Abdulhaseeb v. Ward , 173 F. App'x 658 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 27, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
MADYUN ABDULHASEEB, also
known as Jerry L. Thomas,
Petitioner - Appellant,
No. 05-6054
v. (W.D. Oklahoma)
(D.Ct. No. 04-CV-1140-W)
RON WARD; SAM CALBONE,
Respondents - Appellees.
____________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
AND DISMISSING APPEAL
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 AbduIhaseeb (also known as Jerry Thomas) requests a certificate
of appealability (COA) seeking review of the district court’s denial of his 28
U.S.C. § 2241 petition for writ of habeas corpus. 1 There being no basis for an
Abdulhaseeb filed his petition on a generic form entitled “PETITION FOR A
1
WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY.” The magistrate
appeal, we deny COA and dismiss. 2
Abdulhaseeb was charged with the improper use of a prison typewriter
when prison officials discovered he had sent typed poems to a former female
employee of the prison. He was afforded a hearing in the prison and was found to
have committed the violation as charged. As a result sanctions were imposed; he
received thirty days in administrative segregation and lost 180 days of earned
credit. Both his institutional and departmental appeals were denied. On
September 13, 2004, Abdulhaseeb filed a pro se § 2241 petition in the United
States District Court for the Western District of Oklahoma alleging fourteen
grounds for relief. The matter was referred to a magistrate judge pursuant to 28
U.S.C. § 636. The Oklahoma Attorney General was directed to respond to
Abdulhaseeb’s petition, which it did via a motion to dismiss for failure to exhaust
administrative remedies.
judge referred to the petition as one arising under § 2241. However, in its order adopting
the magistrate’s report and recommendation, the district court referred to the petition as
one arising under 28 U.S.C. § 2254. Because Abdulhaseeb’s petition challenges his
prison disciplinary proceedings, the magistrate correctly referred to the petition as a §
2241 petition. See McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811 (10th
Cir. 1997) (stating petitions under § 2241 are used to attack the execution of a sentence,
including the deprivation of good-time credits and other prison disciplinary matters);
Brown v. Smith, 828 F.2d 1493, 1495 (10th Cir. 1987) (“If [the petitioner] can show that
his due process rights were violated in the subject disciplinary proceedings, then § 2241
would be the appropriate remedy to use to restore his good time credits.”).
2
Because Abdulhaseeb appears pro se, we construe his pleadings liberally.
Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
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On November 29, 2004, the magistrate issued a report and recommendation.
She concluded Abdulhaseeb’s petition contained both exhausted and unexhausted
claims. Although normally such mixed petitions should be dismissed without
prejudice to refiling, the magistrate concluded dismissal was not required because
all of the claims, with the exception of Counts 1, 2, and 14, could be denied on
the merits. As to Counts 1, 2, and 14, the magistrate concluded that because they
related to the conditions of confinement, as opposed to the fact or duration of
confinement, they should be brought pursuant to 42 U.S.C. § 1983 after
Abdulhaseeb exhausted his administrative remedies. Consequently, the magistrate
recommended those claims be dismissed without prejudice to refiling.
On December 13, 2004, Abdulhaseeb filed objections to the magistrate’s
report and recommendation. On January 19, 2005, the district court adopted the
magistrate’s report and recommendation; judgment was entered accordingly. On
February 14, 2005, Abdulhaseeb filed a notice of intent to appeal, which the
district court construed as a request for a COA and denied. On appeal,
Abdulhaseeb renews his request for a COA.
Discussion
Because he is a state prisoner, before Abdulhaseeb may appeal in a §2241
case, he must obtain a COA. 28 U.S.C. § 2253(c)(1)(A); Montez v. McKinna, 208
F.3d 862, 867-69 (10th Cir. 2000). A COA may be issued “only if the applicant
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has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Abdulhaseeb must show “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quotations omitted). After a thorough review of the record, Abdulhaseeb’s brief,
and the relevant authority, we affirm the district court’s disposition of the § 2241
petition.
A. Counts 1, 2, 14
Counts 1, 2 and 14 pertained to Abdulhaseeb’s alleged improper placement
and confinement in a restricted housing unit pending the investigation of his
charge. Because these counts relate to the conditions of Abdulhaseeb’s
confinement, rather than the fact or length of his confinement, they are
improperly brought pursuant to 28 U.S.C. § 2241 and should be brought under 42
U.S.C. § 1983. Nelson v. Campbell, 541 U.S. 637, 643 (2004) (stating
constitutional claims that merely challenge the conditions of a prisoner’s
confinement as opposed to the fact of his conviction or the duration of his
sentence fall outside the “core” of habeas corpus and may be brought pursuant to
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§ 1983). 3 Consequently, the district court properly dismissed these claims without
prejudice to refiling after Abdulhaseeb has exhausted his administrative remedies.
