SHAMSIDDIN ABDUR-RAHEEM v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4482-15T2

SHAMSIDDIN ABDUR-RAHEEM,

        Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
_____________________________

              Submitted January 30, 2018 – Decided February 12, 2018

              Before Judges Reisner and Mayer.

              On appeal from the New Jersey Department of
              Corrections.

              Shamsiddin Abdur-Raheem, appellant pro se.

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Melissa Dutton Schaffer,
              Assistant Attorney General, of counsel;
              Suzanne Davies, Deputy Attorney General, on
              the brief).

PER CURIAM

        Appellant, an inmate at the         New Jersey State Prison, appeals

from     a   March   7,   2016    final   decision     of   the   Department       of

Corrections (DOC or agency) denying his two applications for
permission to add the names of a private investigator and a private

detective    (collectively,   the   investigators)   to   his    inmate

telephone call list as legal contacts.      We remand this matter to

the DOC for reconsideration.

     Appellant is serving a life sentence for murder, kidnapping,

and other offenses.   Appellant asserts, as he did before the DOC,

that he needs to consult with the investigators in order to pursue

criminal and civil matters in which he is representing himself.

His requests were denied on the grounds that the individuals were

not attorneys, but were "business lines."       The agency's decision

also cited an unspecified "zero tolerance rule" and an unspecified

"policy."

     On this appeal, as in his agency grievance, appellant contends

that, pursuant to the DOC regulations, N.J.A.C. 10A:18-6.7(b),

investigators are legal contacts.       The agency's response is that

N.J.A.C. 10A:18-6.7 governs contact visits by attorneys and their

representatives, including their investigators.       The regulation

does not pertain to inmate telephone calls.      The agency correctly

notes that another regulation, N.J.A.C. 10A:18-8.6, governs legal

telephone calls.    That regulation provides:

            Legal telephone calls may be made to the
            following   individuals   or   agencies   for
            assistance   in    legal   research    and/or
            preparation of legal documents:


                                    2                           A-4482-15T2
           1.    Office of the Public Defender;
           2.    Regional Legal Services;
           3.    Court Clerks;
           4.    Attorneys; and
           5.    The Corrections Ombudsperson.

           [N.J.A.C. 10A:18-8.6(b).]

Private investigators are not included on the list of approved

legal telephone contacts.

      On this appeal, appellant contends that in denying him the

right to contact investigators, the DOC is unconstitutionally

denying him access to the courts.      In support of his argument, he

cites Feeley v. Sampson, 
570 F.2d 364 (1st Cir. 1978), and Johnson

v. Galli, 
596 F. Supp. 135, 138 (D. Nev. 1984).        The DOC responds

that these cases are not on point because they address the rights

of   pre-trial   detainees   seeking   to   defend   themselves   against

pending criminal charges.      However, convicted persons also have

the right to challenge the conviction on appeal or in post-

conviction proceedings.      R. 2:3-2; R. 3:22-1.    They also have the

right to represent themselves in those proceedings, as well as at

trial.   See R. 3:22-6(a); State v. Quixal, 
431 N.J. Super. 502,

507-08 (App. Div. 2013).

      Moreover, criminal defendants may need the services of a

private investigator in some matters.         For example, a criminal

defendant is not necessarily entitled to representation by the

Office of the Public Defender for second or subsequent petitions

                                   3                              A-4482-15T2
for post-conviction relief (PCR).            See R. 3:22-6(b).       As a result,

a defendant may have to proceed pro se on a second or subsequent

PCR petition, and may need to use the services of a private

investigator to contact witnesses and obtain affidavits.                          See

State v. Porter, 
216 N.J. 343, 355 (2013) (explaining the need for

legally competent evidence to support a PCR petition) (quoting

State v. Cummings, 
321 N.J. Super. 154, 170 (App. Div. 1999)).                      On

the other hand, we can appreciate that the DOC may have security

concerns about allowing inmates unfettered contact with persons

outside the prisons.

     Having noted these issues, however, we conclude that the

record presented to us is inadequate to enable us to address the

inmate's constitutional claims.              His administrative application

did not specify what criminal matters he allegedly sought to pursue

with the assistance of the investigators or why he needed their

assistance. Nor did he specify what civil matters he was pursuing.

In turn, the DOC response, both to appellant and to this court,

relies   entirely     on    its    regulations,    without      explaining        the

agency's    policy   concerns      and   how   they    apply    to    appellant's

situation.    In addition, we cannot ascertain from this record

whether denying appellant the right to put investigators on his

telephone    list    as    legal   contacts     will   result    in    his     being



                                         4                                   A-4482-15T2
completely unable to have telephone contact with them, or whether

it will only affect the conditions under which he can call them.

     For all of these reasons, we conclude that a remand is

required.   On remand, the DOC shall give appellant an opportunity

to provide a more complete explanation for his requests.   If the

agency decides to deny the requests, it shall provide a more

complete explanation for that decision, addressing the issues we

have noted in this opinion.

     Remanded.   We do not retain jurisdiction.




                                 5                         A-4482-15T2