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Bello v. Saad

United States District Court, N.D. West Virginia

February 19, 2019

ELKINS ALEJANDRO BELLO, Petitioner,
v.
JENNIFER SAAD, Warden, Respondent.

          Bailey Judge

          REPORT AND RECOMMENDATION

          JAMES P. MAZZONE UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         On June 11, 2018, Petitioner Alejandro Bello (“Petitioner”), acting pro se, filed a Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241 [ECF No. 1] (the “Petition”). On that same date, Petitioner paid the $5 filing fee. On August 29, 2018, the Court entered an Order to Show Cause why the Petition should not be granted. ECF No. 7. On October 19, 2018, Respondent filed a Motion to Dismiss the Petition or, in the Alternative, a Motion for Summary Judgment. ECF No. 15. On October 30, 2018, Respondent, by counsel, filed a Notice indicating that the Motion to Dismiss or for Summary Judgment, together with the Memorandum in support had been mailed to Petitioner at FCI Gilmer, his last known address, and was subsequently returned to counsel as undeliverable. ECF No. 17. On November 13, 2018, Petitioner filed a Notice of Change of Address which reflected that he is now incarcerated at USP Terre Haute, which is in Indiana. ECF No. 18. On November 14, 2018, the undersigned entered an Order and Roseboro Notice [ECF No. 19], directing Respondent to resend his Motion and Memorandum and informing the Petitioner of his right and obligation to respond to the Government's motion within sixty days. To date, the Petitioner has failed to respond. The matter is now before the undersigned United States Magistrate Judge for a Report and Recommendation to the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR PL P 2. For the reasons set forth below, the undersigned recommends that the Petition be denied.

         II. BACKGROUND

         Petitioner is a federal inmate serving a 132 month term of imprisonment for his role in a robbery and conspiracy to commit kidnapping. ECF No. 16-1 at 7. The sentence was imposed on May 21, 2014, in the United States District Court for the Southern District of New York. Id. His projected release date is April 21, 2022, via good conduct time. Id. at 8.

         On February 20, 2018, a staff member at FCI Fort Dix discovered a 32 gigabyte ScanDisk electronic memory card in Petitioner's cell inside a radio that had his federal register number etched into it. ECF No. 16-1 at 10. The discovery was made at 7:30 am, and Petitioner received an incident report charging him with violating BOP Prohibited Act Code, 108, Possession of a Hazardous Tool at 11:00 am. Id. The incident report was then forwarded to the Unit Disciplinary Committee (“UDC”). Petitioner made no comment to the UDC, and on February 21, 2019, the UDC referred the matter to the Disciplinary Hearing Officer (“DHO”) with a recommendation that should Petitioner be found guilty, he receive the maximum loss of Good Conduct Time (“GCT”) plus 180 days loss of commissary and visiting privileges. ECF No. 16-1 at 11.

         On February 21, 2018, Petitioner received Notice of a Disciplinary Hearing before the disciplinary hearing officer (“DHO”) [ECF No. 1-1 at 13] and a notice of Inmate Rights at Discipline Hearing. Id. at 15. Petitioner signed both forms and indicated that he did not wish to have a staff member represent him at the hearing and did not wish to call any witnesses. Id. at 13. On February 27, 2018, the DHO held Petitioner's disciplinary hearing. Id. at 17. Ultimately, the DHO found that Petitioner was guilty of the act as charged and sanctioned him with the loss of 40 days GCT, six months loss of email privileges, 6 months loss of phone privileges, 6 months loss of commissary privileges, and 6 months loss of visitation privileges. Id. The DHO report was prepared on May 1, 2018 and delivered to Petitioner on May 25, 2018. Id. at 19.

         The DHO detailed the evidence upon which he had relied when finding Petitioner guilty. Id. at 18. Specifically, the DHO stated that he had relied upon, inter alia, the written statement of the reporting staff member, the Chain of Custody log, and Petitioner's statement that “I went to the Lieutenant's Office and my locker wasn't secure; Someone must have put it in my locker while I was gone.” Id. The report also included the reasons for Petitioner's sanctions. To illustrate, the report provided that:

The action/behavior on the part of any inmate to manufacture, possess, or introduce into the institution, a tool or piece of equipment which may be used in an escape or escape attempt, poses a serious threat to the orderly operation and security of the institution, as well as to the health, safety and welfare of not only himself but to all other inmates and staff. Past escape attends involving these types of items have resulted in serious injuries, as well as desks, to both inmates and staff which cannot and will not be tolerated. Inmates with an intention to escape have proven to be dangerous. They are also attempting to break the law in their endeavor. The sanctions imposed by the DHO were taken to let the inmate know that he, and he alone, will be held responsible for his actions/behavior at all times.
The sanction involving the loss of Good Conduct Time was imposed to comply with the mandatory sanctioned requirement. The sanctions involving the loss of Email, Phone, Commissary, and Visiting are meant to demonstrate the seriousness of this offense to you as well as everyone incarcerated at this facility.

ECF No. 16-1 at 18.

         The DHO Report advised Petitioner that he had the right to appeal this action within 20 calendar days under the Administrative Remedy Procedure. Petitioner did not file an appeal.

         III PLEADINGS

         A. The Petition

         Petitioner asserts that the BOP violated his right to due process and violated the Accardi Doctrine. In support of this assertion, Petitioner alleges that the BOP failed to provide him with written findings of fact within the 20 day period, thereby failing to follow its own policy and preventing him from being able to appeal. ECF No. 1 at 5. For relief, Petitioner requests that his conviction for offense Code 108 be vacated, the incident be expunged from his prison record, and his good conduct time be ...


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