Petition for Writ of Certiorari — Askari Danso MS Lumumba, fka Dale Lee Pughsley, Petitioner v. Jeffrey Kiser

No. ___

IN THE

SUPREME COURT OF THE UNITED STATES

——————

ASKARI DANSO MS LUMUMBA

F/K/A DALE LEE PUGHSLEY,

PETITIONER,

V.

JEFFREY KISER,

RESPONDENT.

——————

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

——————

PETITION APPENDIX

——————

J. Scott Ballenger

Counsel of Record

Appellate Litigation Clinic

University of Virginia School of Law

580 Massie Road

Charlottesville, VA 22903

sballenger@law.virginia.edu

(202) 701-4925

TABLE OF CONTENTS

Decision of the Fourth Circuit ....................................................................................... 1

District Court Order Granting Certificate of Appealability ...................................... 28

District Court Order Granting Motion to Dismiss ..................................................... 30

Petition for Habeas Corpus .......................................................................................... 39

Memorandum in Support of Petition for Habeas Corpus

....................................................................................................................................... 56

Affidavit of Hearing Officer Counts ............................................................................ 61

Affidavit of Hearing Officer Counts ............................................................................ 61

Disciplinary Offense Report......................................................................................... 67

Order Granting Leave To Proceed In Forma Pauperis .............................................. 71

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-7512

ASKARI DANSO MS LUMUMBA, f/k/a Dale Lee Pughsley,

Petitioner – Appellant,

v.

JEFFREY KISER,

Respondent – Appellee.

Appeal from the United States District Court for the Western District of Virginia, at

Roanoke. Norman K. Moon, Senior District Judge. (7:20-cv-00379-NKM-JCH)

Argued: May 10, 2024

Decided: September 6, 2024

Before WYNN, RICHARDSON, and RUSHING, Circuit Judges

Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge

Rushing joined. Judge Wynn wrote an opinion concurring in part and dissenting in part.

ARGUED: Mary G. Triplett, Casey Schmidt, UNIVERSITY OF VIRGINIA SCHOOL

OF LAW, Charlottesville, Virginia, for Appellant. Kevin Michael Gallagher, OFFICE OF

THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON

BRIEF: J. Scott Ballenger, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA

SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Jason S. Miyares, Attorney

General, Theophani K. Stamos, Deputy Attorney General, Richard C. Vorhis, Senior

Assistant Attorney General, Andrew N. Ferguson, Solicitor General, Erika L. Maley,

Principal Deputy Solicitor General, Rick W. Eberstadt, Assistant Solicitor General,

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OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for

Appellee.

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RICHARDSON, Circuit Judge:

Askari Lumumba filed a 28 U.S.C. § 2254 petition challenging a prison regulation

that prohibits “[p]articipating in, or encouraging others to participate in, a work stoppage,

or a group demonstration.” J.A. 66. On appeal, he argues that the regulation is facially

unconstitutional under the First Amendment and facially void for vagueness under the

Fourteenth Amendment’s Due Process Clause. But we find that Lumumba has failed to

state a claim upon which relief can be granted. We therefore affirm the district’s court

order dismissing Lumumba’s petition.

I.

Background

A.

Facts

In 1999, a Virginia state court jury convicted Askari Lumumba (known then as Dale

Lee Pughsley) of second-degree murder, shooting into an unoccupied vehicle, possession

of a firearm by a felon, and use of a firearm by a felon. 1 He was sentenced to fifty-eight

years’ imprisonment.

In July 2018, Lumumba was serving his sentence in Virginia’s Sussex I state prison.

While there, he engaged in a series of communications that eventually became the subject

of disciplinary action. First, on July 2, he spoke on the phone with his wife. During the

call, he stated: “Do you know how hard I’m fighting not to organize? Seeing you is the

1

In assessing whether a 28 U.S.C. § 2254 petition states a claim for relief, we may

consider the record from state habeas proceeding without having to convert the Federal

Rule of Civil Procedure 12(b)(6) motion to one for summary judgment under Rule 56(b).

Walker v. Kelly, 589 F.3d 127, 139 (4th Cir. 2009). We may also consider matters of public

record, including documents from prior state court proceedings, pursuant to a Rule 12(b)(6)

motion. Id.

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only reason I’m not acting crazy.” J.A. 55. He then said: “N[*]ggas is primed and ready.

These young boys are ready to go.” Id.. And he claimed that several Blood and Crip gang

members had approached him about making him their “Big Homie,” which means their

leader.

Second, on July 6, Lumumba emailed Margaret Breslau, a non-incarcerated third

party. Lumumba mentioned in the email that Breslau had forwarded him a message from

“H,” later determined to be H. Shabazz, an inmate at a different state prison. Then, in

another section of the email titled “For H.”, Lumumba wrote: “Look, these S1/S2 joints

are severely understaffed! Word! Burh, I’ve been talking to brothers about a Gandhian

Attica. Word, ‘Blood in the Water’ you feel me? Hundreds of people check in at once!

We all want to go to the STAR program!” J.A. 54. He also stated: “Man, I’m telling you

it’s time to use the Art of War!” Id.

Third, on July 7, Lumumba sent a second email to Breslau, which she forwarded to

Chanell Burnette, an inmate at a Virginia female prison. In that message, Lumumba wrote:

“This involves a radical reeducation! I use the religious institutions that are legitimized by

the state to do this.” Id. “I’m new Afrikan,” Lumumba continued, “and so I personally

like to sue the Rastsfarian [] class to teach New Afrika[]/Pan Afrikanism[]/Afrikan[]

Internationalism. It’s tricky and require a bit of artistry but people will begin to respond.”

Id.

On July 9, 2018, prison investigators learned of the email communications and the

phone call. The next day, they interviewed Lumumba, who claimed that he was just

casually writing to Breslau, not attempting to organize anything among fellow inmates. He

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also asserted that he supported peaceful reforms of the prison system and had told other

inmates to “write up their issues without using violence.” J.A. 55. When asked about his

reference to a “Gandhian Attica,” Lumumba explained that “Gandhian” referred to the

political figure Mahatma Gandhi, while “Attica” referred to the prison riot in Attica, New

York, in 1971.

That same day, Lumumba was transferred to Virginia’s Red Onion State Prison.

Officers there served him with a copy of a disciplinary report, which charged him with

“attempt[ing] to garner support for a group demonstration that would disrupt the orderly

operation of” the prison, in violation of Disciplinary Offense Code 128. J.A. 99. Offense

Code 128 prohibits “[p]articipating in, or encouraging others to participate in, a work

stoppage, or a group demonstration.” J.A. 66.

Officer M. Counts conducted Lumumba’s disciplinary hearing about a week after

his transfer. At the hearing, an investigator testified that Lumumba “was attempting to

garner support from other offenders to disrupt the orderly operation of Sussex I State Prison

and other Virgina Department of Corrections facilities,” introducing the emails and phone

call as evidence. J.A. 56. After cross-examining the investigator, Lumumba acknowledged

that he had authored the emails and placed the phone call. But, as he did in his interview,

he claimed that he neither advocated violence nor intended to cause disruption. Officer

Counts nonetheless concluded that Lumumba was guilty of violating Offense Code 128.

See J.A. 101 (“I have found the intentions of [Lumumba] was to encourage others to

participate in acts of violence against DOC.”). So he imposed a penalty of 30 days in

disciplinary segregation, with credit for time served, and 180 days’ loss of good-conduct

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sentence credits. 2 Lumumba appealed to the Warden and then to the Regional Director,

both of whom denied the petition.

Lumumba then petitioned for a writ of habeas corpus in the Supreme Court of

Virginia. But the Court denied the petition after finding that challenges to the calculation

of a petitioner’s good-conduct sentencing credits are not cognizable under Virginia law in

a petition for state habeas corpus. The Court later denied his petition for rehearing.

B.

Procedural History

Unlike Virginia state habeas, challenges to deprivations of good-conduct sentencing

credits are cognizable on federal habeas. See Preiser v. Rodriguez, 411 U.S. 475, 487

(1973); Wall, 21 F.4th at 271. So Lumumba petitioned for habeas corpus under 28 U.S.C.

§ 2254 in federal district court. In his statement of the issues, Lumumba advanced two

claims: (1) Offense Code 128 is void for vagueness, in violation of the Fourteenth

Amendment’s Due Process Clause, because it fails to provide notice of the standard it uses;

and (2) he is entitled to an evidentiary hearing on this matter. As to the first claim,

Lumumba, in a subsection titled “Overbreadth,” cited the Supreme Court’s decision in

Procunier v. Martinez, 416 U.S. 396 (1974), and argued that he had “a right to speak

critically of the government in outgoing correspondence.” J.A. 24–25. He contended in

the next two subsections that Offense Code 128 is void for vagueness.

2

Under Virginia law, prisoners can obtain good-conduct sentencing credits “as a

result of good conduct while in prison” and can use them to get “a reduction of th[eir]

sentence.” Wall v. Kiser, 21 F.4th 266, 271 (4th Cir. 2021).

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Jeffrey Kiser, Warden of Red Onion State Prison, moved to dismiss the petition.

The district court granted the motion, dismissing Lumumba’s petition with prejudice. The

court first held that Offense Code 128 is not void for vagueness, for, while it “certainly

prohibits a wide range of conduct, . . . it is not ‘vague’ in the sense that it is unclear what

it proscribes.” J.A. 119. The court then rejected what it interpreted as Lumumba’s

argument that Offense Code 128 is facially overbroad under the First Amendment, finding

that the regulation satisfies the standard set forth in Turner v. Safley, 482 U.S. 78 (1987).

Lumumba requested a certificate of appealability from the district court and filed a

notice of appeal. We subsequently remanded to the district court to supplement the record

with an order granting or denying a certificate of appealability. The district court granted

a certificate of appealability on January 25, 2022, permitting Lumumba to appeal its

holdings that Offense Code 128 were valid under “the void-for-vagueness and overbreadth

doctrines.” Lumumba v. Kiser, No. 7:20-cv-379, 2022 WL 228318, at *1 (W.D. Va. Jan.

25, 2022). 3

3

When a state court adjudicates a habeas petition on the merits, we may grant relief

only if the decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1).

By contrast, “when a state court does not adjudicate a claim on the merits, [such] deference

is inappropriate and [we] must review the claim de novo,” Winston v. Pearson, 683 F.3d

489, 496 (4th Cir. 2012), “unless the state court found the claim procedurally defaulted,”

Richardson v. Kornegay, 3 F.4th 687, 695 (4th Cir. 2021).

Before petitioning under § 2254, Lumumba first sought relief in Virginia state court.

But the Virginia Supreme Court determined that claims like his—challenges to revocation

of accrued good-conduct sentencing credits—are not cognizable in state habeas, so it

dismissed for lack of jurisdiction without reaching the merits. In Wall v. Kiser, we faced

the same situation and found that the Virginia Supreme Court did not adjudicate the claims

(Continued)

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II.

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Discussion

This appeal presents two issues. 4 First, Lumumba argues that Offense Code 128 is

facially unconstitutional under the First Amendment because it abridges prisoners’

freedom of speech. Second, Lumumba argues that Offense Code 128 is unconstitutional

under the Due Process Clause of the Fourteenth Amendment because it is facially void for

vagueness. We address each argument in turn, finding neither convincing. Accordingly,

we affirm the district court.

A.

First Amendment Challenge

The First Amendment provides that “Congress shall make no law . . . abridging the

freedom of speech.” U.S. Const. amend. I. And “[p]rison walls do not form a barrier

separating prison inmates from the protections of the Constitution.” Turner, 482 U.S. at

on the merits. See 21 F.4th at 272–73. Therefore, rather than reviewing Lumumba’s claims

under § 2254(d)’s substantial-deference regime, we review them de novo.

4

Lumumba claims that this appeal also involves a First Amendment challenge to

Offense Code 128 as applied to his particular conduct. But Lumumba labelled his claim

below as an “Overbreadth” claim, J.A. 24, and cited the Supreme Court’s decision in

Martinez, 416 U.S. at 404, which involved a facial First Amendment challenge. Likely for

this reason, the district court interpreted his petition to raise a facial First Amendment

challenge and resolved the case on that basis. The district court then granted a certificate

of appealability for review of the merits of that overbreadth claim and the void-forvagueness claim. Lumumba, 2022 WL 228318, at *1 (“Petitioner may appeal the Court’s

merits holdings on the void-for-vagueness and overbreadth doctrines.”). Because the

certificate of appealability does not include an as-applied challenge, we are precluded from

considering one in this appeal. See 28 U.S.C. § 2253(c)(3) (providing that a certificate of

appealability must “indicate which specific issues or issues” make the required showing

for issuing the certificate); Gonzalez v. Thaler, 565 U.S. 134, 145 (2012) (explaining that

certificates of appealability “screen[] out issues unworthy of judicial time and attention and

ensure[] that frivolous claims are not assigned to merits panels”); see also Cox v. Weber,

102 F.4th 663, 673–74 (4th Cir. 2024).

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84. At the same time, however, the Supreme Court recognized in Turner that certain

constitutional rights are “inconsistent” with proper incarceration. See id. at 95; Johnson,

543 U.S. at 510. “This is because certain privileges and rights must necessarily be limited

in the prison context” in order to ensure prison and prisoner safety and security. See

Johnson, 543 U.S. at 510. For such rights, prison administrators deserve great deference

to act in the best interest of their institutions. 482 U.S. at 84–85. So the Court in Turner

established that, when a prisoner claims that a prison practice or regulation is invalid

because it impinges on his constitutional rights, 5 he prevails only if he shows the prison’s

policy is not “reasonably related to legitimate penological interests.” Id. at 89.

To determine whether a prison policy satisfies Turner, we consider four factors:

(1) whether there is a valid, rational connection between the prison regulation

and the legitimate governmental interest put forward to justify it;

(2) whether there are alternative means of exercising the right that remain

open to prison inmates;

(3) the impact accommodation of the asserted constitutional right will have

on guards and other inmates, and on the allocation of prison resources

generally; and

(4) whether there are ready alternatives.

