Petition for Writ of Certiorari — Andrew S. Andersen, Petitioner v. Jennifer Shaffer, Executive Director, California Board of Parole Hearings

Supreme Court briefOct 11, 2022

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Supreme e^rtTus

IN THE

FILED

OCT 1 1 2022

SUPREME COURT OF THE UNITED STATES

—OFFICE OF THE Cl FPk- j

— PETITIONER

ANDREW S. ANDERSEN

(Your Name)

vs.

JENNIFER SHAFFER

— 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 ANDERSEN

F39343

(Your Name)

Valley State Prison

P.0. Box 96

(Address)

Chowchilla, CA 93610

(City, State, Zip Code)

(Phone Number)

received

OCT 2 5 2022

QUESTION(S) PRESENTED

1) when a plaintiff alleges that he or She was denied a valuable governmental

benefit based on his or her beliefs and thoughts and that the receipt of

that benefit is conditioned on adopting, internalizing, and voicing government

approved ones, is he or she also required to additionally allege and prove that

suppression of speech is a motivating factor of the government to state a claim

upon which relief may be granted under the First Amendment,?

2) When the aim of a governmental practice is to inhibit and coerce belief and

thought, is not that the same as an aim to suppress speech?

3) Is a Turner v. safley, 482 U.S. 78 (1987) test, as is, appropriate for a

challenge of parole suitability determination regulations where the regulations

are used to penalize, inhibit, and coerce parole candidate beliefs and thoughts;

where day-to-day operation of a prison are not involved; and where there are

no institutional safety and security concerns?

4) Was an adverse ruling using the Turner test premature in this case before

plaintiff had an opportunity to fully develop the record and were the first and

second parts of the test correctly used?

5) Are parole suitability determination regulations allowed to be challenged

facially under the Due Process Clause?

6) is thf Turner test appropriate for a

the Due Process Clause?

facial challenge of regulations under

7) Did the appellate court error by not permitting an opening Brief to be

filed on the ground that the questions raised were "too insubstantial"?

LIST OF PARTIES

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

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

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

petition is as follows:

RELATED CASES

iii

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

INDEX TO APPENDICES

APPENDIX A

,/r

APPENDIX B

APPENDIX C

2*<

APPENDIX D

APPENDIX E

APPENDIX F

TABLE OF AUTHORITIES

Beard v. Banks

548 U.S. 521 (2006)

8,10

Blaisdell v. Frappiea

729 F.3d 1237 (9th Cir. 2013)

Elrod v. Burns

427 U.S. 347 (1976)

Espinal v. Goord

558 F.3d 119 (2nd Cir. 2009)

Greenholtz v. Inmates of Neb. Penal & Corr. Complex

442 U.S. 1 (1979)

Grossart v. Dinaso

758 F.2d 1221 (7th Cir. 1985)

7,9’

Halloway v. Magnes

666 F.3d 1076 (8th Cir. 2012)

Holbrook v. Kingston

2012 U.S. Dist. Lexis 89763

Inouye v. Kemna

504 F.3d 705 (9th Cir. 2007)

Lee v. weisman

505 U.S. 577 (1992)

Lukumi Babalu Aye, Inc. v. City of Hialeah

508 U.S. 520 (1993)

Marrero-Mendez v. Calixto-Rodriques

830 F.3d 38 (1st Cir. 2016)

Mathews v. Eldridge

424 U.S. 319 (1976)

8,11.

Mendocino Environmental Center v. Mendocino County

192 F.3d 1283 (9th Cir. 2004)

Ramirez v. Pugh

379 F.3d 122 (3rd Cir. 2004)

9,10

Revels v. vincenz

382 F.3d 870 (8th Cir. 2004)

Rhodes v. Robinson

408 F.3d 599 (9th Cir. 2005)

Samson v. California

547 U.S 843 (2006)

Speiser v. Randall

357 U.S. 513 (1958)

Thaddeus-X v. Blatter

175 F.3d 378 (6th Cir. 1999)

Thornburgh v. Abbott

450 U.S. 401 (1989)

Turner v. Hickman

342 F. Supp. 2d 877 (E.D. Cal. 2004)

7,12

Turner v. Safley

482 U.S. 78 (1989)

passim

United States v. Alverez

587 U.S. 709 (2012)

United States v. Stevens

559 U.S. 460 (2010)

Vance v. Barrett

349. F.3d 1083 (9th Cir. 2002)

waters v. Churchill

511 U.S. 661 (1994)

West Virginia Board of Education v. Barnette

319 U.S. 624 (1943)

Wilkinson v. Dotson

544 U.S. 74 (2005)

8, 10,13

STATUTES AND RULES

California Code of Regulations, Title 15

§ 2240

§ 2281 subd. (b)

