Petition for Rehearing — Louis C. Bouie, Petitioner v. Pennsylvania Department of Corrections

IN THE

SUPREME COURT OF THE UNITED STATES

LOUIS CHARLES BOUIE,

Plaintiff

VS.

PENNSYLVANIA DEPARTMENT OF

CORRECTIONS,

Defendant

PETITION FOR REHEARING

Petition for Rehearing upon the October 7, 2024

dismissal from the Conference initiated by the

Petition for Writ of Certiorari from the Per Curiam

Order Supreme Court of Pennsylvania dated

February 21, 2024 affirming the Memorandum

Opinion dated July 10, 2023 from _ the

Commonwealth Court of Pennsylvania sustaining

the Department of Corrections,’ (D.O.C.),

Preliminary Objections and dismissing the Petition

for Review filed by Mr. Bouie on April 4, 2022.

Louis Charles Bouie, # QF-6982

Pro Se, Plaintiff

State Correctional Institution at Waymart

11 Fairview Drive, P.O. Box 256

Waymart, PA 18472

| “FICE

—___P RE}

OF TH

ME COURT ER

QUESTION PRESENTED FOR REVIEW

I, Does the factor that the Department of Corrections

implemented a sentencing statute, 61 Pa.C.S.A. § 4105, through

discretion thereby eliminating retroactive application of said statute

by improperly splitting what is, or should be, a single statute with

connected parts withstand constitutional muster when the split

sections of the act were automatically utilized as retroactive in a

manner to obtain financial gain on one side, and on the other side are

disregarding/violating Mr. Bouie's liberty interest through improper

applications in violation of the long standing holdings in Calder v.

Bull, 3 U.S. 386 (1798); Hewitt v. Helms, 482 U.S. 755 (1987) and

this Court's recent decision in Pennsylvania v. Muniz, 138 S.Ct. 925

(2018)?

(Proposed Answer in the Negative)

LIST OF PARTIES

The indispensible parties in the matter herein are as follows:

I.

II.

Mr. Bouie is the Pro Se, Plaintiff, who is presently incarcerated

within the State Correctional Institution at Waymart, located at

11 Fairview Drive, P.O. Box 256, Waymart, PA 18472.

The D.O.C. is the Defendant in the above captioned matter who

is represented by Abby N. Trovinger, Esq., whose office is

located within D.O.C. headquarters at 1920 Technology

Parkway, Mechanicsburg, PA 17050.

il

Order Denying Certiorari

The order of this Honorable Court stated herein verbatim is as follows:

"The Court today entered the following order in the above-entitled

case: The Petition for a Writ of Certiorari is denied." (See Attached

page)

REASONS RELIED UPON FOR REHEARING

I. Does the factor that the Department of Corrections

implemented a sentencing statute, 61 Pa.C.S.A. § 4105, through

discretion thereby eliminating retroactive application of said statute

by improperly splitting what is, or should be, a single statute with

connected parts withstand constitutional muster when the split

sections of the act were automatically utilized as retroactive in a

manner to obtain financial gain on one side, and on the other side are

disregarding/violating Mr. Bouie's liberty interest through improper

applications in violation of the long standing holdings in Calder v.

Bull, 3 U.S. 386 (1798); Hewitt v. Helms, 482 U.S. 755 (1987) and

this Court's recent decision in Pennsylvania v. Muniz, 138 S.Ct. 925

(2018)?

It is well-understood that "[a] State creates a protected liberty interest by

placing substantive limitations on official discretion."! "A procedural due process

claim is subject to a two-stage inquiry: (1) whether the plaintiff has a property

interest protected by procedural due process, and (2) what procedures constitute

due process of law."? "Although inmates do not have a constitutional right to

educational and work programs, once the state grants such rights to prisoners it

may not invidiously discriminate against a class of inmates in connection with

those programs unless the difference in treatment is rationally related to the

legitimate governmental interest used to justify the disparate treatment."?

