Petition for Writ of Certiorari — Joshua Mitch Johnson, Petitioner v. Harold W. Clarke, Director, Virginia Department of Corrections

Supreme Court briefApr 16, 2019

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FILED

APR 16 2019

OFFICE OF THE CLERK

SI) PREME CO'JRT U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

Joshua Mitch Johnson, #1162995, Petitioner

VS.

Harold W. Clarke, Director

Virginia Department ot Corrections, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF VIRGINIA

PETITION FOR WRIT OF CERTIORARI:

Joshua Mitch Johnson, #1162995

Pocahontas State Correctional-Center

P.O. Box 518

Pocahontas, Virginia 24635

Pro Se Petitioner

E ut IV "VI

APR 2 32019

cv-l= OF THE CU

QUESTIONS PRESENTED

§53.1-202.2 Code of Virginia reads as follows: "Every person who is

convicted of a felony offense committed on or after January 1, 1995, and who

is sentenced to serve a term of incarceration in a state or local correctional

facility shall be eligible to earn sentence credits in the manner prescribed

by this article. Such eligibility shall commence upon the person's incarceration

in any correctional facility following entry of a final order of conviction

by the committing court. As used in this chapter, "sentence credit" and "earned

sentence credit" mean deductions from a person's term of confinement earned

through the rules prescribed to §53.1-25, through program participation as

required by §§ 53.1-32.1 and 53.1-202.3, and by meeting other such requirements

as may be established by law or regulation. One earned sentence credit shall

equal a deduction of one day from a person's term of incarceration... (1994,

2nd Sp. Sess., cc. 1.2.)" The question presented is has the Petitioner been

validly sentenced under this statute, therefore being encompassed by this?

§53.1-202.2 Code of Virginia specifically stipulates that "every person

who is convicted of a felony offense committed on or after January 1, 1995 and

who is sentenced to: serve a term of incarceration in a state or local

correctionel facility.. .". The question presented by the Petitioner i,sTis the

P e titioner one of "avery person who is convicted of . ,q . felony offense committed

(V1 or after January 1, 1995 and who is sentenced to serve a term of incarcerationThe Supreme Court of the United States has held that a state law may

create enforceable liberty interests in the prison setting. See: Board of

Pardons y. Allen; Greenholtz v. Nebraska Penal Inmates WölffIv. t4cDónnell;

and Vitek v. Jones. (1) The question presented by the Petitioner is with the

use of the explicitly mandatory term "shall" in §53.1-202.2 C.O.V., has a

liberty interest been created pursuant to those standards?

According to Wolff v. McDonnell', 418 U.S. 539, 41 L.Ed.2d 905, 94 S.Ct.

2963 (1974), "[tjhe state having created the right to good time and itself

recognized that its deprivation is a sanction for major misconduct, prisoner's

interest has real substance and is sufficiently embraced within the Fourteenth

Amendment." The question presented is with the use of explicitly mandatory

language in the governing statute §53.1-202.2 C.O.V., has the state created a

right to good time (earned sentence credits) that cannot be taken away without

minimal due process, therefore sufficiently embracing the Petitioner's interest

within the Fourteenth Amendment in accordance with the Wolff standard?

(1) Board of Pardons v. Allen, 482 U.S. 369, 96 L.Ed.2d 303, 107 S.Ct.

2415 fli8i)

Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 60 L.Ed.2d 668, 99

S.Ct. 2100 (1979)

Wolff v. McDonnell, 418 U.S. at 556-572, 41 L.Ed.2d 905, 94 S.Ct.

2963 C1974)

Vitekv.Jones, 445 U.S. at 487-494, 63 L.Ed.2d 552, 100 S.Ct. 1254 (1980)

LIST OF PARTIES.

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

Petitioner: Joshua Mitch Johnsons #1162995, Pro Se Petitoner

Respondent/Defendant: Harold W. Clarke, Director for the Virginia Department

of Corrections.

111

TABLE OF CONTENTS

Questions Presented

..................................................... jj

List of Parties ............................................................iii

Opinions Below ... ............................................................. i

Jurisdiction ................................................................. 1

Constitutional and Statutory Provisions Involved ..................... ...... ..2

Statement of the Case ................ ....... ..................................3

Reasons for Granting Petition

.......................................................................6

.....................................................................10

.......................................................................11

.........................................................................13

Discourse on Truth-In-Sentencing ...................... ................. 18

Summarization ........... ..................................... ....... ....29

Conclusion

Proof of Service

INDEX OF APPENDICES

Appendix A

Order of Virginia Supreme Court denying Petition for Rehearing

Appendix B

Decision of Virginia Supreme Court denying Appeal from Circuit

Court

Appendix C

Decision of Circuit COurt denying Motion for Declaratory Judgment

CATALOG OF EXHIBITS

Exhibit A

Exhibit. B

Exhibit C

Exhibit D

Yearly ESC Earning Levels

DOP 807

OP 830.3

DOP 861

TABLE OF AUTHORITIES CITED

CASES:

Belly. Commonwealth, 264 Va. 172, 563 S.E.2d 695 (2002) .....................8

Board of Pardons v. Allen, 482 U.S. 369, 96 L.Ed.2d 303,

107 S.Ct. 2415 (1987) ......................ii,11,13

Booker v. Commonwealth, 976 Va. 37. 661 S.E.2d 461 (2008) .....................8

Coward v. Commonwealth, 164 Va. 639 (1935) ..................................22

Fishback v. Commonwealth, 260 Va. 104,

532 S.E.2d 629 (2000)...... ...........6,7,8,22,27,28

Greenholtz y. Nebraska Penal Inmates, 442 U.S. 1, 60 L.Ed.2d 668,

99 S.Ct. 2100 (1979) ...............11,11

,James v.Jane, 221 Va. 43, 267 S.E.2d 108 (1980) ...........................4,5

Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 104 L.Ed.2d 506,

109 S.Ct. 1940 (1989) .........11,13

Ramdassv.Angelone, 187 F.3d 396 (1990) .....................................19

Sandin V. Connor, 515 U.S. 472, 132 L.Ed.2d 2418,

115 S.Ct. 2293 (1995) ....................................i13.14

Simmons v. South Carolina, 512 U.S. 154, 129 L.Ed.2d 133,

114 S.Ct. 2187 (1994) ....................7,19,20,21

State v. Smith, 381 S.E.2d 724 (1989) .........................................21

Vitek v. Jones, 445 U.S. 487, 63 L.Ed.2d 552,

100 S.C.t 1254 (1980) ...................................ii,11

Wolff v. McDonnell, 418 U.S. 556, 41 L.Ed.2d 905,

94 S.Ct. 2963 (1974) .......................ii,11,13,15,30

Wood v. Strickland, 420 U.S. 308, 43 L.Ed.2d 215,

95 S.Ct. 922 (1975) ......................................4

STATUTES AND RULES:

18 U.S.C.S. §3551 ........................................................ 18,26

18 U.S.C.S. §3624(b) ........................................................26

28 U.S.C.S. §1257(a) ........................................................1

28 U.S.C.S. 2101 ...............................................................1

§53.1-165.1 Code of Virginia ................................................. 18

§53.1-199 Code of Virginia ............. .. ..................................2425

§53.1-202.2 Code of Virginia ............................................ passim

§53.1-202.4 Code of Virginia ............... ................................. 19

Division of Operating Procedure 807-7.6 ....................................3,16

Operating Procedure 830.3 ..................................................3,16

OTHER:

Ariz.Rv.Stat.Ann. §13-703 (A)(2001)

.26

Ind.Code §11-13-3-2 (b)(3) ...................................................26

730 ILCS 5/3-6-3 (a)(2),(2.1) ................................................26

La.Rev.Stat. §15:529.1 (A) ....................................................26

Okla.Stat.Tjt. 57 §138(A) .....................................................26

Oregon Revised Statute §421.120..............................................26

Tenn.Code.Ann §§ 39-13-204(A), (f)(1); 40-35-501 (h)(1) ......................26

W.Va.Code § 28-5-27 (c)(d) ...........................................................26

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 the cases from state courts:

The:.opinion of the Supreme Court of Virginia upon the Petitioner's

Petition for Rehearing, appearing at Appendix A is unpublished.