§ 2281 subd. (d)(3)

6,10

California Penal Code § 3041 subd. (b)(1)

Prison Litigation Reform Act

7,10

OTHER

Henry Monaghan, First Amendment "Due Process," Harv, L. Rev. 518

(1970)

Thomas Emerson, Toward a General Theory of the First Amendment,

(1963) 72 Yale L.J. 878

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

A to

[ ] reported at

; or,

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

IVf is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

[ ] reported at

; or,

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

j>4 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 _

appears at Appendix

court

to the petition and is

[ ] reported at

; or,

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

[ ] is unpublished.

JURISDICTION

[X] For cases from federal courts:

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

wag ___ -5

I T tD 1U

QX3 No petition for rehearing was timely filed in my case.

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

Appeals on the following date: ____________

and a copy of the

order denying rehearing appears at Appendix

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

to and including

iff

(date) on

£&£iL'\

in Application No.31

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).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

United States Constitution, First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of speech, or the press;

or the right of the people peaceably assemble; and to petition the Government

for a redress of grievances

United States Constitution, Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States and subject to the

jurisdiction thereof, are citizens of the United States wherein they reside.

No State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States, nor shall any State deprive

any person of life, liberty, or property, without due process of law, nor deny

to any person within its jurisdiction the equal protection of the laws.

California Penal Code § 3041 subd. (b)(1) see Appendix C

California Code of Regulations, Title 15, § 2240 see Appendix D

California Code of Regulations, Title 15, §§ 2281 subd. (b) and (d)(3) see

Appendix E

STATEMENT OF THE CASE

l'.n his first amended complaint that included new related supplemental claims,

the petitioner alleged that in 2020, the California Board of Parole Hearings (BPH)

denied him the valuable governmental benefit of parole soley based on his beliefs

and way of thinking in violation of the First Amendment. He alleged that the BPH

is conditioning parole suitability on reli»guishing his right to believe and

think: freely and on adopting, internalizing, and voicing certain approved view

points of the BPH commissioners that are not related to legitimate penological

. interests. He alleged that the BPH issued a statement of reasons for parole

denial that specifically stated that the reason for denial of parole was soley

based on his thinking. He alleged that his thinking that he was penalized for

was'based on his belief in science and evidence-based rehabilitation. He also

allej*! that one condition for parole suitability is for him to adopt, internalize,

and voice a religious-based 12-step doctrine that he additionally objects to

as a violation of the Establishment Clause and Freedom of Religion Clause. He

further alleged that the conditions were not sufficiently precise and narrowly

tailored to that interest. He also alleged that there existed obvious, ready

available alternatives less restrictive to the right to belief and think at less

cost to staff and inmates that achieve the same interest. He is seeking declaratory

and injunctive relief to invalidate these conditions and enjoin the BPH from the

use of these conditions at future parole suitability determination hearings.

The petiti&ntir

also challenged the parole suitability determination

statutes that were used to produce such conditions as overbroad under the First

Amendment referencing United States v. Stevens, 559 U.S. 460 (2010). He alleged

that BPH commissioners are mandated by statute to consider the

’TeJen't ttj€<vhil fkgfez.

of each parole candidate at each hearing that by-itself chills a substantial

amount of beliefs, thoughts, and related content of speech. Having a BPH-approved

mental state is a parole suitability condition. He alleged that based on the

the application of the statutes as applied to him in 2015 and 2020 and thousands

of other parole candidates, a substantial number of applications of the statutes

were unconstitutional, judged in relation to the statutes1 plainly legitimate

sweep.

The petitioner also alleged that the current procedures lacked constitutionally

adequate standards and procedural safeguards for governmental benefit determination

based on the beliefs and thoughts of benefit applicants.

