Petition for Writ of Certiorari — Gregory Donel Johnson, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

LI

17A613

No.

IN THE

SUPREME COURT OF THE UNITED STATES

Gregory Donel Johnson

Lone Davis

-

PETITIONER

VS

.

-

TDCJ-ID Director

-

RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Gregory Donel Johnson TDCJ-ID# 01779137

CID Goree Unit

7405 HWY 75 South

Huntsville, Texas 77344

1.

-

TABLE OF CONTENTS

OPINIONS BELOW ...............................................1

JURISDICTION ..............

2

CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED ............. 3

QUESTIONS PRESENTED AND LIST OF PARTIES .....................4

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

. ........ 5

STATEMENT OF FACTS ............

REASON-FOR GRANTING THE WRIT'

Question of Law #1....

6

.

..............................9

... ..................

.

. ..... .. .. ......

. 9-10

..

Question of Law #2 ....... . ............... .. .. . .... . .. . .... ..10-12

Question of Law #3 4

12-15

66.......................................

CONCLUSION ......

15

PRAYER......................................................16

INDEX TO APPENDICES

APPENDIX A is the judgment issued in the United States Court of

Appeals, Fifth Circuit.

APPENDIX B is the judgment issued in the United States District

Court for the Southern District of Texas Galveston

Division.

APPENDIX C are the Step-1 and Step-2 Grievances filed in the Texas

Prison Disciplinary.

APPENDIX D is the 14th Amendment of the United States Constitution.

APPENDIX E is the order granting the petitioner in forma pauperis.

11.

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[*] For cases from federal courts:

A

The opinion of the United States court of appeals appears at Appendix

the petition and is

to

[1 reported at

; or,

[II has been designated for publication but is not yet reported; or,

[1 is unpublished.

B

The opinion of the United States district court appears at Appendix

the petition and is

[1 reported at

; or,

[] has been designated for publication but is not yet reported; or,

[X-'] is unpublished.

[c] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix C

to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[] is unpublished.

The

opinion

of

court

the

appears at Appendix

to the petition and is

[1 reported at

; or,

[ ] has been designated for publication but is not yet repoited; or,

[ I is unpublished.

1.

to

JURISDICTION

[] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was Nov. 01,2017

[] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:

, and a copy of the

order denying rehearing appears at Appendix

[x] An extension of time to file the petition for a writ of certiorari was granted

to and including Ari1 2..7018

in Application No. 12 A 613

(date) on

Dec. 07,2017

(date)

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[x] For cases from state courts:

The date on which the highest state court decided my case was Aug. 09, 2016

A copy of that decision appears at Appendix C

[1 A timely petition for rehearing was thereafter denied on the following date:

and a copy of the order denying rehearing

appears at Appendix

.

[] An extension of time to file the petition for a writ of certiorari was granted

to and including April 2, 2018 (date) on Dec. 0712017 (date) in

Application No. 17A 613

.

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

2.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 1254 (1)

.2

28 U.S.C. § 1257 (a) .....................................2

28 U.S.C. § 2101 (e) ....................................15

28 U.S.C. § 2241 (c) .....................................10

28 U.S.C. § 2254 (a) .....................................10,12,13

28 U.S.C. §§ 2253 (c)(l) .................................15

Texas State Constitution

§

7.251 Parole Criteria .................................13

14th Amendment of the United States ......................4,11,12,14,15

LIST OF LEGAL AUTHORITIES

Federal Cases

Haiahan v. Doling, 331 F.3d 93,97 (2d Cir. 2003) .........9,10,14

1(alwasinski, 201 F.3d at 108 .............................10,14

Luna v. Pico, 356 F.3d 481,489-90 (2d Cir. 2004) .........11

Shakur v. Selsky, 391 F.3d 481,489-90 (2d Cir. 2004) .....11

Supreme Court Cases

Brecht

V.

Abrahanson, 507 U.S. 619,633-34 (1993) .........10

Hohn v. McDaniel, 529 U.S. 524 U.S. 236,241 (1998) .......14

HbIse v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L. Ed 739

(1945) ...................................................15

Miller-El, 537 U.S.

t 336 ...............................15

Slack v. McDaniel, 529 U.S

473,484 (2000) ...............14

Tennard v. Dretke, 542 U.S 274,282 (2004)

.............14

Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L. Ed. 2d 935 (1974)..10,14

3.

