Petition for Writ of Certiorari — Earl McBride, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

afl-8039

•t, J.3.

IN THE

i ujy t ?

SUPREME COURT OF THE UNITED STATES

2' £ OF THE CL ; .

EARL MCBRIDE, JR - PETITIONER

VS.

LORIE DAVIS, DRI. - RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

EARL MCBRIDE ,JR

PETITIONERPR0 se

TDCJ-ID #00315371 RAMSEY UNIT

1100 FM 655, ROSHARON, TEXAS 77583

i

QUESTIONS PRESENTED FOR REVIEW

Does United States Postal Service Form 3811 Domestic Certified

Returned Receipts demonstrating properly and timely filing of State and

Federal Habeas Petitions meet the 28 U.S.C. SECTION 2244

evidentiary standard to afford equitable tolling to prevent denial of

habeas relief on the basis of procedural grounds?

Did a vioaltion of the Due Process Clause occurr when State Parole

Baord changed parole certification achievement status without

conducting a parole revocation hearing process?

LIST OF PARTIES

All parties appear in the Caption on the cover Page. A list of all parties to

the proceedings in the courts whose judgment is the subject ofthe PETITION FOR

WRIT OF CERTIORARI is as follows;

Petitioner, Earl McBride Jr., is a Texas state prisoner incarcerated at the

Ramsey Unit ofthe Texas Departement of Criminal Justice Institutional Division

(TDCJ-ID). Petition is herein after referred to as "McBride".

Respondent Lorie Davis is Director of TDCJ-ID. Respondent is herein after

referred to as the Respondent. TDCJ-ID busines address is TDCJ -ID -Parole

Board/Division P.O. Box 99, Huntsville Texas 77340

TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.... 1

STATEMENT OF THE CASE

2

COURT PROCEEDINGS BELOW

3

REASONS FOR THE WRIT

4

CONCLUSION

6

INDEX OF APPENDICES

APPENDIX A - Decisions of the UNITED STATES COURT OF

APPEALS - FIFTH CURCUIT.

APPENDIX B - RULE 5 6 Federal Rules of Civil Procedure.

TABLE OF AUTHORITIES CITED

Anderson v. Liberty Lobby, Inc., All U.S. 242

5,

Morrissey v. Brewer , 408U.S.477

4,5

Constitutional Provisions:

Section 1 Clause 3 Fourteenth Amendment United States Constitution

Statutes:

28 U.S.C. SECTION 1254

1

28 U.S.C. SECTION 2244

1,2,3,5,6

28 U.S.C. SECTION2253

1

RULES:

Rule 56 Federal Rules Civil Procedure

2,4,5,6

No.

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

The TWO OPINIONS of the United States Court of Appeals appear at

APPENDIX A to this PETITION. The FIRST OPINION is unreported but was

published as McBride v. Davis, 722 F.App’x 366, 367 (5th Cir 2018). The

SECOND OPINIION is unpublished.

JURISDICTION

The United States Court of Appeals for the Fifth Circuit issued its Final

Opinion in this case on July 7th,2020. Petitioner filed timely MOTION FOR

EXTENSION OF TIME TO FILE PETITION FOR REHEARING which was

denied without any consideration for the incremental operations limiting access to

the prison law library due a widely reported COVID-19 outbreak at TDCJ-ID

Ramsey Unit. Petitioner received no acknowledgment of his Petition For

Rehearing. This COURT’S Jurisdiction is invoked under 28 U.S.C SECTION

1254(1).

CONSTITUIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the FOURTEENTH AMENDMENT, SECTION 1

Clause 3 OF THE UNITED STATES CONSTITUTION which provides;

“Nor shall any State deprive any person of life , liberty or property

without due process of law”...

This case also involves 28 U.S.C. SECTION(S) 2253(c)(2) AND 2244:

l

SECTION 2253 (C ) (2) “ A certificate of appealability may iissue...

only if the applicant has made a substantial showing of the denial of a

constitutional right.”

SECTION 2244 (d)(1) A 1-year period of limitation shall apply to an

application for writ of habeas corpus by a person in custody pursuant to the

judgment of a State court. (2) The time during which a properly filed

application for State post-conviction or other collateral review with respect

to the pertinent judgment or claim is pending shall not be counted toward

and period of limitation under this subsection.

