Petition for Writ of Certiorari — Leandro Leonel Gonzalez, Petitioner v. F. Armenta, et al.

Supreme Court, U.S.

FILED

IN THE

SEP 14 2O8

SUPREME COURT OF THE UNITED STATES

SEPTEMBER TERM, 2018

LEANDRO LEONEL GONZALEZ,

Petitioner,

-agai nstF. ARMENIA, et al

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Mule Creek State Prison

Name: Leandro Leonel Gonzalez

CDCR: V74928

Facility B, Building 7, Cell 120L

P.O. Box 409040

lone, CA 95640

Petitioner In Pro Per

OFFICE OF THE CLERK

Li

QUESTIONS PRESENTED

ONE

In an action in which petitioner was forbidding to write

letters to Tamara Ecclestone, is there a right to out-going mail

in the First Amendment of the United States Constitution?

TWO

In an --. action in which respondent failed to obtain testimony

from petitioner's requested witness Tamara Ecctestone, is there a

right to have a witness in the Due Process Clause of the

Fourteenth Amendment of the United States Constitution?

PARTIES

The petitioner is Leandro Leonel Gonzalez, a prisoner at

Mule Creek State Prison, in lone, California.

The respondents are F. Armenta, a correctional captain;

C. Holt, a supervisor from solution group international;

A. Jones, a correctional officer and investigative employee;

R. Davis, a correctional lieutenant; A. Allamby, a correctional

lieutenant; S. Anderson, a correctional lieutenant; J. Cuevas, a

correctional lieutenant; J. Luna, a correctional lieutenant and

M. Tamayo, a correctional lieutenant.

1

Table of Contents

Page #

Question Presented ..............................................i

Parties.........................................................i

Table of Authorities ...............................ii, iii, iv, v

DecisionsBelow ..................................................

Jurisdiction..................................

1

Constitutional and Statutory Provisions Involved .........1, 2 7 3

State ment of the Case ........................................ ,

Basis for Federal Jurisdiction ...........

6

Reasons for Granting the Writ ........................7 through 26

Conflicts with Decisions of Other Courts .......7 through 23

Importance of the First Question Presented ...............24

Importance of the Second Question Presented ..........25, 26

Conclusion.....................................................26

AL

Table of Authorities

Cases:

Woff v. McDonnell, 418 U.S. 539, 555-56, 94 S. Ct. 2963 (1974)

Turner v. Safley

Procunier v. Martinez, 416 U.S. 396, 413-14, 94 S. Ct. 1800 (1974)

Thornburgh v. Abbott, 490 U.S. 401, 413-14, 109 S. Ct. 1874 (1989)

Davis v. Goord, 320 F.3d 346, 351 (2nd Cir. 2003)

Morrison v. Hall, 261 F.3d 896 7 906 (9th Cir. 2001)

Zimmerman v. Tribble, 226 F.3d 568, 572 (7th Cir. 2000)

Barrett v. Belleque, 544 F.3d 1060, 1062 (9th Cir. 2008)

Nasir v. Morgan, 350 F.3d 366, 373 (3d Cir. 2003)

Martucci v. Johnson, 944 F.2d 291, 295-96 (6th Cir. 1991)

Woods v. O'Leary, 890 F.2d 883, 885-87 (7th Cir. 1989)

Samford v, Dretke, 562 F.3d 674, 679 (5th Cir. 2009)

Ortiz v. Fort Dodge Correctional Facility, 368 F.3d 1024, 1026 n.2

(8th Cir. 2004)

Blaise v. Fenn, 48 F.3d 337, 339 n.4 (8th Cir. 1995)

Owen v. Lash, 682 F.2d 648 1 650-53 (7th Cir. 1982)

Berdella v. Delo, 972 F.2d 204, 209 (8th Cir 1992)

Guajardo v. Estelle, 580 F.2d 748, 755 & n.4 (5th Cir. 1978)

Malsh v. Garcia, 971 F. Supp. 133, 137-38 (S.D.N.Y. 1997)

Hardwick v. Ault, 447 F. Supp. 116, 129 (M.D. Ga. 1978)

Turner [261 F.3d 901] v. Safly, 482 U.S. 78, 84, 96 L. Ed. 2d 64,

107 S. Ct. 2254 (1987)

Mauro v. Arpaio, 188 F.3d 1054, 1058 (9th Cir. 1999) (en banc)

Walker v. Summer, 917 F.2d 382, 385 (9th Cir. 1990)

ii

Frost v. Symington, 197 F.3d 348, 354 (9th Cir. 1999) (quoting

Turner, 482 U.S. at 89)

Mayfield v. Texas Dep't of Criminal Justice, 529 F.3d 599, 608-09

(5th Cir. 2008)

Reed v. Faulkbe, 842 F.2d 960, 962 (7th Cir. 1988)

Walker v. Summer, 917 F.2d 832, 386-87 (9th Cir. 1990)

Washinington v. Harper, 494 U.S.. 210 1 224 7 108 L. Ed. 2d 178 1 110

S. Ct. 1028 (1990)

0'Lone v. Estate of Shabazz, 482 U.S. 342, 96 L. Ed. 2d 282 1 107

S. Ct 2400 (1987)

Turner v. Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987)

Turner, 482 U.S. at 89.

0'Lone, 482 U.S. at 349

Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119,

126, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977)

Awift v. Lewis, 901 F. 2d 730, 732 (9th Cir. 1990)

Caldwell v. Miller, 790 F.2d 589, 598 (7th Cir. 1986)

Wilson v. Schillinger, 761 F.2d 921,, 925 (3rd Cir. 1985), 475 U.S.