Firewalker-Fields v. Lee, 58 F.4th 104, 115 (4th Cir. 2023) (quoting Greenhill v. Clarke,

944 F.3d 243, 253 (4th Cir. 2019)); see also Turner, 482 U.S. at 89–91. In applying these

factors, we afford substantial deference to prison officials’ judgment, particularly with

5

Before we even consider a policy’s reasonableness under Turner, a prisoner must

first show that the policy impinges on his constitutional rights. See Heyer v. U.S. Bureau

of Prisons, 984 F.3d 347, 356 (4th Cir. 2021). Here, Kiser does not dispute that Offense

Code 128 impinges on Lumumba’s freedom of speech, so we focus only on the

reasonableness inquiry.

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respect to the third factor. Firewalker-Fields, 58 F.4th at 115. “The burden is not on the

State to prove the validity of prison regulations but on the prisoner to disprove it.” Jehovah

v. Clarke, 798 F.3d 169, 176 (4th Cir. 2015) (cleaned up) (quoting Overton v. Bazzetta,

539 U.S. 126, 132 (2003)).

Lumumba insists that we start on the wrong foot by applying Turner. Relying on

Johnson v. California, 543 U.S. 499 (2005), he argues that Turner applies “only to rights

that are ‘inconsistent with proper incarceration,’” id. at 510 (quoting Overton, 539 U.S. at

131), but not to “structural constraints on state action,” Opening Br. at 36–37. And he

contends that overbreadth challenges fall into the second bucket, such that they should

assessed according to the normal standards that apply outside prison walls. See United

States v. Hansen, 599 U.S. 762, 770 (2023) (explaining that an overbreadth challenger must

demonstrate “that the statute ‘prohibits a substantial amount of protected speech’ relative

to its ‘plainly legitimate sweep’” (quoting United States v. Williams, 553 U.S. 285, 292

(2008)).

We refuse to abandon Turner in this context.

The Court in Johnson never

distinguished between rights-based and “structural” challenges. Rather, it distinguished

between rights inconsistent and consistent with proper incarceration and determined that

the right at issue there, “[t]he right not to be discriminated against based on one’s race,”

falls into the latter category. Johnson, 543 U.S. at 510. The Court also recognized that it

has repeatedly held that First Amendment rights—including the freedom of speech—do

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fall within Turner’s ambit. Id. at 510. 6 And overbreadth doctrine is not some separate

“structural” constraint on state action, but a kind of facial challenge to laws that burden the

freedom of speech. Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2397 (2024). Because

Turner establishes the standard for vindicating First Amendment rights in prison, we hold

that Lumumba cannot bring an overbreadth challenge separate from Turner. 7

1.

Offense Code 128 prohibits participating in or encouraging other

prisoners to participate in public displays of group opinion on

political or other issues within Virginia correctional facilities.

Before applying Turner, we consider the scope of the challenged regulation.

Offense Code 128 prohibits “[p]articipating in, or encouraging others to participate in, a

work stoppage, or a group demonstration.” J.A. 66 (emphasis added). The parties dispute

how far this prohibition extends. According to Lumumba, the term “group demonstration”

is very open-ended and covers any “outward exhibition of feeling” by two or more people,

6

See Turner, 482 U.S. at 89–91 (restriction on correspondence); O’Lone v. Est. of

Shabazz, 482 U.S. 342, 348–50 (1987) (restriction on attending religious services);

Thornburgh v. Abbott, 490 U.S. 401, 406–14 (1989) (restriction on receipt of subscription

publications); Lewis v. Casey, 518 U.S. 343, 361–62 (1996) (restriction on access to

courts); Shaw v. Murphy, 532 U.S. 223, 228–32 (2001) (restriction on correspondence);

Overton, 539 U.S. at 131–32 (restriction on freedom of association). The Supreme Court

has never addressed whether or how Turner might apply to the Establishment Clause.

7

Alternatively, Lumumba argues that the stricter standard set forth in Martinez, 416

U.S. at 412–15, should govern here. But the Supreme Court and our Circuit have narrowly

cabined Martinez to cases involving censorship of outgoing personal correspondence from

prisoners. See Thornburgh, 490 U.S. at 409–14; Altizer v. Deeds, 191 F.3d 540, 548 (4th

Cir. 1999); see also Matherly v. Andrews, 859 F.3d 264, 281 (4th Cir. 2017). For all other

First Amendment free-speech claims brought by prisoners, Turner supplies the controlling

standard. See Turner, 482 U.S. at 84–89; Thornburg, 490 U.S. at 409. Because, as we will

explain shortly, Offense Code 128 prohibits certain speech directed at other prisoners,

Turner controls here.

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including “a worship service, sitting in a prayer circle, organizing a workout, creating an

art project, composing music, or observing a religious or patriotic holiday.” Opening Br.

at 32. And because the term “others” is undefined and sweeping, Lumumba argues that

Offense Code 128 prohibits encouraging even non-prisoners to participate in a group

demonstration. Kiser, by contrast, insists that it is limited to public, group expressions of

opinion within Virginia correctional facilities on political or other matters. 8

“[W]e start where we always do: with the text of the [regulation].” Van Buren v.

United States, 593 U.S. 374, 381 (2021). 9

As Lumumba correctly notes, the term

“demonstration” can, in some contexts, encompass any outward display of sentiment or

affection. But this meaning normally inheres in the context of individual demonstrations.

See, e.g., Demonstration, American Heritage Dictionary of the English Language (5th ed.

2016) (“An expression or manifestation, as of one’s feelings: a demonstration of her

displeasure.”);

Demonstration,

Oxford

English

Dictionary,

https://doi.org/10.1093/OED/2254065070 (Sept. 2023) (“An exhibition or outward display

of a quality or feeling,” for example, “Mr. Bush made a public demonstration of willingness

to honor the traditional rules of the game”). Offense Code 128, by contrast, refers to

8

The parties do not address or dispute the meaning of “participating” or

“encouraging.” We presume that these words carry their ordinary meaning. See

Encourage, Merriam Webster’s Collegiate Dictionary (11th ed. 2020) (“to attempt to

persuade”); Participate, id. (“to take part”).

9

Offense Code 128 is part of the Virginia Department of Correction’s Operating

Procedure, which was promulgated under the Director of Correction’s rulemaking

authority. See Va. Code § 53.1-25. Virginia courts interpret state regulations according to

their plain meaning when they are unambiguous. Chesapeake Hosp. Auth. v. State Health

Comm’r, 301 Va. 82, 93, 872 S.E.2d 440, 446 (2022). So we do the same here.

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demonstrations by groups. When used in the context of group activity, “demonstration”

more narrowly refers to a public display of group opinion on political or other issues, such

as a protest or rally. See Demonstration, American Heritage Dictionary, supra (“A public

display of group opinion, as by a rally or march: peace demonstrations.”); Demonstration,

Oxford English Dictionary, supra (“A public march or rally expressing an opinion about a

political or other issue; esp. one in protest against or support of something,” for example,

“Activists participating in the massive New York demonstration for nuclear

disarmament”); Demonstration, Webster’s Third New International Dictionary (1981)

(“[A] public display of group feeling (as of approval, sympathy, or antagonism) esp.

towards a person, cause, or action of public interest,” for example, “while the delegates are

howling and conducting their [demonstrations], the leaders may be quietly engaged in the

highest statesmanship”). Offense Code 128 is most plausibly read to prohibit only this

narrow form of group demonstration, not the broader kind of individual demonstration that

Lumumba identifies.

This reading of the regulation is confirmed by the surrounding language. See Yates

v. United States, 574 U.S. 528, 543 (2015) (plurality opinion) (“[A] word is known by the

company it keeps.”). Offense Code 128 doesn’t just prohibit group demonstrations; it also

prohibits prisoners from participating in or encouraging others to participate in a “work

stoppage.” A work stoppage is “[a] cessation of work by a group of employees as a means

of protest.” Work Stoppage, American Heritage Dictionary, supra; accord Work Stoppage,

Merriam-Webster’s Collegiate Dictionary, supra. In other words, it is a kind of concerted

group activity intended to convey a message. This definition informs the meaning of

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“group demonstration” because it is a noun in a series with work stoppage. When several

nouns . . . are associated in a context suggesting that the words have something in common,

they should be assigned a permissible meaning that makes them similar.” Antonin Scalia

& Brian A. Garner, Reading Law: The Interpretation of Legal Texts 195 (2012).

Accordingly, we find that “group demonstration” in Offense Code 128 refers only to a

public display of group opinion on political or other social issues.

What about encouraging “others” to participate? On its face, this term could refer

to anyone in the world or just to a smaller subset of people. But “[w]hen words have

several plausible definitions, context differentiates among them.” Hansen, 599 U.S. at 775.

Here, context indicates that “others” refers only to fellow prisoners. Offense Code 128 is,

after all, a prison disciplinary regulation. And the offenses, penalties, and disciplinary

procedures in Virginia’s regulations are “for all offenders incarcerated in the Department

of Corrections institutions” and “appl[y] to all institutions operated by the Department of

Corrections (DOC).” J.A. 59. Given this context, Offense Code 128 appears to only

govern interactions between prisoners within Virginia correctional facilities, not

interactions between prisoners and anyone in the outside world.

This reading is supported by the fact that when a Virginia prison regulation applies

to words or conduct directed at non-prisoners, it specifically says so. See Scalia & Garner,

supra, at 170 (“[W]here the document has used one term in one place, and a materially

different term in another, the presumption is that the different term denotes a different

idea.”); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115–16 (2001). For example,

Offense Code 136 prohibits threats or intimidation of “public officials” or “member[s] of

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the general public.” J.A. 67. Similarly, Offense Code 222 prohibits “[v]ulgar or insolent

language, gestures, or actions directed toward an employee, or directed toward, or in the

presence of, persons who are not offenders or not employed by DOC (general public,

volunteers, and visitors).” J.A. 69. And Offense Code 232 proscribes “[u]nauthorized

contact with or harassment of any private citizen or off duty employee, in person, by mail,

or by telephone or other communication system/device.” Id. As these examples show,

when an offense applies to actions directed at non-prisoners, it ordinarily says so. But

Offense Code 128 does not say so; it merely refers to “others.” The most plausible reading

of “others,” therefore, is that it refers only to other Virginia prisoners, not to anyone in the

world.

In the end, Lumumba may be right that Offense Code 128, read in a vacuum, has a

wide ambit. But read in context, the plain meaning of its words indicates a narrower

meaning. Offense Code 128 prohibits prisoners from participating in or encouraging other

prisoners to participate in public displays of group opinion on political or other social issues

within Virginia correctional facilities. It does not, however, prohibit any conceivable

expression of sentiment or feeling directed at anyone in the world.

2.

Offense Code 128 does not facially violate the First Amendment.

Now that we have defined Offense Code 128, we can determine whether it is

consistent with the First Amendment. Under Turner’s framework, we first consider

whether there is “a valid, rational connection” between the prison regulation and a

“legitimate penological interest.” 482 U.S. at 89 (citation omitted). A regulation fails this

prong if the “logical connection” between it and the prison’s asserted interest “is so remote

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as to render the policy arbitrary or irrational.” Id. at 89–90. The prison bears the burden

of offering the interests that support its policy. Firewalker-Fields, 58 F.4th at 117.

As Lumumba effectively acknowledges, this factor weighs in Kiser’s favor. Kiser

explains that Offense Code 128 promotes order, discipline, and security in the Virginia

prison system. These are legitimate penological interests, Martinez, 416 U.S. at 412. And

restricting group demonstrations is a reasonable way to promote these interests. Group

demonstrations can disrupt the normal order of prison operations and unsettle the

disciplinary efforts undertaken therein. Pilgrim v. Luther, 571 F.3d 201, 205 (2d Cir.

2009). They also can balloon into full-scale riots, which pose a danger to prison officers

and other inmates. See Jones v. N.C. Prisoners’ Lab. Union, Inc., 433 U.S. 119, 132–33

(1977); cf. Overton, 539 U.S. at 134 (“[C]ommunication with other felons is a potential

spur to criminal behavior.” (citation and internal quotation marks omitted)). Prohibiting

participation in or encouragement of such demonstrations is therefore a valid and

reasonable way to preserve order, discipline, and security within prison walls.

Second, we consider whether “there are alternative means of exercising the right

that remain open to prison inmates.” Turner, 482 U.S. at 90. A lack of alternatives does

not automatically doom a regulation, but it does provide “some evidence that the

regulation[] [is] unreasonable.” Overton, 539 U.S. at 135. Importantly, when assessing

this factor, “the right in question must be viewed sensibly and expansively.” Thornburgh,

490 U.S. at 417 (cleaned up); see also Firewalker-Fields, 58 F.4th at 117.

This factor leans in Kiser’s favor, too. Lumumba claims that Offense Code 128

prevents prisoners from ever expressing their grievances with prison administration. But

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this is based on his mistaken belief that Offense Code 128 applies to “any mode of

communication” that a prisoner employs. Opening Br. at 29. Under that belief, there may

not be any alternatives. In reality, Offense Code 128 only prohibits prisoners from

communicating grievances through work stoppages or group demonstrations. Other ways

to express grievances remain available, including filing an official complaint with the

prison. See Watkins v. Kasper, 599 F.3d 791, 797 (7th Cir. 2010). And since these

alternatives exists, this factor cuts against Lumumba.

Third, we consider “the impact accommodation of the asserted constitutional right

will have on guards and other inmates, and on the allocation of prison resources generally.”

Turner, 482 U.S. at 90. When a potential accommodation will have a “significant ‘ripple

effect,’” id., we must be particularly deferential to prison officials, Firewalker-Fields, 58

F.4th at 117.

Like the first two factors, this one favors Kiser. Much of Lumumba’s argument on

this prong is based on his own conduct, which he insists was nonviolent, “abstract

advocacy.” Opening Br. at 29. But Lumumba’s conduct, as already discussed, involves

more than his conduct in isolation. It involves group demonstrations which can “pose

additional and unwarranted problems and frictions” between prisoners and officers. See

Jones, 433 U.S. at 129. Accommodating group demonstrations therefore forces a prison

to undertake safeguards to ensure that the demonstration does not get out of hand. That

puts a “drain on scarce . . . resources,” See O’Lone, 482 U.S. at 353 (citation omitted).

