Saeed v. Pugh
Filing
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Memorandum of Opinion and Order: Petitioner's Motion to Proceed In Forma Pauperis is granted (Doc. No. 2 ), and the Petition is dismissed pursuant to 28 U.S.C. § 2243. Further, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Patricia A. Gaughan on 10/3/14. (LC,S)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
SHAMOON SAEED,
Petitioner
vs.
MICHAEL PUGH,
Respondent.
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CASE NO. 4:14 CV0871
JUDGE PATRICIA A. GAUGHAN
MEMORANDUM OF OPINION
ORDER
INTRODUCTION
Pro se petitioner Shamoon Saeed filed the above-captioned habeas corpus action against
Northeast Ohio Correctional Center (“N.E.O.C.C.”) Warden Michael Pugh pursuant to 28 U.S.C.
§ 2241. Petitioner, who is incarcerated at N.E.O.C.C., challenges loss of Good Credit Time
(GCT). For the reasons set forth below, the petition is dismissed.
BACKGROUND
Petitioner was named in an Incident Report issued by N.E.O.C.C. on October 7, 2013.
The report charged him with “Phone Abuse Non-Criminal (third-way calling),” an Offense Code
297 violation.
A hearing was held before the Disciplinary Hearing Officer (DHO) on October 14, 2013.
At that time, Petitioner waived his right to staff representation. He admitted that all of the facts
were true, and stated that he just wanted to speak to a friend in Toronto, who was a former
inmate at N.E.O.C.C. The conversation was in the Urdu (Indian) language. The DHO asked
Petitioner whether he understood his rights during the hearing and he answered affirmatively.
He declined the offer of an interpreter or the opportunity to present any evidence in his defense.
In reaching her determination, the DHO considered Petitioner’s admission, the audio
recording of his telephone conversation, and a copy of the Inmate Admission and Orientation
book. The DHO also considered the reporting officer’s statement recounting his random
monitoring of inmate telephone calls whereby he heard Petitioner speaking to an unidentified
male, whom he asked to dial a number on his behalf. Seconds later, the unidentified male said:
“Go ahead” and Petitioner began speaking to another unidentified male in a foreign language.
The DHO additionally introduced the Inmate Handbook which states: “For security reasons, all
inmate telephones are subject to monitoring and recording.” Additionally, “Third party billing
and electronic transfer of a call to a third party are prohibited.” (Doc. No. 1-2 at 3.)
The DHO found Petitioner in violation of Offense Code 297. Petitioner countered that a
lesser charge should have been applied. The DHO considered his claim, but found it
unsubstantiated given that the facts were undisputed that Petitioner circumvented the telephone
system by having another individual place a three-way call for him. Petitioner was sanctioned
with the loss of 24 days GCT and 60 days’ loss of commissary and telephone privileges.
Petitioner fully exhausted his administrative remedies.
STANDARD OF REVIEW
Habeas corpus review under § 2241 “allows a federal prisoner to challenge the
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‘execution’ of his sentence.” Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 241 (3d
Cir.2005). A § 2241 petition challenging the execution of a federal prisoner's sentence generally
addresses “such matters as the administration of parole, computation of a prisoner's sentence by
prison officials, prison disciplinary actions, prison transfers, type of detention and prison
conditions.” Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir.2001).
DISCUSSION
Petitioner raises two grounds for relief:
GROUND ONE: The charge given to me by the
DHO was the wrong charge based on the actual
severity of the action and the fact that there was a
similar offense conduct at a lower severity level
available which they refused to use in spite of
mitigating factors.
GROUND TWO: Violation of Rule of Lenity in
imposing a harsher sanction when a lesser sanction
was available and there was no circumstances
warranting a more severe punishment.
(Doc. No.1-1 at 3 and 6).
Petitioner argues the DHO should have considered the fact that he had no prior
infractions and that an Offense Code 397 would have been more appropriate given that both
Offense Codes 397 and 297 prohibit three way calling. He also argues that because the Bureau of
Prisons (BOP) has the option of charging inmates with lesser offenses, its decision to punish him
under the higher offense is a violation of the Rule of Lenity.
When a prisoner faces the loss of good time credits, due process requires that he or she
receive the following hearing rights: 1) written notice of the hearing at least twenty-four hours in
advance; 2) an opportunity, when consistent with institutional safety and correctional goals, to
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call witnesses and present documentary evidence in his defense; and 3) a written statement by
the factfinder of the evidence relied on and the reason for the disciplinary action. Wolff v.
McDonnell, 418 U.S. 539, 563-67 (1974). A prison disciplinary decision comports with the
requirements of due process if “some evidence” supports the decision by the prison disciplinary
board. The quantity of evidence to support a disciplinary conviction is minimal and does not
involve the independent assessment of witness credibility or weighing of evidence by the federal
courts. Superintenden, Mass. Corr. Inst. v. Hill, 472 U.S. 445 (1985).
Contrary to Petitioner’s assertion, Offense Code 397, unlike Offense Code 297, does not
involve a third party caller. Offense Code 397 addresses: “Use of the telephone for abuses other
than illegal activity which do not circumvent the ability of staff to monitor frequency of
telephone use, content of the call, or the number called.” 28 C.F.R. §541.3. Offense Code 297
applies to the “[u]se of the telephone for abuses other than illegal activity which circumvent the
ability of staff to monitor frequency of telephone use, content of the call, or the number called.”
Id.
The DHO applied the more severe sanction because Petitioner’s “[u]se of the telephone
... circumvent[ed] the ability of staff to monitor frequency of telephone use, content of the call,
or the number called.” The DHO noted that it was Petitioner’s use of a third party to place a call
that circumvented the staff's ability to monitor his telephone use in violation of Offense Code
297. Clearly, “some evidence” existed to justify the DHO’s finding.
Petitioner’s reliance on the Rule of Lenity, which applies to statutory construction in
criminal cases, is not applicable in this civil action.
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CONCLUSION
Based on the foregoing, Petitioner’s Motion to Proceed In Forma Pauperis is granted
(Doc. No. 2), and the Petition is dismissed pursuant to 28 U.S.C. § 2243. Further, the Court
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken
in good faith.1
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
UNITED STATES DISTRICT JUDGE
Dated: 10/3/14
1
28 U.S.C. § 1915(a)(3) provides: “An appeal may not be taken in forma pauperis
if the trial court certifies in writing that it is not taken in good faith.”
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