This case also involves RULE 56 of Federal Rules of Civil Procedure which

appears in APPENDIX b p. 56.1-3,

STATEMENT OF THE CASE

Facts Material To Consideration Of Questions Presented

1 st Question - Relevant Facts:

l;

. 4-

; BOARD OF PARDONS AND PAROLES

MINUTES

■4

NAME

MO

fftc Brute £qrl 'Sr TDC 215^1 \

DATE

DAY YEAR

BOARD ACTION

/

SED

REASON AND /OR INSTRUCTIONS

mposf stsPAi^n wm inMff

5

rm •rffPRBffbuSLYBSfKro

CZ

ZJ

zo W

021^1^1

jg!3P0iMS

vn

PAROLE PLAN OF

APPROVED, iSSUcD PAROLE

■■am

g).£)\5P. V/Q- (ria^'Lsb

CFBTIFICATF

1

t

-f---- :

Texas state prisoner Earl McBride achieved “parole status on May 14 20.14

after statutory completion of Texas “Extraordinary Vote Requirement Process”

conducted in compliance with applicable Texas Administrative Policy , BPP

Directive SECT. 145.301, and his PAROLE CERTIFICATE ISSUED May

2

- /

30,2014 as shown above. McBride was informed by a Board employee on August

6th,2014 that his “parole status achievement” had been changed without a

revocation hearing process.

2nd Question - Relevant Facts:

SENDER: COMPLETE THIS SECTION

COMPLETE THIS SECTION ON DELIVERY

* Sl7fe&.

■ Complete items 1,2. and 3. Also complete

item 4 if Restricted Delivery is desired.

■ Print your name and address on the reverse

so that we can return the card to you.

■ Attach this card to the back of the mailpiece,

or on the front if space permits.

□ Agent

□ Addressee

B. Re^^3p$rj^rirJe£li/6«Alj? SO B. Date of Delivery

X

D. Is delivery 4

If YES, gf

1. Article Addressed to:

CjW

V..

— (LA

item 1? □ Yes

□ No

3. Service ^

Ea^Certffet

□ Reglst

-Receipt for Merchandise

vi»

Insured Mair'^XrC.O.D.

AizAg-AkSl

4. R&tricted Delivery? {Extra Fee)

2. Article Number

(Transfer from service label)

PS Form 3811, February 2004

!

□ Yes

■i

700=5 EflEO 000E TS54 TEDS

Domestic Return Receipt

102595-02-‘M-1iw8&

On June 22, 2015 McBride properly filed State Habeas Corpus Application.

On July 6,2015 McBride received Notice by way of USPS FORM 3811

DOMESTICE RETURN RECIEPT (GREEN CARD) that his application was

“Post Marked June 30,2015 - Stamped and signed as received by the State Court

Clerk’s Office as shown above.

On June 16, 2016 Texas Court of Criminal Appeals denied McBride’s State

Habeas Corpus Application. (Pursuant to 28 U.S.C. SECTION 2244 Statutory

Tolling - 39 days remained)!

On July 1, 2016 exactly 16 days later McBride [timely] filed his SECTION

2254 Habeas Petition with the Federal District Court as shown above.

3

COURT PROCEEDINGS BELOW

On May 14,2018 the United States Court of Appeals ORDERED Remand

Proceedings to determine validity of “McBride’s claim of parole certification

status” stating;

This Court granted a Certificate of Appealability as to “whether the District

Court correctly dismissed [McBride’s] claims as predicated on a denial,

rather than a revocation of parole ... Denial parole and revocation of parole

are subject to different constitutional standards, see Morrissey v.

Brewer,408 U.S. 477, 482-84 (1972)... The District Court did not analyze

McBride’s claim under the standard applicable to revocation of parole and

the limited record does not conclusively establishes McBride’s parole

status.. .Accordingly, we conclude that the District Court misconstrued the

basis of McBride’s constitutional claims... p2”

On Remand the District Court Ordered Respondent to file Summary Judgment

Motion. McBride properly filed opposing factual and documental material

presentation and provided additional documents and Affidavits directly related to

his claims in his Rule 56 Responses to Summary Judgment. On September

10,2019 the district court granted the Motion for Summary Judgment and enters

final judgment incorrectly stating “ because McBride filed his [federal] petition

too late “.

