Petition for Writ of Certiorari — Vivek Shah, Petitioner v. Francisco J. Quintana, Warden

No.

IN THE SUPREME COURT OF THE UNITED STATES

Vivek Shah, pro se,

Petitioner

VS.

Francisco J. Quintana, Warden,

Respondent

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

PETITION FOR CERTIORARI

Vivek Shah

43205-424

Federal Medical Center

P.O. Box 14500

Lexington, KY 40512

rREvE:

MAR 10

SUPy

PETITION FOR CERTIORARI

QUESTIONS PRESENTED FOR REVIEW

Is the BOP's catch-all prohibited act, which states, in part, "Conduct

which disrupts or interferes with the security or orderly running of

the institution or the Bureau of Prisons most like another

[] prohibited

act," facially vague and overbroad?

In the context of a prison disciplinary hearing, were Petitioner's

constitutional rights violated, and did the district court and court

of appeals depart from the accepted and usual course of judicial

proceedings when neither considered the vast majority of the claims

raised,

this LOrts supevior

(i)

power?

TABLE OF CONTENTS

Page No(s).

QUESTIONS PRESENTED FOR REVIEW ............................................

(i_)

TABLE OF AUTHORITIES CITED ..... ............................... ............. 1

CITATIONS OF OPINIONS AND ORDERS IN CASE ................................... 2

JURISDICTIONAL STATEMENT . .................................................. 2

CONSTITUTIONAL PROVISIONS, STATUTES, AND REGULATIONS INVOLVED...............2

STATEMENT OF THE CASE......................................................

3

ARGUMENT................................................................... 5

I. Prohibited Act Code 299is Unconstitutional .......................... 5

Code 299 is Facially Void for Vagueness........................... 5

Code 299 is Unconstitutionally Overbroad..........................7

II. Violation of Due Process Rights Established Under

Wolff v. McDonnell ........ .......................... ................ 9

A. The Court of Appeals erred by using uncharged post hoc

statements within the judicial record to support a

finding of "some evidence" that my conduct disrupted

the institution "most like stealing .............................. 9

B. The Court of Appeals erred in finding that charging me

with one prohibited act but finding me guilty of a

different prohibited act did not violate my right to

advance notice of the charges just because a federal

regulation permitted it........................................... 9

C. The Court of Appeals erred in concluding that I

provided insufficient facts to support my claim that I

was coerced into signing a waiver to present witnesses

upon screening pursuant to2243 ................................. 10

D. The Court of Appeals erred in finding that the fact

that prior to the hearing the DHO had written out

the exact sanctions that he would later impose on me

would not amount to evidence of an impartial factfinder...........11

E. The Court of Appeals, like the district court, failed

to hear my claim that charging me with only one-part

of a two-part offense satisfies the requirement of

advance written notice of the charges.............................11

F. The Court of Appeals, like the district court,

completely failed to hear my claim that a staff

representative was needed since the issues were

complex and l was in solitary confinement ......................... 11

The Court of Appeals, like the district court,

completely failed to hear my claim that the DHO did

not allow me to view a shred of evidence prior or

during the hearing, and that the DHO denied me my

right to be heard............................ . ....... ............. 12

The Court of Appeals, like the district court,

completely failed to hear my claim that since the

DHO did not write the DHO Report, my right to a

written statement of the factfinders was violated.................12

III. Use of Compelled Answers by the DHO Violated my Right

Under the Self-Incimination Clause of the Fifth

Amendment.......................................................... 13

IVy. An Incident Report Written in Relaliation of Filing a

Grievance Violates the Firt Amendment.............................13

V.

V. Reasons for Granting Certiorari.................................... 1 4

.

CONCLUSION.................................................................. 14

APPENDIX A (Orders and Judgments of Courts Below)

Opinion on Appeal of the United States Court of Appeals

for the Sixth Circuit, March 1, 2018...............................1-5

Opinion of the United States District Court for the

Eastern District of Kentucky, November 14, 2017....................6-12

APPENDIX B (Orders and Judgments of Courts Below in Prior Case)

Opinion of the United Statesi)District Court for the

Eastern District of Kentucky, January 9, 2017......................1-4

Opinion on Appeal of the United States Court of Appeals

for the Sixth Circuit, July 17, 2017...............................

