Petition for Writ of Certiorari — Andrew Andersen, Petitioner v. Marisela Montes, Commissioner of California Board of Parole Hearings, et al.

6825

No.

SuPrem

*«rus'

IN THE

>82020

SUPREME COURT OF THE UNITED STATES

ANDREW S. ANDERSEN

— PETITIONER

(Your Name)

vs.

MARSELA MONTES. ET AL.■

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

NINTH CIRCUIT COURT OF APPEALS

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

PETITION FOR WRIT OF CERTIORARI

ANDREW ANDIBSIIL.

(Your Name)

Valley State Prison

P.O. BOX 96

(Address)

Chowchilla

nn o-isin

(City, State, Zip Code)

(Phone Number)

RECEIVED

DEC - 4 2020

OFFICE OF THE CLERK

SUPREME COURT li.S.

QUESTION(S) PRESENTED

|. Did this court's ruling in swarthout v. cooke and Greenholtz v. inmates of

Nebraska foreclose First Amendment challenges agasint statements of reasons

that contain a reason for denying the benefit of parole when a reason for

denial is based on the exercise of protected First Amendment freedoms and

there was an opportunity to be heard?

2. Did this Court's ruling in swarthout and Greenholtz foreclose facial challenges

of the California parole suitability determination regulatory scheme under the

First Amendment?

3. Did prisoners lose their First Amendment right to challenge parole denial

decisions that are based on the exercise of protected First Amendment freedoms?

4. Did prisoners lose their First Amendment right to challenge parole suitability

determination schemes on thier face under the First Amendment

5. Are prisoners allowed to challenge parole suitability determination schemes

using the Turner v. Safley test under the First Amendment?

LIST OF PARTIES

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

[x] All parties do not appear in the caption of the case on the cover page. A list of

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

petition is as follows:

Marsela Montes

Tamiza Hockenhull

Jennifer Shaffer

RELATED CASES

i

iii

TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

STATEMENT OF THE CASE

4

REASONS FOR GRANTING THE WRIT

6

CONCLUSION

8

INDEX TO APPENDICES

APPENDIX A DE2SSI0N ON PETITION FOR REHEARING BY THE COURT OF APPEALS

DENYING REHEARING

APPENDIX B

decision of court of appeals

APPENDIX C

DECISION OF TRIAL COURT DENYING RECONSIDERATION

APPENDIX D decision of the trial court

APPENDIX E FINDINGS AND RECOMMENDATIONS OF THE .

APPENDIX F

iv

TRIAL COURT MAGISTRATE

TABLE OF CASES CITED

CASES

Beard v. Banks

548 U.S. 472

6

Crawford-El v. Britton

523 U.S. 574

6

!

Greennoltz v. inmates of Nebraska Penal and corr. Complex

442 U.S. 1 (1979)

4,7

Houston v. Hill

492 U.S. 451 (1987)

8

\

\

\\

\

\

\

O'Lone v. Estate of shabazz

482 U.S. 342 (1987)

6

Perry v. sindermann

408 U.S. 592 (1972)

7

Rutan v. Republican Party of ill.

497 U.S. 62 (1990)

7

Sandin v. Conner

515 U.S. 472 (1995)

6

Swarthout v. Cooke

562 U.S. 216 (2011)

4,6,7

Turner v. safley

482 U.S. 78 (1987)

I

!

6

United States v. Stevens

559 U.S. 460 (2010)

8

Virgina v. Hicks

539 U.S. 113 (2003)

8

i

STATUTES AND RULES

28 U.S.C. § 1915A

4

42 U.S.C. § 1983

ii

California Code of Regulations, Title 15 § 2255

California Code of Regulations, Title 15 § 2281

v

4

4

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

[x] For cases from federal courts:

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

the petition and is

[ ] reported at

; or,

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

[39 is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

to

0

[ ] reported at

; or,

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

[ ^ is unpublished.

[ ] For cases from state courts:

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

Appendix_____ to the petition and is

[ ] reported at

; or,

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

[ ] is unpublished.

