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

No.

IN THE

SUPREME COURT OF THE UNITED STATES

JOHN GRAY

PETITIONER

-

(Your Name)

vs.

LORIE DAVIS. Director

RESPONDENT(S)

-

ON PETITION FOR A WRIT OF CERTIORARI TO

FIFTH CIRCUIT U.S. COURT OF APPEALS

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

JOHN GRAY (TDCJ #475245)

(Your Name)

BOYD UNIT; 200 Spur 113

(Address)

Teague, Texas 75860

(City, State, Zip Code)

(Phone Number)

QUESTION(S) PRESENTED

Whether certiorari is warranted to correct disobedience by the state

courts and lower federal courts if their decisions are contrary to clearly

established Supreme Court law and the United States Constitution where the

Petitioner was denied,'.the federal right to due process and he has no other

adequate remedy at law to challenge his ongoing illegal confinement by the

Respondent after the lawful correct sentence expiration date of 8-9-2014

assessed by the state jury under number 481656 and TDCJ #475245.

Whether certiorari is warranted where there is a presumption of

vindictiveness to deny the Petitioner due process and habeas relief by the

lower federal courts and the state courts when the factual circumstances

indicate a "reasonable likelyhood of vindictiveness" to conceal or inproperly enforce unconstitutional retroactivity of state laws to illegally

confine the Petitioner past his true and correct sentence maximum expiration

date which is contrary to clearly established Supreme Court law and the

United States Constitution.

LIST OF PARTIES

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

{ ] All partieTdO not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

(7 1)

TABLE OF CONTENTS

OPINIONSBELOW........................................................................................................1

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

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................................

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

REASONS FOR GRANTING THE WRIT..........................................................................

CONCLUSION.....................................................................................................................

INDEX TO APPENDICES

iØ.&4t- tL.

APPENDIX A F4

ItI

APPENDIX B

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APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

C U;)

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-

I

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Cruz v. Johnson, 2001 U.S.App.LEXIS 30588,No.00-50720 (5th Cir.). 6

In re Cain, 137 F.3d 234 (5th Cir.1998) ................................5

Johnson v,, U.S., 120 S.Ct. 1795 (2000) ...............................5,8

Jones v. Cunningham, 83 S.Ct. 373 (1963) .............................6

Lynce v. Mathis, 117 S.Ct. 891 (1997).................................8

McCall v. Dretke, 390 F.3d 358 (5th Cir.2004) ........................5,8

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593,33 L.Ed.2d 484 (1972). 8

United States v. Beals, 87 F.3d 854 (7th Cir.1996) ....................8

United States v. Robinson, 62 F.3d 1282 (10th Cir.1995) ...............8

United States v. Goodwin, 457 U.S. 368,373, 102 S.Ct. 2485,2488,

73 L.Ed.2d 74 (1982) ......6

8

Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840, 118 L.Ed.2d 524

Weinstein v. Bradford,423 U.S. 147,46 L.Ed.2d 350,96 S.Ct. 347 (1975). 7

..

STATUTES AND RULES

AEDPA (Antiterrorism and Effective Death Penalty -Act) .................5

28 U.S.C. § 453 .......................................................6

OTHER:

Ex Parte Keller,173 S.W.3d 492,at 495 (Tex.Crim.App.2005) .............7.

Ex Parte Schroeter, 958 S.W.2d 811 (1997) .............................. 6

Werner v. State,445 S.W.3d 301,303-304 (Tex.App.LEXIS 4295 (2013) .....6

( v)

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

[i/i For cases from federal courts:

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

the petition and is

A

[ ] reported at

; or,

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

[ ] is unpublished.

4 to

The opinion of the United States district court appears at Appendix

the petition and is

[ ] reported at

; or,

[t/j has been designated for publication but is not yet reported; or,

[ ] is unpublished.

[ ] For cases from state courts:

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

Appendix

to the petition and is

[1 reported at

; or,

{ I has been designated for publication but is not yet reported; or,

[ I is unpublished.

The opinion of the

appears at Appendix

______________________________

_______________

to the petition and is

[ II reported at

; or,

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

[ ] is unpublished.

1.

court

to

JURISDICTION

II i For cases from federal courts:

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

was

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

[41

A timely petition for rehearing was denied by toe United States Court of

Appeals on the following date: DA) e- nboi

, and a copy of the

/'o1

order denying rehearing appears at Appendix A

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

to and including

in Application No.

(date) on

(date)

A______

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

[ II For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix

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

and a copy of the order denying rehearing

appears at Appendix

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

to and including

Application No.

(date) on

________________

(date) in

A_______

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

2.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

United States Constitution:

Article I, Section 9, clause 3; Section 10, clause 1.

.

Amendment V;

-

Amendment XIII, Section 1.