1096, 106 S. Ct. 1494, 89 L. Ed. 2d 895 (1986)

Caldwell, 970 F.2d at 599

Id. at 600 Id. at 385-86. Id. at 386 (citing Swift, 901 F.2d at 731)

Turner, 482 U.S. at 89-90

Prison Legal News v, Lehman, 397 F.3d 692, 699 (9th Cir 2005)

S.atahuddin v. Goord, 467 F.3d 263, 276-77 (2d Cir. 2006)

Abu-Jamal v. Price, 154 F.3d 128, 134 (3d Cir. 1998)

Quinn v. Nix, 983 F.2d 115, 118 (8th Cir. 1993)

Baraldini v. Thornburgh, 280 U.S. App. D.C. 176. 884 F.2d 615, 620

(D.C. Cir. 1989)

iii

1

Beard, 584 U.S. at 528 (quoting Overton v. Bazzetta, 539 U.S. 126,

132, 123 S. Ct. 2162, 156 L. Ed 2d 162 (2003)

Frost v. Symington, 197 F.3d 348, 355 (9th Cir. 1999)

Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir. 1999)

Thornburgh v. Abbott, 490 U.S. 401, 414, 109 S. Ct. 1874, 104 L.

Ed. 2d 459 (1989) Beard, 548 U.S. at 533

Procunier v. Martinez, 416 U.S. 396 7 413-14, 94 S. Ct. 1800, 1811,

40 L. Ed. 2d 224, 240 (1974)

Thornburgh v. Abbott, 490 U.S. 401, 413, 109 S. Ct. 1874, 1881,

104 L. Ed. 2d 459, 473 (1989)

United States v. Felipe, 148 F.3d 101, 110 (2d Cir. 1998)

Davidson v. Mann, 129 F.3d 700, 702 (2d Cir, 1997)

Purnell. v. Lord, 952 F.2d 679, 683 (2d Cir, 1992)

Palmigiano v. Travisono, 317 F. Supp. 776, 791 (D.R.I. 1970)

Dellums v. Powell, 566 F.2d 216, 227, 184 U.S. App. D.C. 324

(D.C. Cir 1977)

Kerman v. City of New York, 374 F.3d 93, 128 (2d Cir. 2004)

Kerman v. City of New York, 374 F.3d 93, November 3, 2003

Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300, 132

L. Ed 2d 418, 430 (1995)

Sandin v. Conner, 515 U.S. at 483-84

Jackson, 353 F.3d at 755

Jackson v. Carey, 353 F.3d at 756

Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) amamded 135 F.3d

1318 (9th Cir. 1998)

Smith v. Mass. Dep t t of Corr., 936 F. 2d 1390, 1401 (1st Cir. 1991)

Moran v. Farrier, 924 F. 2d 134, 137 (8th Cir. 1991)

iv

4'

Serrano v. Francis, 345 F.3d 1071, 1079-80 (9th Cir. 2003)

Ponte v. Real, 471 U.S. 491, 497 (1985)

Ayers v. Ryan, 152 F.3d 77, 81 (2d Cir. 1998)

Brook v. Andolina, 826 F.2d 1266 7 1269 (3d Cir. 1987)

Panell v. McBride, 306 F.3d 499, 503 (7th Cir. 2002)

Powell v. Ward, 487 F. 5upp. 917, 929 (S.D.N.Y. 1980)

Fox v. Coughlin, 893 F.2d 475, 477-78 (2d Cir. 1990)

Fox v. Daisheim, 112 A.D.2d 368 7 369 7 491 N.Y.S.2d 820, 821

(2d Dept. 1985)

People v. Superior Court (Hamilton), (1991) 230 Cat.App.3d 1592

[281 Cal.Rptr. 9001

Statutes

Title 15 California Code of Regulation §' 3315(d)(1) & 3318(a)

Title 15 California Code of Regulation § 3315(e)

Title 15 California Code of Regulation § 3320(h)

V

DECISIONS BELOW:

The order of the United States Court of Appeals for the

Ninth Circuit is unreported and a copy is attached -as Appendix A

to this petition (exhibit A.1.). A copy of the order of the United

States District Court for the Southern District of California is

attached as Appendix B to this petition (exhibit B.1.).

JURISDICTION

The Judgment of the United States Court of Appeals for the

Ninth Circuit was entered on April 16, 2018. An order denying a

Petitioners Motion for Reconsideration was entered on August 28,

2018, and a copy of that order is attached as Appendix A to this

petition (exhibit A.2.). Jurisdiction is conferred by 28 U.S.C. §

1254(1)

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves Amendment I, IV & XIV to the United

States Constitution, which Provides:

Amendment I

Congress shalt make no law respecting an establishment of religion,

or prohibiting the free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the people peaceably

1

to assemble, and to petition the Government for a redress of

grievances.

Amendment IV

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to

be seized.

Amendment XIV

Section 1. All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

Section 5. The Congress shall have the power to enforce, by

appropriate legislation, the provisions of this article

The Amendment is enforced by Title 42, Section 1983, United

States Code:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any state or territory of the District of

Columbia, subjects, or causes to be subjected, any citizen of the

united States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities secured by

PJ

by the Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper proceeding for

redress, except that in any action brought against a judicial

officer for an act or omission taken in such officer's judicial

capacity, injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief was

unavailable. For the purposes of this section, any Act of Congress

applicable exclusively to the District of Columbia shall be

considered to be a statute of the District of Columbia.