The opinion of the Supreme Court of Virginia on Appeal from the Circuit

Court of Grayson County, appearing at Appendix B is unpublished.

The opinion of the Circuit Court for Grayson County on Petitioner's

Motion for Declaratory Judgment, appearing at Appendix C is unpublished.

JURISDICTION

For the cases from the state courts:

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

r 20,

2017. A copy of that decision appears at Appendix B.

A timely petition for rehearing was thereafter denied on January 19,

2019

and a copy of the order denying rehearing is found at Appendix A.

Pursuant to 28 U.S.C.S §1257(a) and 28 U.S.C.S. §2101, this Honora

ble Court has

jurisdiction in this case and the Petitioner has timely filed his

Writ of Certiorari.

motion for

CONSTITUTIONALAND STATUTORY: PROVISIONS

This case involves Amendment XIV to the United States Constitution, which

provides:

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 equal protection of the laws.

This case also involves §53.1-202.2 Code of Virginia, which provides:

Every person who is convicted of a felony offense committed on or after

January 1, 1995, and who is sentenced to serve a term of incarceration in a

state or local correctional facility shall be eligible to earn sentence credits

in the manner prescribed by this article. Such eligiblity shall commence upon

the person's incarceration in any correctional facility following entry of

a final order of conviction by the committing court. As used in this chapter,

"sentence credit" and "earned sentence credit" mean deductions from a person's

term of confinement earned through the rules prescribed to §53.1-25, through

program participation as required by §53.1-32.1 and 53.1-202.3, and by

meeting other such requirements as may be established by law or regulation.

One earned sentence credit shall equal a deduction of one day from a person's

term of incarceration. (1994, 2nd Sp. Sess., cc. 1.2.)

STATEMENT OF THE CASE

On September 18, 2016, the Petitioner, Joshua Mitch Johnson #1162995,

herein after "Johnson", filed with the Grayson County Circuit Court a Motion for

Declaratory Judgment. Johnson requested of the Court to either declare a prison

policy or its governing statute VOID, due to their conflicting language and intent.

Johnson contended that he was validly sentenced under §53.1-202.2 Code of

Virginia (C.O.V.) which stated in part that "Every person who is convicted of a

felony offense committed on or after January 1, 1995 and who is sentenced to

serve a term of incarceration in a state or local correctional facility shall

be eligible to eern sentence credits in the manner prescribed by this article."

The law further goes on to mandatorily stipulate what "shall" happen once

certain criteria are met. The prison policy complained of, Operating Procedure

("OP") 830.3, specifically OP 830.3 IV B 4(a); V H 5(b) and VIII C and its

predecessor Division of Operating Procedure ("DOP"), specifically 807-7.6 (5)

stipulates that certain people "shall not earn...' and that once certain

criteria are met, the assured guarantees of their governing law "shall not"

happen. This was the crux of Johnson's case.

On March 15, 2017 Johnson requested Declaratory Judgment be entered in his

favor for the defendant had failed to respond.

On March 30, 2017 the Court stated that it had failed to perfect service and

it re-served the defendant though Johnson had proven that he had properly

perfected service on the defendant on September 18, 2016.

On May 17, 2017 the Office of the Attorney General filed a Demurrer, Plea

in Bar and Motion to Dismiss. It stated that because Johnson had failed to state

a claim for which relief could be granted, because the defendant was entitled to

sovereign immunity, because Johnson was time barred and because Johnson's claims

lacked merit, his claim should be dismissed.

On May 25, 2017, Johnson immediately filed n Motion in Opposition to

Respondent's Demurrer, Plea in Bar and Motion to Dismiss. Johnson contended that

Declaratoy Judgment was the proper vehicle for it is "a binding adjudication that

establishes the right and other relations of the parties without providing for

or ordering enforcement." Johnson further showed that any immunity defense was

unavailable under the Wood v. Strickland rule and that under James v. Jane,

221 Va. 43, 267 S.E.2d 108 (1980), no part of the required four-pronged test was

even attempted to be met. They simply claimed sovereign immunity. Johnson

proved that because the violations complained of occured annually, they gave rise

to the continuing violation doctrine. Johnson further demonstrated that there

was an actual justiciable controversy.

On August 31, 2017 Johnson wrote to the court asking to the status of the

case. The Court responded that it had received no order from the Plaintiff or

the defendant.

On September 19, 2017 Johnson filed a pre-drafted order with the Court and

the Attorney General's Office dismissing the demurrer, plea in bar and motion to

dismiss as well as an order granting the motion for declaratory judgment.

On September 29, 2017 the Court gave the Office of the Attorney General

21 days to file a pre-drafted order.

On October 12, 2017 the defendant filed the proposed pre-drafted order

dismissing the Plaintiff's motion for Declaratory Judgment.

On October 25, 2017 the Court signed the defendant's pre-drafted order

dismissing the Plaintif's Motion for Declaratory Judgment.

On. November 8, 2017, Johnson filed with Grayson County Circuit Court and

the Office of the Attorney General a Notice of Appeal.

On December 19, 2017 Johnson filed with the Supreme Court of Virginia and

the Office of the Attorney General a Petition for appeal, citing four (4)

assignments of error. Johnson contended that the Court h8d erred sta ting that the

issuance of declaratory relief would be inppröprite. He contended th9t the

Circuit Court erred in granting sovereign immunity to an official who's actions

taken were ministerial acts and that none of the elements of the James v. Jane

test were satisfied. He further contended that the court erred in claiming he

was time barred. Lastly he contended that the Court erred in siding with the

defendant's stance that their failure to apply the law as mandated because they

did not know how to apply the law did not violate the law and its mandates.

On June 4, 2018 Johnson informed the Court that he had recently been moved

to a lower level security institution and also asked the status of the case.

Johnson was informed that the case was still pending.

On October 22, 2018 the Court decided that there was no reversible error

and refused the Petition for Appeal.

On November 1, 2018 Johnson filed a Motion for Rehearing with the Supreme

Court of Virginia and the Attorney General's Office. Johnson again cited errors

of the Court, where reversible error lay and that many of the points raised in

the claims had been adjudicated and deemed reversible in the very Court in which

he was seeking relief.

On November 9, 2018 the Supreme Court of Virginia notified Johnson that

he had failed to timely file his Motion for Rehearing.