APPENDIX C (Other Essential Materials)

1. Appellant's Brief on Appeal in the United States Court

of Appeal for the Sixth Circuit (incl. Exhibits A & B)

TABLE OF AUTHORITIES CITED

Cases

Page No(s).

Adams v. Gunnell, 729 F.2d 362 (5th Cir. 1984) ............................6

August v. Payne, 2002 U.S. App. LEXIS 29242 (5th Cir. 2002) ...............7

Auer v. Robbins 619 U.S. 452 (1997) .....................................

,

6

Cooter & Gell v. Hartman Corp., 496 U.S. 384, 396 (1990) ..................5

Inre Gault, 387U.S.1,33-34,&n.54(1967) ............................10

Lefkowitzv.Turner,414U.S.70,77(1973) ..............................13

Miller v. Duckworth, 963 F.2d 1002, 1005 (7th Cir. 1992) .................12

Superintendent v. Hill, 472 U.S. 445, 455-56((1985) .......................9

Turner v. Safley, 482 U.S. 78 (1 987) ......................................8

Wolff v. McDonnell, 418 U.S. 78 (1987) ....................................8

Eng v. Couglin, 585 F.d 889, 898 (2d Cir. 1988) .........................12

Statutes and Regulations

28 C.F.R. § 541.3......................................................... 3

28 U.S.C. § 1254(1) .......................................................2

28 U.S.C. § 1291 ..........................................................4.

28 U.S.C. § 2243..........................................................2

28 U.S.C. § 2241 . ..........................................................4

1.

CITATIONS OF OPINIONS AND ORDERS IN CASE

The opinion and judgment of the United States Court of Appeals for the

Sixth Circuit is not reported. It is reprinted in Appendix A.

The opinion and judgment of the United States District Court for the

Eastern District of Kentucky is not reported. It is reprinted in Appendix A.

The prior opinion and judgment of the United States Court dfAppeals for

the Sixth Circuit, which affirmed the dismissal without prejudice by the

district court in the prior district court case, is not reported. It is

reprinted in Appendix B.

The prior opinion and judgment of the United States District Court for

the Eastern District of Kentucky, which dismissed the prior case without

prejudice for failure to exhaust remedies, is not reported. It is reprinted

in Appendix B.

JURISDICTIONAL STATEMENT

The judgment of the United States Court of Appeals for the Sixth Circuit

was entered on March 1, 2018.

This petition is filed within 90 days of that date, so this Court has

jurisdiction to review the judgment of the Sixth Circuit in this petition for

certiorari under 28 U.S.C. § 1254(1 )

CONSTITUTIONAL PROVISIONS, STATUTES, AND REGULATIONS INVOLVED

The Due Process Clause of the Fifth Amendment to the U.S. Constitution

provides that, 11 NO person shall.., be deprived of life, liberty, or property

without due process of law[.]"

28 U.S.C. § 2243 provides that, 'TA court justice or judge entertaining: an

application for a writ of habeas corpus shall forthwith award the writ or

issue an order directing the respondent to show cause why the writ should not

be granted unless it appears from the application that the applicant or

2.

person detained is not entitled thereto."

Code 299 of Table 1 of 28 C.E.R. § 541.3 prohibits: i'

Conduct which disrupts or interfers with thesecurity or

orderly running of the institution or the Bureau of

Prisons most like another High severity prohibited act.

This charge is to be used only when another charge of

High severity is not accurate. The offending conduct

must be charged as "most like" oneof:the listed High

severity prohibited acts.

STATEMENT OF THECASE

Prison.iDisciplinary Hearing

On June 30, 201, an Incident Report was filed against me by an employee

of the BOP, alleging that I misused my assigned prison work computer by

accesing an unauthorized server. On July 15, 2016, a Disciplinary Hearing

Officer ("DHO") found me guilty of Code 299 ("Conduct which disrupts..."). The

Incident Report itself had charged me with Code 198 ("Interfering with a staff

member..."). The DHO sanctioned me to 72 days' loss of Good Conduct Time ("GCT"),

among other sanctions.