3

STATEMENT OF THE CASE

The petitioner's complaint alleged that he was charged with

a serious disciplinary offense of harassment of another person

(Tamara Ecclestone) directly via mail by G. Holt, a supervisor

from solution group international and F. Armenta, a correctional

captain. It further alleged that the charge was false. Pursuant to

the usual procedure, the petitioner requested that the investigative

employee, respondent A. Jones and the first disciplinary hearing

officer, respondent R. Davis, interviewed to petitioner's witness,

the civilian Tamara Ecclestone, who is the only person that can

clarify or resolve the serious disciplinary offense that gave rise

to the disciplinary charges. The investigative employee and the

hearing officer refused to interview the petitioner's witness.

Instead, they stated to the petitioner that the witness was

unavailable. Petitioner plead no guilty; But, the hearing officer

found guilty to petitioner. After the hearing, petitioner was assess/

impose a 12 months of segregated housing unit (SHU) term for the

Rules Violation Report (RvR). Due petitioner's good behavior the

assess/impose was 8 months (SHU) term. Petitioner submitted his

first appeal CDCR 602, third level appeal decision granted in part

order reissued and reheard and ensure the petitioner was afforded

all due process rights to witness. Pursuant to the usual procedure,

the petitioner requested that the second disciplinary hearing

officer, respondent S. Anderson, interviewed to petitioner's

witness, the civilian Tamara Ecclestone, the second hearing

officer refused to interview the petitioner's witness. Instead,

he stated to the petitioner that the witness was unavailable

4

petitioner plead no guilty; But, the hearing officer found guilty

to petitioner. Petitioner submitted his second appeal CDCR 602,

third level appeal decision granted in part order reissued and

reheard again. Pursuant to the usual procedure, the petitioner

requested that the investigative employee, respondent A. Jones and

the third disciplinary hearing officer, respondent J. Luna,

interviewed to petitioner's witness, the civilian Tamara Ecclestone.

The investigative employee and hearing officer refused to interview

the petitioner's witness. Instead, they stated to the petitioner's

that the witness, would not provide any relevant and/or additional

information. Petitioner plead no guilty; But, the third hearing

officer found guilty to petitioner. Petitioner submitted his third

appeal CDCR 602, third level appeal decision denied petitioner's

appeal CDCR 602. Petitioner filed a complaint under Civil Right Act

42 U.S.C. § 1983, in the United States District Court, Southern

District of California. Petitioner also filed a motion to proceed

In Forma Pauperis (IFP) pursuant to 28 U.S.C. § 1915(a), along with

a motion to appoint a counsel. The Court granted motion to proceed

(1FF), denying motion to appoint counsel and dismissed complaint

for failing to state a claim pursuant to 28 U.S.C. §§ 1915 (e)(2)

(B)(ij) and 1915 A(b)(1). Petitioner was given leave to file an

amended complaint in order to correct the deficiencies of pleading

identified in the Court's order. Petitioner filed his first amended

complaint (FAC) along with a motion for preliminary injunction/

temporary restraining order. The Court dismissed the (FAC) as

frivolous and for failing to state a claim and denying motion for

preliminary injunction and motion for temporary restraining order

and petitioner was given again leave to file an amended pleading.

5

11

4

Petitioner filed his second amended complaint (SAC). The Court

dismissed the (SAC) as frivolous and for failing to state a claim;

As well as, certifies that an (1FF) appeal of the order would not

be taken in good faith pursuant to 28 U.S.C. § 1915 (a)(3), and

directs the clerk of the Court to enter judgment and close the file.

Petitioner filed a timely Notice of Appeal. The United States Court

of Appeals for the Ninth Circuit assigned a docket number to the

case No.: 17-55852 and time schedule order. Petitioner filed a

motion to proceed on appeal (1FF) with the Appellate Court. Petioner

filed Appellant's Informal Brief. The Court order dismissed.

Petitioner filed a motion for reconsideration. The Court order

denied and no further filings will be entertained in this case in

the United States Court of Appeals for the Ninth Circuit.

BASIS FOR FEDERAL JURISDICTION

This case raises questions of interpretation of the right to

freedom of speech of the First Amendment, loss of liberty of the

Fourth Amendment and Due Process Clause of the Fourteenth Amendment

to the United States Constitution. The District Court had

jurisdiction under the general federal question jurisdiction

conferred by 28 U.S.C. 1331.

REASONS FOR GRANTING THE WRIT

A. Conflicts with Decisions of Other Courts

The holding of the United States District Court, Southern

District of California and the United States Court of Appeals for

the Ninth Circuit, in petitioner First Amendment Claims in which

erroneously. applyed the Turner Standarn in petitioner's outgoing

mail is directly contrary to the holding of the United States

Supreme Court and the following Federal Circuits.

The Supreme Court has said that there is no iron curtain drawn

between the Constitution and the prisons of this Country. See Wolff

V.

McDonnell, 418 U.S. 539, 555-56, 94 S. Ct. 2963 (1974) and that

prisoners do not lose all of the fundamental rights of Americans

like free speech.

In Turner v. Safley the Supreme Court held that "When a prison

regulation impinges on inmates' Constitutional Rights, the regulation

is valid if it is reasonably related to legitimate penalogical

interests. See Turner v. Safley, 482 U.S. 342, 349, 107 S. Ct. 2400

(1987)

The Turner Standard has been applied to prison restrictions

on incoming. correspondence and inmate-inmate correspondence.

The Turner Standard is less favorable to prisoner than some

earlier case law; Previously, Courts applied a "less restrictive

alternative" rule in many First Amendment cases, holding that

restrictions must be "no greater than is necessary or essential"

interest. See., Procunier v. Martinez, 416 U.S. 396, 413-14, 94 S.