QUESTION(S) PRESENTED

Does an accused inmate have the right to attend, present witnesses

and submit other evidence in his defense in a prison disciplinary

hearing?

Does an accused prisoner have a constitutional right to confront

and to cross-examine adverse witnesses in a state prison disciplinary hearing?

Did the United States Court of Appeals for the Fifth Circuit error

by not granting COA, where the petitioner's 14th Amendment of a

Due Process right was violated in a Texas. State prison disciplinary

hearing?

LIST OF PARTIES

All parties appear in the caption of the case on the cover page

PETITION FOR WRIT OF CERTIORARI

TO THE FIFTH CIRCUIT COURT OF APPEALS

Opinion Below

A copy of the issued mandate on November 1,2017, and

copy was.,

entered on November 1,2017, denying petitioner his motion for a

Certificate of Appealability (COA). See Appendix

A

Jüriôiction

The Jurisdiction of Certiorari is involved under 28 U.S.C, Section

2101 (c).

STATEMENT OF THE CASE

The petitioner has been denied the right to file his appeal by the

United States Fifth Circuit Court of Appeals. The petitioner is currently serving 26 years for robbery with no findings of a deadly weapon.

The petitioner challenges not his underlying conviction, but he challenges the result of a prison disciplinary proceeding lodged against

him that deprived him Due Process, a violation of what is protected

Under the 14th Amendment of the United. States.

On 07-17-16 in TDCJ-ID Darrington Unit the petitioner was charged

with a code 13.0 which is a Level-2 Offense of "did use and was und er the influence of an alcoholic beverage": and was p1àcedin PiDe-Hëaring

Detention. On 07-19-16 Petitioner was notified of the charge against

him by Case Substitute Investigator((CSI) G. O'Neal and he informed

her that he, wanted to attend the disciplinary hearing. On 07-19-16

Détentiôn: Hearing Officer (DHO) G. Bennett/Capt. Major conducted the

hearing in absentee and rendered ai.ditc of guilt, deducted two

Line-Classes, a deduction in custody status and 30 days retriction of

commissary, recreation, visitation which resulted in a deduction of

Good-Time credit earned.

STATEMENT OF FACTS

The petitioner filed a STEP-i Grievance in TDCJ-ID on the Darrington

Unit on 07-24-16 appealing the outcome in case #20160348124. On 0729-16 the STEP-1 Grievance was reviewed by Asst. Warden Danheimr where

he ruled)that there was no procedural errors and that there would be

no further action. Petitioner then filed a STEP-2 Grievance in case

#20160348124 on 07-31-16 and that grievance was reviewed in the central

reginal office in Huntsville, Texas, where the grievance cooiinttor

K. Ward concurred with the decision of the Disciplinary Hearing Officer on 08-09-16. Petitioner filed his 28 U.S.C. Claim and it was denied by George C. Ranks Jr., a United States District Judge for the

Southern District of Texas, Galveston Division on 09-26-16. The petitioner proceeded further for (COA) in the U.S. Court of Appeals the

Fifth Circuit and it was dehied November 1,2017. Petitioner now files

his writ of certiorari in the Supreme Court of the United States.

Factual Background

The petitioner Gregory Donel Johnson turned out to his job assignment

in Farm Poultry on 07-17-16 a Sunday morning at 6:00 am. Because of

reJ.'-igouactivities and visitation on Sundays the farm workers are

short-handed. Petitioner was assigned to Chicken HOuse #5, where the

agriculture supervisor Mr. Aguilar assisted him that morning picking

eggs. Around 10:00 am Mr. Aguilar escorted Petitioner along with the

other offenders to the Darrington Uhit Trusty Camp turn-out-shed for

lunch. Petitioner ate lunch at 10:15 am, collected clean cloths from

laundry "and returned back for the second half of work, wheë Mt Aguilar

continued to help him pick eggs in Chicken House #5. Work was-- completed

around 3:00 pm and Mr. Aguilar escorted Petitioner along with the other

farm workers to the trusty camp turn-out-shed, where 2nd shift Sgt.