Finally, we consider possible alternative policies. Turner, 482 U.S. at 90. The

“absence of ready alternatives is evidence of the reasonableness of a prison regulation”

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while the presence of “obvious, easy alternatives” may suggest that it is unreasonable. Id.

Yet “[t]his is not a least-restrictive-alternative test; it looks for easy and obvious

alternatives that do not ‘impos[e] more than a de minimis cost to the valid penological

goal.’” Firewalker-Fields, 58 F.4th at 118 (alteration in original) (quoting Overton, 539

U.S. at 136). The prisoner ultimately bears the burden to propose reasonable alternatives.

Id.

Lumumba has failed to carry his burden on this factor. On appeal, he proposes a

“more narrowly drafted rule” that would impose “restrictions on speech that is actually

disruptive, or that actually threatens disruption.” Opening Br. at 11, 38–41. But Lumumba

forfeited this argument by failing to suggest it or any other alternative to the prison, in his

habeas petition, or in his district court briefing. Firewalker-Fields, 58 F.4th at 120

(“Because he pitched none of these creative solutions to the prison at the time, he cannot

use them after the fact to prove that the prison’s rules were not reasonable.”). And even if

we ignored this forfeiture, Lumumba’s proposed alternative would still fail. Prisons have

a strong and legitimate interest in adopting prophylactic rules that head off activities that

are likely to cause violence or disruption, even if those activities are not themselves violent

or disruptive. Jones, 433 U.S. at 132–33 (“Responsible prison officials must be permitted

to take reasonable steps to forestall [] threat[s], and they must be permitted to act before

the time when they can compile a dossier on the eve of a riot.”). Requiring prison officials

to wait until riots break out would jeopardize prison security and risk danger to officers

and other prisoners.

Accordingly, Lumumba’s proposed alternative is neither easy,

obvious, nor low-cost.

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Lumumba has failed to show that Offense Code 128 is unreasonable under Turner.

The district court was thus correct to rule that his petition fails to state a viable First

Amendment claim.

B.

Void for Vagueness Challenge

Besides his First Amendment claim, Lumumba also argues that Offense Code 128

is unconstitutionally vague. The Due Process Clause of the Fourteenth Amendment

prohibits a state from “depriv[ing] any person of life, liberty, or property, without due

process of law.” U.S. Const. amend. xiv. “A fundamental principle in our legal system is

that laws which regulate persons or entities must give fair notice of conduct that is

forbidden or required.” F.C.C. v. Fox Television Station, Inc., 567 U.S. 239, 253 (2012).

The government violates this prohibition when it deprives someone of life, liberty, or

property pursuant to a statute or regulation that is “so vague that it fails to give ordinary

people fair notice of the conduct it punishes, or so standardless that it invites arbitrary

enforcement.” Johnson v. United States, 576 U.S. 591, 595 (2015); see also Papachristou

v. City of Jacksonville, 405 U.S. 156, 165 (1972). When a regulation “interferes with the

right of free speech or of association,” the Supreme Court has advised that “a more stringent

vagueness test should apply.” Holder v. Humanitarian L. Project, 561 U.S. 1, 19 (2010)

(quoting Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 499 (1982)).

Here, Lumumba argues that Offense Code 128 is facially void for vagueness because it

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fails to provide adequate notice of the conduct it prohibits and vests significant discretion

in prison officials, thus inviting arbitrary and discriminatory enforcement. 10

Not just any litigant can bring a facial vagueness challenge, however. “A plaintiff

who engages in some conduct that is clearly proscribed cannot complain of the vagueness

of the law as applied to the conduct of others.” Humanitarian L. Project, 561 U.S. at 18–

19; United States v. Hosford, 843 F.3d 161, 170 (4th Cir. 2016) (“[I]f a law clearly prohibits

a defendant’s conduct, the defendant cannot challenge, and a court cannot examine,

10

Kiser argues that we need not conduct a separate void-for-vagueness inquiry

because Offense Code 128 is constitutional under Turner. But whether Turner supplants

traditional vagueness doctrine for prisoners is a difficult question that we need not resolve

today. Unlike the First Amendment, the Supreme Court has never addressed whether voidfor-vagueness principles apply in prisons. Other circuits are split over this question.

Compare Waterman v. Farmer, 183 F.3d 208, 212–14 (3d Cir. 1999) (concluding that

vagueness doctrine does not apply independently from Turner in the prison context), and

Bahrampour v. Lampert, 356 F.3d 969, 975–76 (9th Cir. 2004) (same), with Reynolds v.

Quiros, 25 F.4th 72, 95–96 (2d Cir. 2022) (analyzing a prison regulation under the

vagueness doctrine separate from Turner), Jones v. Caruso, 569 F.3d 258, 276–77 (6th Cir.

2009) (same), and Koutnik v. Brown, 456 F.3d 777, 783–84 (7th Cir. 2006) (same); see

also Amatel v. Reno, 156 F.3d 192, 203 (D.C. Cir. 1998) (remanding for the district court

to decide this question). Moreover, there are plausible reasons to think that the right not to

be subject to vague laws is consistent with incarceration. See Johnson, 543 U.S. at 510.

Providing notice of prohibited conduct to regulated parties is “not only consistent with

proper prison administration,” id., but arguably the only way good administration is

possible—people can only follow rules if they know what the rules demand of them, cf.

Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926); see also Lon L. Fuller, The

Morality of Law 35–36, 63–65 (rev. ed. 1969). And preventing vague prohibitions

“bolsters the legitimacy of the entire criminal justice system,” Johnson, 543 U.S. at 511,

as it ensures that every prisoner is treated with fundamental fairness and respect, see

Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972); see also John Finnis, Natural

Law & Natural Rights 270–73 (2d ed. 2011). Thus, it is not obvious that Turner supplants

traditional vagueness doctrine in the prison context. We need not decide this question

today, however; because we ultimately conclude that Offense Code 128 is constitutional

even under normal void-for-vagueness principles, we will assume, without deciding, that

such principles apply here.

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whether the law may be vague for other hypothetical defendants.”). This is true “even to

the extent a heightened vagueness standard applies” due to First Amendment implications;

for the “rule makes no exception for conduct in the form of speech.” Humanitarian L.

Project, 561 U.S. at 20; see also Fusaro v. Howard, 19 4th 357, 374 (4th Cir. 2021). So if

Offense Code 128 clearly proscribes Lumumba’s conduct, he cannot successfully

challenge it as unconstitutionally vague.

Offense Code 128 clearly proscribes Lumumba’s conduct. Remember, Offense

Code 128 prohibits prisoners from participating in or encouraging other prisoners to

participate in public displays of group opinion within Virginia correctional facilities. We

agree with the district court that “[t]he evidence presented at Lumumba’s disciplinary

hearing clearly suggested that he was planning to lead some sort of non-violent civil

disobedience campaign—exactly the kind of conduct forbidden by Disciplinary Offense

Code 128.” J.A. 119. The record from Lumumba’s disciplinary proceedings indicates that

he was punished for “attempt[ing] to garner support for a group demonstration that would

disrupt the orderly operation of Sussex I State prison.” J.A. 54; see also J.A. 101

(“[Lumumba] had attempted to garner support for a group demonstration that would disrupt

the orderly operation of the institution.”). This finding was backed by multiple pieces of

evidence indicating that Lumumba had attempted organizing a mass demonstration among

Virginia inmates. So Lumumba was clearly engaging in precisely the sort of conduct that

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Offense Code 128 prohibits. As a result, he cannot challenge the regulation as facially

vague. 11

Even if his own conduct were not clearly proscribed, Lumumba’s vagueness

challenge would still fail. A litigant must make a high showing before we will strike down

a regulation as void for vagueness. “That some smidgen of ambiguity remains is no reason

to find a statute unconstitutionally vague.” Recht v. Morrisey, 32 F.4th 398, 415 (4th Cir.

2022). A law is not void for vagueness so long as it “(1) establishes minimal guidelines to

govern law enforcement, and (2) gives reasonable notice of the proscribed conduct.”

Schleifer v. City of Charlottesville, 159 F.3d 843, 853 (4th Cir. 1998) (internal quotation

marks omitted).

In other words, “a court considering a vagueness challenge must

determine if the statutory prohibitions ‘are set out in terms that the ordinary person

exercising ordinary common sense can sufficiently understand and comply with.’” United

States v. Whorley, 550 F.3d 326, 333 (4th Cir. 2008) (cleaned up) (quoting Broadrick v.

Oklahoma, 413 U.S. 601, 608 (1973)). 12

11

Lumumba insists that he was not attempting to organize a demonstration but was

merely expressing a desire for non-violent advocacy to a non-prisoner (i.e., Breslau). Yet

this appeal does not involve a sufficiency-of-the-evidence challenge to the prison’s

disciplinary ruling. Whether or not he was guilty, Lumumba was adjudged to have

attempted to encourage other inmates to participate in some kind of group demonstration.

12

“The degree of vagueness that the Constitution tolerates—as well as the relative

importance of fair notice and fair enforcement—depends in part on the nature of the

enactment.” Vill. of Hoffman Ests., 455 U.S. at 498. For this reason, our sister circuits

generally demand less specificity from prison regulations than they do from ordinary

criminal laws. See, e.g., Adams v. Gunnell, 729 F.2d 362, 369-70 (5th Cir. 1984); Wolfel

v. Morris, 972 F.2d 712, 717 (6th Cir. 1992); Meyers v. Aldredge, 492 F.2d 296, 310 (3d

Cir. 1974); Reynolds, 25 F.4th at 96; Koutnik, 456 F.3d at 783.

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We conclude that Offense Code 128 is not facially vague. Though the regulations

do not explicitly define words like “encourage,” “others,” or “group demonstration,” we

have already explained that these words have determinate, ordinary meanings that apply to

a fixed range of conduct. See Fusaro, 19 F.4th at 371 (explaining that the void-forvagueness inquiry “is aided by both ‘dictionary definitions and old-fashioned common

sense’” (quoting Wag More Dogs Liab. Corp. v. Cozart, 680 F.3d 359, 371 (4th Cir. 2012)).

Moreover, Offense Code 128 utilizes “run-of-the-mill statutory phrases” that have been

“upheld by other courts in the face of vagueness challenges.” Recht, 32 F.4th at 415; see,

e.g., Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357, 383 (1997)

(“demonstrating”); Sword v. Fox, 446 F.2d 1091, 1100 (4th Cir. 1971) (“demonstration”);

United States v. Anderton, 901 F.3d 278, 283 (5th Cir. 2018) (“encourage”). So Offense

Code 128 is not unconstitutionally vague.

*

*

*

Prison administrators deserve substantial deference to design policies and

procedures in the best interests of their institutions. Accordingly, the bar for successfully

mounting a constitutional challenge against prison policies is high. We conclude that

Lumumba has not cleared that bar here. So the district court’s order is

AFFIRMED.

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WYNN, Circuit Judge, concurring in part and dissenting in part: 1

We are bound to liberally construe pro se pleadings. Erickson v. Pardus, 551 U.S.

89, 94 (2007) (per curiam). So construed, Lumumba’s pro se petition includes an as-applied

First Amendment challenge alongside the facial challenges addressed in the majority

opinion. 2 The majority, like the district court, errs by concluding otherwise. Because the

district court did not consider Lumumba’s as-applied First Amendment challenge, I would

vacate the district court’s opinion in relevant part and remand for review of that claim. 3

Courts must liberally construe all pro se filings and complaints, “however inartfully

pleaded.” Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

“[T]his liberal construction allows courts to recognize claims despite various formal

deficiencies, such as incorrect labels or lack of cited legal authority.” Wall v. Rasnick, 42

F.4th 214, 218 (4th Cir. 2022). Courts must often “recharacterize” a filing to which a pro

se litigant has attached the wrong label to “avoid an unnecessary dismissal, to avoid

inappropriately stringent application of formal labeling requirements, or to create a better

1

While I am troubled by the sweeping breadth of Code 128, I agree with the

majority opinion that Lumumba’s facial overbreadth and vagueness claims fail.

2

Lumumba’s petition also raises an as-applied vagueness challenge, but I agree with

the majority opinion that such a challenge fails.

3

We have jurisdiction to determine whether the district court properly considered

the scope of Lumumba’s claims. The district court granted a certificate of appealability to

review its “holding[] on the . . . overbreadth doctrine[].” Lumumba v. Kiser, No. 7:20-cv379, 2022 WL 228318, at *1 (W.D. Va. Jan. 25, 2022). Our analysis of whether the district

court erred in reaching its holding on the overbreadth doctrine necessarily requires us to

examine whether the district court properly considered the scope of the issue before it.

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correspondence between the substance of a pro se motion’s claim and its underlying legal

basis.” Castro v. United States, 540 U.S. 375, 381–82 (2003) (citations omitted); see also

Fitz v. Terry, 877 F.2d 59, 1989 WL 64157, at *2 (4th Cir. 1989) (per curiam, unpublished

table decision) (“[L]iberal construction requires active interpretation in some cases.”).

This liberal construction is especially critical when deciphering whether a complaint

raises as-applied or facial challenges. Indeed, even when a plaintiff is represented by

counsel, “[t]he label [of ‘as-applied’ or ‘facial’] is not what matters.” John Doe No. 1 v.

Reed, 561 U.S. 186, 194 (2010). That’s because the line between the two types of

challenges is “amorphous,” Elgin v. Dep’t of Treasury, 567 U.S. 1, 15 (2012), meaning it

is “not so well defined that it has some automatic effect or that it must always control the

pleadings,” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 331 (2010). And if the

distinction between as-applied and facial challenges is murky even for judges, we must

grant pro se litigants considerable leeway when characterizing their claims.

