Hammoud v. Feather, No. 3:2013cv01340 - Document 27 (D. Or. 2014)
Court Description: Opinion and Order signed on 8/8/2014 by Judge Robert E. Jones.The Amended Petition for Writ of Habeas Corpus 12 is DENIED and Judgment be entered DISMISSING this case with prejudice. (sp)
Download PDF
<![CDATA[
Hammoud v. Feather Doc. 27 UNITED STATES DISTRICT COURT DISTRICT OF OREGON WISSAM HAMMOUD, ) ) Petitioner, 3: 13-cv-01340-JO ) ) v. ) ) UNITED STATES OF AMERICA and FCI SHERIDAN WARDEN MARION FEATHER, Respondent. ) ) ) ) ) OPINION AND ORDER Wissam Hammoud Fed. Reg. No. 39876-018 Federal Correctional Institution P.O. Box 1000 Talladega, AL 35160 Petitioner Pro Se s. Amanda Marshall United States Attorney Natalie Wight Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com JONES, District Judge. Petitioner, an inmate at FCI-Talladega, brings this action seeking a writ of habeas corpus pursuant to 28 U.S.C. se. § 2241 pro Petitioner alleges his constitutional rights were violated when the Disciplinary Hearings Officer (DHO) found him guilty of assaulting a corrections officer without due process. For the reasons set forth below, his Amended Petition [12) should be DENIED with prejudice. PROCEDURAL BACKGROUND As noted above, petitioner is currently incarcerated at FCITalladega, Alabama. At the time he filed this action and the time of the incident and subsequent disciplinary proceedings at issue, he was housed at FCI-Sheridan, Oregon. conviction resulted in the loss Petitioner's disciplinary of good time (suspended) in disciplinary segregation. credit and time Petitioner is currently serving a 258-month sentence for retaliating against a witness, solicitation violence, of murder, possession violation of parole. of use a of a firearm firearm by a during convicted a crime felon of and His projected release date is December 18, 2022, via good conduct release. FACTUAL BACKGROUND On October 30, 2012, an officer observed petitioner moving the ''wrong way'' in the flow of inmate foot traffic and ordered him to stop and return to medical. 2 - OPINION AND ORDER At some point, petitioner walked away from the officer and was again ordered to stop. Eventually, the officer directed petitioner to turn over his identification According to the officer, card. petitioner ''pulled his ID card from his coat pocket and forcedly slapped it into [the officer's] left hand." officer Deel. of Daniel Cortez [21], Attachment 3, p. 17. issued an incident report charging petitioner The with assaulting any person and refusing to obey and order. On November 8, 2012, the Bureau of Prisons {BOP) delivered a copy of the incident report to petitioner and advised him of his Id., Attachment 3, pp. 6-7. rights. after being stopped by the Petitioner maintained that officer he asked to talk to a lieutenant, and, not getting an answer, petitioner started to walk toward the lieutenants office. Petitioner stated that the officer then began to yell at him to go back to medical. that he admitted On forcibly that November he 13, slapped his was upset 2012, the ID into when Unit he the gave Petitioner denied officer's it Disciplinary hand, but him. Id. Committee {UDC) to considered petitioner's incident report and referred it to the DHO. Petitioner again denied that he was forceful when he gave his ID to the officer, but stated that he was emotional. Id., Attachment 3, p. 3. On hearing. November 20, 2012, the Petitioner requested a DHO conducted disciplinary staff representative and Staff Psychologist Dr. G. Paape appeared on his behalf. 3 - OPINION AND ORDER a Previously, on November 13, 2012, staff presented petitioner with written notice of his rights at his upcoming disciplinary hearing, including his right to call witnesses and present documentary evidence in his defense. Petitioner signed a form "Notice of Discipline Hearing Before the (DHO)" wherein he indicated that he did not wish to call witnesses at his upcoming hearing. Id., Attachment According to the DHO, petitioner made the following 3, p. 10. statement at the hearing: My history speaks for itself. I've never had any assaults in my record. I'm scared because of staff. I just seen Dr. Paape and the psychiatrist and was emotional. We had discussed several issues of my past. They [sic] were other inmates moving around. I was being harassed by that officer. He asked me to stop which I did. He told me to go back to medical. I asked to speak with a Lieutenant and he yelled at me to go to medical. I started walking toward the Lieutenant's Office, he yelled at me to stop and give him my ID. I didn't think I sl[a]pt it into his hand or did it forcefully. Id., Attachment 3, pp. 1-2. 