Prior District Court Proceedings

On December 20, 2016, I filed a Petition for a Writ of Habeas Corpus in

the district court, claiming Violations of my constitutional rights and for

failure to adhere to the BOP regulations. The district court denied the Petition

on the ground that I had filed it eleven days prior to the BOP's Central Office

denying my final administrative remedy. Thi.doingsth,ithe district court

dismissed the Petition without prejudiceon January 9, 2017.

Prior Court of Appeals Proceedings

Believing that the district court had erred in denying the Petition for

failure to exhaust administrative remedies, I appealed the district court's

order to the Sixth Circuit. On July 17, 2017, the Sixth Circuit affirmed the

dismissal by the district court; however, it sua sponte, in its opinion, in

3.

applying an exception to the general ibule of exhaustion of administrative remedies

in habeas cases, noted that Code 299 was not vague since "{bjecause the statute

inarguable covers Shah himself, he cannot establish facial invalidity of the

statute and thus has not raised a colorable constitutional challenge.to Code

299.11 Certioari in this Court was not sought in that case since on January 13,

2017

-

four days after the district court had dismissed the first habeas

petition

-

I re-filed the Petition for a Writ of Habeas Corpus since at that

time it was clear that I had fully exhausted my administrative remedies by

then.

Nature of the District Court Proceedings

After re-filing the habeas petition in the district court, no action on

it was taken by the court for ten months, despite threè;..intervening petitions

for a writ of mandamus in the Sixth Circuit (each of which were denied). On

November 14, 2017, upon screening the Petition pursuant to 28 U.S.C. § 2243,

the district court summarily denied the Petition. Almost two dozen claims were

denied under the guise that they were "either undeveloped, unsupported,

contradicted by his own submissions, or plainly without merit."

Nature of the Court of Appeals Proceedings

On March 1, 2018 the Sixth Circuit affirmed the district court's denial

of the second habeas petition. In doing so, it very briefly analyzed the some

claims and compltely failed to discuss the vast majority of the cMims.

Jurisdiction of Courts Below

This action was commenced in the United States District Court for the

Eastern District of Kentuck The district court has jurisdiction of the matter

pursuant to 28 U.S.C. § 2241.

The final judgment of the district court was entered on November 14, 2017.

A timely appeal was filed to the United States Court of Appeals for the Sixth

Circuit, which had jurisdiction over the matter under 28 U.S.C. § 1291.

4.

ARGUMENT

I. Prohibited Act Code 299 is Unconstitutional

Although the district court and Court of Appeals below ruled that I am

precluded from relitigating the issue of the constitutionality of Code 299, it

was errror of both courts to rule so. The prior district court habeas petition

was dismissed without prejudice since it concluded that I had failed to exhaust

administrative remedies, and no meaning opportunity was ever provided by either

courts in the previous case:to argue the constitutionality of Code 299. Neither

res judicata nor collateral estoppel precluded the courts below or this Court

to hear the claim on its merits. See Cooter &.Geihl v. Hartman Corp., 496 U.S.

384, 396 (1990)("Dismissal without prejudice is a dismissal that does not

operate as an adjudication upon the merits, and thus does not have a res

judicata effect")(alterations, ellipsis, and citation omitted).

A. Code 299 is Facially Void for Vagueness

Code 299 prohibits inmates to act in any manner that would interrupt the

normal course in which a BOP institution is ran. The statute neither informs

an inmate of how an institution is supposed to run, nor informs him of what

the normal course would be at any given time. The Code has no boundaries or

that it states a specific course of conduct that is prohibited. It embraces

within it, instead, any and every type of action, reprehensible or not,

constitutionally protected or not. It does not inform an inmate of what is

prohibited. Is contracting the flu prohihibited? Trying to boil an egg in the

microwave? Trimming beard or shaving head? Attempting suicide?