Here, the majority opinion correctly notes that Lumumba’s petition did not

explicitly label his claim as an “as-applied” challenge. Maj. Op. at 8 n.4. However, though

inartful, Lumumba’s petition clearly articulates his belief that Code 128 is not only facially

unconstitutional, e.g., J.A. 26 (“Offense Code 128 is facially insufficient[.]”), but also

unconstitutional as applied to his particular speech, e.g., J.A. 24 (discussing First

Amendment protections for outgoing prison correspondence); J.A. 25 (twice referencing

“the Petitioner’s” First Amendment rights, twice discussing “Petitioner’s” own right to

criticize the government in “his ‘outgoing’ correspondence,” and specifically referencing

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his speech in his emails and phone calls (emphases added)). 4 These allegations discuss how

the enforcement of Code 128 against Lumumba’s specific speech violated his rights, which

is paradigmatic of an as-applied challenge. See Cap. Associated Indus., Inc. v. Stein, 922

F.3d 198, 204 (4th Cir. 2019) (defining as-applied challenges as those “which test the

constitutionality of a statute applied to the plaintiff based on the record”).

The majority opinion also refuses to acknowledge Lumumba’s as-applied challenge

because he cited Procunier v. Martinez, 416 U.S. 396 (1974), in his petition, and Martinez

involved a facial challenge. Maj. Op. at 8 n.4. The majority opinion gets this backward:

Lumumba’s citation of Martinez supports reading his petition as intending to raise an asapplied challenge. The Supreme Court held in Martinez, and later clarified in Thornburgh

v. Abbott, 490 U.S. 401 (1989)—which Lumumba also cited—that intermediate scrutiny

applies to the review of First Amendment challenges to the regulation of outgoing prison

correspondence. See Martinez, 416 U.S. at 412–14; Thornburgh, 490 U.S. at 412–13. This

is the precise matter at issue in Lumumba’s own case. So, in citing Martinez and

Thornburgh, Lumumba was highlighting how courts should review the particular way in

which Code 128 was enforced against him, not how courts might review the Code’s

application more generally. And, critically, nothing in the logic or holding of Martinez is

4

At oral argument, my colleague in the majority and Kiser agreed that the district

court itself appeared to have mistakenly conducted an as-applied analysis of Lumumba’s

First Amendment claim, despite labeling the claim as facial. Oral Arg. at 25:20–29:10,

available at https://www.ca4.uscourts.gov/OAarchive/mp3/21-7512-20240510.mp3.

Notwithstanding this acknowledgment, the majority now inexplicably holds Lumumba to

a “stringent application of formal labeling requirements.” Castro, 540 U.S. at 381.

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limited to facial challenges. Thus, while the majority opinion is correct to analyze

Lumumba’s facial challenge under Turner because most applications of Code 128 involve

internal prison speech, Martinez is the appropriate case to use in analyzing Lumumba’s asapplied challenge, and Lumumba’s reliance on Martinez in his petition supports that he

raised such a claim.

In sum, by failing to consider an as-applied First Amendment claim, the district

court did not construe Lumumba’s pro se petition liberally. I would accordingly vacate in

part and remand with instructions for the district court to consider Lumumba’s as-applied

First Amendment challenge under the Martinez standard for outgoing correspondence.

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Document 24

Pageid#: 175

Filed 01/25/22

Page 1 of 2

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

ASKARI DANSA M.S. LUMUMBA,

CASE NO. 7:20-cv-379

Plaintiff,

MEMORANDUM OPINION

& ORDER

v.

JEFFERY KISER,

Defendant.

JUDGE NORMAN K. MOON

Order Granting Petitioner’s Certificate of Appealability, Dkt. 19

On September 30, 2021, this Court entered an order, Dkt. 18, granting Defendant’s

motion to dismiss Petitioner’s petition for the writ of habeas corpus under 28 U.S.C. § 2254.

Petitioner then filed a request for certificate of appealability, Dkt. 19, which now comes before

the Court.

When issuing a final order adverse to a § 2254 petitioner, the court must issue or deny a

certificate of appealability. Fed. R. Gov. § 2254 Cases 11(a). A certificate of appealability may

issue only if the movant has made a substantial showing of the denial of a constitutional right.

28 U.S.C. § 2253(c)(2). The movant must show that reasonable jurists could debate whether the

petition should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 338

(2003); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000).

Here, Petitioner has shown a substantial denial of a constitutional right that reasonable

jurists might disagree about. In granting Defendant’s motion to dismiss, the Court denied

Defendant’s procedural arguments but granted Defendant’s merits arguments. Dkt. 18 at 3–8.

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Petitioner made two merits arguments: one, on the void-for-vagueness doctrine, and two, on the

overbreadth doctrine. Id. With respect to void-for-vagueness, Petitioner argued that the prison

disciplinary offense under which he was punished was unconstitutionally vague. Id. at 5–6. With

respect to overbreadth, Petitioner argued that the same offense was overbroad because it

allegedly punished constitutionally protected speech. Id. at 7–8.

Although the Court did not accept Petitioner’s arguments, the Court holds that a

reasonable jurist could disagree. The Fourth Circuit has not developed case law directly on point

for either issue, and the Court relied on the Supreme Court’s more generally applicable decisions

in Grayned v. City of Rockford, 408 U.S. 104 (1972) for the void-for-vagueness issue and Turner

v. Safley, 482 U.S. 78 (1987) for the overbreadth issue. Because there are no directly-on-point

Fourth Circuit cases with respect to either issue, and because both the void-for-vagueness and

overbreadth doctrines as applied here require interpretation of the relevant disciplinary offense

on which reasonable jurists might disagree, the Court will GRANT Petitioner’s request for a

certificate of appealability, Dkt. 19. Petitioner may appeal the Court’s merits holdings on the

void-for-vagueness and overbreadth doctrines. See 28 U.S.C. § 2254(c)(2)–(3) (requiring that the

Court “indicate which specific issue or issues satisfy the showing” that “the applicant has made a

substantial showing of the denial of a constitutional right”).

The clerk is directed to send copies of this memorandum opinion and accompanying

order to petitioner and all counsel of record.

25th day of January 2022.

ENTERED this _____

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Document 18

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Filed 09/30/21

Page 1 of 9

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

ASKARI DANSA M.S. LUMUMBA,

CASE NO. 7:20-cv-379

Plaintiff,

MEMORANDUM OPINION

& ORDER

v.

JEFFERY KISER,

JUDGE NORMAN K. MOON

Defendant.

I.

Introduction

This matter is before the Court on Askari Dansa M.S. Lumumba (formerly Dale Lee

Pughsley)’s petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254, Dkt. 1, and

respondent Jeffery Kiser’s motion to dismiss, Dkt. 10. Lumumba has been incarcerated in the

Virginia state prison system since 1999 for several convictions, including second degree murder,

shooting into an occupied vehicle, possession of a firearm by a convicted felon, and use of a

firearm by a convicted felon. Dkt. 1 at 1. In July 2018, he was incarcerated at Sussex I State

Prison. Dkt. 1-1 at 1. On July 9th, he was placed in solitary confinement on suspicion of

violating prison rules. Id. The next day, July 10th, he was transferred across the state to Red

Onion State Prison. Id. When he arrived at Red Onion, prison officials served him a Disciplinary

Offense Report, in which the reporting officer accused him of violating Offense Code 128 of the

Virginia Department of Correction’s Offense Disciplinary Procedure. Id.; Exh. A to Dkt. 1-1.

Offense Code 128 prohibits “[p]articipating in, or encouraging others to participate in, a work

stoppage or group demonstration.” Exh. A to Dkt. 1.

1

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The prison held a disciplinary hearing on the matter on July 19th. Dkt. 1-1 at 2. At the

hearing, officers accused Lumumba of “attempt[ing] to garner support for a group demonstration

that would disrupt the orderly operation of the institution.” Exh. B to Dkt. 1. According to the

officers, Lumumba had used his prison-run email account to communicate with other prisoners

via an outside, third-party intermediary about inciting civil disobedience. Id. He had sent a

message intended for another prisoner that several of the cell blocks were understaffed, and that

he had been talking to other prisoners about a “Gandhian Attica,” referring, evidently, to a nonviolent (i.e., inspired by Mahatma Gandhi) alternative to the Attica prison riot of 1971. Id.

Officers further alleged that Lumumba said in a telephone conversation with an unspecified

person: “[D]o you know how hard I am fighting not to organize? . . . [other prisoners are] primed

and ready, [t]hese young boys are ready to go,” and “Blood and Crip gang members have

approached about making [him] their ‘big Homie’ or leader.” Id. At the end of the hearing, the

hearing officer found Lumumba guilty and imposed a penalty of thirty days disciplinary

segregation along with 128 days of lost statutory good time credit. Exh. B to Dkt. 1.

Soon after, on July 25th, Lumumba submitted an appeal to the Warden of Red Onion,

J.A. Kiser, for Level I review, and Kiser affirmed the decision on August 14th. Exh. C to Dkt. 1.

On August 21st, Lumumba submitted an appeal to VDOC Eastern Regional Administrator

Gregory Holloway for Level II review, and Holloway affirmed the decision on October 29th.

Exh. D. to Dkt. 1. Then, on May 2, 2019, Lumumba petitioned the Virginia Supreme Court for

state habeas relief, which the court denied in an order on February 24, 2020. Dkt. 1 at 7.

Now, Lumumba petitions this Court for the writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. Specifically, Lumumba challenges the constitutionality of Offense Code 128 under the

void-for-vagueness and overbreadth doctrines.

2

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II.

Procedural Barriers

A.

Timeliness

Document 18

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Kiser contends that Lumumba’s petition is not timely. Dkt. 11 at 2. Lumumba contends

that it is. Dkt. 14 at 1–2. The conflict boils down to what the proper start date is for calculating

when Lumumba’s cause of action accrued.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires that

petitioners seeking relief under § 2254 file within one year of the statutorily specified triggering

date. 28 U.S.C. § 2244(d)(1); see also Felker v. Turpin, 518 U.S. 651, 662 (1996). However,

certain proceedings can toll the triggering date. Section 2244(d)(2) provides that periods of time

during which a properly filed application for state post-conviction or other collateral review with

respect to the pertinent claim shall not be counted towards the period of limitations.

Here, Lumumba’s disciplinary hearing occurred on July 19, 2018. Exh. B to Dkt. 1. He

filed his Level I appeal within VDOC on July 25th, 2018 and received a decision on August

14th. Exh. C to Dkt. 1. He filed is Level II appeal on August 21st and received a decision on

October 29th. Exh. D to Dkt. 1. He filed his state habeas petition on May 2, 2019 and received a

decision from the Virginia Supreme Court on February 24, 2020. Dkt. 1 at 7. He then filed the

present petition on June 28, 2020. Kiser argues that the present petition is untimely because the

disciplinary hearing occurred on July 19, 2018, and Lumumba filed the present petition on June

28, 2020 (which Kiser calculates as 708 days), and Kiser also claims that the cause of action was

only tolled for 298 days (the period in which the petition was pending before the Virginia

Supreme Court), meaning, if this calculation were correct, that 410 non-tolled days passed

between the accrual of the cause of action and the filing of the present petition—surpassing the

one-year limit. Dkt. 11 at 2–3.

3

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Page 4 of 9

But Kiser uses the wrong date to calculate when the cause of action first accrued; the

proper date is when VDOC issued its final judgment in Lumumba’s administrative appeal

process (i.e. the date that VDOC denied Lumumba’s Level II appeal), not when the original

disciplinary hearing occurred. When the basis of a habeas petition is a constitutional challenge to

a state prison’s disciplinary decision, as here, § 2244(d)(1)(D) establishes the statute of

limitations. See Wade v. Robinson, 327 F.3d 328 (4th Cir. 2003) (holding that § 2244(d)(1)(D)

sets the statute of limitations for a petitioner challenging the state’s rescindment of his good time

credits); Clay v. Clarke, 2018 WL 5305676 at *12 (E.D. Va. Aug. 22, 2018) (“Petitioner

challenges the execution of his state sentence rather than attacking the underlying judgment of

conviction. Accordingly, Section 2244(d)(1)(D) controls the date on which the limitation period

commences.”). Therefore, “the limitations period began running on the date that Petitioner

became aware, through the exercise of due diligence, of the allegedly illegal deprivation of his

due process rights by VDOC.” Clay, 2018 WL 5305676 at *12. The day that a petitioner

becomes aware of the alleged deprivation of their rights in a case where the petitioner alleges

that they lost good time credits due to a state prison’s disciplinary decision is the date on which

the state prison system issued its final judgment in the administrative appeal process. Id. at *13

(“Petitioner's institutional disciplinary decision became final . . . when the Regional

Administrator denied Petitioner's Level II appeal.”).

In this case, then, the date on which Lumumba’s cause of action accrued was the date that

VDOC denied his Level II appeal: October 29, 2018. In total, 608 days passed between then and

when Lumumba filed the present petition on June 28, 2020. It is uncontested that the statute of

limitations was tolled while Lumumba’s state habeas petition was pending before the Virginia

Supreme Court from May 2, 2019, to February 24, 2020—a period of 298 days. Subtracting

4

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Document 18

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Page 5 of 9

those 298 days from the total of 608 days, there were 310 non-tolled days between when

Lumumba’s cause of action accrued and when he filed the present petition. Therefore, less than

one year of non-tolled time passed before Lumumba filed the present petition, meaning that the

present petition is timely.

B.

Exhaustion

The next issue is whether Lumumba has exhausted the state remedies available to him.

Under § 2254(b)(1)(A), a petitioner must have “exhausted the remedies available in the courts of

the State” prior to filing a federal habeas petition. The respondent may waive the exhaustion

requirement so long as the waiver is express. Granberry v. Greer, 481 U.S. 129, 130 (1987).

Kiser expressly asserts that Lumumba “exhausted his state court remedies.” Dkt. 11 at 2.

Therefore, the court will consider the issue waived.

III.

Merits

Lumumba challenges Disciplinary Offense 128 on two grounds: that it is void-for-

vagueness, and thus facially unconstitutional under Fourteenth Amendment, and that it is overly

broad with respect to the kinds of speech it proscribes, and thus facially unconstitutional under

the First Amendment’s Free Speech Clause. Dkt 1-1 at 4–6.

A.

