Yousef v. USA

Filing 89

ORDER Denying Motion for Relief from Judgment and Request For Travel Authorization re 88 and 83 : Applicant Ramzi Yousef's Motion for Relief from Judgment [Doc. 88 1] is denied, Ramzi Yousefs request for travel authorization [Doc. 88 3] is denied as moot, by Judge Richard P. Matsch on 6/26/2014.(jsmit )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Richard P. Matsch
Civil Action No. 12-cv-2585-RPM
RAMZI YOUSEF,
Applicant,
v.
UNITED STATES OF AMERICA,
Respondent.

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT AND REQUEST
FOR TRAVEL AUTHORIZATION

Pursuant to Federal Rule of Civil Procedure 60, Ramzi Yousef seeks relief from the
Court’s judgment dismissing his habeas corpus Application upon concluding that the
conditions of Yousef’s confinement are not so atypical or impose such a hardship as to
infringe upon a liberty interest protected by the Due Process Clause to the Fifth Amendment.
[Docs. 83-84.] Yousef contends that relief is justified under Rule 60(d)(3), dealing with
fraud and misrepresentation by an opposing party, and/or under Rule 60(b)(6), which allows
courts to grant relief from a final judgment for “any other reason that justifies relief.” [See
Doc. 88, Ex. 3 at 45.] Yousef also requests travel authorization for his counsel under the
Criminal Justice Act (“CJA”). [See id. ¶ 3.]
Yousef first argues that the Court misapplied the four-part test established in Estate of
DiMarco v. Wyo. Dept. of Corrs., 473 F.3d 1334 (10th Cir. 2007), by “[finding] that a failure
. . . to satisfy any one of the parts is fatal to a finding of a violation of a protected liberty

interest.” [Doc. 88, Ex. 3 at 5.] Yousef emphasizes that “the four factors . . . are merely
guidelines and do not set forth a strict test of constitutionality[,]” that the DiMarco factors are
“non-dispositive,” and that other factors beyond the four described in DiMarco may enter the
analysis. [Id. at 5-6.]
In its Memorandum Opinion and Order, the Court stated the applicable standard as
follows:
Determining whether conditions are atypical and impose a significant hardship
requires a “fact-driven assessment that accounts for the totality of conditions presented by
a given inmate’s sentence and confinement.” [Rezaq v. Nalley, 677 F.3d 1001, 1014
(10th Cir. 2012)]. Relevant, non-dispositive factors in that assessment include whether:
(1) the restriction relates to and furthers a legitimate penological interest; (2) the
conditions of confinement are extreme; (3) the restriction increases the duration of
confinement; and (4) whether the restriction is indeterminate and of significant duration.
Estate of DiMarco v. Wyo. Dep’t of Corrs., 473 F.3d 1334, 1342 (10th Cir. 2007).
[Doc. 83 at 2-3.] The Court then went on to apply that standard, concluding upon the way
that each factor weighed against or slightly against recognizing a liberty interest. [Id. at 4, 9,
11.] No factor was dispositive. Yousef’s belief that the Court misapprehended and/or
misapplied the standard is misplaced. The Court employed a fact-driven assessment guided
by applicable precedent and made its decision based on the totality of conditions presented.
Yousef contends that the Court erred in relying on Sattar v. Holder, 2012 WL 882401 (D.
Colo. 2012) for the proposition that the government may look to the nature of an inmate’s
underlying crime in imposing certain restrictions of confinement. [Doc. 88, Ex. 3 at 10.] As
Sattar and its line of cases in this District make clear, it is appropriate for prison officials to
consider an inmate’s crime in imposing such restrictions, because the crime informs the
penological interests implicated by the inmate’s presence at a given prison.

Yousef’s

attempts to factually distinguish the Sattar line of cases [see id. at 10-11] are not convincing,
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either.