The opinion of the_

court

appears at Appendix

to the petition and is

[ ] reported at

5 or,

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

[ ] is unpublished.

1.

to

JURISDICTION

[ x| For cases from federal courts:

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

was May 14> 2020

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

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

2020

Appeals on the following date: AUguat 20,_________

and a copy of the

order denying rehearing appears at Appendix a

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

to and including______

(date) on

(date)

in Application No.__ A

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

[ ] For cases from state courts:

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

A copy of that decision appears at Appendix______

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

------------------------------and a copy of the order denying rehearing

appears at Appendix

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

to and including____

(date) on

(date) in

Application No. __ A

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

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involes Amendment

Congress shall

I of the United States Constitution:

make no law

• • i

abridging freedom of speech • • •

The Amendment is enforced by Title 42, Section 1983, United States code:

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

custom or usage, of any state or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the united States

or other person within the jurisdication thereof to the deprivation

of sny rights, privileges, or immunites secured 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.

The regulations at issue are California code of Regulations, Title 15, Division

2, Sections 2281 and 2255 the full text is located in Appendix E, pp. 4-6.

S

3

STATEMENT OF THE CASE

The petitioner's

complaint alleged

an as-applied and facial challenge of

California Code of Regulations, Title 15, §§ 2255 and 2281 under the First

Amendment. The as-applied challenge was dismissed at the 28 U.S.C. § 1915A

stage without leave to amend on the ground that this court's ruling in Swarthout

v. Cooke, 562 U.S. 216 citing Greenholtz v. inmates of Nebraska penal and corr.

Complex, 442 U.S. 1 (1979) foreclosed any constitutional challenge of a reason

for denial of parole in a statement of reasons so long as there is was an

opportunity to be heard and a statement of reasons issued. The lower court

citing this Court stating: "The constitution ... does not require more." (id. at

p. 220.)

!'

petitioner

also asserted a facial challenge under the First Amendment

claiming that the regulatory scheme [of the California Board of parole Hearings

("BPH") for determining whether to grant life prisoners release on parole

violates the First Amendment. Petitioner argued that the BPH delegates overly

board discretion to government officials in making content-of-speech (based

decisions, petitioner also alleged that the BPH lacks sufficient procedures

and safeguards to timely challenge a content-based decision for being overbroad,

vague, capricious, arbitrary, biased or any other type of First Amendment

challenge.

The facial challenge was screened out at the 28 U.S.C. § 1915A stage without

being allowed to develop the record for the following reasons: 1) "the Supreme

Court has 'maintained that the constitutional rights that prisoners possess

are more limted in scope than the constitutional rights held by individuals in

society at large I II (Appendix D, p. 2); 2) the regulations at issue are not

overly broad, as they set forth standards and objective factors that the BPH

is to consider when determining whether an inmate is suitable for release on

parole; and 3) 28 U.S.C. § 2254 is available to file habeas corpus petitions.

4

The court of appeals upheld both the as-applied and facial challange dismissals.

This case hinges on whether this court by ruling that "[t]he Constitution

does not require more" forecloses as-applied challenges against parole decisions

that deny the benefit of parole because the life prisoner exercised his First

Amendment freedoms and thus penalizing that right and whether prisoners can

challenge parole regulations under the First Amendment as overbroad and vague.

per the lower courts, when as-applied challenges are foreclosed for First Amendment \

challenges then it is futile to challenge the regulatory scheme facially under

the First Amendment.

5

REASONS FOR GRANTING THE WRIT

A. Conflicts with Decisions of this court

The holding of the courts below that a facial challenge of California's

parole suitability determination scheme (hereafter called "the scheme") is not

cognizable under the First Amendment conflicts with holdings of this Court. In

Sandin v. Conner, 515 U.S. 472, 481 n.11 (1995) this Court held that even when

a prisoner cannot bring a challenge under due process, one can be brought under

the First Amendment. This Court also created Turner v. Safley, 482 U.S. 78 (1987)

for prisoners to bring First Amendment challenges against prison regulations and

allow prisoners to "marshal substantial evidence" to prove their case in Beard

v. Banks, 548 U.S. 521, 535 (2006). This Court has allowed challenges under

the First Amendment for situations where a privilege was denied because a

prisoner exercised a protected first Amendment right in Crawford-EL v. Britton,

523 U.S. 574, 588

conditions) >

fn 10 (discussing retaliation as akin to "unconstitutional

This court has held that "Inmates clearly retain protections

afforded by the First Amendment."fo'Lone v. Estate of Shabazz, 482 U.S. 342,

348 (1987).)