Void-for-Vagueness

The void-for-vagueness doctrine holds that penal rules are unconstitutional when they

“are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). The doctrine

requires that “a penal statute define the criminal offense with sufficient definiteness that ordinary

people can understand what conduct is prohibited and in a manner that does not encourage

arbitrary and discriminatory enforcement.” Kolender v. Lawrence, 461 U.S. 352, 357 (1983).

These twin concerns of inadequate notice and arbitrary or discriminatory enforcement are

5

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Page 6 of 9

especially pronounced “where a vague statute abuts upon sensitive areas of basic First

Amendment freedoms” because ambiguity “inevitably lead[s] citizens to steer far wider of the

unlawful zone than if the boundaries . . . were clearly marked,” thereby chilling protected

speech. See Grayned, 408 U.S. at 109 (cleaned up). However, “perfect clarity and precise

guidance have never been required even of regulations that restrict expressive activity.” United

States v. Williams, 553 U.S. 285, 304 (2008).

Disciplinary Offense 128 prohibits “[p]articipating in, or encouraging others to

participate in, a work stoppage or group demonstration.” Exh. A to Dkt. 1. Lumumba contests

the specificity of the terms “group” and “demonstration.” Dkt. 1-1 at 5. “Group,” he says, could

refer to a gathering of any size, even just two prisoners. Id. And “demonstration” could mean

anything from “prayer, signing a petition, a letter writing campaign, [and] group exercise,” to

“standing a certain way collectively.” Id at 5–6. But there is a difference between a rule being

broad and being vague; Disciplinary Offense 128 certainly prohibits a wide range of conduct, but

it is not “vague” in the sense that it is unclear what it proscribes. The evidence presented at

Lumumba’s disciplinary hearing clearly suggested that he was planning to lead some sort of nonviolent civil disobedience campaign—exactly the kind of conduct forbidden by Disciplinary

Offense 128. Lumumba has not supported his position with citations to cases where courts have

struck down similar prison rules; in fact, at least one other federal district court has upheld a

functionally identical rule. See Best v. Lake, 2019 WL 3409868 at *5 (E.D. Cal. July 29, 2019)

(holding that a prison rule nearly identical to Disciplinary Offense 128 was not void-forvagueness).

Therefore, Disciplinary Offense 128 is not void-for-vagueness.

6

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Case 7:20-cv-00379-NKM-JCH

B.

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Page 7 of 9

Overbreadth

Lumumba also challenges Disciplinary Offense 128 as being overly broad. The

overbreadth doctrine is a particular way to challenge the constitutionality of laws under the First

Amendment. United States v. Stevens, 559 U.S. 460, 473 (2010). A law may be invalidated under

the overbreadth doctrine if “a substantial number of its applications are unconstitutional, judged

in relation to the statute’s plainly legitimate sweep.” Id. (quoting Washington State Grange v.

Washington State Republican Party, 552 U.S. 442, 449 (2008)).

A prisoner’s constitutional rights survive incarceration. Bell v. Wolfish, 441 U.S. 520, 545

(1975). However, Lumumba cites the wrong line of cases under which the court must analyze

Disciplinary Offense 128. Lumumba cites to Procunier v. Martinez, 416 U.S. 386 (1974) and

Thornburgh v. Abbott, 470 U.S. 401 (1989) for the proposition that the court must apply a

“stricter standard” for measuring the constitutionality of Disciplinary Offense 128. Procunier

and Thornburgh provide the standards for when prison officials place some burden on a

prisoner’s correspondence with the outside world. But that is not what happened here; VDOC

officials did not burden Lumumba’s ability to send or receive mail. Rather, they punished him

for what he said in his outgoing communications. Thus, Procunier and Thornburgh are inapt.

The case that provides the correct standard of review is Turner v. Safley, 482 U.S. 78

(1987). Safley held that a prison regulation that affects inmates’ constitutional rights “is valid if it

is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89. The

reasonableness of the regulation is judged by four factors:

(1) Whether there is a “valid, rational connection” between the regulation and the

legitimate governmental interest used to justify it;

(2) Whether there are alternative means for the prisoner to exercise the right at issue;

7

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Page 8 of 9

(3) The impact that the desired accommodation will have on guards, other inmates, and

prison resources (so-called "ripple effects"); and

(4) The presence or absence of “ready alternatives," where the presence of ready

alternatives make it more likely that a regulation is unreasonable, while the absence

make it less likely that the regulation is unreasonable.

Safley, 482 U.S. at 89–91. Here, Kiser proffers a legitimate government interest supported by

Disciplinary Offense 128: maintaining order and safety in prisons. Dkt. 11 at 8–9. There is a

“valid, rational connection” between Disciplinary Offense 128’s prohibition on inciting group

demonstrations and Kiser’s proffered governmental interest in maintaining order because group

demonstrations are potentially disruptive to prison order. The “ripple effect” of permitting

Lumumba to organize a mass disobedience campaign would have a direct impact on guards and

on prison resources, which would have to accommodate Lumumba’s actions. And, while neither

Lumumba nor Kiser have identified any “ready alternatives,” it is likely that Lumumba does

have alternative means of expressing the same grievances he would air in his planned civil

disobedience campaign; this is especially true because VDOC never apparently limited his

ability to communicate with the outside world or with other prisoners, but only policed the

content of his communications for plain violations of prison rules.

Therefore, Disciplinary Offense 128 is not unconstitutional under the First Amendment.

Because both of Lumumba’s claims fail on the merits, the Court GRANTS Kiser’s motion to

dismiss, Dkt. 10, and the Court DISMISSES WITH PREJUDICE Lumumba’s petition for the

writ of habeas corpus, Dkt. 1.

8

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Page 9 of 9

The Clerk of Court is directed to send this Memorandum Opinion and Order to all

counsel of record.

Entered this ____

30th day of September, 2021.

9

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CLERK'S OFFICE U.S. DIST. cOuRf

VA.17 Pageid#: 1

Case 7:20-cv-00379-NKM-JCH Document 1 Filed 07/01/20AT ROANOKE,

Page 1 of

FILED

A0241

(Rev. 01/15)

Page2

JULI C.D

BY:

PETITION UNDER 28 u.s.c. § 2254 FOR WRIT B'.FU1Y C

HABEAS CORPUS BY A PERSON IN STATE CUSTODY

United States District Court

Name (under which you were convicted):

Docket or Case No.:

1:wov"1C}

Place of Confinement :

Prisoner No.:

Petitioner (include the name under which you were convicted)

Respondent (authorized person having custody of petitioner)

V.

\ a.le.

L

The Attorney General of the State of:

\/,· r

PETITION

1.

(a) Name and location of court that entered the judgment of conviction you are challenging:

C.irw.+: 6ur-l--,

(b) Criminal docket or case number (if you know):

2.

(a) Date of the judgment of conviction (if you know):

(b) Date of sentencing:

_!_M.'..!iCJul1---?~fi'..!.,I,.,__._(°i..L. .Ll/--1.9_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

,-;fl-I( ~'sbt 1/er:rrS,

{ ToT~L; ,5,3 yrs-

3.

Length of sentence:

4.

In this case, were you convicted on more than one count or of more than one crime?

5.

Identify all crimes of which you were convicted and sentenced in this case:

2 nd V43tee. Mwrclec

6.

[;'1/e ,a;,,r,pr-oc.fecf

O No

te».2 '32.

(a) What was your plea? (Check one)

0

(2)

Not guilty

0

(3)

Nolo contendere (no contest)

Guilty

0

(4)

Insanity plea

.

39 / 70

Yes

~-r.d-,ve I

.

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Page3

A0241

(Rev. 01/15)

(b) If you entered a guilty plea to one count or charge and a not guilty plea to another count or charge, what did

:r

you plead guilty to and what did you plead not guilty_to?

,·

(c) If you went to trial, what kind of trial did you have? (Check one)

IJJl"'.Jury

7.

~No

Did you appeal from the judgment of conviction?

iW' Yes

9.

Judge only

Did you testify at a pretrial hearing, trial, or a post-trial hearing?

0 Yes

8.

0

0

No

If you did appeal, answer the following:

(a)Nameofcourt:

/1

1

1

A

(b) Docket or case number (if you know):

(c) Result:

I

&in.1.-,J.-µa

(d) Date ofresult (if you know):

1n.\rnJure

p<",yuJ1c.:C\/

-~ ..-

lr-~,_7\

,/,

IJ t

A.t.J!,"..,ed

6 do bu

3r

2.MD

--"""-''""'-"':...Ll..l...___- - ' ~ 1 - " " - " ' ~ : ; c _ _ -- - - - -- - - - -- - -- -

c'.!..Aud

p,..,lf

Lee

eccecl

t!,e aw 1e1 £l •

V4il'lillti

•

-=Jt=t.f.,_,l.""'q_- _,_'1_._'f_·~ 'l.,<..__ _ _ _ _ _ _ _ _ _ _ _ _ _ __

(e) Citation to the case (if you know):

(f) Grounds raised:

Vi •3 ;D, n

,I

L.-ourt o1ppru, s

rcb,.dtq.l

br

tJ, C.Ot11t1£WlJfA-L;lf-

PUG.A-MEY

renvi:-ff.013

J,

ts£

...

/)

1 '0,·

{.;-Of#1m0,(/1<,ICn(fh

pbc,$e

..Jo

of' fbe /-r1c,-..I

euicleoce

(g) Did you seek further review by a higher state court?

g'Yes

0

No

If yes, answer the following:

(1) Name of court:

,Yi C'3if>lp. .Supcc.i,,e Cbur}

(2) Docket or case number (if you know):

__._L'l.,_,6.._..2.,.{a""'5.,_:J._,_ _ _ _ _ _ _ _ _ _ _ _ __

(3) ~esult:

(4) _D ate of result (if you know):

4nt:mDwn

.

40 / 70

.

JA5

4

1. ~

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Case 7:20-cv-00379-NKM-JCH Document 1 Filed 07/01/20 Page 3 of 17 Pageid#: 3

A024I

(Rev. 01/15)

Page4

(5) Citation to the case (if you know):

(6) Grounds raised:

See (?) (.iJ

(h) Did you file a petition for certiorari in the United States Supreme Court?

0

Yes

VNo

If yes, answer the following:

(1) Docket or case number (if you know):

(2) Result:

(3) Date ofresult (if you know):

(4) Citation to the case (if you know):

I 0.

Other than the direct appeals listed above, have you previously filed any other petitions, applications, or motions

0 Yes

concerning this judgment of conviction in any state court?

11.

0

No

If your answer to Question l 0 was "Yes," give the following information:

(a)

Vir-'!}trJv-..

(l)Nameofcourt:

&. . p,eme C,,,ic+

(2) Docket or case number (if you know):

(3) Date of filing (if you know):

(4) Nature of the proceeding:

(5)Groundsraised:

--'6"""--'1."""{...,8..,_,.,8~2..=------- -- - - - - -- - - -

Unbnot..10

....,lt-'-'a"-'k~

..:i......S'---=~='-l'f'""''"--'~.___,_fe,__/'""d,-'-'-"·"=n_ _ _ _ _ _ _ _ _ _ __

!'=. Ineftec:i,ve

Jss,:~+eace

ce.

I

Ca 40 ,;e/

£d(a,ial c,f/. JJme-l'lld. J

(6) Did you receive a hearing where evidence was given on your petition, application, or motion?

0 Yes

IY'No

(7) Result:

Yekic<n

Veh2ecf

(8) Date of result (if you know):

/..k,l:,mwn

.

41 / 70

.

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Page 5

A0241

(Rev.01/15)

(b) If you filed any second petition, application, or motion, give the same information:

(1) Name of court:

VA-.

(2) Docket or case number (if you know):

(3) Date of filing (if you know):

J)ec.e. a'.1 hu

(4) Nature of the proceeding:

lte1bu,s

i I 2 D (> 2

Cti:rDUS

?e?:b·oo

(5) Grounds raised:

(6) Did you receive a hearing where evidence was given on your petition, application, or motion?

0 Yes

(7) Result:

~No

?e.,t-h-.~o J2e n:~J

(8) Date ofresult (if you know):

Ap,:I 15..

zoos

(c) If you filed any third petition, application, or motion, give the same information:

( 1) Name of court:

(2) Docket or case number (if you know):

N

(3) Date of filing (if you know):

(4) Nature of the proceeding:

(5) Grounds raised:

6 ee

~6-....r~_..,·-'l'-'f-''-'-c'"",;1'"'"'k~_,,,<f----<-iAy.-1'4'?=e=e1=/q"""b......~4 j,_,_,'l-y-----------

<ll ) ( et> ( > )-, ere ; beI,E; re.

5

.

42 / 70

11

.

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A0241

(Rev. 01/15)

Page6

(6) Did you receive a hearing where evidence was given on your petition, application, or motion?

0 Yes

(7) Result:

(8) Date of result (if you know):

~ae 1.o

lCJ.o 3

(d) Did you appeal to the highest state court having jurisdiction over the action taken on your petition, application,

or motion?

(I) First petition:

0 Yes

0

No

(2) Second petition:

0 Yes

0

No

(3) Third petition:

0 Yes

0

No

(e) If you did not appeal to the highest state court having jurisdiction, explain why you did not:

12.

For this petition, state every ground on which you claim that you are being held in violation of the Constitution,

laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts

supporting each ground.

CAUTION: To proceed in the federal court, you must ordinarily first exhaust (use up) your available

state-court remedies on each ground on which you request action by the federal court. Also, if you fail to set

forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date.

GROUNDONE:

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

MEt1ci~A"1bWM

A-1f.4c...H ED

(b) If you did not exhaust your state remedies on Ground One, explain why:

N

.

43 / 70

.

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Page8

A0241

(Rev. 01/15)

(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have

used to exhaust your state remedies on Ground One:

GROUND TWO:

(a) Supporting facts (Do not argue or cite law. Just state th~ specific facts that support your claim.):

(b) If you did not exhaust your state remedies on Ground Two, explain why:

(c)

Direct Appeal of Ground Two:

(1) If you appealed from the judgment of conviction, did you raise this issue?

t'J Yes

No

•

(2) If you did not raise this issue in your direct appeal, explain why:

(d)

Post-Conviction Proceedings:

(1) Did you raise this issue through a post-conviction motion or petition for habeas corpus jn a state trial court?

t'J Yes

No

(2) If your answer to Question (d)(l) is "Yes," state:

Type of motion or petition:

Name and location of the court where the motion or petition was filed:

Docket or case number (if you know):

Date of the court's decision:

.