Ngumba was conducting strip search. Petitioner entered the shed and

gave the sergeant his clean cloths. Sgt. Ngumba threw the cloths on

the dirty floor. Petitioner asked the sergeant why did he throw the

cloths on the dirty floor. Sgt. Ngumba told him to shut up and strip.

P.ti.tjoner followed the sergeant's direct order and reached down,

grabbed his cloths, folded them and placed them on the counter. Sgt.

Ngumba stripped the petitioner, looked over and saw that the clean

cloths was folded on the counter, grabbed the cloths and threw them

on the dirty floor again. Petitioner asked him why did he throw the

cloths on the dirty floor. Sgt. Ngumba then gave Petitioner a direct

order to go to the turn-out-cage, where he placed Petitioner in handcuffs, escorted him to the unit infirmary, where the petitioner was

given a vital-examination and placed in Pre-Hearing Detention (PHD).

7.

On 07-19-16 Case Substitute Investigator (CSI) Ms. O'Neal visited

Petitioner in (PHD)I read the offense that he was charged withl,,asked

how does he plea and if he wanted to waive 24 hours to attend the

hearing. Petitioner gave (CSI) Ms. O'Neal his statement that he was

not under the influence of an alcoholic beverage and that Farm Supervisor Mr: Aguilar worked with him all day that particular day of the

accused offense and that he wanted to attend the hearing and want e d

Mr. Aguilar as a witness. Ms. O'Neal circled "yes" on the TDC!i-ID

Disciplinary Report and Hearing Form which is exhibited in the Petitioner's 28 U.S.C. § 2254 at 16-41618.36 [USCA5].

Capt./Major Bennett the (DHO) conducted the hearing without the petitioner being present. Petitioner was given a TDCJ-ID Official LayIn Pass Administrative effective date 07-20-16 for Unit Classification Committee (UCC) and was denied that appointment by prison security with no explanation. The exhibit is implicated in the pètitioner:'s

2:8 U.S.0 § 2254 at 16-41618.38 [USCA5].

8.

REASON TO GRANT CERTIORARI

Question of Law #1:

Does an accused inmate have the right to present witnesses and submit other evidence in his defense in a:pr•.iso disciplinary hearing?

The petitioner Gregory Donel Johnson was deprived of his right to

attend the disciplinary hearing, (e.g., where he was not allowed to

present his witness), nor was he allowed to attend an official lay-in

appointment for (ucC) Unit Classification Committee while confined in

Pre-Hearing Detention. U.S.C.A. Const. Amend 14.

Petitioner claims a Due Process violation, where the TDCJ-ID Detention Hearing Officer J. Bennett denied him the right to attend a major disciplinary hearing. Documents are included in the original record for 16-41618 [USCAS].

Due Process Requirements

D ue Process requires that the inmate facing such a disciplinary reeive:

a tweenty-four-hour advance written notice of the hearing on the

claimed violation;

an opportunity to he heard, including the ability to call witnesses.

and present evidence in his or her defense, when - consistent with

: - iflstitujIofla1Safty an3:cerrectIonal goals;

a written statement by the fact finder detailing the evidence

relied upon and the reason for the disciplinary action.

It has long been clear that inmates retain Due Process rights in

prison disciplinary hearings, see Hanahan v. Doling, 331 F.3d 93,97

(2d Cir. 2003). Certain due process protection therefore apply where

disciplinary proceedings may lead to the loss of good time credit,

see Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct 2963, 41 L. Ed. 2d

935 (1974); Inmates are entitled to advance

bf, th6 charge;

a fair and impartial hearing; a reasonable opportunity to call witness and present documentary.:evidence; and written statements of the

disposition including supporting facts and reasons for the action taken,

ee Kalwasinski, 201 F.3d at 108. As the supreme Court has held, due

process requires that in a disciplinary hearing resulting in imposition of loss of good time credit or solitary confinement, an inmate

must be afforded advance written notice of the charge against him and

a written statement of fact finding supporting the disposition and

reasons for the disciplinary action taken.

rpetitioner's Step-1 and Step-2 grievanesdn the State Prison warrant

an investigation of a due process violation, where ie was

the right to attend the disciplinary 'heir-in

ido1i

See 16-41618.36 [USAC5].

Question of Law #2:

Does an accused prisoner have a constitutional right to confront

and to cross-examine adverse witnesses in a state prison disciplinary hearing?