Due, to the insitutional mailroom not properly following certain procedures,

Johnson had to prove to the Court that he indeed had timely filed. In two (2)

letters dated November 14, 2018 and November 19, 2018, Johnson included a

timeline as well as an affidavit proving that the Motion for Rehearing had

been placed in the institutional mailbox and timely filed.

On January 31, 2019, Johnson's Motion for Rehearing was denied.

REASONS FOR GRANTING PETITION

1) §53.1-202.2 Code of Virginia reads as follows: "Every person who is

convicted of a felony offense committed on or after January 1, 1995, and who

is sentenced to serve a term of incarceration in a state or local correctional

facility shall be eligible to earn sentence credits in the manner prescribed

by this article. Such eligibility shall commence upon the person's incarceration

in any correctional facility following entry of a final 'order of, conviction

by the committing court. As used in this chapter "sentence credit" and "earned

sentence credit" mean deductions from a person's term of confinement earned

through the rules prescribed to §53.1-25, through program participation as

required by §53.1-32.1 and 53.1-202.3, and by meeting other such requirements

as may be established by law or regulation. One earned sentence credit shall

equal a deduction of one day from a person's term of incarceration ... (1994,

2nd Sp. Sess., cc. 1.2.)" The question presented is has the Petitioner been

validly sentenced under this statute, therefore being encompassed by this?

The Petitioner, Joshua Mitch Johnson #1162995, herein ("Johnson"),

committed his crimes in March of 1995. He was then convicted of these crimes

on October 24, 1995 and then sentenced on October 24, '1995. On December 19, 1995,

Johnson was received into the Virginia Department of Corrections. The Supreme

Court of Virginia, in a span of nearly two decades has cited Fishback v.

Commonwealth, 260 Va. 104, 532 S.E.2d 629 (2000) in ten cases. Over this span,

of nearly two decades, there have only been three cases which have set the legal

landscape in relation to the interpretation and application of §53.1-202.2 C.O.V.

The first in line to setting the tone was found in Fishback. V. Commonwealth.

In Fishback, the Supreme Court of Virginia considered at length, and in

great detail, the proper interpretation of §53.1-202.2 C.O.V. as well as its

proper application and found that,

"Indeed, for every person convicted of a non-capital felony offense

committed on or after January 1, 1995, the provisions of Code §53.1-40.1

and Code §53.1-202.2 et seq. are implicated and conditionally provide for

forms of early release and sentence reduction."

Id. 260 Va. at 114, 532 S.E.2d at 633.

Moreover, it is important to note that the Court in Fishback, noted that

a life sentence is a "term" of incarceration stating,

"Pertinent to the present case, for example, §18.2-58 provides for a

range of punishment between a term of life to any term not less than five

years."

Id. 260 Va. at 113, 5.32 S.E.2d at 633.

This is also held by this very Court in Simmons v. South Carolina, 512

U.S. 1.54, 129 L.Ed.2d 133, 114 S.Ct. 2187 (1994) where it was noted that,

"For much of the country's history, parole was a mainstay of state and

federal sentencing regimes, and every term (whether a term of life or a

term of years) in practice was understood to be shorter than stated term."

§53;1-202.;2 C.O.V. states in part "Every1 person

who is convicted of a

felony offense on or after January 1, 1995, and who is sentenced to serve

a term3 of incarceration4 in a state or local correctional facility

shall

be eligible to earn sentence credits in the manner prescribed by

this article."

§53.1-202.2 C.O.V. goes on and further states that once that credit is

earned,

"One earned sentence credit shall

equal a deduction of one day from a

person's term3 of incarceration4."

Fishback, stipulated that a felony offense, found in §53.1-202.2 C.0.V.,

must be a non-capital felony offense6. Id. 260 at Va., at 114, 532 S.E.2d,

at 633. "Indeed, for every person convicted of a non-capital felony offense

committed on or after January 1, 1995..

American Heritage

cliorary, 2nd

Ed.

Every-Constituting each and all memebers of a class without exception.

Person- A living human being, esp. as distinguished from an animal or thing.

Term- A limited period of time during which something lasts.

Black's Law Dictionary, 7th Ed.

Incarceration- The act or process of confining someone.

Shall- Is entitled to <the secretary shall be reimbursed for all expenses>

Capital Offense- A crime for which the death penalty may be imposed.

The Supreme Court of- Virginia has ruled on who the provisions of

§53.1-202.2 C.O.V. are provided for. The Supreme Court of Virginia has

encompassed Johnson because his crimes did not include a capital felony

offense.

The next case in which the Supreme Court of Virginia interpreted

§53.1-202.2 C.O.V. was in Bell v. Commonwealth, 264 Va. 172, 563 S.E.2d 695

(2002). Consistent with its earlier interpretation, the Bell, court found,

"With regard to the issue of sentencing credits under Code §53.1-202.2

we recognized in Fishback that a defendant's eligibility for this type of

early release remains dependant upon the prisoner's conduct and participation

in various programs established by the Department of Corrections, and the

executive branch's subjective assessment of that conduct and participation.

Id. 264 Va. at 206-207, 563 S.E.2d at 717-718.

Consistent with the Fishback interpretation of §53.1-202.2 C.O.V., the only

exceptions to this state law is a person convicted of a capital felony

offense.

The Bell court found that,

"Unlike the defendant in Fishback, Bell's conviction of capital murder

precludes the possibility of his earning sentence credits."

Id. 264 Va. at 207, 563 S.E.2d at 718

Accordingly, the highest court in the Commonwealth of Virginia remained

consistent in its interpretation and application of §53.1-202.2 C.O.V. in

shback in 2000 and again: in Bell in 2002. However, when Johnson asked for the

state law to be applied not only as it is mandatorily written but also

as the

Supreme Court of Virginia has ruled, the court chose not to follow its

own

precedent.

The last and most recent case out of the SiipremeCourt ófVirginia with

regard to the interpretation and application of §53.1-202.2 C.O.V. was

Booker v. Commonwealth, 276 Va. 37, 661 S.E.2d 461 (2008). The Court

in Booker

reiterated the holdings of Fishback and Bell which

"held that juries should not be instructed on the issue of earned sentenc

credits that a prisoner may obtain under §53.1-202.2 through 202.4, because

F:]

obtaining these credits depends upon [l] a prisoner's conduct while

incarcerated, [2] on his participation in certain programs established

by the Department of COrrections, and [3] on the executive branch's

subjective assessment of the prisoner's progress."

Id., 276 Va. at 42, 661 S.E. 2d, at 463 (emphasis and alterations added). The

"subjective assessment of the prisoner's progress" is better known as "Class

Levels I, II, III, IV."

After reviewing the decisions of the Supreme Court of Virginia relatiig to

Code §53.1-202.2, it is abundantly clear that the highest court in the

Commonwealth of Virginia has interpreted §53.1-202.2 C.O.V. consistently for

nearly two decades. Indeed, the highest court of the state has interpreted

the statute to include every person convicted of a non-capital felony offense

committed on or after January 1, 1995. Moreover, obtaining the credits the

offender is entitled to under §53.1-202.2 C.O.V. 'depends on;' (1) a prisoner's

conduct; (2) the prisoner's participation in certain programs; and (3) the

Department of Corrections assessment of the prisoner's progress as reflected

in the prisoner's 'Class Level' assignment.