The district court dismissed plaintiff's Unconstitutional parole suitability

conditions claims under the Prison Litigation Reform Act (PLRA) screening require

ment on the ground that he failed to show in the complaint that suppression of

speech was a motivating factor behind the adverse actions and conditions. The court

held that "[i]n order to demonstrate a First Amendment violation, a plaintiff must

provide evidence showing that 'by his actions [the defendant] deterred or chilled

[the plaintiff's] political speech and that such deterrence was a substantial

or motivating factor in [defendant'

Center v. Mendocino county

conduct i M citing Mendocino Environmental

192 F .3d 1283, 1300 (9th Cir. 1999). Plaintiff did

allege that the conditions are chilling a substantial amount of content of his

speech revealing the penalized beliefs and thoughts; however, he only alleged

that suppression and coercion of beliefs and thoughts are the motivating factor

for the adverse action and conditions. Therefore, according to the district court,

the plaintiff did not meet the Ninth Circuit requirement of Mendocino for a First

Amendment claim upon which relief may be granted. The complaint was dismissed

without leave to amend on the ground that the district court saw no path for the

petitioner to meet the Mendocino requirement. Apparently, this requirement also

applies to Establishment Clause and freedom of religion claims.

For the supplemental Establishment Clause and freedom of religion claims,

there is no mention of these claims in the district court's ruling. If there were

other problems with these claims, the petitioner was never notified of the defi

ciencies and given at least one opportunity to amend. He can only assume that

he is required to prove intent to suppress speech as well and that the court found

that it was not possible for him to do so.

For the petitioner's facial challenges, as part of the PLRA screening process,

the district court conducted a Turner v. Safley. 482 U.S. 78 (1987) test of

California Code of Regulations, Title 15 (CCR)

§ 2240 ignoring California

Penal Code § 3041(b)(1) and CCR §§ 2281(b) and (d)(3) and ruled that 2240 passed

the first two parts of the test and dismissed that facial challenges without even

one opportunity to amend to fix any deficiences. The petitioner did allege in the

complaint that institutional safety and security was not a concern and board

psychologists and board members are not involved in the day-to-day operations

of the institution. Also

the petitioner alleged that in every application, beliefs

and thoughts are evaluated for parole benefit denial and that a substantial number

of parole denials are based^beliefs and

thoughts that are not related to legit

imate penological concerns in violation of the First Amendment, He alleged that

penalizing just one belief penalizes a substantial amount of content of speech

related to that belief.

When petitioner attempted to appeal the district court's decision on these

issues, the Ninth Circuit would not permit the filing of an Opening Brief on

the ground that the questions raised were "too insubstantial" for further argument.

The Ninth Circuit simply stated that it summarily upheld the district court's

ruling.

REASONS FOR GRANTING THE PETITION

The holding of the courts below that suppression of speech must be alleged

and proven as a motivating factor for a belief and thought interference claim and

any First Amendment claim in order to state a claim upon which relief may be

granted is directly contrary to the holding of other federal circuits including

within the Ninth. The common requirement for a First Amencment claim is to show

that the exercise of a First Amendment right was a motivating factor for the

adverse action or that the right was restricted or burdened: Espinal v

Coord,

558 F.3d 119, 128 (2nd Cir. 2009); Thaddeus-X v. Blatter. 175 F.3d 378, 394

(6th Cir. 1999); Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004); Rhodes

v. Robinson, 408 F.3d 599, 567-568 (9th Cir. 2005). In this case, petitioner

alleged that his protected beliefs and way of thinking motivated the adverse

action and conditions. For coerced belief: Grossart v. Dinaso, 758 F.2d 11221

(7th Cir. 1985) where the court found that motivation to coerce belief is the

same as motivation to suppress speech. Using the reasoning in Grossart.. the

petitioner met the intent to suppress speech requirement by alleging that the

aim was to coerce

believe. For Establishment and freedom of religion clauses

claims, the requirement to prove intent to suppress speech cannot be found:

Turner v. Hickman, 342 F.Supp.2d 877 (E.D. Cal. 2004); Inouye v. Kemna, 504

F.3d 705 (9th cir. 2007)[listing Hickman and other circuit cases]; MarreroMendez v. Calixto-Rodriques

830 F.3d 38 (1st Cir. 2016) [listing other

circuit rulings where there is no requirement to prove that suppression of

speech was a motivating factor]. For unconstitutional conditions doctrine claims:

Blaisdell v. Frapp>eu. 729 F-3d 1237 (9th Cir. 2013) no such requirement is found.