1 Ultimately, the DHO found petitioner committed the prohibited act of assaulting any person in violation of Code 224. The DHO based his findings on the reporting officer's statement, memoranda submitted by Lieutenant Cape and Senior Officer Bell (each respectively asserting that he witnessed petitioner "aggressively 1 Notwithstanding petitioner's assertion in this proceeding that a video was available at the time of his disciplinary hearing that would have exonerated him on the assault charge, there is no mention in the detailed DHO report of petitioner having ever requested review of a video of the incident or to the fact that numerous staff denied the existence of any such video footage when petitioner asked them to obtain and preserve it. 4 - OPINION AND ORDER slap his ID into Officer Mulrooney's hand" and "slap[] his card into officer mulrooneys hand very forcibly") , Heal th Services Clinical Encounter forms for petitioner, Staff Injury Assessment and Follow-Up Form for Officer Mulrooney, statements to the investigator, to 21 the UDC, days good and Petitioner's own and the DHO. The DHO conduct for sanctioned petitioner loss the violation. He also suspended 30 days of disciplinary segregation pending 180 days of clear conduct. DISCUSSION To obtain relief under § 2241, petitioner must establish that ''[h]e is in custody in violation of the Constitution or laws or treaties of the United States.'' instant case petitioner is 28 U.S.C. seeking § relief 224l(b) (3). with In the respect to a disciplinary proceeding that, in part, resulted in the loss of good time credit while incarcerated at FCI-Sheridan. This is a challenge to the legality of the manner in which his sentence is being executed and is properly before the Court under 28 U.S.C. § I. 2241. Procedural Due Process - Disciplinary Hearing and Proceedings It is well settled that "prison disciplinary proceedings are not part of a criminal prosecution and the full panoply of rights due a defendant in such proceedings does not apply." McDonnell, 418 U.S. 539, 556 (1974). Wolff v. In Wolff, the Supreme Court set forth the following minimum procedural due process rights to be 5 - OPINION AND ORDER afforded to a prisoner accused of misconduct in prison which may result in the loss of good time credit: before an impartial (1) the right to appear decision-making body; notice of the disciplinary charges; (3) (2) advance written an opportunity to call witnesses and present documentary evidence in his defense when it is consistent with institutional safety and correctional goals; (4) assistance from an inmate representative if the charged inmate is illiterate or complex issues are involved; and (5) a written decision by the fact finder of the evidence relied upon and the rationale behind the disciplinary action. In this case, petitioner maintains Id. at 563-67. that prison officials denied him the right to present documentary evidence in his defense at his disciplinary hearing, namely: to present the videotape or a report summarizing the videotape of the incident which petitioner states would have proved he did not assault the officer. According to petitioner, "[w]hile in the SHU [he] asked the Captain, Warden, Lt. Wade the investigation Lieutenant, and several other Lieutenants to review the video film in order to see the actual incident, but all kept insisting that the[re] was NO cameras in the area, and NO film is available." Amended Petition [ 12] at 2. Petitioner contends that video footage of the incident was provided to the F.B.I. as part of a potential prosecution. Id. He further argues that because the OHO did not have the video or a report summarizing the video before him, his written decision detailing 6 - OPINION AND ORDER the evidence relied on to conclude petitioner committed the assault was incomplete and also violated petitioner's right to due process. While conceding that due process could require the OHO to consider video evidence on petitioner's request, respondent denies petitioner's assertion that he ever asked the OHO to review the video and to take it or a summary report of it into consideration. According to respondent, the record supports only the conclusion that petitioner did not specifically request that the OHO consider video evidence. that According to respondent, petitioner did not "request review the OHO packet reveals of video surveillance during the investigation of the incident report, during UDC review, or during the disciplinary hearing." Daniel Cortez, Moreover, the presiding OHO, specifically avers that petitioner was given the opportunity to request witnesses and present documentary evidence during his disciplinary hearing and declined to do so. Moreover, Cortez states that "[t]o the best of my knowledge, inmate Hammoud did not request a review of video surveillance of the incident.'' Deel. of Daniel Cortez [21], p. 4. The Court has carefully reviewed the record in this case. Beyond petitioner's assertions in his Amended Petition, it can find no reference to his having made a request that officers, investigators, witnesses and/or the OHO review video evidence of 7 - OPINION AND ORDER the subject incident. 