B. Counts 3-13
Counts 3-13 all alleged violations of Abdulhaseeb’s due process rights
prior to or during his disciplinary proceedings. Due process requires procedural
protections before a prison inmate can be deprived of a protected liberty interest
in earned good time credits. Mitchell v. Maynard, 80 F.3d 1433, 1444 (10th Cir.
1996). However, because prison disciplinary proceedings “take place in a closed,
tightly controlled environment peopled by those who have chosen to violate the
criminal law and who have been lawfully incarcerated for doing so,” the full
panoply of rights due a defendant at a criminal trial do not apply. Wolff v.
McDonnell, 418 U.S. 539, 556, 561 (1974). To satisfy due process in a prison
disciplinary proceeding under Wolff, “the inmate must receive: (1) advance
written notice of the disciplinary charges; (2) an opportunity, when consistent
3
See also Boyce v. Ashcroft, 251 F.3d 911, 914 (10th Cir. 2001) (“[P]risoners who
want to challenge their convictions, sentences or administrative actions which revoke
good-time credits, or who want to invoke other sentence-shortening procedures, must
petition for a writ of habeas corpus. Prisoners who raise constitutional challenges to other
prison decisions--including transfers to administrative segregation, exclusion from prison
programs, or suspension of privileges, e.g. conditions of confinement, must proceed under
Section 1983 or Bivens.”) (citation omitted), vacated as moot, 268 F.3d 953 (10th Cir.
2001).
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with institutional safety and correctional goals, to call witnesses and present
documentary evidence in his defense, and (3) a written statement by the factfinder
of the evidence relied on and the reasons for the disciplinary action.”
Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985).
In this case the magistrate conducted a thorough analysis (which the district
court adopted) as to why Counts 3-13 could not be sustained and we agree with
that analysis. Under Wolff, Abdulhaseeb had no right to receive a copy of the
posting in the law library stating “TYPEWRITERS ARE TO BE USED FOR
LEGAL WORK ONLY!” (Count 3). (R. Doc. 1, Attachment Page 2 (quotations
omitted).) It was sufficient that Abdulhaseeb was aware that such posting served
as the basis for the charge and that the factfinder relied upon it as evidence of his
guilt. He also had no right to assistance from a staff representative during the
disciplinary process (Count 8). There is no indication that Abdulhaseeb is
illiterate and the issues were not complex. Wolff, 418 U.S. at 570.
We also reject Abdulhaseeb’s claims that prison officials violated his due
process rights by failing to (1) complete a “Witness Discretionary Action” form,
(2) provide him a copy of the “Review of Evidence” form, (3) supply him with a
detailed description of the offense, in particular, who “tipped” the reporting
officer to the fact that he had sent a letter to a former employee, (4) conduct an
independent investigation to discover exculpatory and mitigating evidence on his
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behalf, and (5) timely review his institutional appeal (Counts 5-7, 9, 12). The
attachments to Abdulhaseeb’s § 2241 petition demonstrate Abdulhaseeb received
all the process he was due, i.e., he was given advanced written notice of the
charge against him, he informed the investigator that he did not wish to call
witnesses or submit documentary evidence, and he received a written statement
from the hearing officer as to the evidence relied upon and the reasons for the
disciplinary action.
Additionally, Abdulhaseeb’s allegations of impartiality are without merit
(Counts 10-11, 13). Although inmates have a due process right to an impartial
decisionmaker in the prison disciplinary context, review of due process challenges
based on impartiality is limited to whether such bias prevented the inmate from a
meaningful opportunity to be heard and whether discipline was imposed for an
improper purpose. Mitchell, 80 F.3d at 1446. Abdulhaseeb fails to indicate how
any of his allegations of impartiality denied him a meaningful opportunity to be
heard or resulted in discipline being imposed for an improper purpose.
Lastly, we reject Abdulhaseeb’s argument that there was insufficient
evidence supporting his conviction. Abdulhaseeb has never denied that he sent
typed letters and poems to the former employee. Although he states he had
permission from the programs director and library tech to use the typewriters in
the law library for educational and personal matters, he never attempted to call
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these individuals as witnesses. Rather, he merely informed the hearing officer he
had such permission. Obviously, the hearing officer found his testimony
incredible and we will not re-weigh that assessment. Hill, 472 U.S. at 455.
Additionally, the evidence he presents for the first time in his § 2241 petition only
demonstrates he had permission to the use the typewriters for educational
purposes, not for personal correspondence. Accordingly, we conclude there is
more than “some evidence” in the record supporting the hearing officer’s decision
that Abdulhaseeb improperly used the prison’s typewriters. Id. at 454.
Abdulhaseeb’s request for a COA is DENIED and the appeal is
DISMISSED. Abdulhaseeb filed with this Court a request to proceed in forma
pauperis (ifp) for this appeal. He was granted permission to proceed ifp in the
district court. Since the district court did not certify in writing that the appeal
was not taken in good faith (28 U.S.C. § 1915(a)(3)) his ifp status continues in
this court without further order. See F ED . R. A PP . P. 24(a)(3). Accordingly, his
ifp request is denied as moot.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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