For the Turner v. Safley test, the general consensus across federal circuits

appears to be that Turner test is a "fact-intensive inquiry" requiring a fully

developed record before a Turner analysis is conducted: .Halloway v. Maqnes,

666 F.3d 1076 (8th Cir. 2012; Ramirez v. Pugh

379 F.3d 122 (3rd Cir. 2004);

Holbrook v. Kingston. 2012 U.S. Dist. Lexis 89763

Barrett, 345 F.3d 1083

15-16. Also see Vance v.

1092 (9th Cir. 2002)["It is unclear in this situation

whether Turner applies and the extent of deference owed to prison officials"

(referencing a Taking Clause issue)].

This case presents four fundamental questions: 1) Whether intent to suppress

speech is a required element for a plaintiff to allege and prove to prevail in

a belief and thought interference claim or any other First Amendment claim such

as freedom of religion and Establishment Clause claims, which includes the

question of interpretation of West Virginia Board of Education v. Barnette (1943)

319 U.S. 624; Elrod v. Burns (1976) 427 U.S. 347; Rutan v. Republican Party of

Ill. (1990) 497 U.S. 62; and Lee v. Weisman (1992) 505 U.S. 577; 2) the application

of the Turner v. Safley test in a parole suitability determination context where

beliefs and thoughts are restricted; 3) the interpretation of Turner flix) Beard v.

Banks,r 548 U.S. 521 (2006) regarding allowing prisoners to fully develop the

record before a Turner analysis is conducted and the use of the first and second

part of the test when personal beliefs and thoughts are restricted; and 4)

uKeitW

a Turner test rather than a Mathews v. Eldridge, 424 U.S. 319, 335 (1976)

test is appropriate for facial challenges under the Due Process Clause, and the

interpretation of Wilkinson v. Dotson, 544 U.S. 74 (2005). The first question

presented is of great public importance for it affects the rights of any citizen

denied a valuable governmental benefit soley based on a citizen's beliefs and

thoughts and coerced to change them as a condition to receive the benefit, The

second question is of great public imporhlAce to all prisoners subject to parole

suitability conditions that restrict and coerce beliefs and thoughts throughout

the United States. The third and fourth questions i*. of great public importance

to all sentenced prisoners in all prisons and jails in all 50 states and the

District of Columbia.

For the first question, the petitioner is asserting a similar assertion as

petitioner Moore in Rutan, supra, 497 U.S. at 79 that his application for parole

was set aside because of his beliefs and thoughts and the receipt of the benefit

is conditioned on him relinquishing those rights and adopting and voicing beliefs

and thought)approved of by the BPH commissioners. There is no requirement in

Barnette., Elrod, or Ru&aa for a plaintiff to additionally allege and prove that

suppression of speech

is the motivating factor for belief and thought interference

claims. A plaintiff need only allege and prove that a valuable governmental benefit

was denied or lost based on him or her possessing a disapproved belief or way of

thinking or allege that he or Sh«2. is being coerced to voice; an objected—to-belief.

In Grossart. supra

758 F . 2d at 1233-1235

the court held that intent to coerce

belief is the same as intent to suppress speech. Based on that holding'

the

petitioner met the requirement by alleging intent to inhibit and coerce belief.

As for the Turner test, the first question is whether the Turner test

should be applied to parole suitability determination regulations

and thoughts are alleged to be routinely penalized and coerced

as is,

when beliefs

and the regulations

are not related to institutional safety and security concerns. The petitioner

contends

it either should not be used or should at least be modified. The

second question is whether the district court applied Turner prematurely before

the petitioner had an opportunity to fully develop the record when institutional

safety and security is not at issue. Using the Turner ^regulations with the

purpose of rehabilitation witf^O a prison institution, the court in Ramirez v.

Pugh,

supra, 379 F.3d at TgO held that the second, third

and fourth Turner

factors are "fact-intensive" requiring "contextual, record sensitive analysis."