Ct. 1800 (1974) that rule is now limited to restrictions on

7

outgoing correspondence to non-prisoners. See., Thornburgh V.

Abbott, 490 U.S. 401, 413-14, 109 S. Ct. 1874 (1989). As is this

instant Petitioner Leandro Leonel Gonzalez's case, in which

petitioner sent it letters to the civilian Tamara Ecclestone.

Petitioner has a First Amendment Right to communicate by mail

with Tamara Ecclestone. See., Davis v. Goord, 320 F.3d 346, 351

(2d Cir. 2003); Morrison v. Hall, 261 F.3d 896, 906 (9th Cir. 2001);

Zimmerman v. Tribble, 226 F.3d 568, 572 (7th Cir. 2000).

Restrictions on outgoing correspondence cannot be greater

than "necessary or essential" to protect "important or substantial"

interests. See., Thornburgh v. Abbott, 490 U.S. 401, 413-14, 109

S. Ct. 1874 (1989); Procunier v. Martinez, 416 U.S. 396, 413-14,

94 S. Ct. 1800 (1974); Barrett v. Belleque, 544 F.3d 1060, 1062

(9th Cir. 2008); Nasir v. Morgan, 350 F.3d 366, 373 (3d Cir. 2003)

(applying the two standards); Martucci v. Johnson, 944 F.2d 291,

295-96 (6th Cir. 1991).

This difference in legal standards between incoming and

outgoing mail is sometimes overlooked. See., Woods v. O'Leary, 890

F.2d 883, 885-87 (7th Cir. 1989) (erroneously applying the Turner

Standard "reasonableness" in an outgoing mail case) petitioner

respectfully is calling this honorable United States Supreme Court's

attention; Because, his case involves only outgoing mail.

In opposition, some Federal Circuits have affirmatively held

that Turner is applicable to outgoing correspondence. See., Samford

v. Dretke, 562 F.3d 674, 679 (5th Cir. 2009) stating that Procunier/

Thornburgh Standard is limited to assessing security risk of outgoing

correspondence; Ortiz v. Fort Dodge Correctional Facility, 368 F.3d

1024, 1026 n.2 (8th Cir. 2004) (Stating that Thornburgh merely

10,

f.

"left open the possibility" of applying a stricter standard);

Altizer v. Deeds, 191 F.3d 540, 548 (4th Cir. 1999); Blaise v.

Fenn, 48 F.3d 337, 339 n.4 (8th Cir. 1995); Anyhow, these holdings

are contrary to Thornburgh v. Abbott.

Courts have struck down a variety of restrictions on prisoner's

general correspondence, prisoners are entitled to send mail to

persons the prisoner did not know before he was incarcerated. See.,

Owen v. Lash, 682 F.2d 648, 650-53 (7th Cir. 1982).

Prisoners may be forbidden to write to people who have

requested not get mail from them. See., Berdella v. Delo, 972 F.2d

204, 209 (8th Cir. 1992); Guajardo v. Estelle, 580 F.2d 748, 755

& n.4 (5th Cir. 1978); Maish v. Garcia, 971 F. Supp. 133, 137-38

(S.D.N.Y. 1997) (upholding discipline of prisoners who communicated

with a person on his "negative correspondence list"); Hardwick v.

Ault, 447 F. Supp. 116, 129 (M.D. Ga. 1978).

Restrictions on outgoing inmate mail must be generally

necessary to protect legitimate government interest. The goverment's

interest in protecting the public fro harassment by inmates would

justify prohibiting an inmate from sending mail to persons who have

affirmatively requested that mail not be received from an inmate.

In petitioner's case, he could not be forbidden to write to

Tamara Ecclestone; Because, she did not requested not get mail from

petitioner, neither accused petitioner of harassment via mail. The

accusation it was produced by the respondents G. Holt, a supervisor

from solution group international with the complicity of F. Armenta,

a correctional captain.

Wei

THE FOUR-PAST TEST SET FORTH IN TURNER V. SAFLEY:

"The prison walls do not form a barrier separating prison

inmates from the protection of the Constitution." Turner [261 F.3d

9011v. Safley, 482 U.S. 78, 84, 96 L. Ed. 2d 64, 107 S. Ct. 2254

(1987). "Thus, when a prison regulation or practice offends a

Fundamental Constitutional Guarantee, Federal Court will discharge

their duty to protect prisoners' Constitutional Rights." Mauro v.

Arpaio, 188 F.3d 1054 9 1058 (9th Cir. 1999) (en banc). "Nevertheless,

prisoners' Constitutional Rights are subject to substantial

limitations and restrictions in order to allow prison officials

to achieve legitimate correctional goals and maintain institutional

security." Walker v. Summer, 917 F.2d 382, 385 (9th Cir. 1990).

"In Turner v. Safley, the Supreme Court set forth the Standard

for evaluating prisoners' Constitutional claims." Id. Turner held

that "a regulation that impinges upon a prisoner's Constitutional

Rights is valid if the regulation 'is reasonable related to

legitimate penalogical interests.'" Frost v. Symington, 197 F.3d

348, 354 (9th Cir. 1999) (quoting Turner, 482 U.S. at 89). to guide

Courts in evaluating whether a challenged regulation is reasonably

related to legitimate penological interests Turner established the

following four-part test:

UNDER THE TURNER STANDARD ALL OF THE FOUR FACTORS WEIGH IN

PETITTONEP FAVñI•

1- [Whether there is] a "valid, rational connection" between the

prison regulation and the legitimate governmental interest put

forward to justify it... A regulation cannot be sustained where the

the logical connection between the regulation and the asserted goal

10

is so remote as to render the policy arbitrary or irrational;

Moreover, the governmental objective must be a legitimate and

neutral one...

