Reply Brief — Murtaza Ali, Petitioner v. Joe M. Allbaugh, Director, Oklahoma Department of Corrections, et al.

No. 17-8432

IN THE

SUPREME COURT OF THE UNITED STATES

MURTAZA ALT,

Petitioner,

VS.

JUSTIN JONES, ET. AL,

Respondent,

On Petition for Certiorari to the United States Court

of Appeals for the Tenth Circuit

PETITIONER'S REPLY BRIEF

MURTAZA ALT, PRO SE

3212 Red Sails Drive

El-Paso, Texas 79936

918.302.9807

mali373938@gmail.com

P.O. Box 60565

Sharjah

United Arab Emirates

fl 'EU V ED

JUL1? 2018

E OF ThECLJ

TABLE OF AUTHORITIES CITED CASES

O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 352 (1987)...............1

Turner v. Safley, 482 U.S. 78, 87, 89 (1987)..............................1,3,6

Employment Division v. Smith, 494 U.S. 872, 887 (1990)................2

Hernandez v. Commissioner, 490 U.S. 680, 699 (1989)....................2

United States v. Seeger, 380 U.S. 163, 184-85 (1965) ......................2

Frazee v. ill. Dept. of Employment Sec., 489 U.S. 829, 833 (1989).....3

Mosier v. Maynard, 937 F.2d 1521, 1523 (10th Cir. 1991).................4

Lafevers v. Saffie, 936 F.2d 1117, 1119 (10th Cir. 1991)...................4

Nelson v. Miller, 570 F.3d at 881 (7th Cir. 2009).............................4

Sossamon v. Lone Star State of Tex.,

560 F.3d at 333 (5th Cir. 2009).....................................................4

Levitan v. Ashcroft, 281 F.3d 1313, 1321 (D.C. Cir. 2002)................5

Searles v. DeChant,

393 F.3d 1126, 1131 n.6 (10th Cir. 2004)........................................5

Texas v. Johnson, 491 U.S. 397, 414 (1989)....................................6

Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of

Boston, Inc., 515 U.S. 557, 574 (1995)...........................................6

Sutton v. Rasheed,

323 F.3d 236, 252-54 (3d Cir. 2003) (per curaim).............................6

Washington v Klem,

497 F.3d 272, 278 (3d Cir. 2007)..................................................7

Abduihaseeb v. Calbone,

600 F.3d at 1315 (10th Cir. 2010)

.8

Cutter v. Wilkinson, 544 U.S. 709, 723 (2005)................................8

Davis v. Shields. No. 1:17-CV-1347-P,

(Doc. 9)(W.D. La. Dec. 28, 2017)...................................................9

Ali v. Bureau of Prisons, No. l:17-cv-2293 ...................................... 9

ARGUMENT

I.

The Judgment Below Is Based on a Legal Rule That Conflicts

with the Rule in Other Circuits

Respondents say that all circuits have applied the same legal

standard to varied facts BIO 19-21. And that they should win on the

merits. Id. The finding of facts, and that Magistrate's review of the

reasonable relationship to "legitimate penological objectives," or

"legitimate penological interests," was not in accord with this

constitutional standard set in O'Lone v. Estate of Shabazz, 482 U.S.

342, 349, 352 (1987); Turner v. Safley, 482 U.S. 78, 87, 89 (1987).

Hence the Magistrate's and Tenth Circuit's extra ordinary standard

of deference to prison officials, conflicts with the rule of other circuits,

and it negates statutory standard that governs this case.

A.

The Judgment Below Was Rendered in Spite of the Facts,

not Because of the Facts.

The Magistrate recommendation at 21-25 as it was based on

law inapposite to other Circuits; when it considered the facial

challenge in applying the rule of denying provision of Noble Quran'

to Petitioner did not interfere with the free exercise of religion. The

respondents impermissibly denied Petitioner provision and access to

Noble Quran because they improperly found the meaning of the

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No ODOC Policy was submitted as evidence by defendant, explicitly stating Noble Quran was not

permitted in ODOC facilities. In addition, Petitioner was in possession of the Noble Quran since 2011-12,

which was later confiscated in 2014.