B. Importance of the Questions Presented

This case presents fundamental questions j of the interpretation of Greenholtz

and swarthout as it applies to the denial of the benefit of parole because a

prisoner exercised a protected First Amendment right. The questions presented

are of great public importance because

if

the lower courts1 ruling is

correct, prisoners in every state would be foreclosed from challenging a parole

denial decision under the "unconstitutional conditions doctrine" where the

benefit of parole was conditioned on waiving protected First Amendment freedoms.

or the benefit was denied because of the exercise of First Amendment freedoms.

such as giving up the right to file grievances and law suits or because of the

filing of grievances or lawsuits. Based on the lower courts' ruling, such

6

conditions and penalities cannot be reviewed by a federal court if the prisoner

received all the process his was due-because this court took that right away in

Swarthout and Greenholtz.

The lower courts are misinterpreting Swarthout and Greenholtz. Swarthout was

based on Greenholtz and the issue before Greenholtz was how much process was due

for receiving parole when there is no federal right to parole but a state-created

liberty interest. In the instant case the issue is the loss of a protected federal

right to freedom of expression to earn parole. This Court has held that:

even though a person has no 'right' to a valuable governmental benefit

and even though the government may deny him the benefit for any number

of reasons, there are some reasons upon which the government may not

rely. It may not deny a benefit to a person on a basis that infringes

his constitutionally protected interests — especially his interest

in freedom of speech. Rutan v. Republican party of Ill., 497 U.S. 62,

72 (1990).

Whea this Court held that "a prisoner subject to a parole statute ... receive[s]

adequate process when he [i]s allowed an opportunity to be heard and [i]s provided

a statement of reasons why parole was denied. The Constitution ... does not require

more" (swarthout, supra, at p. 220 (internal quotation marks and citations omitted)),

this court was not foreclosing a First Amendment challenge against a reason for

denial of parole when that reason infringes on protected First Amendment freedoms.

This court has held that "if the government could deny a benefit to a person

because of &&£.:constitutionally (protected speech . • • $ his expression of those

freedoms would in effect be penalized and inhibited."^Perry v. Sindermann, 408

U.S. 592, 597 (1972).)

When a parole board makes such a denial of parole, per

the lower courts prisoners have no remedy at law and must inhibit that speech before and

at a future board hearing to earn release. This court made no such restriction.

It is not conceivable that this Court would make such a wide sweeping ruling

beyond the issues and questions before it.

These questions are also important because the lower courts' holding prevents

Turner v. Safley challenges against parole regulations or parole suitability

7

determination regulatory schemes by prisoners, Prisoners should be allowed to

challenge such regulatory schemes facially under the First Amendment and have

an opportunity to develop a record to demonstrate that the scheme is overboard

pursuant to virgina v. Hicks, 539 U.S. 113, 122 (2003); United States v. Stevens,

559 U.S. 460, 472 (2010); and Houston v. Hill, 482 U.S. 451, 458 (1987).

Thus the court below seriously misinterpreted swarthout and Greenholtz by

holding that those cases foreclosed as-applied and facial challenges under the

First Amendment of parole decisions and parole regulatory schemes Where the

right at issue are First Amendment rights. The court should correct that misinter­

pretation and make it clear that its holding in Swarthout and Greenholtz did not

foreclose such challenges.

CONCLUSION

For the foregoing reasons, certiorari should be granted in this case.

Respectfully^3ubmitted,

November 24, 203,0

Andrew Andersen

F39343

Valley State prison

P.0. Box 96

Chowchilla, CA 93610

8

APPENDIX A