Article 4 of Chapter 5; Title 53.1 of the Virginia Code is clear, "Earned

Sentence Credits for Persons Committed Upon Felony Offenses Committed on or

After January 1, 1995." Virginia Code §53.1-202.2 is the first, and clearly

the most prominent statute under this Article. It could not be more clear in

its terms "Every person who is convicted of a felony offense committed on or

after January 1, 1995 and who is sentenced to serve a term of incarceration...

shall be eligible to earn sentence credits.. ." and once those credits are earned,

they "shall equal a deduction... from a person's term of incarceration." Nowhere

in the subsequent statutes is there any authority given to the Board of

Corrections or the Department of Corrections to exclude any person, including the

Petitioner from the "Every person.. .shall be eligible to earn.. ." and once earned,

"shall equal a deduction..." provisions of this statute.

2) §53.1-202.2 Code of Virginia specifically stipulates that "Every person who

is convicted of a felony offense committed on or after January 1, 1995 and who

is sentenced to serve a term of incarceration in a state or local correctional

facility..." The question presented by the Petitioner is is the Petitioner one

of "Every Person who is convicted of a felony offense committed on or after

January 1, 1995 and who is sentenced to serve a term of incarceration..."?

On March 6, 1995, Johnson committed his crimes. On March 7, 1995, Johnson

was taken into custody and formally charged. On June 23, 1995, Johnson was

convicted of the crimes he was charged with. On October 24, 1995, Johnson was

sentenced to a term of incarceration and on December 19, 1995, Johnson was

received into the Virginia Department of OOrrections at Southhampton Receiving

Center.

§53.1-202.2 C.O.V. stipulates that "Every person who is convicted of a

felony offense committed on or after January 1, 1995..." Johnson is a person who

committed a felony offense(s) on March 6, 1995. That is clearly after the

statutorily mandated January 1, 1995.

§53.1-202.2 C.O.V. stipulates that "Every person who is convicted of a

felony offense committed on or after January 1, 1995 and who is sentenced to

serve a term of incarceration in a state or local correctional facility.. ."

Johnson is a person who committed a felony offense(s) on March 6, 1995 and on

October 24, 1995 he was sentenced to a term of incarceration in a state facility.

October 24, 1995 is also after the statutorily mandated "on or after January 1,

1995.. .", therefore Johnson is encompassed by 53.1-202.2 C.O.V.. Johnson is,-,one

of "every: person" who committed his felony offense "on or after January 1, 1995"

and who was sentenced to serve a "term of incarceration" after January 1, 1995.

In being encompassed by §53.1-202.2 C.O.V., Johnson and his sentence are

subject to all of the provisions found in the state law and it entitles him to

all of the rights conveyed therein. "One earned sentence credit shall equal a

deduction of one day from a persons term of incarceration." The mandatory and

unambiguous language has created a protectable entitlement and is to be applied

equally to "Every person who is convicted of a felony offense committed on or

after January 1, 1995." §53.1-202.2 C.O.V.

3) The Supreme Court of the United States has held that a state law may create

enforceable interests in a prison setting. See: Board of Pardons v. Alit;

Greenholtz v. Nebraska Penal Inmates; Wolff v. McDonnell; Vitek v. Jones. The

question presented by the Petitioner is with the use of the explicitly mandatory

term "shall" in §53.1-202.2 C.0.V., has a liberty interest been created

pursuant to those standards?

"'.ilandatory language' often means words like "shall" , "will", or "must"."

Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed. 2d 303 (1987);

Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1940, 104

L.Ed 2d 506 (1989).

§53.1-202.2 C.O.V. in part specifically stipulates "every person.. .shall be

eligible to earn sentence credits.. ." and that once those credits are earned,

they "shall" be applied to "equal a deduction.. .from a person's term of

incarceration."

It is well established by this Court that the word "shall" is a directive

for what is to be done. §53.1-202.2 C.O.V. with its use of explicitly mandatory

and unambiguous language, has created not only the opportunity to earn sentence

credits, but to also have those credits applied once earned, if they are earned.

The explicitly mandatory and unambiguous language delineates specifically, the

interest to be protected.

In order to create a liberty interest protected by the Fourteenth Amendment.

of the United States Constitution, a law must set forth substantive predicates

to govern official decisionmaking, it must contain explicitly mandatory language

as a specific directive to the decisionmaker that mandates a particular outcome

if the substantive predicates are met.

Explicitly mandatory language has been used with the use of the terms

"every person" and "shall" found in §53.1-202.2 C.O.V. The legislative intent

is clear and they have created a binding and definite liberty interest protected

by the Due Process Clause.

"One earned sentence credit SHALL equal a deduction of one day from a

person's term of incarceration." §53.1-202.2 C.O.V. This is a clear and specific

directive to the decisionmaker that mandates a particular outcome if the

subsantive predicates have been met. §53.1-202.2 C.O.V. stipulates that the

substantive predicates must be achieved by following the "rules prescribed by

§53.1-25, through program participation as required by §§ 53.1-32.1 and 53.1-202.3

and by meeting other such requirements as may be established by law or regulation."

This is how earned sentence credits are earned and "One earned sentence credit

hall equal a deduction of one day from a person's term of incarceration."

§53.1-202.2 C.O.V. This is a clear and specified outcome from which

decisionmakers are not free to depart from.

Since 1995, Johnson has been consistently placed into an Earned

Sentence Credit earning level in which 'eligible' offenders earn the credits as

mandated by law. (See: Exhibit A). Yet Johnson is only awarded those levels for

recognition purposes only pursuant to the policies complained of (See: Exhibit B

and Exhibit Q. The law does not mandate that some shall only be recognized

for rules and regulations and for program participation, nor does the the law

delegate to the V.D.O.C., the authority to rewrite the language and intent of

its mandatory intent. §53.1-202.2 C.O.V. specifically stipulates that "Every

person . .. shall be eligible to earn sentence credits..." and that once that

credit is earned they "shall equal a deduction.. .from a person's term of

incarceration."

The Virginia State legislature has created a right to earned sentence

credits. Not only in the ability to earn those credits, but once they are

earned, they "shall" be applied to equal a deduction from a persons term of

confinement. This is the right held in Wolff v. McDonnell, 418 U.S. at 556-572,

41 L.ed. 2d 905, 94 S.Ct. 2963 (1974), which is still the standard today.

The state legislature also authorized that credits earned shall be lost for

major misconduct. This too was the standard set forth in Wolff and in doing so,

the "prisoner's ihterest has real substance and is sufficiently embraced

within Fourteenth Amendment 'liberty'...".

4) According to Wolff v. McDonnell, 418 U.S. 539, 41 L.Ed. 2d 905, 94 S.Ct.

2963 (1974), "[t]he state having created a right to good time and itself recognized

that it's deprivation is a sanction for major misconduct, prisoner's interest

has real substance and is sufficiently embraced within the Fourteenth Amendment."

The question presented is with the use of explicitly mandatory language in

the governing statute §53.1-202.2 C.0.V., has the state created a right to

good time (earned sentence credits) that cannot be taken away without minimal

due process, therefore sufficiently embracing the Petitioner's interest within

the Fourteenth Amendment in accordance with the Wolff standard?

