Rule 21(c) writ petition html
Signed jpgs seen at http://www.prosefights.org/nmlegal/mcconnell/rule21cwrit.htm

First posted
Tuesday December 21, 2004 13:17
Updated
Friday August 19, 2005 14:06

TENTH CIRCUIT COURT OF APPEALS
Judge Michael W. McConnell

Re
Arthur R Morales
William H Payne
petitioners

RULE 21(c) WRIT TO VOID ALL JUDGMENTS IN FRAUDULENT NEW MEXICO FEDERAL CASES 00 CV 1574, 00 CV1677, 01 CV 634, 01 CV 1132, and 01 CV 1198 and New Mexico 12 person jury trial prima facie lawsuits CV 2001 07794 and CV 2002 3425

HISTORY

Seven bogus federal cases 00 CV 1574, 00 CV1677, 01 CV 634, 01 CV 1132, and

01 CV 1198 have been challenged as to federal court jurisdiction.

All are New Mexico 12 person jury trial prima facie case lawsuits that were

fraudulently removed to federal court.

Written evidence in court records is shown below.

Non-response and disregard to the facts shown in the evidence by the courts as

to jurisdiction affirms the courts do not have jurisdiction.

The common questions are: Are replevin, defamation [libel] and harassment

federal questions or not.

All of the judges and court officials assigned or responsible for this question

were asked in writing to respond to the question of "Are replevin, defamation

[libel] and harassment federal questions."

NONE RESPONDED.

Therefore, their non-response is admission that they do not have jurisdiction.

New Mexico 12 person jury trial prima facie lawsuits CV 2001 07794 and CV 2002

3425 were dismissed without 12 person jury trials guaranteed inviolate by New

Mexico and federal constitution in violation court rule 1-041: Dismissal of

Actions since New Mexico judges did not have jurisdiction to dismiss a paid for

jury trial lawsuit.

SUMMARY OF LAW

Rule 21(c) allows selection of judge to resolve issues.

Rule 3 requires any appeal from federal district court to court of appeals must

be filed in district court.

Rule 42(a) states

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

All of the cases below can be consolidated since the common question of lack of

jurisdiction is central.

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ARTHUR R. MORALES
WILLIAM H. PAYNE

Plaintiffs,

vs CIVIL NO. 00-1574 William F Downes

ROBERT J. GORENCE, JOHN J.
KELLY, MANUEL LUCERO,
JAN ELIZABETH MITCHELL,
DON F. SVET

Defendants

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

WILLIAM H. PAYNE

Plaintiff

vs CIVIL No. 00-1677 William F Downes/Richard L Puglisi

SANDIA CORPORATION, SANDIA NATIONAL
LABORATORIES, AMERICAN TELEPHONE AND
TELEGRAPH CORPORATION, LOCKHEED MARTIN
CORPORATION, KREHBIEL, BANNERMAN & HORN,
JOHN A. BANNERMAN, CHARLES BURTNER,
LORENZO F. GARCIA, MICHAEL G. ROBLES, and
CAROL LISA SMITH

Defendants

and

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

Arthur R Morales
William H Payne

Plaintiffs

v civ 01 0634 William F Downes

Theodore C. Baca
Norman C. Bay
Phyllis A. Dow
Raymond Hamilton
Rodey, Dickason, Sloan, Akin & Robb PA
Martha Vazquez

Defendants

and

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

William H. Payne

Plaintiff

v 01 cv 01132 Dee Vance Benson

PHYLLIS A. DOW, WILLIAM F. DOWNES, and
RODEY, DICKASON, SLOAN, AKIN & ROBB, P.A.

Defendants

and

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ARTHUR R. MORALES AND
WILLIAM H. PAYNE

Plaintiffs

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants

and

SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO

CASE NUMBER CV 2001 07794

William H Payne

Plaintiff

v

W John Brennan
W Daniel Schneider

Defendants

and

SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO

CASE NUMBER CV 2002 3425

Arthur R Morales
William H Payne

Plaintiffs

v

W John Brennan
Kenneth G Brown
William Haas
Patricio M Serna
Walz and Associates

Defendants

JURISDICTION

1 New Mexico state judge Kenneth Brown prohibits petitioner Payne from

filing in New Mexico state courts. See

http://www.prosefights.org/nmlegal/supremecourt/exhibito.htm#nocanfile.