Whatever differences between the restriction imposed or the justifications for

imposing them beyond the inmate’s crime, the principle is the same: an inmate’s crime may
be part of the calculus.
Yousef also argues that the passage of time and his relatively clean record in prison
should diminish the weight of the nature of his crime in this analysis. [See id. at 11, 16-18.]
Yousef’s argument ignores the fact that his “crime” remains one of the most infamous
terrorist attacks on United States soil, and that the threat of Islamic extremism is clear and
present. While Yousef may be frustrated that he remains a motivating force for extremists,
that is not, as Mr. Kleinman contended [see id. at 12-13], out of his control; no one forced
Yousef to bomb the World Trade Center. As he made clear at his sentencing hearing, he
very much chose to do it:
Yes, I am a terrorist and I am proud of it. And I support terrorism so long as it was
against the United States Government and against Israel because you are more than
terrorists, you are the ones who invented terrorism and using [sic] it every day.
[Doc. 39, Ex. A ¶ 12.] Respondent also presented evidence indicating that Yousef still
harbors those views. [See Doc. 36 at 7-8 (restricted).] In this context, even if Respondent’s
reliance on Yousef’s crimes in imposing Special Administrative Measures is wearing a bit
thin, and even if Yousef’s post-incarceration conduct has not been marred by chronic
infractions, he cannot credibly maintain that Respondent has no penological interest in
restricting and monitoring his communications.
Yousef faults the Court for unduly deferring to Respondent in matters affecting national
security. [See Doc. 88, Ex. 3 at 14-16.] In rendering its decision, the Court did not simply
take Respondent as its word. The Court well recognizes the important function played by
federal courts and their co-equal status in our constitutional system.
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As for the Court’s application of the second DiMarco factor, Yousef first argues that the
Court erred when it concluded that, because “Yousef’s conditions are less [extreme] than
those imposed on the inmates at the supermax in Ohio (the subject of the Wilkinson case),
Yousef has failed to satisfy this Factor.” [Id. at 19-20.] The Court did not, as Yousef
maintains, base its analysis solely on the conditions deemed relevant by the Supreme Court
in Wilkinson; the Court also compared Yousef’s conditions of confinement to conditions
faced by other prisoners in H Unit and in the ADX General Population Unit. [See Doc. 83 at
6-9.] Moreover, the Tenth Circuit has said that “[a] comparison to the conditions at issue
in Wilkinson can also be instructive when considering conditions in segregated
confinement.” Rezaq, 677 F.3d at 1014.
Relatedly, Yousef contends that the Court used an improper baseline by which to
measure whether the conditions of Yousef’s confinement are extreme. [See Doc. 88, Ex. 3 at
8, 35-36.] In making such a measurement, “it is appropriate to compare the nature of the
challenged conditions to the type of nonpunitive confinement routinely imposed on inmates
serving comparable sentences.” Rezaq, 677 F.3d at 1014. In Rezaq, a case involving
conditions in ADX’s General Population Unit, the Tenth Circuit compared conditions in that
Unit with “conditions experienced in any solitary confinement setting.” Id. at 1015. Here,
the Court used H Unit, the ADX General Population Unit, and the facility in Wilkinson as
comparators. All of those units housed inmates serving comparable sentences to Yousef in
the sense that they are high-risk and create the need for administrative segregation. The
Court perceives no error in this approach.
Yousef next faults the Court for deciding the case based on a record that only included
the declarations of federal prison, law enforcement, and national security officials, and the
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submissions of counsel for Respondent. [See Doc. 88, Ex. 3 at 5 (characterizing record as
“all but ex parte in spirit”).] The Court held a hearing with the parties on January 29, 2014
after Respondent filed its Answer detailing the conditions of Yousef’s confinement. Counsel
for Yousef did not raise objections to Respondent’s characterizations at the hearing, nor did
counsel request the opportunity to file a Reply detailing those objections. Two-and-a-half
months later, after Respondent supplemented its Answer at the Court’s request to better
describe Yousef’s conditions, counsel for Yousef submitted a “Motion” under the CJA in
which he requested permission to file a Reply, among other things. [See Doc. 81.] Because
the motion was styled in that fashion, the Court did not immediately direct its attention to it,
thinking it was simply an administrative request under the CJA that could be handled once
the Court completed its Memorandum Opinion and Order. By the time Mr. Kleinman
repeated his request on May 13, 2014 [Doc. 82], the Court had already reached its decision
[Docs. 83-84]. The Court apologizes for that inadvertent mistake.
In any event, the Court now has the benefit of Yousef’s view of his incarceration
conditions, and his position on Respondent’s description of those conditions. [See Doc. 88,
Ex. 3 at 20-34.] Giving due weight to Yousef’s assertions, the Court concludes that the
conditions of his confinement are still not extreme under the second DiMarco factor. The
Court is also not persuaded, as Yousef seems to insinuate [see id. at 49-51], that Respondent
fabricated evidence or misrepresented the actual conditions of Yousef’s confinement.
Yousef faults the Court for considering the third DiMarco factor at all because Yousef is
serving a life sentence. [See id. at 37-38.] The plaintiff in Rezaq was serving a life sentence,
see Rezaq v. Nalley, No. 07-cv-02483, 2010 WL 5157317, at *1 (D. Colo. Aug. 17, 2010),
and yet the Tenth Circuit included the third DiMarco factor in its analysis and concluded
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that, because confinement at ADX did not lengthen plaintiff’s sentence, it did not weigh in
favor of finding a liberty interest, see Rezaq, 677 F.3d at 1015-16.