The Supreme Court has said that deprivations that are less severe or more

closely related to the original terms of confinement nonetheless will amount

to deprivations of procedurally protected liberty, provided that state law

narrowly cabins the legal power of authorities to impose the deprivation, thereby

giving the inmate a kind of right to avoid it. See: Kentucky Dept. of Corrections V.

Thompson, 490 U.S. 454, 461, 104 L.Ed.2d 506, 109 S.Ct. 1904, 1908-1909 (1981)

("Method of inquiry.. .always has been to examine closely the language of the

relevant statutes and regulations."); Board of Pardons v. Allen, 482 U.S. 369,

382, 96 L.Ed.2d 303, 107 S.Ct. 2415, 2422-2423 (1983)(Insisting upon "standards

that place real limits on decisionmaker discretion.")

The Supreme Court has "distinguished Wolff by noting that there the

protected liberty in good time credit had been created by state law."

Sandinv. Conner ,515 U.S. 472, 132 L.Ed.2d 2418, 115 S.Ct. 2293, 2297 (1995).

The "Court today reaffirms that the 'liberty' protected by the Fourteenth

Amendment includes interests that state law may create." Sandin, supra, 115 S.Ct.

at 2300.

The rate at which every person earns Good Conduct Allowance (GCA)(which was

the credit system prior to January 1, 1995 and is only available to those sentenced

after July of 1981 up until December 31, 1994) and Earned Sentence Credits (ESC)

does not create an interest in avoiding changes in the classification alone

since it is subject to change based upon the exhibited behavior of an offender.

This is reviewed annually or as needed if negative behavior talls for it. Based

upon an offender's own behavior or misbehavior for violations of prison rules

and regulations or for failure to participate in programs, discretion is given

to prison officials. This disruptive behavior necessitates the need for thea;

prison, officials discretion to punish the offenders accordingly and this is

done through an internal prison disciplinary hearing(s) process. (See: Exhibit D).

This hearing is where minimal due process is provided and if found guilty of an

infraction or infractions, a penalty or penalties are levied, including a

loss of good time or earned sentence credits.

Johnson has never received a disciplinary infraction, nor a disciplinary

hearing calling for the revokation of any or all of his earned sentence credits.

There has been no periodic changes to the rate at which he earns sentence credits

for his consistent behavior in following the rules and regulations have been

noted annually at his annual review cycle and he has consistently been assigned

to a class earning level III, which 1.5 days of Earned Sentence Credits are

earned for every 30 days served.

Offenders may have no interest in maintaining a particlar ESC earning

rate due to An offenders changing behavior, but when an offender's behavior

is unchanging, and noted annually by maintaining a particular ESC earning

rate, such as Johnson, his liberty interests are protected by the Due Process

Clause for which that ESC earning rate allows. As seen in Exhibit A, Johnson has

consistently been assigned to an'ESC earning level III, at which offenders

earn earn 1.5 days of credit for every 30 days served. This classification of

Johnson, by his own positive behavior in following the rules and regulations

and with the prison officials own concurrance, has not been subject to change,

thereby entitling Johnson to the liberty interests as mandated by the law,

§53.1-202.2 C.O.V. "One earned sentence credit shall epial a deduction of one

day from a person's term of incarceration." Johnson is then afforded the

procedural Due Process protections held in Wolff supra. A regulation barring

punishment unless an inmate broke disciplinary rules, combined with the mandatory

procedural regulations and mandates, create a liberty interest proteceted by

the Due Process Clause.

Johnson's claims fall squarely within the purview of Wolff, supra. Virginia

Code §53.1-202.2 specifies that once any credit is earned, it "shall equal a

deduction.. ." The attorney General's office conceded that Johnson has been

consistently assigned to, since 1995, an ESC earning level III. Based upon his

own positive behavior and maintaining this earning level, it has given rise to

a "right of real substance and is sufficiently embraced within the Fourteenth

Amendment." Wolff, supra. 94 S.Ct. 2975. Clearly, the statute under which

Johnson was sentenced, §53.1-202.2 C.O.V. creates the right to have his ESC

credits applied once earned, evidenced by the mandatory unambiguous language.

§53.1-202.2 C.O.V. delineates specifically the interest to be protected.

"One earned sentence credit shall equal a deduction of one day from a person's

term of incarceration." It has been - held by every court in the nation, including

this Court, that in deciding questions of statutory interpretation, if the

language is clear and unambiguous, then the courts are duty bound to give

effect to that language.

The liberty interest here is one created by the state through state law.

When a liberty interest is created by the state, it follows that the state can,

within reasonable and constitutional limits, control the contours of the

liberty interest it creates. The V.D.O.C. has interpreted, with policies,

these limitations to be something contrary to which they are explicitly mandated,

simply because this is the usual D.O.C. practice. The policies found in DOP

807-7.6(5) and its successor OP 830.3 IV B 4(a); V H 5(b) and VIII C (See:

Exhibit B and Exhibit C) have rewritten the mandatory language and intent

of its governing statute in an attempt to correct a "perceived" legislative

oversight in affording "every person" the opportunity to earn sentence credits

and to have those credits applied to "equal a deduction" from a person's

term of confinement. §53.1-202.2 C.O.V. This is not a power afforded to the

V.D.O.C. or any of its agents. The only authority granted to the V.D.O.C.

must be "consistent with the purpose of this article." §53.1-202.4 C.O.V. The

purpose of Article 4 of Chapter 5; Title 53.1 of the Virginia Code is clear

"Earned Sentence Credits for Person's Committed Upon Felony Offenses Committed

On Or After January 1, 1995."

The V.D.O.C. has circumvented the guaranteed due process procedures and

minimal due process protections with the creation of policies contrary in

language and intent to their governing law, thus arbitrarily abrogating Johnson's

rights and being in direct conflict with the procedures and protections set

forth in Wolff This was done when the policies stated that 'some people...'

shall not earn ESC, when the state law states that "Every person shall be

eligible to earn sentence credits.. ." §53.1-202.2 C.O.V. This is specifically

mandated by the law and the V.D.O.C. has circumvented this and taken away

the ability and opportunity, as mandated by law, to earn any credits, thus

no longer providing any form of due process procedure for the automatic

revocation of sentence credits. Credits lost are a sanction for major misconduct

as seen in Exhibit D. According to the state law "Every person.. .shall be

eligible to earn sentence credits. .." This cannot be denied to any person

who is convicted of a felony offense committed on or after January 1, 1995.

Wolff has held that a formal due process hearing must be held in the

revocation of any and all credits earned but the V.D.O.C. has removed that

right guaranteed. Johnson's rights are sufficently embraced within the

Fourteenth Amendment where the state law has created not only the ability for

"every person" to earn sentence credits but also the right to have those

credits once earned applied to "equal a deduction" from a person's term of

incarceration. This was done with the use of explicitly mandatoryand.

unambiguous language used by the legislature to unequivocally convey its

intent. These rights are protected by the Due Process Clause and the V.D.O.C.

has removed those rights and denied Johnson the liberty interest granted to

him by the governing state law for following the rules and regulations and

maintaining positive behavior while incarcerated. This is in direct conflict

with the standard set forth by this Court in Wolff and countless others since.