2 New Mexico state judge Robert H Scott prohibits plaintiff Morales from

filing in New Mexico state courts. See

http://www.prosefights.org/nmlegal/supremecourt/exhibitp.htm.

3 Wyoming chief judge William F Downes prohibits petitioners Morales and

Payne from filing in New Mexico federal court. See

http://www.prosefights.org/nmlegal/queeg12022004.htm#nocanfile.

4 Rule 3 of Appellate Procedure states

Rule 3. Appeal as of Right-How Taken (a) Filing the Notice of Appeal.

(1) An appeal permitted by law as of right from a district court to a court of appeals may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4. At the time of filing, the appellant must furnish the clerk with enough copies of the notice to enable the clerk to comply with Rule 3(d).

Since petitioner can't file in New Mexico federal court, petitioner are even

unable to appeal Downes' ruling.

5 Wyoming chief judge William F Downes transfer control of 00 CV 1677 to

Tenth Circuit chief judge Tacha on November 18, 2004 see docket entry at

http://www.prosefights.org/mcconnell/nmlegal/pacer/dock1677.htm when Downes turns himself

in for judicial misconduct "pursuant to 28 USC 351."

6 Wyoming chief judge William F Downes transfer control of 00 CV 1574 to

Tenth Circuit chief judge Tacha on November 18, 2004 see docket entry at

http://www.prosefights.org/nmlegal/mcconnell/pacer/dock1574.htm.

7 Petitioners are given no proper legal recourse for relief in either New

Mexico state court or New Mexico federal court. Therefore the Tenth Circuit has

proper jurisdiction and judge Deanell Tacha or her replacement [see

http://www.prosefights.org/nmlegal/mcconnell/rule144/rule144.htm#nsa] has proper jurisdiction.

MOTION FOR RELIEF SOUGHT

Suspend rules under Rule 2 and VOID ALL JUDGMENTS in NEW MEXICO FEDERAL CASES

00 CV 1574, 00 CV1677, 01 CV 634, 01 CV 1132, and 01 CV 1198 and New Mexico 12

person jury trial prima facie lawsuits CV 2001 07794 and CV 2002 3425 for lack

of jurisdiction.

MEMORANDUM OF SUPPORT FOR MOTION FOR RELIEF SOUGHT

8 Rule 21(c) of Appellate Procedure states

Rule 21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs

(c) Other Extraordinary Writs. An application for an extraordinary writ other than one provided for in Rule 21(a) must be made by filing a petition with the circuit clerk with proof of service on the respondents. Proceedings on the application must conform, so far as is practicable, to the procedures prescribed in Rule 21(a) and (b).

Because of 28 USC 351 allegations of gross judicial misconduct of judging

fraudulently removed to federal court New Mexico state 12 person jury prima

facie case lawsuits on the part of Wyoming chief judge William F Downes and

Utah Chief judge Dee Vance Benson who do not have jurisdiction over replevin,

defamation [libel] and harassment compelled petitioners to remove these judges

with 28 USC § affidavits

[See http://www.prosefights.org/nmlegal/mcconnell/rule144/rule144.htm#af1574, http://www.prosefights.org/nmlegal/rule144.htm#af1677, http://www.prosefights.org/nmlegal/mcconnell/rule144/rule144.htm#af634, http://www.prosefights.org/mcconnell/rule144/nmlegal/rule144.htm#cantfile and http://www.prosefights.org/mcconnell/rule144/nmlegal/rule144.htm#af228].

Correcting these judges misconduct requires immediate resolution by the Tenth

Circuit or, in the alternative the Tenth Circuit does not act according to law,

the US Supreme Court.

LAW

9 The law is exceptionally clear about Void judgments:

A Under Federal law which is applicable to all states, the U.S. Supreme Court stated that if a court is "without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers." Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)

B Black's Law Dictionary, Sixth Edition, page 1574: Void judgment. One which has has no legal force or effect, invalidity of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally. Reynolds v. Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, 1092. One which from its inception is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind parties or support a right, of no legal force and effect whatever, and incapable of confirmation, ratification, or enforcement in any manner or to any degree. Judgment is a "void judgment" if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process. Klugh v. U.S., D.C.S.C., 610 F.Supp. 892, 901. See also Voidable judgment.