Petitioner will emphasize in three points. First.

"reasonableness" under Turner requires Courts to strike a balance

between the interests of officials and the Constitutional Rights

of inmates. See. e.g., Reed v. Faulkne, 842 F.2d 960, 962 (7th Cir.

1988). Second, while of is appropriate for Courts to deter to the

well-supported judgments of prison officials., "deference does not

mean abdication." See. e.g., Walker v. Sumner, 917 F.2d 382, 385

(9th Cir. 1990). A Court should not simply swallow whatever line

an official feeds it. Third, officials must support their policies

with facts, not conjecture or conclusory assertions. See. e.g.,

Walker v. Sumner, 917 F.2d 832, 386-87 (9th Cir. 1990)

First

Prison restrictions that implicate Constitutional Rights are

judged by the reasonableness standard. See Washington v. Harper,

494 U.S. 210, 224, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990);

0'Lone v. Estate of Shabazz, 482 U.S. 342 1 96 L. Ed. 2d 282, 107

S. Ct. 2400 (1987); Turner v. Safley, 482 U.S. 78, 96 L. Ed. 2d 64,

107 S. Ct. 2254 (1987). Under this standard, an inmate's First

Amendment Right must yiels to prison rules and regulations that

are "reasonably related to legitimate penological interest. Turner,

482 U.S. at 89. To ensure that judges accord appropriate deference

to decisions of prison administrators annex the delicate balance

of these competing principles, the Court put in place a

"reasonableness test less restrictive than that ordinarily applied

to alleged infringements of fundamental Constitutional Rights."

11

O'Lone, 482 U.S. at 349. Thus, if prohibit petitioner sent mail to

Tamara Ecclestone, a reasonable balance between the Right to Free

Exercise of Speech and the prison's asserted interest in security,

petitioner First Amendment Claim will success.

Second

Courts must, of course, accord deference to the decisions of

prison administrator. Jones v. North Carolina Prisoners' Labor

Union, Inc., 433 U.S. 119, 126, 97 S. Ct. 2532, 53 L. Ed. 2d 629

(1977). "Nevertheless, deference does not mean abdication.

Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990).

Prison official must "put forward" a legitimate governmental

interest to justify their regulation, Turner v. Safley, 482 U.S. at

89, and must provide evidence that the interest proffered is the

reason why the regulation was adopted or enforced. Swift v. Lewis,

901 F. 2d 730 1 732 (9th Cir. 1990). ("Prison officials must at

least produce some evidence that their policies are based on

legitimate penological justification"); Caldwell v. Miller, 790

F.2d 589, 598 (7th Cir. 1986) ("the governmental interest asserted

in support of a restrictive policy must be sufficiently articulated

to allow for meaningful review of the regulation and its effect on

the inmates' asserted rights") Wilson v. Schiltinger, 761 F.2d 921,

925 (3rd Cir. 1985), cert. denied, 475 U.S. 1096, 106 S. Ct. 1494,

89 L. Ed. 2d 895 (1986). The Constitution requires that "considerations

advanced to support a restrictive policy be directly implicated by

the protected activity, and sufficiently articulated to permit

constitutional review." Caldwell, 970 F.2d at 599. It is only after

prison officials have put forth such evidence that Courts defer to

the officials' judgment. Id. at 600. Id. at 385-86 (parallel

12

citations omitted) (emphasis in original). Summary Judgment must be

denied where prison official fail to provide evidence that the

interests they have asserted are the actual bases for the regulation

or policy under attack. Id. at 386 (citing Swift, 901 F.2d at 731).

Prison officials cannot rely on conctusory assertions to support

their policies but must first identify the specific penological

interests involved and then make an evidentiary showing that those

specific interests are the actual bases for their policies and that

the policies are reasonably related to the furtherance of the

identified interests. Id.

In this present case, petitioner challenges institutional

policies developed and implemented by respondents G. Holt and F.

Armenta. Petitioner claims that these policies impinged and

continue to impinge on his First Amendment Right to Free Exercise

of Speech. Respondents G. Holt and F. Armenta's decision to deny

petitioner the right to write.letter. with poetry to Tamara

Ecclestone had not a legitimate penalogical purpose.

Petitioner argue that Tamara Ecclestone never requested not

get mail from petitioner or accused to petitioner of harassment via

mail, neither Tamara Ecclestone ordered to respondent G. Holt did it.

There is not a legitimate penological interest and there is not a

legitimate penological interest and there is not a valid and

rational connection between restricting petitioner for sent mail

to Tamara Ecclestone and punished petitioner in (SHU) for 8 months

and respondents' legitimate penological interest in security, or

otherwise outside community or another person.

A regulation cannot be sustained where the logical connection

between the regulation and the asserted goal has not been

13

demonstrated, and the legitimacy and neutrality of the governmental

objective has not been demonstrated, and the legitimacy and

neutrality of the governmental objective has not been show.

Third

Turning then to the first prong of the Turner analysis and

petitoner's First Amendment Claim. there is not a valid, rational

connection, do not exists between the petitioner's ban to outgoing

mail to Tamara Ecciestone and security interest or otherwise

outside 'community or another person. See., Turner, 482 U.S. at 89.