-k

DISCOURSE ON TRUTH-IN-SENTENCING

On January 1, 1995, with the implementation of 553.1-165.1 Code

of Virginia, parole was abolished for all offenders who committed felony

offenses on or after January 1, 1995. This was part of the three part

Truth-In-Sentencing reform package. (See: Commonwealth of Va. Comm'n

on Sentencing & Parole Reform, Report of the Commission on Sentencing &

Parole Reform to the Governor and General Assembly of Virginia, H. Doc.

No. 18 December 23, 1994) The primary goal of the Truth-In-Sentencing

reform package was to close the gap between an offender's original

sentence and the amount of time they actually served. (See: Brian J.

Ostrom et. al., Truth In Sentencing in Virginia 17-20 (April 5, 2000).

i.e. An offender who was sentenced to twenty (20) years on or after

January 1, 1995, though ineligible for parole, will serve, at the very

minimum, approximately 17 years with minimal sentence reduction in the

form of Earned Sentence Credits (E.S.C.). This is for following the

rules and regulations as well as for completing schooling and various

courses and programs. Whereas, prior to January 1, 1995, if an offender

was sentenced to twenty (20) years, that offender would be eligible

for parole as early as four and a half (4 1/2) years into his

sentence and at the very maximum would serve approximately twelve (12)

years with sentence reduction in the form of Good Conduct Allowance (GCA).

Also, as part of the Truth-In-Sentencing reform package, there was

to be a. sentencing commission established as well as uniform sentencing

guidelines set because there were too many disparities among sentences

imposed upon similarily situated offenders.

Virginia attempted to follow the model established for the Bureau

of Prisons in 18 U.S.C.S. §3551 known as the Sentencing Reform Act of

1984 (S.R.A.). Congress passed the S.R.A. because the existing

indeterminate sentencing system resulted in serious disparities among

the sentences imposed upon similarily situtated offenders and an

uncertainty as to an offenders actual release by the executive branch's

parole officials. Inter alia, this created the United States Sentencing

commission as an independant body in the judicial branch with the power

to promulgate binding sentencing guidelines for establishing a range

of determinate sentences for all catagories of offenses and offenders.

The great variation among sentences as well as the uncertainty of

time the offender would serve in prison, created a serious impediment

to the orderly and effective operation of the criminal justice system.

In lieu of this, a concept was formulated that 1) helped establish order

within the penal system by giving offenders a realistic release date,

impelling serious rehabilitative efforts to minimize the risk of

recidivism 2) helped achieve better sentencing uniformity and 3) attempted

to curb society's misconceptions and misperceptions as to the actual

amount of time served within the penal system.

Virginia attempted to adopt this mode of thought with the

implementation of §53.1-165.1 C.O.V. and §53.1-202.2-202.4 C.O.V. Yet,

twenty four (24) years later, two thirds of the Truth-In--Sentencing

package has yet to see fruition and the disparities are much more

evident.

In Simmons v. South Carolina, 114 S.Ct. 2187., 512 U.S. 154, 129

L.Ed.2d 133 (1994)(see also: Ramdassv.Angelone, 187 F.3d 396 (1999)),

the Supreme Court pondered the constitutionality of a jury's lack of

information regarding life imprisonment and a sentence of death. In

its ponderance, the Supreme Court explored the general public's view of

the death penalty, a term of life as well as determinate sentencing and. it

relied upon sources prior to and post 1995.

How long a defendant will remain in jail is a critical factor for juries.

One study, for example, indicates that 79% of Virginia residents consider

the number of years a defendant might actually serve before being paroled

to be an "important" consideration when choosing between life imprisonment and

the death penalty. (see: the Meaning of "Life" for Virginia Jurors and its

Effects on Reliability in Capital Sentencing, .75 Va.L.Rev. 1605, 1624 and

no. 102 (1989) citing study at National Legal Research Group). Two-thirds

of the respondents in another survey stated that they would be more likely

to give a life sentence instead of death if .they knew the defendant had to

serve at least 25 years in prison before being eligible for parole. Indeed,

parole ineligibility information is so important that 62.3% of potential

Virginia jurors would actually disregard a judge's instruction not to

consider parole eligibility when determining a defendant's sentence. (see: 75

Va.L.Rev. at 1264-1265 no. 103.)

At the same time, the development of parole ineligibility statutes

resulted in confusion and misperception, such that "common sense tells

us that many jurors might not know whether a life sentence carries with it

the possibility of parole." Simmons, 114 S.Ct. 2187, 512 U.S. at 177-178,

129 L.Ed.2d 133 (1994). One study of potential Virginia jurors asked

"If a person sentenced to imprisonment for intentional murder during an

armed robbery, how many years on average do you think that person would

actually serve before being released on parole?" The most frequent

answer was 10 years.(see: 75 Va.L.Rev. at 1624 at no, 101) Another

potential juror survey put the average response at just over eight years.

(see: Paduano & Smith 18 Colum.Human Rights L.Rev. at 223 no. 34). More

than 70% of potential jurors think a person sentenced to life in prison

for murder can be released at some point in the future.(see: Hughes,

44 S.C.L.Rev. at 408; Finn, Washington Post, Virginia Juries vote for

Life, Febuary 3, 1997 pp Al atA6). "Only 4% of Americans believe that

convicted murderers will spend the rest of their days in prison."(see:

Finn, at Wash.Post pp Al, A6).

At Simmons v South Carolina, 512 U.S. 154, 129 L.Ed.2d. 133, the

Court noted, "It can hardly be questioned that most juries lack

accurate information about the precise meaning of "life imprisonment" as

defined by the states. For much of the country's history, parole was

a mainstay of state and federal sentencing regimes, and every term

(whether a term of life or a term of years) in practice was understood

to be shorter than stated term. (see: Generals Lowenthal, Mandatory

Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing

Reform, 81 Calif.L.Rev. 61 (1993)(describing the development of mandatory

sentencing laws)), Justice Chandler of the South Carolina Supreme Court

observed that it is impossible to ignore "the reality, known to the

'reasonable juror', that, historically, life-term defendant's have been

eligible for parole." State v. Smith,

SC 482, 489-490, 381 S.E 2d 724,

728 (1989)."

Pre- 1995, before the enactment of the Truth-In-Sentencing package,

which included the abolishment of parole, as noted in various studies

and polls, potential jurors were under the misconception that a very

limited amount of time would be served of the actual sentence imposed.

[

In comparison to the sentences imposed post-1995, this belief is

absolutely correct.

January 1, 1995 and afterwards, when the abolishment of parole went

into effect, potential jurors polled in Virginia and elsewhere still

believed that a very limited amount of time would be served and for a

minimum of five years afterwards until June of 2000 with the Supreme

Court of Virginia ruling in Fishbackv.Commonwealth, 260 Va. 104,

532 S.E.2d 629 (2000), the very same potential jurors in Virginia believe

parole was still available to defendants and sentenced those defendants

accordingly to the misconceptions that 1) a short amount of time would

be served, an average of 1/3rd to 2/3rds of their original sentence and

2) parole was still available. The Supreme Court of Virginia recognized

this egregious error and overruled the predecessor to Fishback,

Coward v. Commonwealth, 164 Va. 639, 646 (1935), and rul€-d that from that

date forward juries had to be notified that parole had bëen abolished.

