Thomas v. Chester ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
February 18, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JERRY L. THOMAS,
Petitioner - Appellant,
v. No. 13-6132
(D.C. No. 5:11-CV-01283-W)
C. CHESTER, Warden, (W.D. Okla.)
Respondent - Appellee.
ORDER AND JUDGMENT *
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Madyun Abdulhaseeb, an Oklahoma state prisoner, appeals from the
dismissal of the habeas petition he filed pursuant to 28 U.S.C. § 2241.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
Abdulhaseeb’s claims relate to an incident in which he refused to sign two
documents presented to him at the James Crabtree Correction Center in the
manner instructed by an employee of the Oklahoma Department of Corrections
(“ODOC”). 1 A prison disciplinary proceeding was held on May 15, 2006.
Abdulhaseeb was found guilty of Disobedience to Orders, resulting in the loss of
earned credits and his Level Four classification status. See Wilson v. Jones, 430
F.3d 1113, 1120 (10th Cir. 2005) (holding a misconduct conviction implicates a
constitutionally protected liberty interest if the loss of earned credits inevitably
affects the duration of the prisoner’s sentence). After he appealed the misconduct
and punishment, the charge was amended to Individual Disruptive Behavior. A
second disciplinary hearing was conducted in July 2006 and the same punishment
was imposed after a second finding of guilt.
Abdulhaseeb appealed his misconduct conviction and sentence, exhausting
both his administrative and state court remedies. When he failed to obtain relief,
he filed the instant § 2241 petition alleging, inter alia, (1) that his due process
rights were violated because signing his legal name to the prison documents was
not “some evidence” of a rule infraction and (2) the disciplinary proceedings were
initiated in retaliation for the exercise of his First Amendment rights. On August
1
Abdulhaseeb legally changed his name from Jerry Thomas in 1990. See
Abdulhaseeb v. Saffle, 65 F. App’x 667, 671-72 (10th Cir. 2003) (unpublished
disposition). At the time of his conviction, he was known as Jerry Thomas. The
prison official instructed him to sign the documents first as Jerry Thomas and
then, if he so chose, with his new name.
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23, 2012, while final disposition of the § 2241 petition was pending,
Abdulhaseeb’s disciplinary action was reversed and expunged and his earned
credits restored. 2 As grounds, the Director’s Designee, Mark Knutson,
specifically stated that the ODOC policy underlying the charges against
Abdulhaseeb “is a directive to DOC staff, not offenders. Therefore, it does not
direct specific conduct from an offender and is inappropriate as a charge for
disobedience to an order.”
Based on the expungement of Abdulhaseeb’s misconduct conviction and the
restoration of all his earned credits, the district court dismissed his § 2241
petition as moot. Abdulhaseeb’s motion for a certificate of appealability was
granted by the district court. In this appeal, he argues his habeas petition is not
moot because the ODOC’s practice of voluntarily vacating disciplinary
convictions in an attempt to forestall the judicial resolution of constitutional
questions is capable of repetition. 3 See United States v. Concentrated Phosphate
2
At a third hearing, held on June 13, 2012 after a sua sponte review of the
DOC proceedings led to the conclusion the original charge should not have been
amended, Abdulhaseeb was again found guilty of the Disobedience to Orders
misconduct charge.
3
In Abdulhaseeb’s counseled opening brief, he sets out only a portion of the
procedural history of this matter, wholly neglecting to inform this court that the
disciplinary conviction has been expunged. The brief also implies that the actions
of the ODOC have put Abdulhaseeb in a position where he must re-exhaust his
administrative and state court remedies before he can again pursue federal habeas
relief from the misconduct conviction and punishment. Appellant Brief at 15
(“The DOC’s actions, if allowed to stand, will take Mr. Abdulhaseeb back
(continued...)
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Exp. Ass’n, 393 U.S. 199, 203 (1969). We disagree. This alleged practice is not
the basis for Abdulhaseeb’s request for habeas relief. Instead, he has challenged
the ODOC’s practice of requiring inmates to sign their names in a particular
order. He has obtained relief on this claim, including the dismissal of the
misconduct charge, the expungement of his conviction, and the restoration of all
the earned credits he lost. Further, the DOC has issued a statement that the policy
pursuant to which Abdulhaseeb was charged is not a basis upon which to charge
an inmate with Disobedience to an Order. Thus, the DOC policy or practice
which gave rise to his claims is not reasonably likely to recur. Abdulhaseeb’s
appeal is clearly moot.
For substantially the same reasons set out in the district court’s
Memorandum Decision and Order dated May 9, 2013, the judgment of the district
court dismissing Abdulhaseeb’s § 2241 petition as moot is affirmed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
3
(...continued)
through years of appeals through the DOC system and the state courts before he
could return to federal court.”). This is a specious assertion. Counsel is
reminded of his duty to act with candor toward the court.
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