2 As such, the facts in Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 813-14 (10th Circuit 2007), a case relied on by petitioner here, actually serves to underscore the reason he cannot prevail on his claim that his disciplinary hearing violated his right to procedural due process. In Howard, the court noted that, [a]lthough the record does not provide conclusive proof that Howard requested production of the tape at the DHO hearing, it provides strong inferential support that he did so. (See Rec. Doc. 1 ex. G (Administrative Remedy Response dated 11/01/02) (noting Howard's contention that he was denied review of the videotape); Rec. Doc. 13 at 2 (finding, the district court below, that Howard did request the tape of the hearing).) Id. at 814 (emphasis added) . In contrast here, there is no indication in the record, prior to his assertions in this federal habeas corpus proceeding, video surveillance of that petitioner requested a review of the incident. Despite his representation that he asked multiple staff members, current including investigators, to recover and review a tape of the incident, and that these individuals all denied the existence of any such tape, the disciplinary hearing record is void of any mention of video surveillance of the assault incident. 2 Given petitioner's current According to petitioner, he asked Dr. Paape to review the video and discuss it with staff before the hearing, but Dr. Paape was not permitted to do so. Amended Petition (12] at 2. Dr. Paape did not mention any such denial in his remarks to the DHO. Moreover, petitioner indicated at the hearing that he was ready to proceed and satisfied with Dr. Paape's assistance. Deel. of Daniel Cortez (21], Attachment 3, p. 1. 8 - OPINION AND ORDER assertion that he knew the video would affirmatively prove his innocence on the assault charge, the Court would expect there to be some record of what multiple parties, he maintains were repeated requests from including Dr. Paape, his staff representative, for the video surveillance. petitioner cannot Accordingly, the Court concludes that establish that he sought to introduce video evidence at his DHO hearing such that his procedural due process rights were violated by the DHO' s alleged refusal to allow and consider this evidence in his resolution of the assault charge. Moreover, respondent indicates that BOP staff did review and preserve all available footage surrounding this incident in the course of its use of footage force investigation 3 , but found no video documenting the manner in which petitioner surrendered his ID to the officer. See Deel. of Damon Sayers (22], p. 3 (''On or about October 30, 2012, the SIS Department conducted a search for video surveillance of the metal shack where the use of force by staff occurred. Video footage of the metal shack was found and preserved. video The surveillance shows the verbal exchange between Officer Mulrooney and inmate Hammoud inside the metal shack. However, inmate Hammoud walked out of the metal shack, and out of view of the video cameras, 3 into the area where he was Following the ID transfer, petitioner was immediately placed against a window and cuffed. He suffered a minor lip abrasion during this use of force. His injury was photographed and his subsequent medical assessment and the staff debrief of the use of force occurrence were videotaped. 9 - OPINION AND ORDER reported and witnessed to have slapped his ID card into Officer Mulrooney's hand."). Accordingly, the Court is satisfied that any failure of the DHO to review video footage during the disciplinary proceedings was harmless because the critical event pertaining to the assault, i.e., the manner in which petitioner transferred his ID into the officer's hand, was never captured by video surveillance. II. Substantive Due Process - Disciplinary Hearing and Proceedings Once followed, the aforementioned Wolff procedural protections are the only function of the federal court is to review the statement of evidence upon which the disciplinary committee relied on in its findings to determine if the decision is supported by "some evidence." Superintendent v. Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1984) (''The requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board.") . Petitioner faults the DHO for, among other things, failing to turn over certain evidence for his staff representative's review, for finding that staff had nothing to gain by issuing a false report, and for failing to review the video of the incident. These arguments notwithstanding, it is clear that the eye witness accounts set out in Officer Mulrooney's written statement and Lt. Cape and Senior Officer Bell's memoranda, constitute some evidence supporting the DHO's finding that petitioner committed the alleged 10 - OPINION AND ORDER assault. in Accordingly, petitioner cannot demonstrate that the DHO, concluding petitioner committed the assault, violated his substantive due process rights during his disciplinary proceedings. CONCLUSION Based on the foregoing, Habeas Corpus (12] the Amended Petition for Writ of is DENIED, and judgment be entered DISMISSING this case with prejudice. This case arises under 28 U.S.C. State court detention. § 2241, and does not attack Accordingly, no ruling on a certificate of appealability is required, and no recommendation thereon will be offered. DATED day of August, 2014. Uni 11 - OPINION AND ORDER ones District Judge
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
