Petition for Writ of Certiorari — Erwin Eugene Semien, Petitioner v. United States

IN THE

SUPREME COURT OF THE UNITED STATES

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ERWIN EUGENE SEMIEN

.

PETUHD

(Your Name)

s:p 27 Z18

VS.

UNITED STATES OF AMERICA

OFIC OF THE CLERK

SUFF.E_COURT, U.S.

RESPONDENT(S)

-

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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

PETITION FOR WRIT OF CERTIORARI

ERWIN EUGENE SEMIEN

(Your Name)

F.C.I. Beaumont Low P.O. BOX 26020

(Address)

Beaumont, TEXAS 77720

(City, State, Zip Code)

•

N/A

(Phone Number)

QUESTION(S) PRESENTED

Question One: Does the Federal time credit Statute 18 U.S.C. § 3585(b)

use of the non-discretionary language that federal inmates

"Shall be given credit" create a liberty interest in

in sentencing credits? And if so is this "state-created"

liberty interest protected by the 5th Amendment due process

clause? As this court has decided in Board of Pardons V.

Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 LEd. 2d 303 (1987)

and Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct.

2100, 60 L.Ec1. 2d 668 (1979).

Question Two: Is the 5th Circuits holding that a person who is subject to

"detention orders" [18 U.S.C. §3142(e)] and "Sentencing

orders" [18 U.S.C. § 3143(a)] is not "official detention"

contrary to Supreme Court precedent and clearly established

law set forth in Reno v. Koray 515 U.S. 50,432 L.Ed. 2d.

46, 115 S.Ct. 2021 (1995).

Question Three: Does a person who was "released in error" into community

and living a lawful and law-abiding life for a number of years, - have a

right to procedural due process established in Morrissey v. Brewer 408 U.S.

at 477, 33 L.Ed. 2d. 484, 92 S.Ct. and YOUNG V. HARPER 520 U.S. 477 (1997)

entitling them to "some type of hearing" before reimprisonment? The D.C.

Court of appeals (see. Hurd v. Dist. of Columbia, D.C. Cir., No. 15-7153,

7/28/17) and the 5th Cir. in Semien v. United States No.17-40970 are in

conflict on this issue. Which court is correct?

LIST OF PARTIES

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

[ ] All parties do 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:

TABLE OF CONTENTS

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

JURISDICTION....................................................................................................................2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................................3

STATEMENT OF THE CASE ............................................................................................4

REASONS FOR GRANTING THE WRIT.......................................................................... 5

CONCLUSION.................................................................................................................... 6

INDEX TO APPENDICES

APPENDIX A The opinion of the United States Court of Appeals

for the Fifth Circuit.

APPENDIX

Decision of the United States District Court.

APPENDIX

Recommendations of United States magistrate Judge.

APPENDIXD

United States Court Of Appeals for the Fifth Circuit

denial of timely petition for Rehearing Enflanc.

APPENDIX E

APPENDIX F

..

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

?pg.

Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415

96 L.Ed. 2d 303 (1987).

Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 1 99 S.Ct....? Pg.

2100 60 L.Ed. 2d 668 (1979)

Reno v. Koray 515 U.S. 50, 132 L.Ed. 2d. 46, 115 S.Ct. 2021 .7 pg.

(1995).

Morrissey v. Brewer 408 U.S. at 477, 33 L.Ed. 2d. 484 92

S.Ct. 2593 (1972).

.Pg.5,7.Pg.

..

Young V. Harper,520 U.S. 477 (1997).

7's pg.

Hurd v. Dist. of Columbia, D.C. Cir., No. 15-7153, (7/28/17) .7's Pg.

Semien v. United States 5th Cir., No. 17-40970 (8/10/18).

...

?'s Pg.

STATUTES AND RULES

TITLE 18 U.S.C. § 3585(b) ...............................3,5, 7's Pg.

TITLE 18 U.S.C. § 3142(e)

?'s pg.

TITLE 18 U.S.C. § 3143(a)

7's pg.