C List of Authorities on Void Judgments are found at

http://famguardian.org/TaxFreedom/CitesByTopic/VoidJudgment.htm

10 00 CV 1574 is a fraudulently removed New Mexico 12 person jury trial

lawsuit for replevin and harassment.

See fraudulent removal NOTICE at

http://www.prosefights.org/nmlegal/supremecourt/exhibitb.htm.

Here's the law:

The U.S. Supreme court is quite clear in Willingham, Warden, et al

v Morgan,395 U.S. 408(1969)

The Judicial Code require defendants who would remove cases to the federal courts to file "a verified petition containing a short and plain statement of the facts"

28 USC Sec. 1746. - Unsworn declarations under penalty of perjury

clearly states

Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:

(1)

If executed without the United States: ''I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)''.

(2)

If executed within the United States, its territories, possessions, or commonwealths: ''I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)''

00 CV1677 is a fraudulently removed New Mexico 12 person jury trial lawsuit for

defamation [libel] and harassment. See http://www.prosefights.org/nmlegal/supremecourt/exhibitd.htm.

01 CV 634 is a fraudulently removed New Mexico 12 person jury trial lawsuit for

harassment and perjury. See http://www.prosefights.org/nmlegal/supremecourt/exhibitf.htm.

01 CV 1132 is a fraudulently removed New Mexico 12 person jury trial lawsuit

for harassment. See http://www.prosefights.org/nmlegal/supremecourt/exhibitj.htm.

01 CV 1198 is a fraudulently removed New Mexico 12 person jury trial lawsuit

for harassment. See http://www.prosefights.org/nmlegal/supremecourt/exhibiti.htm.

Rule 42(a) states

Consolidation; Separate Trials

(a) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

See http://www.wvnb.uscourts.gov/frcp.htm#rule42.

The common question is if harassment, replevin, and defamation [libel] are

federal questions? They are not because all the judges and court officials assigned or responsible for

this question were asked in writing and all chose not to respond. This is well-documented. Therefore

non-response is an admission that they do not have jurisdiction.

Therefore 00 CV 1574, 00 CV1677, 01 CV 634, 01 CV 1132, and 01 CV 1198 are

consolidated in this VOID AB INITIO action.

11 Downes was removed as judge from 00 CV 1574

[http://www.prosefights.org/nmlegal/rule144.htm#af1574] with a 28 USC § 144

affidavit.

Downes was removed as judge from 00 CV 1677

[http://www.prosefights.org/nmlegal/rule144.htm#af1677] with a 28 USC § 144

affidavit.

But then Downes struck both affidavits [see docket entry 122 at

http://www.prosefights.org/nmlegal/mcconnell/pacer/dock1677.htm and docket entry 71 at

http://www.prosefights.org/nmlegal/mcconnell/pacer/dock1574.htm].

Downes prevented petitioners from filing 28 USC § 144 removal affidavit in 01 CV

634 ["refuse acceptance of any further pleadings" see docket entry 122 at

http://www.prosefights.org/nmlegal/pacer/dock1677.htm] and Payne affidavit at

http://www.prosefights.org/nmlegal/mcconnell/rule144/rule144.htm#cantfile.

The automatic 28 USC § 144 Downes removal affidavit in 01 CV

634 is seen at http://www.prosefights.org/nmlegal/mcconnell/rule144/rule144.htm#af634.

Downes was asked to provide an anti-injunction act jurisdiction justification in affidavit that replevin, defamation [libel] and harassment were federal questions and refused.

Written evidence in affidavits shows fraudulent removal of New Mexico 12 person jury trial prima facie case lawsuits to federal court which were assigned to Downes by New Mexico chief judge James A Parker.

12 Utah judge Dee Vance Benson was removed by 28 USC § 144 from both

fraudulent 01 CV 1132, and 01 CV 1198. See affidavit at

http://www.prosefights.org/nmlegal/rule144.htm#af228 and docket entry 30 at

http://www.prosefights.org/nmlegal/pacer/benson144affidavit.htm.

Benson was asked to provide an anti-injunction act jurisdiction justification in affidavits that harassment was a federal question and refused.

Written evidence in affidavits shows fraudulent removal of New Mexico 12 person jury trial prima facie case lawsuits to federal court which were assigned to Benson by New Mexico chief judge James A Parker.

