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Stanko v. Ebbert

April 19, 2010

RUDY STANKO, PETITIONER
v.
WARDEN DAVID EBBERT, RESPONDENT



The opinion of the court was delivered by: Judge McClure

MEMORANDUM

Petitioner Rudy Stanko, an inmate presently confined at the Terre Haute Federal Correctional Institution ("FCI Terre Haute") in Terre Haute, Indiana, initiated the above action pro se by filing a petition for writ of habeas corpus ("petition") under the provisions of 28 U.S.C. § 2241. (Rec. Doc. No. 1.) At the time of filing, Stanko was confined at the Allenwood Federal Correctional Institution ("FCI Allenwood") in White Deer, Pennsylvania.*fn1

By Order dated December 28, 2009, Respondent was deemed to be the only proper respondent to this action, and the Court directed him within twenty-one (21) days to file a response solely as to Ground III in the petition, in which Stanko asserts due process violations in connection with disciplinary proceedings that occurred on July 16, 2009 while he was an inmate at the FCI El Reno in El Reno, Oklahoma, and the portion of Ground II challenging the sanction he received of twenty-seven (27) extra days in jail and seeking expungement of that sanction. (See Rec. Doc. No. 3 (citing Rec. Doc. No. 1 at 7-9 ¶¶ II, III; at 20 ¶ 2).) The remaining respondents and claims were dismissed. (See id.)

On January 19, 2010, Respondent filed a response (Rec. Doc. No. 4) and supporting exhibits (Rec. Doc. No. 4-2). After two (2) requests for extensions of time*fn2, which were granted, on March 5, 2010, Stanko filed a reply (Rec. Doc. No. 14), a declaration in support of his reply (Rec. Doc. No. 15), and a statement of undisputed facts in support of his petition (Rec. Doc. No. 16). Accordingly, the petition is fully briefed and ripe for review. For the reasons set forth below, the petition will be dismissed.

I. Factual Background

A. Stanko's BOP Confinement

On August 3, 2006, Stanko was sentenced in the United States District Court for the District of Nebraska to a seventy-two (72) month term of imprisonment for the offense of being a felon in possession of a firearm. (Rec. Doc. No. 4-2 at 4, McCluskey Decl., ¶ 5.) His projected release date is August 29, 2011 via good conduct time release. (Id.) At the time of filing, Stanko was confined at FCI Allenwood, where he had been an inmate since July 27, 2009. (Id. ¶ 4.) He formerly was confined at FCI El Reno, where was an inmate from February 25, 2009 through July 22, 2009. (Id.; Rec. Doc. No. 4-2 at 9, Public Information Inmate Data.)

Accordingly, at the time of the incident and disciplinary hearing that form the basis for his petition, Stanko was confined at FCI El Reno. (Rec. Doc. No. 4-2 at 4 ¶ 4.)

B. Facts Regarding Disciplinary Report and Hearing

On July 10, 2009, BOP staff at FCI El Reno issued Incident Report No. 1891075 charging Stanko with committing the prohibited act of stealing, which is a violation of Code 219. (See Rec. Doc. No. 4-2 at 55, Incident Report.) The incident report was delivered to Stanko on July 10 at 1:00 p.m. (See id.) The report noted that, on that same date, at approximately 12:30 a.m., while screening outgoing mail, the reporting officer observed a document from the law library in an envelope addressed by Stanko and accompanied by a letter written by Stanko. (See id.; Rec. Doc. No. 4-2 at 56, Copy of document.)

On July 13, 2009, Stanko was advised that a hearing would be scheduled before the DHO at the next available docket. (See id. at 59, Notice of Discipline Hearing.) Stanko also was advised of his rights before the DHO, including his entitlement to have a full-time staff member represent him at the hearing, and his right to call witnesses and to present documentary witnesses. (See id.)

At the hearing on July 16, 2009, Stanko was present and admitted the charges. (See id. at 61, DHO Report.) He stated, "I'm guilty." (See id.) The DHO Report indicates that Stanko's due process rights were read and reviewed with him by the DHO at the time of the hearing, and that Stanko stated that he understood his rights. (See id. at 62.) The Report also states that Stanko provided no documentation in his defense and did not request witnesses or a staff representative. (See id.) The DHO found that Stanko had committed the prohibited act of stealing in violation of Code 219. (See id.) The DHO explained this finding as follows:

The DHO bases this finding on the reporting officer's written statement that on July 10, 2009 at approximately 12:30 AM while screening outgoing mail from the special housing unit the officer observed a document titled "Criminal Law Reporter" in an envelope addressed by you. The envelope was opened in your presence and it was determined that the above-mentioned document had been removed from the unit Law Library. These documents are to be accessible to all inmates and not to be removed from the library.

The DHO finds that you provided no documentary evidence in your defense. You provided the following ...


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