OTHER

5th Amendment: Due Process Clause........................Pg. 3,5

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

[ A For cases from federal courts:

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

the petition and is

II] reported at

; or,

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

[ is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

[I reported at

; or,

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

[>d is unpublished.

B

[ I For cases from state courts:

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

Appendix

to the petition and is

; or,

II I reported at

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

[I is unpublished.

The opinion of the

court

appears at Appendix

to the petition and is

II I reported at

; or,

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

[I is unpublished.

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JURISDICTION

[x ] For cases from federal courts:

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

was August 10, 2018

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

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

Appeals on the following date: September 10, 2018

order denying rehearing appears at Appendix D.

,

and a copy of the

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

to and including

(date) on ___________________ (date)

in Application No. .._A______

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

[ ] 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 ifie the petition for a writ of certiorari was granted

to and including

(date) on

(date) in

Application No. _A_______

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

2.

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._......_U_... _-

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

18 U.S.C. 3585(b) Credit for Prior Custody: A defendant shall be

given credit toward the service of a term of

imprisonment for any time he has spent in official

detention prior to the date the sentence commences(1) as a result of the offense for which the

sentence was imposed; or

(2) as a result of any other charge for which the

defendant was arrested after the commission of

the offense for which the sentence was imposed;

that has not been credited against another sentence.

5th. Amendment: Due process clause.

3.

STATEMENT OF THE CASE

On December 14, 2005, the federal grand jury returned count indicment. On December 27, 2005 petitioner made an initial on the indictment by writ of habeas corpus ad prosequendum, where an order of

detention was filed (docket entry No. 12 and 24). On December 20,

2006 petitioner was sentenced to 115 months imprisonment, six years

supervised release, and $400 specail assesment (docket No. 148 &149).

On April 18, 2007, petitioners-State parole was revoked due to

federal conviction. On February 13, 2009 I was released (now known

in error) from State custody, to which I stayed out a total of 5

years and 3 months (63 months). Until my re-arrest by the U.S.

Marshalls on May 2, 2014.

On July 2, 2015, Petitioners sentence was reduced to 96 months based

on a retroactive amendment to the sentencing guidelines (docket No.

183) Pursuant to 18 U.S.C. § 3582(c)(2).

Petitioner exhausted all administrative remedys as required by law.

Warden denial July 28, 2014, Regional denial October 30, 2014,

Washington denial on March 6, 2015.

Once administrative remedys were exhausted, petitioner through consel

filed a Writ of Habeas corpus (§ 2241) (cause No. 1:15-cv-257) Docket

entry No. 1) which the magistrated recommended denied on March 28,

2016 (see. docket No. 8). petitioner timely objected on April 6, 2016

(see. docket No. 9 & 10) requesting "de novo" review which was denied

on August 22, 2017 (docket No. 12 & 13).

Petitioner Appealed (Timely) to Court Of Appeals for the Fifth Circuit

Appeal No. 17-40970. Which was denied on August 10, 2018, Petitioer

rehearin EnBanc denied on September 10, 2018.

4.

REASONS FOR GRANTING THE PETITION

This court should grant petition due to the magnitude of the

CONSTITUTIONAL issues and the impact on the amount of federal

prisoners this case will affect. This court decision would put

all persons convicted of a federal offense on notice that the

statute 18 U.S.C. § 3585(b) creates a "liberty interest" in

sentencing credits and that "liberty interest" is protected by

the 5th Amendment due process clause. It would be in the interest

of justice and fairness to notify the puplic of this State-Created

CONSTITUTIONAL Right.

This Court should Grant this Petition to Put all citizens on notice

that they have a right to procedural due process before being

recommited to imprisonment and are to entitled to the procedural

protections set forth by this court in Morrissey v. Brewer 408 U.S.

477 1 33 L.Ed. 2d. 484, 92 S.Ct. 2593 (1972).

In the interest of Justice and fairness this Honorable Court

should GRANT petition due to the impact on every future person

convicted and sentenced to imprisonment for a federal offense.

RESPECTFULLY,

ERWIN EUGENE SEMIEN

5.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

ERWIN EUGENE SEHIEN

Date:

September 24, 2018