44 / 70

.

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A024l

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(c)

Page7

Direct Appeal of Ground One:

(1) If you appealed from the judgment of conviction, did you raise this issue?

(2) If you did not raise this issue in your direct appeal, explain why:

0

Yes

I

:Im

I

f-/,e

I

/4J,nh-o.o

~No

C'~

my

CoofJArr2ent

1t,lc.1S

-e,<f-r,,d~,f ar

e-1

le,,ally.

(d) Post-Conviction Proceedings:

(1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court?

~Yes

O No

(2) If your answer to Question (d)(l) is "Yes," state:

Type of motion or petition:

Name and location of the court where the motion or petition was filed:

Docket or case number (if you know):

~f~q~6."'-"'fu~1~h~--------------------

Date of the court's decision:

Result (attach a copy of the court's opinion or order, if available):

0

(3) Did you receive a hearing on your motion or petition?

(4) Did you appeal from the denial of your motion or petition?

(5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal?

(6) If your answer to Question (d)(4) is "Yes," state:

0

Yes

11"' No

Yes

0

No

Yes

0

No

,,

Name and location of the court where the appeal was filed: -~~-efi~'t!~•~on

~ ~h~l>~r- ~Z~eh~e=a.=r~i~a~J._.!~~V,~·-rj+---''n~/~g~_

.Sc.'{>cene

CCS-kt

Docket or case number (if you know): _...:./-'

q_,,6~:L...>- - - - - - - - -- - - - - - - - - - - - M

Jl1 2

~l'L~a...,1(,_~:r,_

- - - - - -- - - - - - - - - - - - 1 ~ =O~Z~ll.~-Result (attach a copy of the court's opinion or order, if available):

Date of the court's decision:

(cki-:ov

(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue:

.

45 / 70

.

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Page 10

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(Rev. 01/15)

(b) If you did not exhaust your state remedies on Ground Three, explain why:

(c)

Direct Appeal of Ground Three:

Yes

(1) If you appealed from the judgment of conviction, did you raise this is~ue?

No

(2) If you did not raise this issue in your direct appeal, explain why:

(d)

Post-Conviction Proceedings:

(1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court?

0 Yes

No

(2) If your answer to Question (d)(l) is "Yes," state:

Type of motion or petition:

Name and location of the court where the motion or petition was filed:

Docket or case number (if you know):

Date of the court's decision:

Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion or petition?

0

Yes

No

(4) Did you appeal from the denial of your motion or petition?

Yes

No

(5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal?

Yes

No

(6) If your answer to Question (d)(4) is "Yes," state:

Name and location oftbe court where the appeal was filed:

Docket or case number (if you know):

Date of the court's decision:

Result (attach a copy of the court's opinion or order, if available):

.

46 / 70

.

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Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion or petition?

D

Yes

D No

(4) Did you appeal from the denial of your motion or petition?

D

Yes

D No

(5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal?

D

Yes

D No

(6) If your answer to Question (d)(4) is "Yes," state:

Name and location of the court where the appeal was filed:

Docket or case number (if you know):

Date of the court's decision:

Result (attach a copy of the court's opinion or order, if available):

(7) If your answer to Question (d)(4) or Question {d)(S) is "No," explain why you did not raise this issue:

(e)

Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you

have used to exhaust your state remedies on Ground Two :

GROUND THREE:

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

.

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Page 12

A0241

(Rev. 01/15)

Name and location of the court where the motion or petition was filed:

Docket or case number (if you know):

Date of the court's decision:

Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion or petition?

0

Yes

0 No

(4) Did you appeal from the denial of your motion or petition?

0

Yes

0 No

(5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal?

0

Yes

0 No

(6) If your answer to Question (d)(4) is "Yes," state:

Name and location of the court where the appeal was filed:

Docket or case number (if you know):

Date of the court's decision:

Result (attach a copy of the court's opinion or order, if available):

(7) If your answer to Question (d)(4) or Question (d)(S) is "No," explain why you did not raise this issue:

(e)

Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you

have used to exhaust your state remedies on Ground Four:

.

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A0241

Page II

(Rev. 01/15)

(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue:

(e)

Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you

have used to exhaust your state remedies on Ground Three:

GROUND FOUR:

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) If you did not exhaust your state remedies on Ground Four, explain why:

(c)

Direct Appeal of Ground Four:

(1) If you appealed from the judgment of conviction, did you raise this issue?

0

Yes

0 No

(2) If you did not raise this issue in your direct appeal, explain why:

(d)

Post-Conviction Proceedings:

(1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court?

0 Yes

0

No

(2) If your answer to Question (d)(l) is "Yes," state:

Type of motion or petition:

.

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AO 241

(Rev. 0111?)

13.

Page 13

Please answer these additional questions about the petition you are filing:

(a)

Have all grounds for relief that you have raised in this petition been presented to the highest state court

having jurisdiction?

rrJ/' Yes

No

If your answer is "No," state which grounds have not been so presented and give your reason(s) for not

presenting them:

(b)

Is there any ground in this petition that has not been presented in some state or federal court? If so, which

ground or grounds have not been presented, and state your reasons for not presenting them:

14.

Have you previously filed any type of petition, application, or motion in a federal court regarding the conviction

that you challenge in this petition?

Yes

If "Yes," state the name and location of the court, the docket or case number, the type of proceeding, the issues

raised, the date of the court's decision, and the result for each petition, application, or motion filed. Attach a copy

of any court opinion or order, if available.

15.

Do you have any petition or appeal now pending (filed and not decided yet) in any court, either state or federal, for

the judgment you are challenging?

Yes

If "Yes," state the name and location of the court, the docket or case number, the type of proceeding, and the issues

raised.

.

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A0241

Page 14

(Rev. Ol/15)

16.

Give the name and address, if you know, of each attorney who represented you in the following stages of the

judgment you are challenging:

_9~dt=a=@.....

~,.._s-___._A.aua;u~'-'-(_,£,~~f-'-'----JJ'-------'1:...,,z,,_,_s-,,_·....

c.,.1,'-"'c1-'-4rc;..L/,:z..-L.r<;;"""6-'-'r~..,,e.,_~-r---_,_/_,_'_/,.h

- 4-15__,-¼w.d'I.Lc_,-/

ca) At preliminary hearing:

1t). bO'/.. -:tt- I IJ 'I l I b,;oc.hhw3

l(4.

--

t 'fs"t;.£

(b) At arraignment and plea:

Se

t\

(c) At trial:

c.1.

(d) At sentencing:

$cc.

( c.1.

(e) On appeal:

5c.

(f) In any post-conviction proceeding:

Se.

Cl

(g) On appeal from any ruling against you in a post-conviction proceeding:

.See

17.

c:1..

Do you have any future sentence to serve after you complete the sentence for the judgment that you are

challenging?

Yes

O

No

(a) If so, give name and location of court that imposed the other sentence you will serve in the future: .

(b) Give the date the other sentence was imposed:

7,

(c) Give the length of the other sentence:

(d) Have you filed, or do you plan to file, any petition that challenges the judgment or sentence to be served in the

future?

O

No

TIMELINESS OF PETITION: If your judgment 'of conviction became final over one year ago, you must explain

18.

why the one-year statute of limitations as contained in 28 U.S.C. § 2244(d) does not bar your petition.*

.

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Page 15

A0241

(Rev. 01/15)

* The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") as contained in 28 U.S.C. § 2244(d) provides in

part that:

(I)

A one-year period of limitation shall apply to an application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court. The limitation period shall run from the latest of (A)

the date on which the judgment became final by the conclusion of direct review or the expiration

of the time for seeking such review;

(B)

the date on which the impediment to filing an application created by State action in violation of

the Constitution or laws of the United States is removed, if the applicant was prevented from

filing by such state action;

(C)

the date on which the constitutional right asserted was initially recognized by the Supreme Court,

if the right has been newly recognized by the Supreme Court and made retroactively applicable to

cases on collateral review; or

(D)

the date on which the factual predicate of the claim or claims presented could have been

discovered through the exercise of due diligence.

.

52 / 70

.

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A0241

(Rev. 01/15)

Page 16

(2)

The time during which a properly filed application for State post-conviction or other collateral review with

respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation

under this subsection.

Therefore, petitioner asks that the Court grant the following relief:

or any other relief to which petitioner may be entitled.

reof Attorney (if any)

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct and that this Petition for

Writ of Habeas Corpus was placed in the prison mailing system on

Executed (signed) on

(month, date, year).

(date).

If the person signing is not petitioner, state relationship to petitioner and explain why petitioner is not signing this petition.

.

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:UA.LL L.

J\llir+h

Y\:,\1e_r

'Pur;_~SL[/ ff \\D~9.0D

Lorred-i~r.Cl 1• ~ I r

•

3 l '9 J)e. I I bn>-ti-1( Li;ioe..

I nde.re/\ck.f\Le. YA, l 'I 3 Lf 8,

\rJ e..s.\-o-n

J): ~+,; c.

ll6 fr~k.{;n

\(~no.\\e.

.

54 / 70

VA

t.

.

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-~c:.J,

5\J,

.Sud<: S4 o

a 11 - ZZCJ B.

.

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.

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IN THE UNITED STATE§ DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

DALE LEE PUGHSLEY, Prison Number#1108900

Petitioner

V.

MEMORANDUM OF LAW IN

SUPPORT OF PETITION OF

HABEAS CORPUS PURSUANT TO

28 USC §2254

JEFFREY KISER,

The Respondent

As a matter of introduction, the Petitioner respectfully submits that the events which transpired in

the instant case constituted a denial of the Petitioner's Fourteenth Amendment right to due process of law.

This error was not merely procedural, but substantially infringed upon the Petitioner's Constitutional

rights. At minimum, the Petitioner requests a hearing be held on these issues. •

~TATEMENT OF-THE ISSUES

I.

Offense Code 128 within the Virginia Department of Corrections (VADOC) Operating Procedure

(O.P.) 861.1 "Inmate Discipline" is void-for-vagueness inasmuch as it fails to provide sufficient

'NOTICE' to satisfy the standard mandated by the Fourteenth Amendment's due process

guarantee.

11.

The Petitioner is entitled to an evidentiary hearing on this matter.

STATEMENT OF FACTS

On July 9th 2018 at approximately 3:30 PM, Dale Pughsley (the Petitioner) was placed in

Solitary Confinement under investigation at Sussex I State Prison. On July 10th 2018 at approximately

2:30 PM the petitioner was emergency transfen·ed eight hours away to Red Onion State Prison. At

1

.

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approximately 11-:00 PM, on July 10th 2018, the Petitioner arrived at Red Onion and was served a

Disciplinary Offense Report (DOR). In the DOR, Rep01ting Officer J. Issac (Issac) accused the Petitioner

of violating Off~nse Code 128, "Participating in, or encouraging others to participate in a work stoppage

or group demonstration." [See Exhibit A] On July 19th 2019, Institutional Hearings Officer M. Counts

(Counts) conducted a disciplinary hearing for case no SXl-2018-1538, the foregoing offense, and found

the Petitioner guilty. Counts impos~d a penalty of thirty days disciplinary segregation and 128 days loss

of statutory good time [See Exhibit B]. On July 25th 2018, the Petitioner submitted an appeal to Warden

J. A. Kiser (Kiser) for level one review [See Exhibit C]. On August 14th 2018, Kiser upheld the

Petitioner's conviction. On August 21st 2018, the Petitioner submitted an Appeal to Eastern Regional

_Administrator Gregory Holloway for Level II review. On October 29th 2018, Gregory Holloway upheld

the Petitioner's conviction [See Exhibit D].

STATEMENT OF JURISDICTION

Federal law provides a safety net for defendants whose constitutional

rights

have been violated in

.

.

state proceedings. 28 USC §2254 provides an avenue for redress of Federal Constitutional violations

during a disciplinary proceeding where the penalty was a loss of statutory good time which will extend

the duration of his confinement. see Adams v. Fleming no. 7:16 cv 00445, 2017 US Dist. Lexis

10960, 2017 WL 2992508 *3 (W.D. Va. July 12, 2017). The petitioner exhausted state court remedies in

the Virginia Supreme Comt, record no. 190612, where he presented to the state court both the operative

facts and controlling issues. see Kasi v Angelone 300 F.3d 487 (4tli"Cir. 2002).

"Virginia s habeas corpus jurisdiction includes cases in which an order·entered in the

petitioner's favor ... will as a matter oflaw standing alone directly impact the duration ofa

petitioners Cof!finement... Thus, a petitioners challenge to the unconstitutional loss of

vested time credit is cognizable on Virginia State habeas review because tlte petitioner is

detained without lawful authority." Adams v Flemming no. 7:16 CV 00445, 2017 US Dist.

Lexis 10960, 2017 WL 2992508 at *3 <W.D, Va, July 12, 2017>

2

.

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ARGUMENT

Purpose of Writ of Habeas Corpus is to safeguard a person's freedom from detention in violation

of constitutional guarantees... Blackledge v. Allison 431 U.S. 63, 97 S.Ct. 1621

Federal habeas corpus petitioner who claims he is detained pursuant to final judgement of state court in

violation of the United States Con~titution is entitled to have federal habeas corpus court make its own

independent determination of his claim... Wainwright v. Sykes 433 U.S. 72, 97 S.Ct. 2497 (1977).

In order to raise an issue in a Habeas Corpus motion, the issue must be one that was not presentable in

direct appeal. Smith v. Murray 477 U.S. 527 (1986).

State prisoners' suits fall within traditional scope of Habeas Corpus where they allege that the

deprivation of their good conduct time credits on their sentences causes, or will cause, them to be in

illegal physical confinement after their conditional release dates have passed, and they seek restoration of

their good time credits. Prieser v. Rodriguez 41 1 U.S. 475 (1973). Habeas Corpus is an appropriate

.

