 5^TH CIR.R.32.2.7, MAY RESULT IN THE COURT’S STRIKING THE BRIEF AND IMPOSING SACTIONS AGAINST THE PERSON SIGNING THE BRIEF.

_________________________

Edmund B. Heimlich

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[1] Quotes from the United States Declaration of Independence, July 4, 1776

[2] Which helps explain why the alleged complainant went along with allowing himself to be victimized by the defendants. As an immigrant from Chile, raised under the dictatorship of Pinochet, (a regime notorious for the lack of the Rule of Law) he was not willing to resist the directions of defendants, a deputy constable and John Boone, to file a complaint he testified he did not intend or want to make.

[3] Arguendo; Even if Heimlich’s alleged intent was a relevant issue, given due process that was denied at trial, even without payment to alleged complainant, Heimlich would have proved his intent was not that alleged.

[4] Definition of “pursuance”: a pursuing, or carrying out, as of a project, plan, etc. “Pursuing” to proceed along, follow, or continue with; strive for, seek after. “Pursuant”, in accordance with.