The Truth-In-Sentencing reform package, as noted earlier, attempted to

close the gap between the prisoner's original sentence and the time they

actually served. This was completed successfully, though potential jurors

were unaware of this and sentenced defendants to the dame time they would

have if the Truth-In-Sentencing reform package had not been enacted.

The failure lies where two-thirds of the Truth-In-Sentencing package

still has yet to be enacted properly, even twenty-four years later.

Though sentencing guidelines have always existed for crimes, 1) they are

just that, guidelines that can help to determine an appropriate sentenc

but need not be followed and 2) they were never restructured to reflect

the abolishment of parole and the inability to earn more than 4.5 days

of sentence credit for every 30 days served. Though the juries have never

been notified of 'good time awards' and 'sentence credits' they understood

that good behavior caused defendants to be released earlier than the

original sentence, though they may not have understood the logistics of it.

The guidelines that were implemented for crimes before January 1, 1995, took

into account parole eligibility and in most cases the ability to earn

a maximum of 30 days of good time credit for every 30 days served, though

the Virginia legislature expressly limited those earnings to a maximum of

10 days for every 30 days served for various crimes and sentences. To this

day, 24 years later, those very same guidelines that were used prior to

1995 are being used for those convicted of felony offenses on or after

January 1, 1995.

This cannot be made more evident than in the sentencing of offenders

to life and life plus sentences. The Virginia legislature took to heart the

intent of the Truth-In-Sentencing reform package and framed, in mandatory

language, §53.1-202.2 C.O.V. This statute, which governs the earned sentence

credit earning for "Every person who is convicted of a felony offense

committed on or after January 1, 1995" and specifically stipulates that

"Every person" "shall be eligible to earn sentence credits" and that once

those credits are earned they "SHALL equal a deduction.. .from a person's

term of incarceration." §53.1-202.2 even defines "sentence credit" and

"earned sentence - credit" to "mean deductions from a person's term of

confinement earned through rules prescribed.. .through program participation

and by meeting other such requirements..."

The Virginia legislature made available, sentence credits, to

"Every person ... convicted of a felony offense committed on or after January 1,

1995. ." There was no stipulation on the length of sentence or the crime(s)

committed. "Every person who is convicted of a felony offense committed

on or after January 1, 1995...shall be eligible to earn sentence credits.. ."

Under 18 U.S.C.S. §3551 S.R.A., determinate sentences and their guidelines

were created for all offenses and offenders. Virginia modeled their TruthIn-Sentencing reform package after the federal S.R.A. and the legislature

chose with care its words, when establishing §53.1-202.2 C.O.V. The intent

is evidenced with its use of mandatory and unambiguous language, "every

person" and "shall". With a sentencing commission and proper uniform

sentencing guidelines, which was touted as part of the Truth-In-Sentencing

reform package, determinate sentences were to be implemented for any and all

offenders. Again, "Every person who is convicted of a felony offense

committed on or after January 1, 1995 ... SHALL BE ELIGIBLE to earn sentence

credits.. ." and once those credits are earned they "SHALL equal a deduction..

from a person's term of incarceration." §53.1-202.2 C.O.V. This has been

mandated by the legislature, to the executive branch in explicitly

mandatory and unambiguous language. Once the credit is earned, it SHALL be

applied. The executive branch is not free to depart from this.

If the legislative intent had been anything else, it would have

expressly and specifically stipulated so, much as it did in §53.1-199 C.O.V.

the predecessor to §53.1-202.2 C.O.V. §53.1-199 C.O.V. deals with the

pre-1995 good conduct allowance system and is framed in part in discretionary

language. The explicit legislative intent prior to 1995 was "Every person

who, on or after July 1,1981, has been convicted of a felony.. .maybe

entitled to good conduct allowance.. ." It further set restrictions and made

specific stipulations as to how much good conduct allowance may be earned

for specific crimes and specific sentences. "Any person who, on or after

July 1, 1981.. .who has been sentenced to a term of life imprisonment or two

or more life sentences. ..SIIALL be eligible for no more than ten good

conduct credits for every thirty days served..." The Virginia legislature

limited the amount of credit earned and by whom and expressly mandated it

in the language of §53.1-199 C.O.V.

In §53.1-202.2 C.O.V., the Virginia legislature, expressly mandated,

with its use of explicitly mandatory and unambiguous terms that "Every

person who is convicted of a felony offense committed on or after January 1,

1995 ... shall be eligible to earn sentence credits" and that once those

credits are earned they "SHALL equal a deduction.. .from a person's term of

incarceration."

If a person committed a felony offense on October 15, 2010, that person

would be eligible to earn sentence credits under §53.1-202.2 C.O.V for

that person is one of "every person" and if that person earned any sentenc

credits then they "SHALL equal a deduction—from

.from a person's term of

incarceration" pursuant to that very same statute. If a person committed

a felony offense on March 6, 1995, he/she too is subject to that very same

statute. "Every person who is convicted of a felony offense committed on or

after January 1, 1995" are subject to this statute. The legislature

expressly and purposefully encompassed"Every person ... convicted of a felony

offense.. .on or after January 1, 1995." There were no stipulations on

certain crimes or length of sentence. The statute does not read 'Every person

convicted of a felony offense but not sentenced to a term of life, shall be

eligible...' The statute does not read 'Any person sentenced to a term of

life shall not...' If that had been the intent of the legislature, it

would have explicitly mandated it as it did in §53.1-199 C.O.V. The

legislature would have also made specific stipulations as to who and who may

not earn credits based upon certain crimes and/or length of confinement as

numerous other states have.

Ind.Code §11-13-3-2(b)(3)("A person sentenced to life imprisonment does

not earn credit with respect to that term"); 0kla.Stat.Tit. 57, §138(A)("No

deductions shall be credited to any inmate serving a sentence of life

imprisonment"); La.Rey.Stat §15:529.1(A)(Person sentenced to a habitual

offender cannot receive diminuation of his sentence through good time credit);

Tenn.Code Ann. §§ 39-13-204 (a), (f)(1); 40-35-501 (h)(1)(person sentenced

to parolable life in prison must serve 60 years of his sentence before he

is eligible for release on parole); 730 ILCS 5/3-6-3 (a)(2),(2.1)(defendant

convicted of first degree murder is ineligible for good time credit, whereas

a defendant convicted of second degree murder receives one day of credit for

every day served); Ariz.RevStat.Ann. §13-703(A)(2001)("If court does not

sentence defendant to natural life, the defendant shall not be released on

any basis until the completion of the service of twenty-five calander years"

but a defendant sentenced to "natural life" will "not be released on any

basis for the remainder of the defendant's natural life.");W.Va. Code

§28-5-27 (c)(d)(Cood time credits allow a prisoner the opportunity to cut

his total sentence in half, but are not applicable to a life sentence);

Oregon Revised Statutes §421.120(good time credits are not allowed to

inmates serving life sentences.)

Even though S.R.A. of 1984 abolished parole for federal offenses

committed after November 1, 1984 and the establishment of sentencing

guidelines for all offenses was created, life sentences were still given

out. After all, guidelines are guidelines and certain crimes are so heinous

that a sentence of life is justified. The Senate took this all into account

and stated in 18 U.S.C.S. §3624(b)("Prisoners serving life sentences are

not entitled to a deduction for good time credits.")