.

remedy for restoration of prisoner's good time credit on their sentences even if the restoration of their

credits will not result in their immediate release but only in shortening the length of their actual

confinement in prison. ld;..,see also Royster v. Polk 299 Fed. Appx 250 <,4th Cir, 2008>.

In the instant case the Petitioner lost statutory good time credit during a disciplinary hearing

whereby the state lengthened the Petitioner's dw·ation of confinement without providing the minimal

procedural safeguards by the Fourteenth Amendment's due process clause.

Once the State has created the right to good time credit and has recognized that deprivation of

/

such credit is a sanction authorized for major misconduct the prisoner's interest has real substance and is

sufficiently embraced with the Fourteenth Amendment liberty to entitle him to those minimum

3

.

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procedures appropriate under the circumstance and require by the due process clause to insure that the tae

created right is not arbitrarily abrogated. Wolfy. McDonnell 418.215 539 (1974).

I. Offense Code 128 within O.P. 861.1 is void.:.for-vagueness inasmuch as it fails

to provide sufficient "NOTICE" to satisfy the standard mandated by the Fourteenth

Amendment's due process guarantee.

The language of the law is unconstitutionally vague if persons of common intelligence must

necessarily guess at the meaning of the language and differ to its application. Tanner v. City of Va, Beach

674 S. E. 2d 848 (2009). A court may invalidate a law as being unconstitutional for vagueness for either

one or two independent reasons. City of Chicago v. Morales 574 4.5 41 (1990). First, if a statute fails to

provide people of ordinary intelligence a reasonable opportunity to understand conduct it prohibits.

v. County of Henrico 42 Va, Ap_p 495 (2004). Second, an enactment may be found vague ifit authorizes,

or even encourages, arbitrary and discriminatory enforcement. Id. The Constitutional prohibition against

vagueness derives from the requirement of fair NOTICE embodied in the "Due Process Clause"~

l4.._accord. United States v, Williams 128 S, Ct, 1830 {2008): Grayned v. City of Rockford 408 U.S. 104.

92 S. Ct. 2294 (1972). For the minimum requirement of procedural due process to be satisfied in State

prison disciplinary hearings, prisoners must be provided with advance written notice in order to inform

'

theni of the changes and to enable them to marshall the facts and prepare a defence. Wolff Id. at 563

A. Overbreadth

The U.S. Supreme Court has long established that an individual's right to free speech survives

incarceration. See Procunier y. Martinez 416 U.S. 386 (1974). The U.S. Supreme Court has also

established a stricter standard for measuring the constitutionality of prison regulations or prison official's

conduct that restrict prisoners outgoing correspondence than for those that restrict prisoner's incoming

correspondence. See Thomburgh y. Abbott 470 U.S. 401 (1989). In 'Martinez', the Court pointed out

that outgoing correspondence that magnifies grievances or contains inflammatory radical views cannot

4

.

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reasonably be expected to present a danger to the community inside the prison. Martinez id at 416,

Dangerous outgoing correspondence is more likely to fall within readily identifiable categories; examples

noted in 'Martinez' include escape plans, plans relating to ongoing criminal activity, and threats of

blaclanail or extortion. Thornburgh id ·at 412. The present case involves a dispute over the scope of the

Petitioner's constitutionally protected free speech liberty guaranteed by the First Amendment.

The Petitioner wrote an el?lail and made phone.calls to members of the public wb.erein

inflammatory language was used. The Petitioner contends that he has a right to speak critically of the

government_in outgoing con-espondence even if inflammatory language is used when doing so. The

government does not have a right to restrain the Petitioner's First Amendment liberty or censor his

'outgoing' correspondence unless:

1. The regulation of practice· in question furthers an important substantial

government interest unrelated to the suppression of expression.

2. The limitation ofFirst Amendment freedoms is no greater than necessary of

essential to the protection of the government interest involved. Martinez id at 413.

VADOC officials were required to be particularly careful in this' matter because it involved the

Petitioner's free speech liberty.

B. Failure to Give Notice of What is Prohibited

Offense Code 128 in VADOC O.P. 861.1 reads:

"Partpicating in, or encouraging others to participate in, a work stoppage or group

Demonstration, " [See Exhibit E]

As noted above, the Petitioner was accused of"encouraging others to participate in a group

demonstration". However, the Petitioner contends that nowhere in O.P. 861.1 is either the term "group"

or "demonstration" defined. What constitutes a "group"? Is a group 2 or more, 3 or more, 4 or more, or 5

or more persons? Do all of the members of a "group" have to be housed in.the same prison? What

constitutes a "demonstration"? Is prayer, signing a petition, a letter writing ca1:11paign, group exercise,

5

.

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standing a certain way collectively, etc. a "demonstration"? The Petitioner submits that there is no way

any person of ordinary intelligence knows what constitutes a 'group demonstration'. Ergo, prisoners

can't be expected to know what language in their phone calls or ·outgoing correspondence is prohibited by

Offense Code 128 under its cu.tTent wording. Therefore, Offense Code 128 is facially insufficient of the

Fourteenth Amendment's due process mandate inasmuch as it fails to give a person of ordinary

intelligence a reasonable opportunity to understand what conduct it prohibits. Supra.

C. Offense Code 128 Authorizes and Encourages Arbitracy and Discriminat_oty Enforcement

A law should be invalidated unless its clarity has been designated as voided so as to allow the net

to be cast at large Papachristos v. City of Jacksonville 405 U.S. 156, 166, 92 S. Ct. 837 <1972). Since

there's no definition of 'group' or 'demonstration' within 0.P. 861.1, the policy failed to describe what

conduct is generally prohibited thereby failing to guide the minimal exercise of discretion afforded prison

officials under the Constitution. See Grayned Id. The vagueness test does not forbid individual

assessments by law enforcement officers. What it forbids is a law that, by its expansive sweep of

language, enacts an elastic definition of illegality -- one that authorized an officer to define for himself

what is and is not legal. Boyd id at 520~21.

There are thousands of corrections officers within the VADOC who are allowed to determine for

themselves what constitutes a 'group' and what constitutes a 'demonstration'. The Virginia General

Assembly gave the director ofVADOC the power to create regulations that govern prisoner conduct.

Therefore, this regulation must lay out what conduct the director of VA DOC prohibits, as not to invite

disparate treatment impermissibly delegating policy considerations to prison officials for resolution on ari

ad hoc and subjective basis with the attendant danger of arbitrary and discriminatory application. Tanner

id at 852. As it's cunently written, Offense Code 128 allowed prison officials to punish the Petitioner's

speech in the fonn of outgoing correspondence and phone calls, as an act threatening the security and

6

.

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.

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order ofVADOC, thereby proving the language in Offense Code 128 allows officials to case too wide of a

net when enforcing it. The Petitioner asserts that Reporting Officer J. Isaac never describes in his

description of offense [see exhibit A] what fact he listed was probative nor what action constituted the

ultimate fact proving Offense Code 128 was violated.

Further, Counts never explains during the hearing or in her 'reason for decision' <ROD> what

'group demonstration' the Petitioner encouraged [see exhibit B]. Counts states in the foregoing ROD that

she "found offender

Pughsley's intention was to encourage 'others' to participate in acts of violence

.

.

against DOC", however, Counts never describes what prescribed action was taken by the Petitioner.

Counts never answered the question, "What group demonstrations was the Petitioner encouraging?" and

"Who all was the Petitioner encouraging?" or "Did the number of people constitute a group?" Thus,

Offense Code 128 fails the second prong of the void-for-vagueness test because it authorizes arbitrary and

discriminatory enforcement of the offense.

11. The Petitioner is Entitled to an Evidentiary Hearing on These Matters

The State Court ruled sua sponte that the claim herein lacked cognizance. Consequently, the merits of the

claim weren't reviewed so a determination on the factual basis ofthe petitioners claim wasn't made. The

instant petition makes an appropriate showing of a constitutional violation entitling the petitioner to an

evidentiary hearing. 28 USC §2254 (e) (2) (B). see also Harris v. Nelson 394 US 286, 89 S.Ct. 1082

(1969); Cardwell v. Greene 152 F.3d 331 (4th Cir 1998); Bell v. Jarvis 236 F.3d 149 (4th Cir2000)

More conclusions or opinions of the pleader will not suffice. Id.

In the present case, the Petitioner contends that he has set fo11h facts in his petition which entitle

him to relief. Therefore, at the minimum, the Court should order an evidentiary hearing in this matter.

7

.

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.

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CONCLUSION

For the foregoing reasons, the Petitioner respectfully requests that this Honorable Court grant his

petition for a writ of habeas corpus or, at a minimum, grant him an evidentiary hearing.

Respectfully Submitted

f}_~~

Dale L. Pughsley, pro se

Red Onion State Prisoo

. P. 0. Dex 970-

P-outld, 'l/\. 24279

..'.31-'-'t

Uc.l\hrv.o.\l

:i::.n ck. :1 eJ\deJ'I c..e.

L:ioe..

VA. l 'i :s L/ 8.

Date

8

.

60.3/70

.

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VIRGIN I A:

IN THE SUPREME COURT

Dale L. Pughsley, No. 1108900,

Petitioner,

against

Record No. 190612

Jeffrey Kiser,

Respondent.

AFFIDAVIT

State of Virginia, County of Wise, to-wit:

M. COUNTS, first being duly sworn, states as follows:

1.

I am the Inmate Hearings Officer at Red Onion State Prison (Red Onion).

2.

The infonnation contained in this affidavit is based on personal knowledge and

records maintained in the regular and ordinary course of business.

3.

I am generally aware that Dale Pughsley, #1108900, has filed litigation in which

he claims that he was not afforded due process during a hearing for a #128 disciplinary offense

that he received on July 7, 2018 at Sussex I State Prison.

4.

Division Operating Procedure (DOP) 861 .1, effective January 1, 2016, sets forth

the procedures for inmate discipline. As an Inmate Hearings Officer, I am the sole fact finder in

the bearing and decide on the guilt or innocence of an accused offender. I am also responsible for

imposing an appropriate penalty. Individuals are appointed as Inmate Hearings Officers by the

Warden with approval of the Manager of the Offender Discipline Unit, and are required to have a

thorough understanding of the disciplinary process, be an objective and impartial decision-

.

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maker, successfully complete the training requirements set forth by the Chief of Corrections

Operations and follow the Institutional Hearings Officer Code of Ethics. I report to the Warden

or his designee. A copy of the relevant p01iion of DOP 86 I. I, effective January 1, 2016, is

attached as Enclosure A.

5.

On July 7, 2018, Pughsley was charged with Disciplinary Offense #128,

participating in, or encouraging others to paiiicipate in a group disturbance after it was

determined that Pughsley attempted to garner support for a group demonstration that would

disrnpt the orderly operation of Sussex I State Prison (Sussex I). During an investigation of

Pughsley's communications, Sussex I Intel Unit became aware of a JPay email sent by Pughsley

on July 6, 2018 addressed to Margaret Breslau. In this email, Pughsley stated that Breslau had

already forwarded him an email from "H" that morning. In the second portion of the letter,

Pughsley states, "For H." Investigators determined that with this message, Pughsley had

attempted to contact offender H. Shabazz, who was housed at another institution. In the message,

Pughsley states, "Look, these Sl/S2joints are severely understaffed] Word! Burh, I've been

talking to brothers about a Gandhian Attica. Word, 'Blood in the Water' you feel me? Hundreds

of people check in at once! We all want to go to the STAR program!" Additionally, Pughsley

states, "Man, I'm telling you it's time to use the Art of War!"

6.

In a second communication on July 7, 2018, Pughsley sent an email that was

forwarded to an offender Chanell Burnette at a female facility in the State of Virginia. In this

email, Pughsley stated that "This involves a radical reeducation! I use the religious institutions

that are legitimized by the state to do this." He stated, "I'm new Afrikan and so I personally like

to sue the Rastsfarian (sic) class to teach New Afrika(sic)/Pan Afrikanism(sic)/Afrikan(sic)

Internationalism. It's tricky and require a bit of artistry but people will begin to respond."

2

.

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During the investigation, investigators also accessed Pughsley's phone calls through Global Tell

Link and found a call on July 2, 2018 in which he states to the recipient, "Do you know how hard

I'm fighting not to organize? Seeing you is the only reason I'm not acting crazy." Pughsley

further stated, "Niggas is primed and ready. These young boys are ready to go." During the same

conversation, Pughsley states that a number of Blood and Crip gang members have approached

about making Pughsley their "Big Homie" or leader. The Intelligence Unit at Sussex I became

aware of Pughsley's communications on July 9, 2019.

7.

When interviewed by Intel Officers Darby and Mears on July 10, 2018, Pughsley

stated that he was not attempting to organize anything amongst the other offenders, and stated

that he wa s just writing to Ms. Breslau on the street and what she did after that was up to her.

Pughsley stated that he is about peaceful refonnations of the prison system. He stated that he

tells other offenders to write up their issues without using violence. Lastly, when questioned as

to what "Gandhian Attica" means, Pughsley stated "Gandhian" refers to Gandhi, the political

figure that helped India achieve independence from the United Kingdom. "Attica" is in regards

to the prison riots that took place in 1971 in Attica, New York.

8.

On July 10, 2018, Pughsley was received at Red Onion State Prison. On this date,

he was served with a copy of the disciplinary offense report for Disciplinary Offense Code #128

received on July 7, 2018 at Sussex State Prison. Pughsley was advised of his due process rights

for his upcoming disciplinary hearing that was scheduled for July 13, 2018. Pughsley refused to

sign the disciplinary offense report, a copy of which is attached as Enclosure B.

9.

On July 13, 2018, Pughsley was provided with a Notice of Postponement Report

and was informed that his disciplinary hearing was rescheduled for July 19, 2018. At this time,

Pughsley was provided a Witness Request Form and Request for Documentary Evidence Forms.

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Copies of the Notice of Postponement Report, Witness Request Fonn and Documentary

Evidence Forms are attached as Enclosure C.

10.

On July 19, 2018, I conducted Pughsley's disciplinary hearing at Red Onion State

Prison. Pughsley was present for the hearing and Reporting Officer Isaac, the Institutional

Investigator at Sussex I State Prison, testified by telephone. At the beginning of the hearing, I

read the disciplinary charge for the record and advised Pughsley of his due process rights. I

asked Pughsley if he had any questions about his rights and he stated that he had no questions.