No such connection exists if the purpose of the policy is to suppress

the content of the restricted letters. See., Id. at 90. And the

penalogical interest that the District Judge invoke in Court to

justify the restriction must have actually motivated to respondents

G. Holt and F. Arinenta, at the time they enacted or enforced the

mail restriction; The invoked interests fail under Turner; Because,

is- illegitimate. See., Salahuddin v. Goord, 467 F.3d 263, 276-77

(2d Cir. 2006) (holding that prison officials must show that they

"actually had, not just could have had, a legitimate reason for

burdening protected activity"); Abu-Jamal v. Price, 154 F.3d 128,

134 (3d Cir. 1998) (nothing that a prison rule is "not content

neutral as required by Turner" if it is enforced at least in part

due to public pressure rather than security concerns); Quinn v. Nix,

983 F.2d 115, 118 (8th Cir. 1993) (stating that "prison officials

are not entitled to the deference described in Turner... If their

actions are not actually motivated by legitimate penological

interests at the time they act."); Walker v. Sumner, 917 F.2d 382,

386-87 (9th Cir. 1990). (holding that where a prisoner alleges

that a policy is enforced for a "dubious purpose" officials must

14

demonstrate that the asserted penological interests "are the

actual bases for their policies"); Baraldini v. Thornburgh, 280

U.S. App. D.C. 176, 884 F.2d 615, 620 (D.C. Cir. 1989) (nothing

that "a reviewing court must always be careful to make certain

than prison administrators are not pretextually using alleged

concerns in order to punish an inmate his views.")

In petitioner outgoing case, is clear that respondents and

District Judge were not motivated by any legitimate penological

interests at the time they acted and were pretextually using

alleged concerns in order to punished petitioner for his poetic

work or pieces of art written in meter, verse, sent it to Tamara

Ecclestone.

SECOND FACTOR:

.Whether there are alternative means of exercising the

right that remain open to prison inmates.

Petitioner had no alternative means of exercising his

Constitutional Right to sent mail to Tamara Ecclestone, that the

challenged respondent's policy or practice restrict.

"No way to exercise the right to outgoing mail other than by

outgoing mail" This is the only way that petitioner had to

communicate with Tamara Ecclestone; Because, petitioner has not

access to internet, neither has a phone number of her.

THIRD FACTOR:

The impact accommodation of the asserted Constitutional

Right will have on guards and other inmates, and on the allocation

of prison resources generally... When accommodation of an asserted

right will have a significant 'ripple effect" on fellow inmates or

on prison staff, Courts should be particularly deferential to the

15

informed discretion of prison officials...

Allowing petitioner to sent letters in the outgoing mail to

Tamara Ecclestone, would not unduly burden prison staff; Because,

they already sent letters in the outgoing mail from thousands of

prisoners, sunday through thursday to their families and friends, etc.

FOURTH FACTOR:

The absence of ready alternatives is evidence of the

reasonableness of a prison regulation... But if an inmate claimant

can point to an alternative that fully accommodates the prisoner's

rights at the minimis [minimal] cost to valid penalogical interests,

a Court may consider that as evidence that the regulation does not

satisfy the reasonable relationship standard, Turner v. Safley, 482

U.S. at 89-91.

The restriction of petitioner's outgoing mail with Tamara

Ecciestone for purposes to satisfy respondent G. Holt, was

unconstitutional; Because, there was not valid penological interests.

Is obvious easy alternative for respondents' policy or

practice permitting petitioner to sent mail to Tamara Ecciestone;

As well as, it has the minimis impact; Because, petitioner used

some of the 20 indigent envelopes that he receive every months.

The standard for reviewing a prison regulation is diferential.

Courts must give "'Substantial deference to the professional

judgment of prison administrators.'" Beard, 548 U.S. at 528

(quoting Overton v. Bazzetta, 539 U.S. 126 1 132, 123 S. Ct. 2162 1

156 L. Ed 2d 162 (2003)). A Court does not have to agree with the

officials' proffered "legitimate penological interest." Frost v.

Symington, 197 F.3d 348, 355 (9th Cir. 1999). The inquiry under

Turner is not whether the policy actually serves a penological

16

interest, but rather whether it was rational for officials to

believe that it would. Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th

Cir. 1999). That said the Turner standard is not "toothless".

Thornburgh v. Abbott, 490 U.S. 401, 414, 109 S. Ct. 1874, 104 L.

Ed 2d 459 (1989). "Turner requires prison authorities to show

more than a formalistic logical connection between a regulation

and a penalogical objective." Beard, 548 U.S. at 533.

UNDER THE MARTINEZ STANDARD ALL OF FOUR FACTORS WEIGH IN

PETITIONER FAVOR TOO:

The purpose that restriction on outgoing mail are meant to

serve must be important and not just legitimate; and restrictions

on outgoing mail must be shown to be more effective than restriction

on outgoing mail.

Restrictions on out-going non-legal mail must further an

important governmental objective, and the restriction must be no

greater than necessary. See., Procunier v. Martinez 416 U.S. 396,

413-14, 94 S. Ct. 1800, 1811, 40 L. Ed. 2d 224, 240 (1974)

(holding that restrictions on mail must satisfy this test);

Thornburgh v. Abbott, 490 U.S. 401, 413, 109 S. Ct. 1874, 1881,

104 L. Ed. 2d 459, 473 (1989), (Limiting the Martinez test to

outgoing mail).

FIRST FACTOR:

Regulation banning letter kiting (including mail to a third

party in your letter to someone else). See., e.g., United States v.

Felipe, 148 F.3d 101, 110 (2d Cir. 1998).

Petitioner did not sent letter kiting to Tamara Ecclestone.

SECOND FACTOR:

Setting postage limits. See. e.g., Davidson v. Mann, 129

17

F.3d 700, 702 (2d Cir. 199]).

Petitioner did not abused of the setting indigent postage

limits of California Department of Correction and Rehabilitation,

when he sent his outgoing mail to Tamara Ecclestone.