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translation of "the Noble Quran poses a safety and security risk is

legitimate and is reasonable." The Magistrate's unlimited deference

to prison officials' rule, was not related to facts or as a matter of law,

when distinguishing important from unimportant religious beliefs, a

task which explained by this Court, courts are particularly ill-suited.

As in this case there always is the danger that courts will make

conclusory judgments about the unimportance of the religious

practice to the adherent. See, e.g., Employment Division v. Smith,

494 U.S. 872, 887 (1990) ("Repeatedly and in many different contexts,

we have warned that courts must not presume to determine the place

of a particular belief in a religion or the plausibility of a religious

claim."; Hernandez v. Commissioner, 490 U.S. 680, 699 (1989) ("It is

not within the judicial ken to question the centrality of particular

beliefs or practices to a faith, or the validity of particular litigants'

interpretations of those creeds."); United States v. Seeger, 380 U.S.

163, 184-85 (1965) ("Religious experiences which are a real as life to

some may be incomprehensible to others. [A court's] task is to decide

whether the beliefs professed by [an individual] are sincerely held

and whether they are, in his own scheme of things, religious,")

(quotation omitted).

Magistrate based his ruling while misapplying the

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"reasonableness inquiry" under all four Turner factors. "[W]hen a

prison regulation impinges on inmates' constitutional rights, the

regulation is valid if it is reasonably related to legitimate penological

interest." Turner, 482 U.S. at 89. Petitioner's sincerely held religious

beliefs are undisputed2, that he is an "Orthodoxy Muslim who

adheres to the Orthodox Islam and its 'central' tenets i.e. the Quran

and Sunnah (Ahl-us-Sunnah wal Jam'ah)." See Petition at 17-21. The

extra ordinary deference to prison officials rule by Magistrate does

not support facts that, there is a rational connection between ODOC's

restriction against personal possession of the version of the Quran as

the 'Noble Quran' and the legitimate safety concerns posited by

respondents. The Free Exercise Clause of the First Amendment

provides that "Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof...."

U.S. CONST. Amend. I. Only beliefs which are both "sincerely held"

and "religious in nature" are protected under the First Amendment.

See Frazee v. Ill. Dept. of Employment Sec., 489 U.S. 829, 833 (1989)

("There is no doubt that only beliefs rooted in religion are protected

by the Free Exercise Clause...") (quotation and citation omitted).

The Magistrate at 21-25, "weighing the evidence [and]

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Neither the respondents nor the courts below question the sincerity of the Petitioner.

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make[ing] credibility determinations" on material factual disputes,

regarding Petitoner's religious Orthodoxy3 accepting the opinions of

Chaplains in ODOC who are adherents of Christian religious

doctrine, based on information received from representative of CAIRO}(, who do not believe in the same doctrine of Orthodox Islam

sincerely held by Petitioner. Neither the court nor respondents are

qualified to determine that reading other translations of the Quran

should satisfy Petitioner religious beliefs. See Mosier v. Maynard,

937 F.2d 1521, 1523 (10th Cir. 1991) ("Intrafaith differences are

common and cannot be resolved by secular courts."); Lafevers v.

Saffle, 936 F.2d 1117, 1119 (10th Cir. 1991) ("Differing beliefs and

practices are not uncommon among followers of a particular creed.)";

see also Nelson v. Miller, 570 F.3d at 881 (7th Cir. 2009)("It simply is

not appropriate for a prison official to argue with a prisoner

regarding the objective truth of a prisoner's religious belief.");

Sossamon v. Lone Star State of Tex., 560 F.3d at 333, petition for

cert. filed, 77 U.S.L. W. (May 22, 2009) (No. 08-1438)("Prison

The meaning of the Quran can only be taken as explained by Prophet Muhammad (Peace Be Upon Him).