This is not fair notice. It fails to provide a person of ordinary

intelligence fair notice of what is prohibited. It does not inform an inmate of

what conduct is forbidden or required. It is also so stàndardless that it

authorizes or encourages seriously discriminatory enforcement. Discriminatory

enforcement is not only possible, it is actually a regularity in the Code's

5.

enforcement and its sister codes, i.e., Codes 199, 399, and 499.

A simple reading of Code 299 is itself proof that no standard of conduct

is specified at all. Any act that hinders, impedes, or interrupts the normal

course in which the institution is run, is prohibited. There are no categories

of conduct that are specified. The prohibition applies to dropping a pin on

the floor to committing murder. How can anyone be obedient to such a rule?

In Wbthff v. McDonnell, 418 U.S. 539 (1974), this Court held under the. due

process concept of "fair warning" that "written notice of the charges must be

given to the disciplinary-action defendant in order to inform him of the charges

and to enable him to marshal the facts and prepare a defense.ldat 564. But

how could anyone prepare a defense against a charge that states "Conduct

which disrupts or interferes...?" Which fact(s) should the inmate marshal and

which ones to use for a defense? Should an inmate argue that its not "most

like" another prohibited act? But what is "most like?" To what degree should

the inmate disprove that it is not "most like?" What quantum of likeness must

it be? Is it 99% like another prohibited act, or kinda-like another one?

Jumping off the roof of the prison

-

"most like" escape or "most like" self-

mutilation or "most like" being in an unauthorized area without staff authorization? Further problems arise when courts give deference to the agency's

interpretation of its own regulations. See Auer v. Robbins, 519 U.S. 452

(1997).

In Adams v. Gunnell, 729 F.2d 362 (5th Cir. 1984), the Fifth Circuit

encountered a federal inmate's complaint thatCodes 299 and 399 were vague

as-applied to his conduct of "signing a petition complaining of discimination

against black inmates." Id at 363, ,The Court there was "not called upon in

[that] case to consider the vagueness of the 'conduct which disrupts' rule on

its face." Id at 369. The Court first acknowledged that "[b]ecause legalistic

wrangling over the meaning of prison rules may visibly indermine the prison

6.

administration's position of total authority, federal courts have deferred

to the interpretatiofl of those rules by prison authorities unless fair notice

was clearly lacking." Id (internal quotation and punctuation marks omitted).

Then it held that "basic due process was violated by the eventual imposition

of severe punishment for conduct no inmate could have known was against

prison rules." Id at 370. In August v. Payne, 20OU.S. App. LEXIS 29242 (5th

Cir. 2002) (ilthpublished) (per curiam), the Fifth Circuit again encountered

Code 299 in a similar context of circulating a petition. The Petitioner in

that case was charged with Code 299 "most like" Code 212 ("Engaging in, or

encouraging a group demonstration"). "Like the Court in Adams," the Court

"was not called upon to determine whether Rule 299 [was] unconstitutionally

vague" on its face. Id. The Court found "no circumstances that might have

given August notice that drafting, circulating, and signing of [the] petition

containing nonthreatening language was prohibited and could subject him to

punishment." Id.

Adams and August courts called Code 299 a "catch-all rule." It literally

catches all conduct; and thus literally all conduct is prohibited. It is

purely in the discretion of prison officials if any conduct should be punished,

and as such, this "catch-all - rule" provides fatal notice to inmates as to

what is prohibited. Because inmates of ordinary intelligence (in a place

replete with sub-par intelligence) must guess at the meaning of phrases such

as "disrupts," "interferes," "security,11 or "orderly running," the Code is

void for vagueness. An inmate cannot, with any certainty, determine what

conduct is prohibited.

B. Code 299 is Unconstitutionally Overbroad

Code 299 catches all activities that are protected under the First

Amendment to prisoners, including writing a letter criticizing prison policies,

corresponding with minors, receiving published material from a non-publisher,

receiving mail containing material downloaded from the internet, a Muslim

7.

refusing to handle pork in his job as a prison cook, a Native American wearing

a long hair-style motivated by his sincere beliefs, refusing to act as a

confidential informant and other such protected conduct. Even a grievance,

for instance, if filed at the wrong level could result in disciplinary action

since it is contrary to the "orderly running... of the Bureau of Prisons." The

applications of Code 299 are abundant. It applies to all conduct protected under

the Freedom of Speech Clause, Freedom of Assembly Clause, Freedom to Petition

for Redress of Grievance Clause, and.Freedom of Association Clause. The Code

prohibits a substantial amount of protected speech both in an absolute sense and

relative to the statute's plainly legitimate sweep.