Again, Yousef’s

argument is unavailing.
In attacking the Court’s analysis and conclusion as to the fourth DiMarco factor, Yousef
claims that the Court’s determination that the conditions of Yousef’s confinement are
reviewed three times every year is mistaken because the annual SAMs review is distinct from
the twice-annual Program Reviews conducted as part of ADX’s Security Unit Program. [See
id. at 39-42.] The Court recognized the differences between reviews [see Doc. 83 at 11], but
all three concern the conditions of Yousef’s confinement.
Yousef also argues that the SAMs renewal process is essentially a sham designed to
impose SAMs on Yousef in perpetuity. [See Doc. 88, Ex. 3 at 43-44.] The Tenth Circuit has
said that “it is not necessary[,]” in considering the fourth DiMarco factor, “to closely review
the process . . . .” Rezaq, 677 F.3d at 1016. The validity of the process is to be tested at the
second stage of a due-process analysis. See id. How Yousef’s confinement conditions are
reviewed is a separate question from the frequency with which they are reviewed.
For the foregoing reasons, the Court concludes that Yousef is not entitled to relief under
Rule 60 from the Court’s judgment dismissing his habeas Application. [Doc. 84.] This
decision supplements the Court’s Memorandum Opinion and Order [Doc. 83], particularly as
it pertains to the Court’s review of Yousef’s positions concerning the conditions of his
confinement.
Finally, Yousef requests an “Order granting Travel Authorization to Attorney Kleinman
and his Para-Legal as set forth in the prior submitted motion to the Court[.]” [Doc. 88 at 1.]
Yousef’s “prior submitted motion to the Court” asked for travel authorization so Kleinman
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and his paralegal could visit Yousef and consult with him for the purposes of preparing a
Reply to Respondent’s Answer. [Doc. 81.] Yousef’s request is moot.
Upon the foregoing, it is
ORDERED that Applicant Ramzi Yousef’s Motion for Relief from Judgment [Doc. 88 ¶
1] is denied, and it is
FURTHER ORDERED that Ramzi Yousef’s request for travel authorization [Doc. 88 ¶
3] is denied as moot.
Dated: June 26, 2014.
BY THE COURT:

s/Richard P. Matsch
______________________
Richard P. Matsch
Senior District Judge

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