Amendment XIV

28 U.S.C. § 2254

28 U.S.C. § 453

AEDPA (Antitérrorism aid Effëctiv beàth Penalty Act)

3.

--

STATEMENT OF THE CASE

On or about 8-9-1987 Petitioner began serving a jury sentence of 27

years under cause 481656 and TDCJ #475245 for a non-violent 3rd degree felony

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offense as shown on the trial court judgment and sentence and, on 8-9-2014

he lawfully served the complete sentence by remaining at all times lawfully

"in custody of TDCJ (Respondent)" as required under Texas Gov't Code Section

508.143 (a) and (b) while twice on authorized prison release to parole.

On 8-12-1999 Petitioner's parole was revoked for a non-criminal technical violation and the Respondent retroactively applied the first amended

version of Texas Gov't Code §§ 508.149 in tandem with 508.283 on 9-23-1999.

On or before 2-26-2010 the Respondent removed the retroactive application of §§ 508.149 and 508.283 enacted on September 1, 1997, from the Petitioner's 1987 offense under TDCJ #475245 and authorized his immediate eligibility for mandatory prison release to Mandatory Supervision under Texas

Gov't Code § 508.147(a).

On 8-25-2014 when the Petitioner appeared at the parole office and requested his sentence discharge papers for the primary offense, the Respondent and associate TDCJ agents responded by charging and convicted Petitioner

of committing FELONY terroristic threat against the United States by use of

the TDCJ revocation procedure [without a lawful arrest, Grand Jury indictment,

and without a judicial court of law], where Respondent retroactively cancelled 4,096 calendar days already served on the jury sentence and created a

new sentence maximum expiration date of 10-25-2025 by false1dclariingrthat

the Petitioner was "out of custody" from TDCJ for 4,096 calendar days and

retroactively applied 508.149 and 508.283 enacted in 1997 to the. 1987 offense to increase the original jury punishment imposed under cause 481656.

Petitioner is illegally confined since 8-9-2014 without due process.

4.

REASONS FOR GRANTING THE PETITION

Petitioner is unlawfully and unconstitutionally restrained and confined

'in custody of TDCJ' by the Respondent after he had completely served the jury

sentence of 27-years on or after the date of 8-9-2014 under TIJCJ#475245 in

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violation of hifèderal rights and contrary to clearly established U.S.

Supreme Court decisions and decisions by the Fifth Circuit U.S. Court of

Appeals which prohibited retroactivity of Texas Gov't Code § 508.149 to uncon-

stitutionally increase the original trial court punishment imposed as occurred in the primary case. See: Johnson v. U.S., 120 S.Ct. 1795, at 1800-1801

(2000) and; McCall v. Dretke, 390 F.3d 358, at 361, 365-366 (5th Cir.2004).

Certiorari is necessary because there was an unconstitutional motive by

the lower federal courts and the state courts to deny habeas corpus relief to

the Petitioner for attacking the Respondent' s unlawful or unconstitutional

administration of his 1987 jury sentence under TDCJ#475245, who has previously filed a federal habeas corpus petition challenging the validity of his

conviction or sentence, which was to defy or be disobedient and contrary to

clearly established U.S. Supreme Court law and the Fifth Circuit's own rule

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of law because, the Fifth Circuit U.S. Court of Appeals has clearly stated

that Congress did not intend for the federal \EDPA (Antiterrorism and Effective Death Penalty Act) to be used to preclude federal Courts from providing

habeas corpus relief for alleged procedural due process violations relating

to an unconstitutional administration of a prisoner's sentence as occurred

in the primary case. See: In re Cain, 137 F.3d 234-236 (5th Cir.1998) and;

Wade v. United States, 504 U.S. 181,185, 112 S.Ct. 1840,1843, 118 L.Ed.2d

524. (1992). The federal courts and state courts clearly recognized to deny

Petitioner the right to due process and the equal protection of the Ex Post

5.

Facto Clause when they all agreed that Respondent properly applied Texas

Gov't Code § 508.149 in tandem with § 508.283 retroactively to the 1987 offense of TDCJ#475245 for the purpose of retroactively increasing the original

jury punishment imposed by increasing the jury sentence maximum expiration

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date to October 25,. . 2025iF where all of the state and federal courts were clearly made aware of the Texas case of Ex Parte Schroeter, 958 S.W.2d 811 (1997)

which clearly prohibited retroactivity of Texas Gov't Code § 508.149 to felony

offenses committed before the September 1st, 1997, enactment of the code in

which the Texas appellate court cited Supreme Court law of Lynce v. Mathis,

117 S.Ct. 891 (1997). The written decisions by the federal district court

and the Fifth Circuit U.S. Court of Appeals (attached to Appendices) demon-

strates factual circumstances which indicates a "reasonable likelihood of

vindictiveness" by the judges of the state and federal courts to arbitrarily.

permit the Respondent to retroactively apply § 508.149 and § 508.283 for the

underlying purpose of authorizing Petitioner's unlawful and unconstitutional

prison confinement and custody under TDCJ. See: United States v. Goodwin,

457 U.S. 368,373, 102 S.Ct. 2485,2488, 73 L.Ed.2d 74 (1982); a g

Certiorari is also necessary because the federal courts' decisions to

deny Petitioner habeas relief because he was ["out of custody from TDCJ"

for a total of 4,096 calendar days while serving the primary jury sentence

on parole] demonstrates disobedience and contrary to clearly established

U.S. Supreme Court law including decisions by the Fifth Circuit U.S. Court

of Appeals and Texas Appellate Courts. See: Jones v. Cunningham, 83 S.Ct.