1 Olim vy. Wakinekona, 461 U.S. 238, 248 (1983)(citing Hewitt v. Helms, 482 U.S. 755 (1987).

? Fanti vy. Weinstock, 629 F. Appx 325, 330-331 (3d Cir. 2015)(quoting Schmidt y. Creedon,

639 F.3d 587, 595 (3d Cir. 2011)).

3 Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

l

Here, the liberty interest is two-fold, First, Mr. Bouie retains a liberty

interest through the discretionary aspects granted to the Department of

Corrections, (D.O.C.) codified within the statutory construct at 61 Pa.C.S.A. §

4105, et seq., as shown supra. Secondly, Mr. Bouie retains a liberty interest due

to the fact that the D.O.C. granted the State Drug Treatment Program, (S.D.T.P.),

to the general population who fit the statutory criterion from the date of enactment,

but rendered non-retroactive to those who fit said criterion prior to the effective

date, even though the remainder of that same statutory construct was deemed

solely retroactive based upon a clear financial benefit for the D.O.C. Said

retroactivity cannot withstand constitutional muster, as the initial Acts, specifically

Act 2009-33, (S.B. 112), and Act 2019-115, (S.B. 501), were improperly split to

recieve this result.

Calder specifies that a law is violative of the prohibition of the ex post facto

clause when that law "inflicts a greater punishment than the law annexed to the

crime when committed."4 Here, the Act raised the punishment for Mr. Bouie as he

was required to complete the Therapeutic Community Program instead of

lessening his sentence through S.D.T.P.

4 Calder v. Bull, 3 U.S. 386, 390 (1798).

It is improper to split what is in essence a single, statutory construct into

several segments just to financially benefit a state entity. Here, Pennsylvania

circumvents its own rule of law, stating "[l]egislation which affects rights will not

be cnstrued to be retroactive, unless it is declared so in the act; but, where it

concerns merely the mode of procedure, it is applied, as of course, to litigation

existing at the time of its passage."4

Here, as the Act was made retroactive in part and non-retroactive in part,

however, this was only for the benefit of the Commonwealth through financial

gain based upon collection of fines/costs of inmates. This action improperly

raised the punishment for Mr. Bouie as he was required to complete the

Therapeutic Community Program instead of lessening his sentence through the

State Drug Treatment Program, (S.D.T.P.), Mr. Bouie would have been eligible for

a significantly lower sentence had he been sentenced to S.D.T.P., however, Mr.

Bouie was compelled through D.O.C. sentencing to complete an additional

program, and undergo further scrutiny for release. This Act created a direct

"liberty interest" in the S.D.T.P., as it was a tool that could be utilized to obtain

liberty by reducing the punishment of crimes that qualify. As this benefit, limits

the punishment for a crime, the direct liberty interest created eliminates the right

4 Lane v. White, 21 A. 437 (1891)(Supported and explained by New York Life Ins. Co. v.

Cumins, 24 F.2d 1 (1928)).

3

for Mr. Bouie to obtain the benefit. As such, the provisions must be held

retroactive, otherwise, it is violative of the ex post facto clauses of both

Pennsylvania and the United States Constitutions and the rule within Calder.

It is well understood that "a statute is impermissibly retroactive if it 'attaches

new legal consequences to events completed before its enactment. Retroactive

application occurs only when the statute or rule relates back and gives a previous

transaction a legal effect different from that which it had under the law in effect

when it transpired.'"* The legal consequences accomplished through this act that

were rendered retroactive did not revert back to a previous transaction, instead,

they blatantly increased the financial penalty imposed upon the inmate population,

a direct violation of the ex post facto provision. Further, this Act granted a basis

for the inmate population to reduce their sentences if convicted of drug offenses.

and provided a way for individuals, such as Mr. Bouie, sentenced prior to the

imposition of the law, to gain entry into the program without being sentenced

intially to S.D.T.P., granting them a significant reduction in their sentence yet to

the detriment of the statutory provision, the Department of Corrections held only

the portion of the law that it wished to be retroactive, (the financial provisions),

4 Commonwealth vy. Childs, 113 A.3d 344, 2014 WL 10788813, *7-8 (Pa. Super. 2014)

(quoting Commonwealth y. Robinson, 2010 PA Super 192, 7 A.3d_ 868, 871-72 (Pa.

Super.2010)).