13 Petitioner Payne pays $322 [see receipt at

http://www.prosefights.org/nmlegal/supremecourt/exhibitl.htm] for New Mexico 12

person jury trial prima facie lawsuit CV 0200107994 against former New Mexico

second judicial district judge and now convicted felon W John Brennan et al

[http://mywebpages.comcast.net/bpayne37/johnbrennan/johnbrennan.htm]for breach

of contract and harassment.

New Mexico thirteenth district judge Kenneth G Brown dismisses CV 0200107994

[see http://www.prosefights.org/nmlegal/supremecourt/exhibito.htm].

Brown does not have jurisdiction to dismiss 12 person jury trial lawsuit

guaranteed inviolate by New Mexico and federal constitutions. [See New Mexico

law details at http://www.prosefights.org/nmlegal/jsccomplaintbrownscott/jsccomplaintbrownscott.htm]

14 Petitioners Morales and Payne pay $322 [see receipt at

http://www.prosefights.org/nmlegal/supremecourt/exhibitk.htm]for New Mexico 12

person jury trial prima facie lawsuit CV 0200203425 against former New Mexico

second judicial district judge and now convicted felon W John Brennan et al

[http://mywebpages.comcast.net/bpayne37/johnbrennan/johnbrennan.htm] for breach

of contract and harassment.

Then New Mexico second judicial district judge Robert H Scott, now US federal

court magistrate judge, dismisses CV 0200107994

[see http://www.prosefights.org/nmlegal/supremecourt/exhibitp.htm#dismiss].

Scott does not have jurisdiction to dismiss 12 person jury trial lawsuit

guaranteed inviolate by New Mexico and federal constitutions. [See New Mexico

law details at http://www.prosefights.org/nmlegal/jsccomplaintbrownscott/jsccomplaintbrownscott.htm].

15 Dismissal of CV 0200107994 and CV 0200203425 were appealed.

Former judge John Brennan and his assistant Art Gallegos attempted to prevent

filing on appeal on CV 0200107794

[http://mywebpages.comcast.net/bpayne37/johnbrennan/johnbrennan.htm#Gallegos]

so an appeal was sent directly to then New Mexico appellate chief judge Richard

Bosson.

Bosson apparently arranged to have the CV 0200107794 appeal docketed. See June

26, 2002 NOTICE OF COMPLETION & TRANSMISSION OF RECORD PROPER at

http://www.prosefights.org/nmlegal/mcconnell/alaridpickardwechsler/alaridpickargwechsler.htm.

Despite the fact that petitioner appellant Payne was in Alaska on his retirement

trip and notified courts of his unavailability, appellate judges Alarid,

Pickard, and Wechsler affirmed judge Scott's decision which was illegal under

New Mexico constitution and federal constitutions. See ORDER ON MOTION FOR

REHEARING at

http://www.prosefights.org/nmlegal/mcconnell/alaridpickardwechsler/alaridpickargwechsler.htm.

CV 0200203425 was appealed as well. Appellate judges Wechsler, Pickard, and

Castillo affirmed judge Brown's decision which was illegal under New Mexico and

federal constitutions. See

http://www.prosefights.org/nmlegal/mcconnell/wechslerpickardcastillo/wechslerpickardcastillo.htm.

Petitioners then tried to appeal both CV 0200107794 and CV

0200203425 to New Mexico supreme court. However, New Mexico supreme court clerk Kathleen Jo

Gibson refused to docket either appeal.

So petitioners wrote certified return receipt complaint letter to supreme court

judge Minzner and Maes.

Neither Minzner nor Maes responded.

16 As a result of inactions on the part of Gibson, Minzner, and Maes

petitioners attempted to force New Mexico state court to demand our right

guaranteed inviolate by New Mexico and federal constitutions to our paid for 12

person prima facie cases jury trial lawsuits by securing writs from judge Dee

Benson in Utah. See dockets of Utah 03-CV-228 at

http://www.prosefights.org/nmlegalmcconnell//pacer/morales03cv0228final.htm and docket of

Utah 03-CV-288 at http://www.prosefights.org/nmlegal/mcconnell/pacer/payne03cv0288final.htm.

Benson falsely wrote that we filed an appeal to have our civil rights restored.

This is false, we filed a WRIT. See docket entry 1 in about PACER docket

records.