Furthermore, when the legitimate penological interest is rehabilitation, as it

is in the preoent case, the district court must "identify with particularity"

the claimed interest in rehabilitation underlying the regulation so that parties

may adduce sufficient evidence whether there is a rational connection between

ends and means. Id. at 128. "To say, however, that rehabilitation legitimately

includes the promotion of 'values,

broadly defined, with no particularized

indentification of an existing harm toward which rehabilitative efforts are

addressed

would essentially be to acknowledge that prisoners

First Amendment

rights are subject to the pleasure of their custodians." Ramirez at 128. It is

unknown at this point why the parole board needs so much discretion to set

parole suitability conditions based on beliefs and thoughts based on subjective

judgment of panel members.

The petitioner contends that if the Turner test

is required to be used for parole suitability determination regulations, he

should at least be allowed to create a complete record that would answer these

and other questions before a district court conducts a Turner test.

Moreover, this Court in Beard, supra

ixi ■ .

548 U.S. 521,^explained how important

it is to allow prisoners to engage in discovery in an attempt to show that a

regulation does not pass the Turner test. Plaintiff Banks made it to summary

judgment. In the present case, the petitioner could not even pass the PLRA

screening stage. The petitioner might be able to show in a fully developed

record that even if the need for the regulations are legitimate, in operation

they are content“based and the amount of discretion given the decision-makers

for a belief and thought control system is an exaggerated response to legitimate

penological concerns. He might be able to show obvious, ready alternatives that

are more precise, narrowly tailored, and at less cost to inmates and staff that

achieve the same interests. The petitioner did allege such an alternative

in the complaint.

The next question is whether the district court applied the Turner test

properly. It ruled that CCR § 2240 passed the first and second part of the

test. For the first part of the test

the plaintiff contends that the analysis

is premature. He alli,^ that in operation the intent of the regulation is to

S-(rpp**$f

beliefs and thoughts deemed by the decision makers as dangerous and

coerce alternative beliefs and thoughts that are deemed not dangerous, In Grossart,

iupra, 758 F.2d at 1233-1235

the court engaged in an analysis of a potential

coerced belief claim where it found that where the purpose is to coerce belief

then the purpose would be related to suppression of expression. Therefore

Grossart

per

the intent of the government for all the statutes is to suppress

related content of speech and fails the first part of the test. Also, petitioner

might be able to show that in operation, the regulation is belief and thought-based

making i# content-based. Lukumi Babalu Aye■ Inc, v. City of Hialeah , 508 U.S.

520, 535 (1993)[apart from the test, the effect of a law in its real operation

is strong evidence of its object]. In the complaint, the petitioner alleged

as such. For the second part of the test

the benefit; therefore

there is only one means to receive

there is no alternative "channels" to believe or speak

at the designated forum to receive the benefit, it is absurd to argue that there

are alternative ways to believe without relinguishing the right. Furthermore,

the district court erred by focusing on freedom of verbal expression rather than

freedom of believing and thinking. In short, petitioner contends that the

second part of the test is inappropriate to use for belief and thought

regulations. For verbal expression

the district court ruled that plaintiff had

alternative channels of communication outside the parole board forum; however,

petitioner alleged that anything said in the prison forum can and has been used

in the parole bchrd forum as evidence about what a parole candidate believes

and thinks. For example, he alleged that he was penalized for teaching prisoners

evidence-based rehabilitation. A record of that First Amendment activity in the

prison contect was used as evidence of a disapproved way of thinking at the

parole hearing. That activity is now chilled. The petitioner was given no

opportunity to amend his complaint at least once on this claim.

This court in Thornburgh v. Abbott. 450 u.S. 401 (1989) considered a facial

challenge of an incoming publication regulation against a completely developed

record. The issue in that case was the suppression of ideas from outside the

prison that could threaten institutional safety and security. In the present

case, beliefs and thoughts that a parole candidate already possesses are being

penalized, candidates are being coerced to adopt the beliefs and thoughts of

parole board members. The only constraint to a board member's discretion is

'public safety." Unlike the regulation at issue in Thornburgh. in this case there

is no list of beliefs and thoughts that are not subject to being penalized or

coerced and there is no independent administrative review. Current regulations

and practice casts a chill on all parole candidates' beliefs and thoughts and

related expression in both parole and prison forums. See, United States v. Alverez.