See Petitioner's Appendix D p. 2 "2.Tafseer The preservation of the Quran was not restricted to protecting

"

its wording from change. Were that the case, its meaning could be manipulated according to human desires,

while maintaining its wording. However, Allah also protected its essential meanings from change by

entrusting the explanation of the meaning of the Quran to the Prophet himself.. .Therefore, if one is to

understand the meanings of the Quran, he or she must consider what the Prophet said or did regarding it."

The Respondents did not provide any credible evidence if the CAIR-OK representative is an Islamic

Religious Scholar or was qualified to make such a recommendation in accordance with the Orthodox

Islamic Religious Doctrine, nor was there any evidence of any rational reason provided by CAIR-OK

representative for their recommendation, nor was there any evidence provided what sect of Islam the CAIROK representative adhered to.

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Chaplains are not arbiters of the measure of religious devotion that

prisoners may enjoy or the discrete way that they may practice their

religion."); Levitan, 281 F.3d at 1321 (recognizing that the court's

inquiry does not require "deciding whether appellants' beliefs accord

in every particular with the religious orthodoxy of their church" or

"adjudicating intrafaith differences in practice or belief'); Searles v.

DeChant, 393 F.3d 1126, 1131 n.6 (10th Cir. 2004) ("It is not within

the judicial ken to question the centrality of particular litigants'

interpretations of those creeds." (citation omitted)). These cases are

in direct conflict with the Tenth Circuit's rule in this case.

B.

The Magistrate and Tenth Circuit Accepting Respondents

Supposition that Possession of 'Noble Quran' Will Cause

Legitimate Safety Concerns is not Based on Fact.

The Magistrate at 21-25 adopts and endorses the legitimate

safety concerns posited by respondents at BIO at 3-8, who pile

conjecture upon conjecture to justify their facially and as applied

unconstitutional regulations; while accepting as fact a biased article

"Hilali-Khan Qur'an Translation" containing conclusory assertions

without explanation or factual support how the Noble Quran

"seriously distorts the concept of jihad" and is found "on Muslim

extremist sites." Id. The conclusory assertions are meritless,

speculative and on some level insulting, while comparing Petitoner's

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sincerely held religious beliefs in Orthodox Islam and his ascription

to "Ahl-us-sunnah wa al-Jamm'ah" to an illegitimate expression of

Islamic faith. Respondent's rule is not based on facts but their

contention to free speech (the Translation of the Meaning of the

Noble Quran) simply because it is upsetting to them or arouses

contempt. "If there is a bedrock principle underlying the First

Amendment, it is that the government may not prohibit the

expression of an idea simply because society finds the idea itself

offensive and disagreeable." Texas v. Johnson, 491 U.S. 397, 414

(1989). Indeed, "the point of all speech protection.. .is to shield just

those choices of content that in someone's eyes are misguided, or even

hurtful." Hurley v. Irish-American Gay, Lesbian, and Bisexual Group

of Boston, Inc., 515 U.S. 557, 574 (1995). See BIO 3-8. The Magistrate

bases his "decision on an erroneous conclusion of law.. .where there is

no rational basis in the evidence for the ruling." Wilderness

Workshop, et al. 531 F.3d 1220, 1223-24. See Sutton v. Rasheed, 323

F.3d 236, 254 (3d Cir. 2003) (per curiam) (all Turner factors weighing

in favor of plaintiff, holding that defendants were not entitled to

summary judgment on First Amendment Constitutional violation

claim; where defendants Imam Rasheed was a Sunni Muslim and not

an adherent of the Nation of Islam denied plaintiff Nation of Islam

books stating that they were not religious in nature, and Reverend

Smith endorsed the denial of plaintiffs Nation of Islam books stating,

"[T]he general contents ... are of a social/political nature ... both racial

superiority and political activism. Religious discussion is generally in

the context of a social agenda, making 'religion' a vehicle for the

promotion of the central ideologies in these books, the essence of

which smacks of racism and hatred.")