THIRD FACTOR:

Banning inmate-to-inmate correspondence. See. e.g., Purnell

v. Lord, 952 F.2d 679, 683 (2d Cir. 1992).

Petitioner is an inmate; But, Tamara Ecclestone is a

civilian lady.

FOURTH FACTOR:

Requiring approved correspondence list. See. e.g.,

Palmigiano v. Travisono, 317 F. Supp. 776, 791 (D.R.I. 1970).

The California Department of Correction and Rehabilitation,

has not any regulation requiring approved correspondence list.

Petitioner is proving that under Turner and Martinez standard,

all the eighth factors weigh in petitioner favor, entrust the United

Staes. Supreme Court the first -reason for granting the writ.

The holding of the United States District Court, Southern

District of California and the United States court of appeals for

the Ninth Circuit that petitioner's Second Ameended Complaint fails

to state a procedural due process claim as to any respondent because

petitioner received all the process he was due; Therefore, his

iFourteenth Amendment claims are also subject to sua sponte dismissal

is-directly contrary to the holdings of the United States Supreme

Court and the following Federal Circuits.

The Supreme Court's decision in Sandin v. Conner, 515 U.S.

472, 484, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418, 430 (1995)

(holding that due process liberty interests created by prison

regulations will generally be limited to freedom from restraints

that impose an atypical and significant hardship on the prisoner

in relation to the ordinary incidents of prison life).

Since Sandin, the most significant area of prison due process

litigation has involved segregation confinement.

The Sandin analysis focuses on atypical and significant

hardship on the inmate relation to the ordinary incidents of prison

life. See., Sandin v. Conner, 515 U.S. at 483-84.

In the Rules of the Ninth Circuit. Sandin requires a factual

comparation between conditions in general population or

administrative segregation (whichever is applicable) and

disciplinary segregation, examining the hardship caused by the

challenged action in relation to the basis conditions of life as

a prisoner... "what less egregious condition or combination of

conditions or factors would meet the test requires case by case,

fact by fact consideration. See., Jackson, 353 F.3d at 755.

Is a fact that petitioner alleged that he spent eight months

in punitive confinement and alleged that his conditions were the

following: Petitioner was deprived of his personal property, the

ability to attend his educational program, phone calls to his family,

watch television, associate with his family in the visit room,

associate with other prisoners, attend outdoor recreation in a

congregate setting with the ability to engage sports and other

congregate recreational activitis, attend meals with other

prisoners, attend religious services, attend alcoholics and

19

narcotics anonymous, etc.

In another recent case, it said that a prisoner who spent

five months in punitive confinement, and alleged that his conditions

were materially different both from general population and from

administrative segregation, had stated a claim under the atypical

and significant standard regardless of whether the appropriate

comparison with general population or administrative segregation.

See., Jackson v. Carey, 353 F.3d at 756 (emphasis in original).

The Court appeared to be leaving open either the question of which

comparison was appropriate, or the possibility that a prisoner could

prevail by making a strong showing on either one. Earlier, the Court

said that a "major difference" between segregation and general

Population could meet the aypical and significant standard, as

could the duration of confinement. See., Keenan v. Hall, 83 F.3d

1083, 1089 (9th Cir. 1996) amended 135 F.3d 1318 (9th dr. 1998).

Based on the aforementioned, is plausible that petitioner had

stated a claim under the atypical and significant standard.

The District Court in their Third Order Dismissing petitioner's

Second Amended Complaint stated the following: "At this final

hearing on his RVR held on October 17, 2015, petitioner argues that

the decision to find him guilty was not based on "any credible

evidence".., as well as stated. "In addition, petitioner claim his

due process rights were violated by respondents refusal to allow

him to call Tamara Ecclestone as a witness as petitioner claim she

would provide "potentially exculpatory answers to corroborate

petitioner's defense.. ."

The District Court found that petitioner's Second Amended

Complaint fails to state a procedural due process claim as to any

20

S

respondent because petitioner received all the process he was due...

First, petitioner showed liberty interest.

Second, petitioner showed in his Second Amended Complaint that

he could had gotten more procedure that he received.

Some examples are:

First, assignment an effective and impartial investigative

employee to investigate the facts; Because, petitioner's issue

involved it was complex and required further investigation. The

housing status of the petitioner made it unlikely that he could

collected and presented the necessary evidence.

Second, the opportunity to had the witness to Tamara

Eccles tone.

Petitioner stated and proved in his Second Amended Complaint

that he could had gotten more procedure that he received.

See:

Moran v. Farrier, 924 F. 2d 134, 137 (8th Cir. 1991) (Due

process violation because prison official failed to call witnesses

requested by inmate and decision based upon incomplete record).

Ponte v. Real, 471 U.S. 491 9 497 (1985); See. e.g., Ayers v.

Ryan, 152 F. 3d 77, 81 (2d Cir. 1998) (Due process violation where

official failed to obtain testimony from prisoner's requested

witnesses and provided no rational explanation.

Brook v. Andolina, 826 F. 2d 1266 9 1269 (3d Cir. 1987) (Due

process violation where inmate not allowed to call witnesses at

disciplinary hearing because officials made no showing of hazard

to safety or correctional goals).