So as it stands

http://www.prosefights.org/nmlegal/supremecourt/exhibito.htm#nocanfile.

http://www.prosefights.org/nmlegal/supremecourt/exhibitp.htm.

are in effect even though Brown and Scott lacked jurisdiction to dismiss paid

for 12 person jury trial lawsuits against convicted felon former New Mexico

district 2 chief judge W John Brennan

[http://mywebpages.comcast.net/bpayne37/johnbrennan/johnbrennan.htm].

17 Benson, of course, does not have jurisdiction in either 01 CV 1132 or 01

CV 1198. Harassment is not a federal question.

Benson issue two void judgments.

Benson and New Mexico chief judge James Parker were ask to provide anti-

injunction act affidavits in 01 CV 1132.

See docket entry 14 http://www.prosefights.org/nmlegal/mcconnell/pacer/dock1132.htm docket.

Benson and Parker fail to provide anti-

injunction act affidavits since harassment is not a federal question. See

docket entry 15.

Benson and New Mexico chief judge James Parker were ask to provide anti-

injunction act affidavits in 01 CV 1198.

See docket entry 9 http://www.prosefights.org/mcconnell/nmlegal/pacer/dock1198.htm docket.

Benson and Parker fail to provide anti-

injunction act affidavits since harassment is not a federal question. See

docket entry 16.

Benson issues two void judgments since Benson does not have jurisdiction as

evidenced at docket sheet entry 40 seen at

http://www.prosefights.org/nmlegal/mcconnell/pacer/dock1132.htm.

Look at docket sheet entry 52 seen at

http://www.prosefights.org/nmlegal/mcconnell/pacer/dock1198.htm.

But Benson is issuing the above ORDER in Utah Case No. 2:03CV00228 TS:DB!

See http://www.prosefights.org/nmlegal/mcconnell/bensonvoid.htm#benson.

This creates the appearance that judge Benson is knowingly and maliciously

attempting to circumvent his lack of jurisdiction in 01 CV 1132 and 01 CV 1198.

And Benson does not provide Rule 52 "finding of fact" as required.

See http://www.prosefights.org/nmlegal/bensonvoid.htm#rule52.

18 WHEREFORE

A Grant motion

B Notify New Mexico federal court, New Mexico Supreme Court, New Mexico

Appellate Court, New Mexico districts state courts, Albuquerque Metro court and

petitioners are free to exercise their rights to file pro se.

C Notify US Marshals Service [http://www.usdoj.gov/marshals/] that two US

Marshals shall be assigned to accompany petitioners Morales and Payne to court

in event of non-compliance by any court.

Respectfully submitted,

Arthur R. Morales
1734 Soplo Road SE
Albuquerque, NM 87123
505-323-7277

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111
505-292-7037

I HEREBY CERTIFY that a true copy of the foregoing pleading was served by first US mail certified return receipt required on December 10, 2004 to

William F. Downes
Chief Judge; Wyoming
111 South Wolcott
Room 210
Casper, WY 82601

Judge Dee Vance Benson
Chief Judge; Utah
253 United States Courthouse
350 South Main Street
Salt Lake City, UT 84101

Kenneth G. Brown
Thirteenth Judicial District Div. 13
100 Avenida de Justicia
Bernalillo, NM 87004

Robert H Scott
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed first class on December 10, 2004 to

PHYLLIS A DOW
Assistant US Attorney
POB 607
Albuquerque, NM 87103

Robert M. St.John, Mark A Smith, Larry Montaño
RODEY, DICKASON SLOAN, AKIN & ROBB, P.A.
P.O. Box 1888
Albuquerque, NM 87103

Christina E. Anaya, Esq.
Robles, Rael & Anaya, P.C.
500 Fourth St. NW, No. 200
Albuquerque, NM 87102

Stephen G. French, Esq.
French & Associates, P.C.
500 Marquette Ave. NW, No. 600
Albuquerque, NM 87102

Larry J. Montano, Esq.
Mark A. Smith, Esq.
Robert M. St. John, Esq.
Rodey, Dickason, Sloan, Akin & Robb
P.O. Box 1888
Albuquerque, NM 87103-1888

John W Zavitz
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

Richard G Patrick
Department of Justice
District of Arizona
Two Renaissance Square, Suite 1200
Phoenix, AZ 85004-4408

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

Robert W. Becker
Attorneys for Defendant French &
Associates, P. C.
500 Marquette Ave. N.W., Suite 600
Albuquerque, New Mexico 87102