373 (1963); Cruz v. Johnson, 2001 U.S.App. LEXIS 30588, No.00-50720 (5th

Cir. 8-8-2001); Werner v. State, 445 S.W.3d 301, 303-304 (TexJpp. LEXIS

4295 [1st Dist.] HOUSTON, April 4,2013).

Certiorari is necessary to enforce Supreme Court law prohibiting retroactivity of the 1997 enactment of Texas Gov't Code §§ 508.149 and 508.283 to

Petitioner's 1987 offense of TDCJ#475245 because the lower federal courts

and state courts have denied him the federal right to due process and the

equal protection-under the Fifth Amendment's "Taking Clause" and Ex Post

Facto Clause to the United States Constitution. It is undisputed and claimed

by the lower federal courts and state courts that there were twp tins

in which the Respondent retroactively applied the 1999 amended version and

2013 amended version of H 508.149 and 508.283 to Petitioner's 1987 offense

for the underlying purpose of twice increasing the original jury punishment

imposed as a penalty for non-criminal technical parole violations which

demonstrates the showing of the newest sentence expiration date of 10-25-

2025. The Respondent can again retroactively apply 508.149 in tandem with

508.283 in the future in violation of the federal ex post facto clause,

because under Texas Gov't Code § 508.147(a) the Petitioner remains eligible

for mandatory non-discretionary prison release to Mandatory Supervision as

determined by the Texas Court of Criminal Appeals. See: Ex Parte Keller,

173 S.W.3d 492, (Tex.Crim.App.2005)(at 495). Therefore because of Respondent'

ability to retroactively apply §§ 508.149 and 508.283 in the furture to

retroactively cancel additional calendar time already served on the jury

sentence under TDCJ#475245, this factual circumstance

josticjabie

the "capable of repetition, yet evading review" doctrine of Weinstein which

should warrant the grant of certiorari. Weinstein v. Bradford, 423 U.S.

147,149, 46 L.Ed.2d 350, 96 S.Ct. 347 (1975).

Certiorari is necessary because it is inexcusable for the Fifth Circuit

U.S. Court of Appeals and the lower courts to defy or disobey the federal

7.

Ex Post Facto Clause to the United States Constitution contrary to clearly

established Supreme Court law under Johnson v. U.S., 120 S.Ct. 1795, at

1800-1801 (2000) and in Lynce v. Mathis, 117 S.Ct. 891 (1997).

The Fifth Circuit U.S. Court of Appeals' panel decision to defy or disobey Supreme Court law against retroactivity of Texas Gov't Code § 508.149

is in conflict with decisions by other U.S • Court of Appeals and contrary to

its own decision in McCall v. Dretke, 390 F.3d at 361, 365-366 (2004).

See: United States v. Beals, 87 F.3d 854, at 860 (7th Cir.1996); and

United States v. Robinson, 62 F.3d 1282 (10th Cir.1995).

Moreover, the Fifth Circuit's panel judges and' the federal district

court's adamant disobedience to Supreme Court law prohibiting retroactivity

of any state law which factually increases the original' punishment imposed

as occurred to the Petitioner was motivated by substantial personal bias

and prejudice against the Petitioner by viewing him as a previously con-

victed [felony terrorist against the United States as promoted and influenced by the Respondent's TDCJ entity and parole agents] even though the

Petitioner had never' been lawfully indicted by a Grand Jury, tried or convicted in a court of law for felony terrorism. Re: USDC Document 25 on

page 13 (of 15) at Lines 17-18. The district court and Fifth Circuit panel

reasonably knew as fact that the reason' for Petitioner's recommitment back

to TDCJ prison - after completely serving the jury sentence on 8-9-2014

was to serve additional penalty for the felony terroristic threat convic-

tion obtained by Respondent's parole division in clear violation of Petitioner's 'Morrissey' federal rights. Re: Morrissey v. Brewer, 408 U.S. 471,

475, 92 S.Ct. 2593, 33 LEd2d 484 (1972); Wade v. United States, 504 U.S.

181,185, 112 S.Ct. 1840,1843, 118 L.Ed.2d 524 (1992).

NP

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,