                                                                        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).

                                            -5-
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


                                         -7-
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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