On October 4, 2019 McBride file REQUES TO FILE APPLICATION FOR

COA. On July 7, 2020 the Second Panel of the United States Court of Appeals

denied COA without allowing the filing of Brief to explain argument in support

of application for COA.

REASONS FOR GRANTING THIS PETITION

A.

CONFLICTS WITH SUPREME COURT DECISIONS,

ALL OTHER CIRCUIT COURT DECISIONS AND

EVEN PRIOR FIFTH CIRCUIT DECISIONS

(1) There is a direct conflict with the Supreme Court's "due process of law"

principle announced in Morrissey v. Brewer 408 U.S. 471, 482-84 (1972). The

Fifth Circuit panel has delivered a baseless opinion denying COA without allowing

4

briefing where “perspicuous change in “parole achievement status has occurred

without due process of a revocation hearing”. Indisputable evidence in the form of

Parole Board records of ’’parole certification achievement status” and “subsequent

change without revocation hearing” clearly and concisely demonstrates “a

substantial showing of denial of a constitutional right. Morrissey 408 U.S. 482.

(2) Even under the AEDPA standard of heighten scrutiny the Decision is in

direct conflict with the tolling clause of SECTION 2244's one-year statute of

limitations period; In light of USPS Form 3811 Certified Return Receipts with

State and federal court clerk offices showing timely filing of State and Federal

Habeas Petitions. The Decision also conflicts with the Supreme Court principle in

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In a Federal Rules of

Civil Procedure , Rule 56 Summary Judgment proceedings the non-moving

indisputable evidence in the form of U.S. Postal Service Form 3811 Certified

Return Receipt “ undeniably showing timely filing of federal habeas petition

clearly demonstrates incorrectness of the district court’s denial of relief based on

procedural grounds. In this case, no evidence exists to support the grant of a

“time-barred affirmative (statute of limitations) defense” pursuit to the AEDPA

or Rule 56 of Federal Rule of Civil Procedure.

B. IMPORTANCE OF QUESTIONS PRESENTED

This case presents a nationally important question : whether a State parole

Board can change parole certification achievement status without providing

revocation hearing process? (i.e., Does the Supreme Court due process principle

announced in Morressey 480 U. S. 471, 482 still have precedent?).

Every Circuit and the Supreme Court recognizes and accepts post marked

dated, stamped and signed for United States Postal Service Form 3811 Certified

Domestic Certified Return Receipts (Green Cards) as valid proof of service

establishing the date of delivery and to whom mail was delivered pursuit to

Federal Rules of Civil Procedure, Rules 5, 6 and 56.

C. EXPLANATION OF EXTREME DEPARTURE:

UNMISTAKABLE NEED FOR SUPREME COURT AUTHORITY

5

Observable extreme departure from prior Supreme Court holdings and authority

have occurred in this case. Even though, objectively discemable evidence in the

form of Parole Board’s Records unquestionably demonstrates that McBride

achieved parole certification status; The decision shows clear disregard by the

courts below for Supreme Court announced and established principle long

adopted in every circuit. Change in parole certification status without affording

revocation hearing is violation of due process clause. The Fifth Circuit’s Decision

in this case runs afoul with Supreme Court authority.

Again, objectively discemable evidence in form of United States Postal

Service FORM 3811 Certified Mail Return Receipt couppled with State and

Federal Court Clerk records showing timely filing dates of habeas petitions meets

non-movant's summary judgment and Section 2244 0) (l) evidentiary standard to

defeat bare allegations. The decision below disregards Federal Rules of Civil

Procedure Rule 56 ( c ) and 28 U.S.C. Section 2244 tolling Clause; Makes an

extreme departure from well established Supreme Court Principle: "Court must

take all the facts and evidence in light most favorable to the non-moving party

where there exist no presented evidence to support judgment as a matter of law"

CONCLUSION

In view of the above, a Petition For Writ of Certiorari should be granted in

the case.

Respectfully; submitted,

ai

cBride Jr.,

Petitioner

October 6 ,2020

6