Pughsley pled not guilty to the charge. I read each of Pughsley's requests for documentary

evidence. He requested transcripts of telephone conversations on July 2 and July 9, 2018. I

informed him that transcripts of telephone calls are not available. Pughsley also requested copies

of emails for "Chanell" and "H" described in the disciplinary offense report and I denied the

requests because the emails are part of the investigation and are, therefore, restricted for offender

access. The pertinent details of the emails are included in the description of the disciplinary

offense. Last, Pughsley requested Sergeant Hall as a witness to demonstrate that he was having

mental health and suicidal thoughts. I found this request to be not relevant to the offense so a

statement from Sergeant Hall was not obtained.

11.

Reporting Officer Isaac testified that his report was correct and accurate and

stated that his investigation revealed that Pughsley was attempting to gamer support from other

offenders to disrupt the orderly operation of Sussex I State Prison and other Virginia Department

·of Corrections facilities. Pughsley asked questions oflnvestigator Isaac. I also asked questions of

Investigator Isaac regarding his interpretation of Pughsley's statements in the emails including

"blood in the water" and the "art of war." Pughsley was also provided the opportunity to testify

about and explain the meaning of these and other statements in his emails to others. Pughsley

4

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asked what proof there was, other than the emails, that he was "on the ground" trying to organize

offenders about a disturbance. Pughsley acknowledged that he was the author of the emails and

telephone calls but stated that he disagrees with violence.

12.

At the conclusion of the hearing, after considering the testimony and evidence

provided during the hearing, I found sufficient evidence to find Pughsley guilty of Disciplinary

Offense# 128 by attempting to disrupt the orderly operation of Sussex I State Prison and other

Virginia Department of Corrections facilities. I noted for the record that Counselor Gibson

served as Pughsley's staff advisor because Counselor Mullins was not available for the hearing.

Pughsley acknowledged that he had had time to meet with his advisor before the hearing and that

Counselor Gibson was present to assist Pughsley during the hearing.

13.

Upon my finding of guilty, I infonned Pughsley that his penalty was 30 days in

disciplinary segregation, with credit for time served, and 180 days loss of good time. I advised

Pughsley that he had 15 days to appeal my decision and he should appeal to Warden Kiser at Red

Onion State Prison. Pughsley appealed my decision to Warden Kiser and Regional Director

Holloway where the decision was upheld on August 14, 2018 and October 29, 2018 respectively.

Pughsley's disciplinary hearing was conducted in accordance with the due process requirements

of OP 861.1. Copies of the Warden's and Regional Administrator's Appeal responses are

5

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attached as Enclosure D.

M. COUNTS

Affiant

Sworn and subscribed to before me, a Notary Public, in and for the State of Virginia,

County of Wise, on this Z... 'f

day of June, 2019.

fotary Public

My commission expires:

6

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VIRGINIA DEPARTMENT OF CORRECTIONS

861.1 A-1

Disciplinary Offense Report

Case Number; SXl-2018-1538

Report generated by Messer, J M

Report run on 07/10/2018 at 6:48 PM

Offender Name: Pu2hsley, Dale L

Facility: Sussex I State Prison

DOC#;

Housing: HU2-C-42B

1108900

Reference;

Offense Code:

128

Offense Title:

Offense Date:

7nt2018

Approximate Time: 7:34 PM

Participating in. or encoura2ing others to participate in...

Location:

QESS:.BIETIQ!.i QE Il:ll; QFFE!.iSE

Provide a summary of the details of the offense (i.e : who, what. when, where. and how; any unusual behavior.

any physical evidence and its disposition. and any

immediate action taken - including use or force, etc.)

Upon the completion of an investigation, it was delermined that you, Offender D. Pughsley #1108900, have attempted

to garner support for a group

demonstration that would disrupt the orderly operation of this institution. On July, 9th, 2018 the Intel Unit at Sussex

1 Slate Prison (S1SP) was made aware

that you had attempted lo contact Offender H. Shabazz. whom is currently housed at another institution. The

communication In question was a JPay email

sent on July 6th, 2018 addressed to a Ms. Margaret Breslau. In this email you state that Breslau had already

forwarded an email from •H· that morning. to

you. In the second portion of the letter, you state, ... <Con,>

@ Investigation

Witnesses:

Date Completed: 7/10/2018

10 DESCRIPTION CONTINUED ON ATTACHED PAGE

Isaac, SJ

Darbv L

Reporting Officer:

Mears D

Title;

Institutional lnvesti2ator

Date:

7/10/2018

Officer -In-Charge :

Messer. J M

Hie:

Lieutenant

OIC Signature:

c,,,,,.,-ll' - ~

Date;

7/10/2018

Time:

1:56PM

Time:

6:45 PM

ADYJSl;MENT OF BIG HIS

By signing below, you indicate your preference regarding the rights Indicated. Failure to respond, or indicate

a preference. constitutes a WAIVER of the first three

rights. The following forms are available to the offender UPON REQUEST in each housing unit Witness Request

Form. Documentary Evidence Request Form.

and the Re rtin Officer Resoonse Form. The offender must submit these re uest forms to the Heann s Officer

within 48-HOURS of the char e beln served.

DO YOU REQUEST A STAFF OR OFFENDER ADVISOR TO ASSIST YOU AT THE HEARING?

~s

DO YOU WISH TO REQUEST l'IITNESSES?

O No O REFUSED TO RESPOND

0 No O REFUSED TO RESPOND

D REFUSED TO RESPOND

DO YOU WISH TO REQUEST DOCUMENTARY EVIDENCE?

DO YOU WISH TO WAIVE YOUR RIGHT TO 24-HOUR PREPARATION TIME PRIOR TO THE HEARING?

o

00 YOU WISH TO APPEAR AT THE DISCIPLfNARV HEARING?

O REFUSED TO RESPOND

O No O REFUSED TO RESPOND

Refusal to appear is on admission or guill. a waiver of witnesses and the right to a disciplinary

hearing.

YOU HAVE THE RIGHT TO QUESTION REPORTING OFFICER

(In person for Category I Offenses; by submilling a Reponing Officer Response Form for Category II Offenses)

YOU HAVE THE RIGHT TO ENTER INTO A PENAL TY OFFER.

YOU MAY REMAIN SILENT. Silence does NOT const~Ule an admission or gu1k.

THE CHARGE MAY 8E VACATED ANO RE-SERVED AS A DIFFERENT OFFENSE, WHICH CAN BE A HIGHER, EQUIVALENT

OR LESSER OFFENSE CODE

YOU MAY BE FOUND GUILTY OF A LESSER-INCLUDED OFFENSE CODE, IN ACCORDANCE 'l\~TH OPERERATING PROCEDURE

861.1

You have been informed oft

Served and Witnessed By:

ou, and advised of you r rig h ts at the Disciplinary Hearingnc.t,

~.o~~=ft- HH~;i.,L_ _____

Offender's Signature:

~-(>

_ _ _ _ _ _ _ _ij______ __

Print Name:

Date of Service:

Date of Hearing:

~0No

7/13/2018

Revised Dale:

Page 1 ol 3

.

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=f>____

Enclosure __

R_ffiL..D_110112016

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: : · : . 1"

• • ';01scJP.U~~R~ OFFE~seii:iEPtjifr(atta¢t1ni~itt)

0

Case 'Number: -:SXls2018-1538

----------

Facility: ·sussex'l:State Prison

Offend·~~ ~ame: Pug~s1~;. oa1~'

t.'

DOC-#: 1108900

_____

Housing: ..;.;.;.;;._

HU2-C-42B

Reference: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Description of Offense

( continued):

"For H". In this section you state the following, "Look, these S1/S2 joints are severely understaffed! Word! Burh, I've been

talking to brothers about a Gandhian Attica. Word, 'Blood in the Water' you feel me? Hundreds of people check in at once! We

all want to go to the STAR program!" Additionally, you state, "Man, I'm telling you it's time to use the Art of War!"

In addition to this email, you sent another email through JPay addressed to Ms. Breslau on July 7th, 2018. In this email, you

begin the second portion of thls email with ·For Chanell"; you are referencing Offender Chanell Burnette housed at a female

facility in the State of Virginia. ln this email you state, "This involves a radical re-education! I use the religious institutions that

are legitimized by the state to do this." You continue with, "I'm New Afrikan and so I personally like to sue the Rastsfarian (sic)

class to teach New Afrika(sic)/Pan Afrikanism(sic)/Afrikan(sic) Internationalism. It's tricky and require bit of Artistry but people

will begin to respond.• Ms. Breslau forwarded this email to Offender Burnette on the same date.

This reporting party accessed your phone calls through the Global Tell Link (GTL) offender phone call system. On July 2nd,

2018, you made a call at approximately 10:38 A.M. to the number (804)250-1981.ln this call you state to the recipient, "Do

you know how hard I'm fighting not to organize? Seeing you is the only reason I'm not acting crazy." You go on to state,

"Niggas is primed and ready. These young boys are ready to go." You go on to state that a number of Blood and Grip gang

members have approached you about making you their "Big Homie" or leader.

On July 1oth, 2018, you were interviewed by Intel Officers L. Darby, D. Mears and this reporting party. During this interview

you stated you were not attempting to organize anything amongst the other offenders. You stated you were just writing Ms.

Breslau on the street and what she did after that was up to her. You continued by stating you are all about peaceful

reformations of the prison system. You stated you tell other offenders to write up their issues up, without using violence.

Lastly, when questioned as to what "Gandhian Attica· was in regards to, you stated "Gandhian• refers to Gandhi, the political

figure that helped India achieve independence from the United Kingdom.

"Attica" is in regards to the prison riots that took place in 1971 in Attica, New York.

After review of the evidence uncovered during the course of this investigation, it has been determined that you are in violation

of Offense 128 - Participating in or encouraging other to participate in group demonstration. This charge has been written in

accordance with Operating Procedure 861.1.

Report run on 07/10/2018 at 6:48 PM

Page 3 of 3

.

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Rev. 01/01/2016

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-OFFENDER'S PLEA AND RIGHTS

Hearing Location:

Red Onion State Prison

D Guilty

Plea:

Date:

7/19/2018

Time:

1:24 PM

D No Plea

[fil Not Guilty

Advisor at hearing:

Reason for absence/exclusion of the accused offender:

Was the Reporting Officer present at the Disciplinary hearing?

Has there been a denial of requested witnesses?

Has there been a denial of Documentary Evidence Forms?

Yes

D No

Yes

No

Yes 0No

DECISION Of 'THE HEARINGS OFFICER

Accepted Penalty Offer within 24 Hours of

O Not Guilty

D Dismissed D Service

0 Reduced to Lesser-Included Offense 0 Reduced Penalty

[R} ,Guilty

Informal

Resolution

D Vacated - Offender waived rewrite/reserve of offense

[!] For the charge of:

Offense Title:

D For the Lesser

Offense Title:

Included Offense of;

D Vacated for Rewrite/Re.serve

128 - Participating in, or encouraging others to participate in...

Reason for Decision:

Investigator Isaac reports at the conclusion of an Investigation it was determined that offender D. Pughsley # 1108900 had

attempted to gamer support for a group demonstration that would disrupt the orderly operation of the Institution. Intelligent such as

the offender sending email with the intent to relay messages to other offenders housed within the DOC . to Include a completed

telephone call. Email has language as S1/S2 joints aie severely understaffed! I've been talking to brothers about a Gandhian

Attica. Word! "blood in the water'' you feel me, "Man, I'm telling you it's time to use the Art of War!. Telephone reviewed has

offender Pughsley stating "do you know how hard I am fighting not to organize? Seeing you I the only reason I'm not acting crazy",

"niggas is primed and ready, These young boys are ready to go". "Blood and Crip gang members have approached about making

you their "big Homie" or leader.

At the disciplinary hearing offender Pughsley denied his intent was to cause a disruption. The language used references to books.

Offender stated that he is not a violent person. The telephone call that was monitored was a discussion with his wife.

I IHO Counts questioned the reason behind the misspelling of words in his email. He states he does talk in code but the

misspelling of Gandhi as a typographical error. I questioned the telephone call conversation about of the meaning when offender

Pughsley states these "young boys being primed and ready to go, and the desire to have Pughsley as their leader. Offender

stated he and his wife were having a disagreement.

Based on the information I have received at the disciplinary hearing, from the reporting officer and consideration of the language

used in the email, telephone conversation along with the testimony of the offender. I have found the intentions of offender

Pughstey was to encourage others to participate in acts of violence against DOC. These acts would severely disrupt the

operations of the state facilities. Guilty decision rendered.

6 • Disciplinary Segregation - Imposed Value: 30 Days

Penalty:

7a+7b - Loss of SGT up to 180 Days Good Conduct Allowance or Equivalent Earned Sentence Credits

- Imposed Value: 180 Days

Comment:

Hearing Officer's Signature:

Print Name:

Date:

Counts, ML

.

.

'"""- - - ,.. _r, .,

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O Informal Resolution

D Suspended Penalty

O Reduced to Lesser-Included Offense

Approved

D Reduced Penalty

00 For the charge of:

O For the Lesser

Offense Tille:

128 - Participating in, or encouraging others to participate in...

Offense Title:

Included Offense of:

Comments;

Penalty:

6 • Disciplinary Segregation - Imposed Value: 30 Days

7a+7b- Loss of SGT up to 180 Days Good Conduct Allowance or Equivalent Earned Sentence Credits

- Imposed Value: 180 Days

Signature:

Date:

Print Name:

Title:

.

.

RPV

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FILED: January 25, 2022

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________________

No. 21-7512

(7:20-cv-00379-NKM-JCH)

___________________

ASKARI DANSO MS LUMUMBA, f/k/a Dale Lee Pughsley

Petitioner - Appellant

v.

JEFFREY KISER

Respondent - Appellee

___________________

ORDER

___________________

The court grants leave to proceed in forma pauperis.

For the Court--By Direction

/s/ Patricia S. Connor, Clerk

71