4

and not the other, (the S.D.T.P. provisions). This ambiguous interpretation

unlawfully raises the penalty for a drug crime that now gains the benefit of the

S.D.T.P., simply due to the Commonwealth spliting the statutory contruct to their

benefit. This action violated "[t]he central concern in incorporating ex post facto

clauses in both federal and state constitutions 'assur[ing] that federal and state

legislatures were restrained from enacting arbitrary or vindictive legislation,"5

along with the mandate that "individuals are entitled to "fair warning" about what

constitutes criminal conduct, and what the punishments for that conduct entail"®

CONCLUSION

Thus, Mr. Bouie states that the actions of the D.O.C. increased punishment

for Mr. Bouie's crime occuring prior to the Act's enactment and such partial

retroactive application violates both federal and state constitutional bans on ex

post facto laws. In so doing, Mr. Bouie argues the Act's partial retroactivity is

therefore unconstitutional both facially and as applied to someone like him whose

conviction predated its enactment.

> Pennsylvania vy. Muniz, 138 S.Ct. 925 (2018)(quoting Commonwealth v. Muniz, 164 A.3d

1189, 1195 (2018)).

6 Id. at 1195,

WHEREFORE, for the foregoing reasons, Mr. Louis Charles Bouie, Pro

Se, Petitioner in the above captioned matter hereby prays this Honorable Court

grant REHEARING in this matter upon the denial of the CONFERENCE on

October 7, 2024; and/or any other applicable remedy this Honorable Court deems

prudently appropriate under the circumstances.

Respectfully Submitted,

Date: October 30, 202d Zea ( Pale. Die

Louis Charles Bouie, # QF-6982

Pro Se, Plaintiff

S.C.I. Waymart

11 Fairview Drive, P.O. Box 256

Waymart, PA 18472

IN THE

THE SUPREME COURT OF THE UNITED STATES,

LOUIS CHARLES BOUIE, No.: 23-7639

PLAINTIFF

VS. CIVIL ACTION - LAW

PENNSYLVANIA DEPARTMENT

OF CORRECTIONS,

DEFENDANT PETITION FOR REHEARING

CERTIFICATE OF SERVICE

I, Louis Charles Bouie, Pro-Se, Plaintiff in the above captioned matter do

hereby certify that on this 40 day of —(y hober , 2024, sufficient

true and correct copies of the forgoing Cover Letter, Letter from S.C.I. Waymart

Librarian, Certificate Attesting to Compliance of Page (15) and Word (3000)

Limitations, Praecipe For Appearance, Praecipe to Proceed In Forma Pauperis,

with attachments and Petition for Rehearing have been served upon the following

persons, and in the following manner.

Pursuant to Supreme Court of United States, Rule 29, and Fed. R.C.P.

Rule 5, this service satisfies the Prisoner's Mailbox Rule, under Unsworn

Falsification to Authorities penalties. In accord w/ Houston v. Lack, 487 U.S.

266 (1988); and 28 U.S.C. § 1746.

Service by First Class Mail:

Scott S. Harris, Clerk of Court

Supreme Court of the United States

1 18! Street NE

Washington, D.C. 20543-0001

Date October 30, 2024

Service by First Class Mail:

(Counsel for the D.O.C.)

Abby Trovinger, Esq.

Assistant Counsel

Office of Chief Counsel

1920 Technology Parkway

Mechanicsburg, PA 17050

Respectfully Submitted,

Louis Charles Bouie, Pro-Se, Plaintiff

ID# QF-6982

S.C.I. Waymart

11 Fairview Drive, P.O. Box 256

Waymart, PA 18472-0256s

IN THE

SUPREME COURT OF THE UNITED STATES

LOUIS CHARLES BOUIE - No:

PLAINTIFF

VS. : CIVIL ACTION - LAW

PENNSYLVANIA DEPARTMENT OF

CORRECTIONS, :

DEFENDANT : PETITION FOR REHEARING

VERIFICATION

I, Louis Charles Bouie, verify that the facts and statements set forth in the

foregoing are true correct to the best of my personal knowledge or information and

belief. I understand that any false statements herein are made subject to the

penalties for Unsworn Falsification to Authorities, 28 U.S.C.. § 1746.

Respectfully Submitted,

Date: (her 30,20 2y Louccr Uys. Bow

Louis Charles Bouie, # QF-6982

Pro Se, Plaintiff

S.C.I. Waymart

11 Fairview Drive, P.O. Box 256

Waymart, PA 18472

Additional material

from this filing is

available in the

Clerk’s Office.