The fact that the Code catches all types of constitutionally protected

conduct under the First Amendment, it cannot be survived by any type of

scrutiny to any category of protected conduct. It's also almost unfathomable

to encounter a statute any more broade' and substantial than this Code. It

chills inmates fromexercising their protected rights. Inmates should not

fear to do something that they are unsure whether it is prohibited. It has

obvious chilling effects, and if inmates cannot know if their speech or other

protected conduct would result in punishment, they would likely refrain from

speaking to avoid the possibility ofpunishnient.

This regulation is not readily susceptible either to a narrowing construction that would limit the regulatory scope to (insert category of conduct) or

to a limitation by severance of problematic provisions. And there is a

realistic danger that the statute itself will significantly compromise

recognized First Anieñdment protections of parties not before the Court.

The analysis of the test announced in Turner v. Safley, 482 U.S. 78 (1987)

is very simply in this case since the Code prohibits ALL conduct. Any sort of

conduct or action that an inmate takes will necessarily interfere with the

manner in which the institution is run, whether de minimis or significant. It

is also not limited, to for instance, using threatening language or possessing

nude images. The government cannot have any interest, let alone a legitimate

one, which could validly or rationally be connected to Code 299. There are no

alternative means of exercising the First Amendment rights since they are all

closed by Codes 199, 399, and 499. There will be no impact, and if any it will

be de minimis on guards, other inmates, and prison resources, if inmates

exercise their First Amendment rights that are already Turner-satisfied.

with the security or

Lastly, even thi

orderly running of the BOP.

II. Violation of Due Process Rights Established Tinder Wolff v. McDonnell

The Court of Appeals erred by using uncharged post hoc statements within

the judicial record to support a finding of "some evidence" that my

conduct disrupted the institution "most like" stealing

Although there was no evidence that I stole anything and the district

court and court of appeals failed to consider that argument, the court of

appeals states that my juduciál statement presented in the form of an argument

to the court of appeals that I engaged in certain other, uncharged conduct,

amounted to an admission of the chargethconduct before the DHO.

In Superintendent v. Hill, 472 U.S. 445, 455-56;J1985), this Court said

that the "standard is met if there was some evidence from which the conclusion

of the administrative tribunal could be deduced" and that 'the relevant

question is whether there is any evidence in the record that could support

the conclusion rabhed:by Lthe di~6iplindry_ iboardtl ji

and Lintérnal

quotation marks omitted). Therefore, the district court and court of appeals's

task was to determine if there was some evidence before the DHO, and not itself,

especially in the form of arguments or other post-hoc statements.

The Court of Appeals erred in finding that charging me with one prohibited

act but finding me guilty of a different prohibited act did not violate

my right to advance notice of the charges just because a federal regulation

permitted it

I was originally charged with Code 198 ("Interfering with a staff member...")

9.

but the DHO at the hearing found me guilty of Code 299 ("Conduct which disrupts").

Different facts would have been necessary to prove the charges and for me to

marshal the evidence in my defense.

The court of appeals said that since a federal regulation permits a

DHO:tpLfthnd;: an inmate guilty of any prohibited act at the hearing, that that

does not rise to a violation of written notice of the charges under Wolff. See

28 C.F.R. § 541.8(a)(1)(llowing a DHO to decide whether an inmate committed

a similar prohibited act other than the one charged in the Incident Report).

In Wolff, this Court said that "Part of the function of notice is to

give the charged party a chance to marshall the facts in his defense and to

clarify what the charges are, in fact." Id at 564 (cit:1Ag In re Gault, 387

U.S. 1, 33-34, and n.54 (1967)(statAg specifically, "Due process of law

requires notice of the sort we have described

-

that is, notice which would

be deemed constitutionally adequate in a civil or criminal prooeding")).

