United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
P. MAZZONE UNITED STATES MAGISTRATE JUDGE.
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
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.
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.
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.
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
ECF No. 16-1 at 18.
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.
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 ...