Riahts to Procedural Due Process

8 U.S.C. §§ 2241 (c)(3) and 2254 (a); Brecht v. Abrahamson, 507

U.S. 619,633-34 (1993)(explaining that "the writ of habeas corpus

has historically been regarded as an extraordinary remedy, a bulwark

against convictions that violate fundamental fairness").

Thus, a habeas corpus petitioner must established a constitutional

violation in order to prevail.

10.

The Fourteenth Amendment prohibits the government from depriving an

inmate of life, liberty, or property without due process of law.

Analysis of procedural due process question's involves a two-part

inquiry: (1)

hether the State has interfered with an inmate'.s pro-

tected liberty or property interest; and (2) whether jbroceduralL safeds are constitutionally sufficient to protect against unjustifid

dorivations.

On July 17,2016 Petitioner was admitted to the unit infirmary, where

the medical care provider administered a vital-examination, but no

blood analysis or breath field test was administered to determine

if indeed Petitioner was under the "influence of an alcoholic beverage".

The court considers a due process claim by (1) defining the potential

liberty interest and (2) determiningthe:processit was- - due); Shakur

v. Seisky, 391 F4 3d 106, 118 (2d Cir. 2004)(to state a claim of denial

of due process, an inmate must show that the deprivation procedure were

constitutionally insufficient).

Petitioner claimed that the (DFIO) J. Bennett based her findings on

Sgt. Ngumba's accusation that the petitioner used and was under the

influence of an alcoholic beverage. Due Process requires that a written statement by the fact finder detailing the evidence relied, upon

and the reason for the disciplinary action and it requires that- "some

evidence" be admitted to support the disciplinary board's decision.

Prison officials must provide an explanation if they refuse to.allow

an inmate to call a witness at a disciplinary hearing; however, they

may do so either on the record during the hearing or subsequently in

court if the denial in challenged. See e.g. Luna v. Pico, 356 F.3d

481-,489-90 (2d Cir. 2004)(due process violation because inmate punished

on basis of accusation of a victim who refuse to confirm allegations,

11.

punishment had been "based on a bare accusation, and without the support of any credible evidence. Petitioner was deprived the liberty to

confront and cross-examine adverse witnesses and to defend the evidence against him. U.S.C.A. Const. Amend. 14.

Question of Law fl:

Did the United States Court of Appeals for the Fifth Circuit error by

not granting COA, where the petitioner's 14th Amendment of a Due Process was violated in a Texas State prison disciplinary hearing?

The petitioner Gregory Donel Johnson, Texas prisoner #01779137, contends that the COA inquiry of the District Court's decision is debatable

and moved' for a certificate of appealability (COA) from the dismissal

f his 28 U.S.C. § 2254 petition in which he challeged a prison disciplinary conviction and punishment. Petitioner maintains that he was

denied due process during the disciplinary proceedings and that the

punishment was too severe. He also contends, that the punishment implicated a protected liberty interest because the disciplinary action

taken against him resulted in the loss of the opportunity to earn

good time credit (including diligent participation credit) and the

denial of parole.

The Fifth Circuit Court of Appeals asserts that the petitioner raised

for the first time that the punishment implicated a protected liberty

interest because the disciplinary action taken against him resulted

in the loss of the opportunity to earn good time credit (including

diligent participation credit) and the denialof parole; see Memoradum Opinion and Order by George C. Hanks, a t3nit6d StatesDitrict.

Judge for the Southern District of Texas, Galveston Division, at

12.

I6-41618.48 [uScA5] , where the Justice based his opinion in the petitioner's

28 U-.-S.C. § 2254 concerning the extent of the disciplinary orrvictiorr and

its consequent reduction in his time-earning classification that may have

affected his eligibility for early releasefrom prison. So the petitioner

contends that it was'nt presented for the first time.. See also 16-41618.49,

where the Justice states that JOhnson concedes that he did not lose goodtime credit as a result of his disciplinary conviction. The petitioner

traversed that statement in his application for COA, because the record

does not reflect Johnson ever conceding that good-time was'nt lost.