Powell v. Ward, 487 F. Supp. 917 (S.D.N.Y. 1980), aff'd,

6643 F. 2d 924 (2d Cir. 1981).

21

Fox v. Dalsheim, 112 A.D. 2d 368, 369, 491 N.Y.S. 2d 820, 821

(2d Dept. 1985) (holding that hearing officer abused his discretion

where he refused to call two witnesses requested by prisoner due to

"redundancy of the testimony" based on prediction that the two

witnesses' testimony would only repeat what was in misbehavior

report). In Fox v. Dalsheim, the Court said that "although the

revised superintendent's hearing rules and regulation... now

permit exclusion of a witness's testimony when it is redundant or

immaterial, this provision does not afford the hearing officer the

unlimited right to exclude testimony relevant to an inmate's

defense." Fox v. Dalsheim, 112 A.S. 2d 368, 369, 491 N.Y.S. 2d 820,

821 (2d Dept. 1985).

third, an impartial decion-maker, meaning that no one who

reported, observed, or investigated the alleged violation, who

assisted the prisoner in preparing for the hearing, or who for

whatever reason have a predetermined belief in the guilt or innocence

of the prisoner could not - acted as the hearing officer.

Petitioner stated in his last hearing "inmate plea" to

respondent J. Luna "According to Wolff v. McDonelt, I have the right

to have an impartial (unbiased) hearing officer preside over my

disciplinary proceeding, I object, you are biased against to me as

to create a "hazard of arbitrary decisionmaking violated.due process."

You have actually prejudged the case because you had a direct

personal involvement participated in the investigation because

you ordered and prepared the investigative employee report.

respondent J. Luna in retaliation for the petitioner's statement

told him "you are guilty" then petitioner told him "you are bias'

Petitioner stated and proved in his Second Amended Complaint

22

that he could had gotten more procedure that he received.

See., In People v. Superior Court (Hamilton) (1991) 230

Cal.App. 3d 1592 [281 Cal.Rptr. 9001, A California State Court

held that a prison official who evaluated a disciplinary report to

ensure the proper charge was reflected and who classified the

violation could not preside over the disciplinary hearing without

violating due process.

As petitioner noted in these examples, respondents did not

followed procedural due process rights, all them violated

petitioner's due process rights of California Department of

Correction and Rehabilitation and the Fourteenth Amendment of the

United States of America, entrust the United States Supreme Court

the second reason for granting the writ.

23

a

B. Importance of the First Question Presented

This case present a fundamental first question of the

interpretation of this Court's decision in Thornburgh v. Abbott,

490 U.S. 401, 413-14, 109 s. Ct. 1874 (1989). The question presented

is of great public importance because it affects the operations of

the prison systems in all 50 states, the District of Columbia, and

hundreds of city and county jails. In view of the large amount of

litigation over prison from prisoners' rights to communicate with

-

the outside world, guidance on the question is also of great

importance to prisoners, because it affects their ability to

Freedom of Speech.

The issue's importance is enhanced by the fact that the

lower Courts in this case have seriously misinterpreted Thornburgh

v. Abbott. This Court held in Thornburgh v. abbott that restrictions

on out-going correspondence cannot be greater than "necessary or

essential" to protect "important or substantial interests. The

Court reiterated this point in Procunier v. Martinez, 416 U.S. 396,

413-14, 94 s. Ct. 1800 (1974).

Thus the Court below seriously misinterpreted Thornburgh v.

Abbott by failing to distinguish between out-going correspondence

and incoming correspondence.

The Court should correct that misinterpretation and make it

clear that the proper standard of review out-going correspondence

was the one stated in Procunier v. Martinez, correspondence sent

by a prisoner to someone outside the prison.

24

C. Importance of the Second Question Presented

This case presents a fundamental question in Wolff v.

McDonnell, 418 U.S. 539, 566, 94 S. CT. 2963 (1974). The question

presented is of great public importance because it affects the

operations of the prison systems in all 50 states, the District

of Columbia, and hundreds of city and county jails. In view of

the large amount of litigation over prison disciplinary proceedings,

guidance on the question is also of great importance to prisoners,

because it affects their ability to receive fair decisions in

proceedings that may result in months or years of added incarceration

or hard punitive confinement.

The issue's importance is enhanced by the fact that the

lower Court in this case have seriously misinterpreted Wolff. This

Court held in Wolff that prisoners have a limited right to call

witnesses. The Court reiterated this point in Ponte v. Real, 471

U.S. 491, 497, 105 5.Ct. 2192 (1985), and added that prison

officials have the burden of explaining the reasons for refusing

to call witnesses in a particular case.

The qualified Constitutional Right to call witnesses was

initially expanded and clarified in Powell v. Ward, 487 F. Supp.

917 (S.D.N.Y. 1980), aff'd, 643 F.2d 924 (2d Cir. 1981), also known

as Powell II. In Powell II, the Court stated that while prisoners

may not be able to call witnesses to testify in prisoner's

presence at a hearing. "witnesses must be allowed to be present at

disciplinary proceedings. unless the appropriate officials

determine that [their presence] would jeopardize institutional

safety or correctional goals." If it is determined that witnesses

25

may not be present at the disciplinary hearing, the witness may be

interviewed and tape-recorded out of prisoner presence 487 F. Supp.

917, 929 (S.D.N.Y. 1980). The tape or transcript of the interview

must be made available to the prisoner before or at the hearing.

Thus the Court below misinterpreted Wolff by failing to allow

petitioner to had Tamara Ecclestone as a witness as petitioner

claims she is the only one, who would provide "potentially

exculpatory answeres to corroborate petitioner defense.

The Court should correct that misinterpretation and make it

clear that witness called by the petitioner should be allowed to be

present at disciplinary proceeding.

CONCLUSION

For the foregoing reasons, certiorari should be granted in

this case.

Date

:7(i(8

ted,

Resp%

Leandr Leonel Gonzalez

PetitionerIn Pro Per

26