Virginia's model was the Sentencing Reform Act of 1984, which abolished

parole, established a range of determinate sentences for all offenses and

offenders, created a sentencing commission and with the use of specific

language, stipulated that prisoners serving life sentences are not entitled

to a deduction for good time credits.

Touting reform to garner votes and support, the General Assembly of

Virginia and Governor George Allen passed the reform package but in its

haste implemented the centerpiece of the package, the elimination of

parole for all offenders who committed felonies on or after January 1, 1995,

without first establishing a sentencing commission and uniform sentencing

guidelines that reflected the "new law". To this day, the disparities of

sentencing between similarly situated offenders is overwhelming and very

little has been done to correct the issues.

The Supreme Court of Virginia, half-heartedly tried to correct a

glaring oversight by establishing in Fishback v. Commonwealth, that from

that date in June of 2000 on, the juries had to be notified as to the

abolition of parole. Juries up until that point were under the misconception

that parole was still available and were sentencing defendants as if they

were eligible for parole and a reduced sentence. Yet the Supreme Court of

Virginia refused to make that ruling retroactive to apply to "Every person"

sentenced on or after January 1, 1995 up until the Fishback decision in

June of 2000. This would have meant resentencing a little over 300+

inmates within a reasonable timeframe in which evidence would not have

possibly been degraded, the impact of the events are still felt heavily,

and the juries would not be nearly as disconnected from the events.

Numerous House and Senate bills have been presented in Virginia to rectify

that situation alone. Bills have been presented to resentence non-violent

offenders from 1995 until the Fishback decison. see: SB216 (2016);

SB825 (2017); SB100 (2018). A bill was presented in 2017 SB223 to resentence

non capital felony, offenders. Bills were presented to offer parole for

offenders convicted of felony offenses on or after January 1, 1995 until

the Fishback decision in 2000. see: 11B390 (2016); 11B1314 (2018). These

were consistently presented because it is recognized by legislators and

senators that most Virginians and Virginian juries lacked accurate

information, were confused and under the misperception that any and every

sentence still carried with it the possibility for parole and sentenced

offenders according to these misperceptions. Study after study has shown

the ignorance of most Virginians to the legal landscape and many offenders

have suffered. This is not the public's fault. Their misperceptions are

fed by a host of stimuli but one of the biggest purveyors of that

misperception is the failure to implement the more uniform sentencing

guidelines so similar crimes and similarly situated offenders are not

sentenced to such disproportionate sentences based upon the political

clime, region, class or race. Senators and Legislators have attempted to

rectify some of the issues here and there but to littleorno avail. This

must be an issue addressed by the'Supreme Court of the United States.

It is not for the Supreme Court to decide about parole. It is not for

the Supreme Court to force Virginia to conform to uniform sentencing

guidelines. It is not for the Supreme Court to make Fishback retroactive

right now. It is for the Supreme Court to rule upon numerous constitutional

and statutory violations committed by the V.D.0.C. (executive branch) by

not applying the law as it is unambiguously mandated. It is for the Supreme

Court to declare that the policies complained of, that have rewritten their

governing statute, must be stricken and declared VOID for they canno

have concurrent operation with their governing statu

te. It is for the

Supreme Court to enforce with Virginia the ancient Justi

nian maxim

a verbis legis non est recedendum. "Do not depart from the words of law."

SUMMARIZATION.

This is being brought before this Court because the

V.D.O.C.'s continued

use of policies, unauthorized by the legislature, viola

te Johnson's

statutory and constitutional rights. The issued raise

d within the Writ of

Certiorari are based in law, protected by the United

States Constitution and

are undeniable as well as irrefutable. The Defendant,

in performance of a

ministerial duty, has acted arbitrarily and capriously

. These actions are

unlawful and cannot be excused simply because tht D.O.C

. and himself, the

Director of the department, have erroneously interprete

d the state law and have

failed to comply with the provisions set forth in the

Code of Virginia.

With the establishment and application of the prison

policies that are

in direct conflict with the mandatory language and inten

t of their clearly

established governing state law, it has given rise to

a host of constitutional

violations.. The creation of these policies, that are

so deficient and clearly

contrary to the legislative intent, have implemented

the means by which the

defendant has eviscerated any and all rights granted

to Johnson by the state

law and have denied Johnson any process due to preve

nt that from happening.

In order to lose any credits earned, someone must have

violated the rules and

regulations and received an internal hearing of some

sort to establish guilt and

then as a sanction for being found guilty for certain

offenses, credits are

tMe

then lost. This is the process due to "every person" within the Virginia

Department of Corrections and this is the process due established in Wolff and

continuoulsy upheld decades later.

The V.D.0.C. has circumvented any and all process required with the

implementation of policies that are in direct conflict with the mandatory

language and intent of their governing statute §53.1-202.2 C.O.V. By doing so,

they have removed Johnson from his clearly established rights and left him no

recourse in obtaining what is mandated to him by law. Johnson has consistently

been assigned to an ESC earning level III in which "every person.. .shall" earn

1.5 days of credit for every 30 days served. Even the defendant and his

underlings have conceeded to that fact.

Johnson is confident that this Honorable Court will recognize the claims

set forth in this Writ of Certiorari, grant him the Declaratory Judgment he

has sought and grant any other relief this Court deems appropriate. According

to the laws of the Commonwealth of Virginia and the United States Constitution,

Johnson has a protected liberty interest that is to be equally protected and

cannot be denied without due process of the law. The defendant, along with the

agents of the V.D.0.C., with the execution of unconstitutional policies, have

ignored a valid state statute, thus far, with impunity. He has failed,

continue to fail and will continue to fail to meet those obligations which are

mandated to him' by state law, simply because this is the usual practice. By

the continuing of such actions, the defendant and his agents have imposed

a significant and atypical hardship as well as significant constitutional harm;

unlawfully, unequally and without due process of the law.

Johnson is also confident that the Court will recognize that the contours

of his rights are sufficiently clear. So clear that any resonable official

would understand that his or her actions violates those rights. The defendant

and his agents have exercised power possessed by the virtue of state law to

change the clear meaning of the statutorily mandated terms "every person"

found in §53.1-202.2 C.O.V. to 'some people' and "shall" also found in

§53.1-202.2 C.O.V. to "shall not" found in OR 830.3 V H 5(b). These violations

are glaringly and painfully obvious with egrigous results. This course of

conduct provides no shield of immunity and shows that Johnson's clearly

established rights are consistently being ignored and violated. The defendant

has not been granted any authority by the Virginia legislature to rewrite the

Valid state law and change its mandatory intent. The legislature chose with

care its words or it would have written the state law differently. This is

evidenced by numerous other states that have specifially stipulated who and

who may not earn sentence credits as well as stipulating specific crimes for

which would make a person ineligible to earn sentence credits. This was also

done by the Virginia legislature prior to the abolishment of parole with

§53.1-199 C.O.V. where for certain crimes as well as sentences, a person

sentenced to a term of confinement was only able to earn a certain amount of

sentence credits. The defendant has usurped the mandatory legislative

intent with the implementation of these constitutionally and statutorily

deficient policies and Johnson feels confident that this Honorable Court will

find judgment in his favor.

CONCLUSION

The petiton for a Writ of Certiorari should be granted.

Respectfully submitted,

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