When I was tried for and found guilty of a substantively different offense than

that of which I received at least 24 hours notice, the inconsistency violates

Wolff's requirement that written notice of the charges must be given at least

24 hours prior to the hearing of the substantively different offense.

C. The Court of Appeals erred in concluding that I provided insufficient

facts to support my claim that I was coerced into signing a waiver to

present witnesses upon screening pursuant to § 2243

I stated specific facts in my Petition for a Writ of Habeas Corpus, under

the penalty of perjury, that the DHO continually kept prodding me into waiving

my right to call'witnesses by telling that

I would be found guilty

regardless of what the witnesses testified to in a very agressive manner. The

DHO had a threatening demeanor like 'if you don't waive your right then I am

going to sanction you to your worst nightmare.' The Court of Appeals erred in

finding that such facts were considered minimally supported, especially at

the screening stage of the Petition pursuant to § 2243.

10.

The Court of Appeals erred in finding that the fact that pioto 'the

hearing the DHO had written out the exactGsanctions that he would

later impose on mp would not amount to evidence of an impartial

factfinder

Without any analysis, the Court of Appeals very simply said that "the

record reveals no evidence of partiality."

I stated in my Petition as a fact that while the DHO was talking to me

about my conduct, I glanced down at a piece of Post-It note that was on the

DHO's desk prior to my arrival in the hearing room, on which I read the

exact santions that he'd later impose on me. That fact clearly showed that prior

to the hearing the DHO had pre-determined the exact punishment that he would

impose on me and that he was intent on finding me guiltywithout heaiug me

or viewing the evidence.

The Court of Appeals,lik, the district court, failed to hear my claim

that charging me with only one-part of a two-part offense satisfies

the requirement of advance written notice of the charges

Though sufficiently alleged and argued, neither the district court nor the

Court of Appeals heard my claim that I was charged with a Code 198 without

being notified of whatprohibited act it was "most like." Code 198, like Code

299, requires the charge to be charged as "most" like another charge. It

states in part:

Interfering with a staff member in the performance of duties 'I:

most like another Greatest-severity prohibited act. This

charge is to be used only when another charge of Greatest

Severity is not accurae. The offending conduct must be

charged as "most like" one of the Greatest severity

prohibited acts.

The charge itself states that it must be charged as "most like" another prohibited act. By not charging me "most like" another prohibited act, I was not

provided advance written notice of the charges.

The Court of Appeals, like the district court, completely failed to hear

my claim that a staff representative was needed since the issues were

complex and I was in solitary confinement

I made factual allegations in my Petition that the issues were complex

and that I was in the Special Housing Unit ("SHIP'), aka solitary confinement.

11.

Although a staff representative was provided to me at the hearing, he did

absolutely nothing for me, in violation of my right to adequate substitute

aid as stated:in Wolff. The staff representative never spoke to me once, either

before, during, or after the hearing. The Court of Appeals, like the district

court, never spoke a word of this claim in its opinion.

There is a split among the circuit courts with regard to whether the Due

Process Clause requires the provision of a representative to help prepare a

defense where the conditions of confinement significantly impair a prisoner's

ability to prepare a defense. Compare Eng v. Coughlin, 858 F.2d 889, 898 (2d Cir.

1988) (finding "that for inmates disabled by confinement in Sf111... the right to

substitute assistance is an obligation imposed by the Due Process Clause[.]") with

Miller v. Duckworth, 963 F.2d 1002, 1004 (7th Cir. 1992)(limiting constitutional

right to representative to specific circumstances defined in Wolff).

The Court of Appeals, like the district court, completely failed to hear

my claim that the DHO did not allow me to view a shred of evidence prior

or during the hearing, and thatthe DHO denied me my right to be heard

I made factual allegations that I was not allowed to view a shred of evidence

that was being used against me by the DHO. Confidential information was used but

no reason was provided to me ever as to why it should not be revealed to me. I

also made factual allegations that the DHO denied me my right to be heard and

to provide documentary evidence by not allowing me to tell my side of the story'

and by cutting me off each time I attempted to speak about the conduct in my

defense. The district court and Court of Appeals completely skipped this claim

in denying and affirming the Petition.