First Amendment requires respondents to "demonstrate 0" their

interests, not "state" or "articulate" them, and to demonstrate

"compelling governmental interest" and "least restrictive means," not

just legitimate interest. "Demonstrate 0" means to meet the burdens

of going forward and of the persuasion. Substantial burden is the

same as defined in RLUIPA as in First Amendment cases.

Washington v. Kiem, 497 F.3d 272, 278 (3d Cir. 2007). The religious

exercise is substantially burdened when a government (1) requires

participation in an activity prohibited by a sincerely held religious

belief, or (2) prevents participation in conduct motivated by a

sincerely held religious belief, or (3) places substantial pressure on an

adherent either not engage in conduct motivated by a sincerely held

religious belief or to engage in conduct contrary to a sincerely held

religious belief, such as where the government presents the plaintiff

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with a Hobson's choice

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an illusory choice where the only

realistically possible course of action trenches on an adherent's

sincerely held religious belief. Abduihaseeb v. Calbone, 600 F.3d at

1315 (10th Cir. 2010). In contrast, the Magistrate here reasonably

understood that he defer to the prison officials opinions. Of course

the prison "context matters," prison security is a compelling interest,

and the expertise of prison officials is entitled to "due deference."

Cutter v. Wilkinson, 544 U.S. 709, 723 (2005). But not everything

prison officials do is necessary to security

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let alone the least

restrictive means. Courts must decide when expertise is genuine and

how much deference is "due." The essentially unlimited deference by

the Magistrate effectively repeals the constitutional standard. See

Petition at 14-16, conflicting cases from other circuits revealing

substantial disagreement about this standard. This Court should

resolve the disagreement.

C.

Respondents Claim that The Noble Quran is Not Allowed

in Federal Bureau of Prisons is Not Factual

Federal Bureau of Prisons and forty-seven state prisons permits

the Noble Quran in all its correction facilities either for any reason or

religious reasons, while meeting valid penological goal of security.

Petitioner provided information about other states and federal

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regulations allowing the Noble Quran on its facilities to the Tenth

Circuit Court of Appeals. Respondents incorrectly sites BIO at 7, 15

cases stating that Petitioner and other Federal Prisoners were denied

the provision of the Noble Quran. See, Davis v. Shields. No. 1:17-CV1347-P, (Doc. 9)(W.D. La. Dec. 28, 2017)("For the forgoing reasons, IT

IS RECOMMENDED that Davis's Bivens claim for monetary damages

against the BOP and Chaplain Shields in his official capacity be DENIED

and DISMISSED with prejudice. IT IS RECOMMENDED that, to the

extent Davis seeks injunctive relief under Bivens,. .Davis's Bivens claim

.

for damages against Chaplain Shields in his individual capacity and

Davis's claim for injunctive relief under RFRA will be served pursuant to

a separate order.") See also Ali v. Bureau of Prisons, No. 1:17-cv-02293,

(Doc. l)(Confiscation of 2 books containing religious literature "AlWaajibat

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The Obligatory Matters and Thalatal Usool

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The Three

Fundamental Principles;"). Respondents say that the certiorari should be

denied because they so clearly justified in their policy BIO 7-8, 3-6. They

did not. Their conclusory and illogical justifications were accepted

because the Tenth Circuit summarily accepted the Magistrate's R&R and

gave unwarranted deference to Respondents; which was not based on fact.

It is hard to imagine a compelling interest in refusing religious

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exception

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a Religious Text, which forty-seven jurisdictions including

Federal Bureau of Prisons do not enforce. Certainly the respondents cannot

"demonstrate[]" a compelling interest without considering the experience

in these jurisdictions. The burden of proving compelling interest and least

restrictive means is on the respondents.

The factual claim in respondents' Brief in Opposition required

explanation based on facts or factual support, not conclusory

assertions. But this is not a case about error correction. It is about

the Tenth Circuit rule requiring deference to prison officials'

suppositions

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deference so great that it effectively negates the First

Amendment.

CONCLUSION

The petition for certiorari should be granted.

July 14, 2018

Respectfully Submitted,

Murtaza'Ali, pro se

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