587 U.S. 709, 723 (2012) .

Censoring and coercing personal beliefs is much more serious than censoring

incoming publications. Thomas Emerson in Toward a General Theory of the First

Amendment (1963) 72 Yale L.J. 878, 919 argued that coerced belief is the most

destructive of freedom of speech because it cuts speech off at its source. Furthermore, when one parole candidate is penalized for a belief and coerced to believe,

it inhibits and coerces beliefs of all other parole candidates seeking the same

benefit.

Also, unlike the practice at issue in Thornburgh, the petitioner alleged

that a mistake in setting parole suitability conditions based on changing a

belief not linked to recidivism causes a parole candidate to use cognitive

restructuring tools provided by the prison to mistakenly

change neural circuits

of his or her brain. This could take 1000s of hours of practice. The cost of

error is much higher than merely censoring an incoming publication. it also

violates the right of privacy (autonomy) protected by the First Amendment, The

petitioner alleged that a substantial number of parole suitability conditions

set In a statement of reasons for denial of parole based on belief and thought

are overbroad and impermissibly vague causing substantially more changes in the

brain than is necessary to meet the state's vital interests.

Instead of using the Turner test for parole suitability conditions, the approach

this Court took in Samson v. California, 547 U.S. 843 (2006) should be used'

because the aim is the same: prepare a candidate for release into a parolee

context. It should be noted that the Turner test was not used in Turner. supra,

342 F.Supp.2d 877 nor mentioned in Inouye, supra, 504 F,3d 705 for parole

suitability conditions.

It is not clear what the lower court ruled regarding the facial challenge

. current parole suitability procedures and regulations under the Due Process

Clause. It appears to be using the Turner test as well. If so, the petitioner

contends that a Turner test is inappropriate. A Mathews v. Eldridge. 424 U.S.

319, 335 (1976) test should be used as was used in Greenholtz v, inmates of Neb.

Penal S Corr. Complex, 442 U.S. | (1*17*1)'

If the lower court was ruling that a facial challenge of parole suitability

procedures under Due Process is unavailable, then that ruling is contrary to

Wilkinson v. Dotson

544 U.S. 74 (2005) where this court authorized such a

challenge. The present case is distinguished from Greenholtz. In Greenholtz,

the question was what minimum procedural safeguards are necessary for a statecreated liberty interest in parole. In the instant case, the right at issue

is the constitutionally protected right of belief and thought, not parole. The

question is what minimum standards and procedural safeguards are necessary when

the exercise of the protected First Amendment right to believe and think freely

is routinely penalized and parole candidates are required to relinguish that right

and adopt and voice board member beliefs and thoughts as a condition of receiving

the very valuable benefit of parole. Th^>etitioner alleged that current regulations

leave the determination of which beliefs and thoughts that predict recidivism,

and not, to the subjective judgment of the board members; that there is insufficient

notice before each hearing of what

beliefs and thoughts will be penalized and

coerced; that during the statement of reasons for denial phase there is no opporto challenge conditions of parole suitability when they burden First Amendment

freedoms; that there is no administrative appeals process; that the burden of

proof rests on the parole candidate to prove that their beliefs and thoughts do

not predict recidivism and challenge the coerced beliefs and thoughts; that there

is no speedy judicial review for First Amendment infringement; that the regulations

do not require suitability conditions based on beliefs and thoughts to be precise,

narrowly tailored, and consistent; and other problems. See, Henry Monaghan, First

(( we)

Amendment "Due process,'yHarv. L. Rev. 518; and waters v. Churchill, 511 U.S.

661, 669 (1994). For this challenge, the lower court did not mention any deficiences

with at least one opportunity to amend.

For all of the above, the petitioner should be allowed to at least develop

a complete record for such a complex case so that the Court can fully understand

the peculiar circumstances surrounding it. Speiser v. Randall. 357 U.S. 513, 521

(1958). He should be allowed .

at least one opportunity to amend the supplemental

claims and those that were reviewed for the first time under the PLRA. He should

be allowed one last chance to amend for deficiencies for those that he was given

one chance using correct standards of review for First Amendment claims.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted

jnaersen in Pro Se

Andr'

Dated:

JO , 102-77

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