§ 7.251 Parole Criteria

The Texas Board of Pardons and Paroles has the statutory duty to make release decisions that are in the best interest of society, and when i•t.thinks

an offender is able and willing to be a law abiding citizen. Release to

parole is a privilege, not a right, and the parole decision maker is vested

with complete discretion to grant, or to deny parole release as defined

by statutory law. Therefore other than on initial parole eligibility, €he

offender must not have a major disciplinary misconduct report in the sixmonths period prior to the date he is reviewed for parole, which has resulted in loss of good conduct time or reduction to a class ifleàtionr:tus

below the assigned during that offender's initial entry into the Texas

Department of Criminal Justice.

Petitioner was denied parole because he was denied a constitutional right

to confront and cross-examine adverse witnesses in aTexas prison diciplinary hearing, see 16-14618.37 [usCA5]. The Texas Board of PardOns and

Parole's record indicates that the petitioner GrgorqDonel JohnoriWasdeniêd

and set-off two years because of Rule (4), implying that he committed a

major disciplinary offense during the preceding six months resulting in

a loss of good conduct time or loss of status below that at which he en13.

tered prison; ora disregard for the rules. This is the notice of the

parole decision required by Texas Government Code Section 508.1411.

It has long been clear that inmates retain due process rights in prison disciplinary hearings, see Hanrahan v. Doling, 331 F.3d 93,97 (2d

Cir. 2003). Certain due process protections therefore pp:Uewhere disciplinary proceedings may lead to the loss of good time credit, see

Wolff v. McDonnell, 418 U.S. 539,557, 94 S.Ct. 2963, 41 11 Ed. 2d 935

(1974); Inmates are entitled to advance written notice of the charge;

a reasonable opportunity to call witness and present documentary evidence; and a written statement of the disposition icluding supporting

facts and reasons of the action taken, see Kaiwasinski, 201 F.3d at 108.

Petitioner's Step-1 and Step-2 grievances warranted aproper investigation of a due process violation, where he was denied the right to

attend the disciplinary hearing, see 16-41618.32 through 34 [USCA5], a

violation of U.S.C.A. Const. Amend. 14.

The petitioner Gregory Done! Johnson has demonstated "that reasonable

jurists would find the district court's assessment of his contitutional

claims debatable andwrong . ; see Tennard v. Dretke, 542 U.S. 274,282

('2004)(quoting Slack v. McDaniel, 529 U.S. 473,484 (2000), see also

Hohn v. U.S. 524 U.S. 236, 141 L. Ed. 2d 242. The Supreme Court had

jurisdiction to review on petition for writ of certiorari, a denial

of application for certificate of appealalibility under the Antiterrorism and Effective Death Penalty Act (AEDPA) by a circuit judge or

panel of the Court of Appeals; application for a certificate of appealability qualified as a "case" in the Court of Appeals, under a statute

permitting review in such cases by certiorari to the Supreme Court, regardless of whether the government chose to oppose application; over-

14.

ruling House v. Mayo, 324 U.S. 42, 65 s_Ct. 517, 89 L. Ed. 739 (1945).

28 U.S.C-A. §§' 1254, 2253 (c)(1).

CONCLUSION

Petitioner has demonstated that this petition should have been resolved

in a different manner and that the U.S. court of Appeals for the Fifth

Circuit errored in denying (COA) and that the issues presented were adequate to deserve encouragement to proceed further, see Miller-El, 537

U.S. at 336.

The petitioner asserted through out these proceedings that he has the

right to attend and present witness in a state prison disciplinary hearing

and was denied that constitutional right.

Petitioner also asserts that this case is of such imperative public.

importance as to justfy deviation from normal appellate practice and to

require immediate determination of this Court. See U.S.C. § 2101 (e).

Finally the petitioner asserts that Certificate of Appealability

should issue, where the United States District Judge denied the petitioner's request in civil-action No. 3:16-cv-244 to conduct a hearing

on the contraverted, previously unresolved factual issues of deprivation of the petitioner's Due Process Rights. U.S.C.A. Const Amend 14.

15.

PRAYER

WHEREFORE PREMISES CONSIDERED, the petitioner Gregory Donel Johnson

pray the Honorable Supreme Court of the United States grant certiorari

to proceed further in [USCA5] No. 16-41618 and civil-action 3:16-cv-24

the releif sought to therein.

Respectfully submitted,

E3iA

16.