The Court of Appeals, like the district court, completely failed to hear

my claim that since the DHO did not write the DHO Report, my right to a

written statement of the factfinders was violated

I made factual allegations that the DHO did not write the DHO -Report since

he had retired. Wolff held that inmates must be provided with "a written

statement of the factfinders as to the evidence relied upon and the reasons

12.

for the disciplinary action taken." Wolff at 563 (emphasis added). The factfinder

in this case was the DHO, and since someone other than the factfinder wrote

the DM0 Report which included the evidence relied upon and the reasons for

action, due process wasn't satisfied. Both the district court and the Court of

Appeals completely skipped over this claim.

Use of Compelled Answers by the DM0 Violated my Right under the SelfIncrimination Clause of the Fifth Amendment

I made factual allegations in my Petition that I was compelled to give

testimony which might tend to show that I had committed a crime, and that use

of those compelled answers were a violation of my right under the SelfIncrimination Clause of the Fifth Amendment. In Lefkowitz v. Turley, 414 U.S.

70, 77 (1973) this Court said that:

[

,T]hej[Fifth] Amendment not only protects the individual

against himself in a criminal prosecution but also privileges

him not to answer official questions put to him in any other

proceeding, civil or criminal, formal or informal, where the

answers might incriminate him in future criminal proceedings,

wherever the answer might tend to subject to criminal

responsibility him who gives it... It must be considered

irrelevant that a petitioner was a witness in a statutory

inquiry and not a defendant in a criminal prosecution[.]

(internal quotation marks and citations omitted).

Certainly, the compelled testimony that I provided to the interrogators tended

to show that I had cornmited a crime. Indeed, according to the Incident Report,

the FBI,and AUSA were involved as well. The DM0 should not have used that

compelled testimony in order to convict me as it deserved to be privileged

and immune. The district court and Court of Appeals also skipped this claim

like many other claims.

An Incident Report Mritten in Retaliation of Filing a Grievance Violates

the First Amendment

In my Petition I claimed that the Incident Report writer wrote the repot in

retaliation for exercising my right under the First Amendment. I stated all of

the elements in that claim to make out a prima facie case that would entitle me

to relief along with supporting facts, which included the fact that a BOP staff

13.

member had told me that the reason why I was written the Incident Report was

because of appealing a prior unrelated Incident Report to the BOP's Regional

Office (which was later granted and expunged). The district court and the

Court of Appeals completèy skipped this claim.

V. Reasons for Granting Certiorari

Code 299 (as well as Codes 199, 399, & 499) are so lacking in giving

notice to inmates and inarguably covers so much protected conduct under the

First Amendment that inmates throughout the Federal prison system, along with

those state prison systems that use similar language in their prohibited acts,

are being punished with significant loss of liberty in the form off loss of

GCT. Inmates are being stripped of their GCT for charges that are completely

indefensible.

It would be a gross miscarriage of justice if this Court does not exercise

its suprevisory powers in the circumstances stated above. District courts and

Courts of Appeals should not be allowed to simply skip claims that they do

not want to hear. The courts below abused their power and decided the cases

arbitrarily and capriciously. This type of conduct should not be tolerated by

this Court and be sanctioned, so as to send a message to those courts that

think they can do whatever they want to with the powers given to them by the

people.

There is a circuit split on the issue of the limit to which a staff

representative must be provided to inmates under the right established in

Wolff.

CONCLUSION

Lacking any rational or principal basis of support, the decision below

is clearly contrary to this Court's prior decisions and to existing precedent

and practice of the courts. If allowed to stand, it will have the effect of

condoning such extreme departure from accepted judicial proceedings.

14.

In sum, the decision below demonstrates so compelling a need for the

exercise of this Court's power of supervision that it should be summarily

reversed, under Sup. Ct. R. 16, on the second question presented in this

Petition, and/or allow formal briefing on the merits of the first and

second questions.

Dated: March 9, 2018

U

Respectfully submitted,

VIVEK SHAH

43205-424

Federal Medical Center

P.O. Box 14500

Lexington, KY 40512

15.