United States District Court, Middle District of Pennsylvania
Conner Chief Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
In this habeas corpus petition,  the petitioner, Jonathan Ghertler, invites us to examine the results of a prison disciplinary hearing which took place in September of 2006. With respect to this habeas corpus petition, the parties cast this dispute in terms which invite the Court to choose between one of two intuitively unappealing options.
For their part, the Respondents urge us to dismiss this petition as moot, and not address the merits of Ghertler’s claims. The Respondent take this position because they must. The Respondents cannot defend the merits of this claim, having entirely lost the disciplinary records pertaining to this incident and having failed in efforts to reconstruct that record. Thus, with the disciplinary file have gone completely missing this matter cannot be defended, or reviewed, in any meaningful way. Indeed, it is undisputed that some prison officials have over the years recognized this fact and recommended that Ghertler’s disciplinary citation be expunged. (See Doc. 51.)
In contrast, Ghertler urges us to reach the merits of this dispute, set aside his prison disciplinary citation, and presumably make favorable housing, transfer, and prerelease programing available to him, Ghertler invites us to adopt this course despite the fact that he has long ago completed the service of the sentence that was the subject of this disciplinary proceeding. Moreover, Ghertler protests the unfairness of this 2006 disciplinary citation for escape against a factual backdrop which, while murky, clearly indicates that Ghertler engaged in grave misconduct of some sort while at this halfway house, misconduct which took place near the conclusion of his last federal sentence, and misconduct which led to his current federal conviction and sentence.
Finally, the parties invite us to unconditionally embrace one of these two unattractive options in a setting where essential facts remain stubbornly ambiguous, an ambiguity which the Respondents are unable to clarify and which Ghertler has been unwilling to explain.
For the reasons set forth below, it is recommended that we decline to adopt either of the competing courses urged by the parties. Instead, we recommend that this Court grant Ghertler’s petition, in part, solely to the extent that the Bureau of Prisons should do that which it has considered doing; namely, expunge this specific disciplinary citation since the Bureau of Prisons has completely lost this file and there is absolutely no evidence which the Bureau of Prisons can locate that would permit meaningful review of this disciplinary matter at this time. However, this limited relief should be granted in a fashion which makes it absolutely clear that the Bureau of Prisons can, should, and must consider and assess the circumstances surrounding Ghertler’s disappearance, return to custody, and new federal conviction for offenses which apparently occurred while Ghertler was serving a prior federal sentence when making housing, programing and pre-release decisions for this inmate.
II. Statement of Facts and of the Case
While some matters in this case remain shrouded in confusion and mystery, a great deal is now known with some precision. On December 5, 2002, the Petitioner, Jonathan Ghertler, was sentenced by the United States District Court for the Southern District of New York to a 71-month term of imprisonment, followed by a three-year term of supervision, for wire fraud. This 2002 conviction was not Ghertler’s first conviction for crimen falsi. Ghertler had other, prior convictions at the time of this federal prosecution. Three and one-half years later, on July 11, 2006, while serving this sentence at the Federal Correctional Institution in Yazoo City, Mississippi, Ghertler was transferred to a halfway house in the Orlando, Florida, Community Corrections Office.
In Orlando Florida something occurred which is still not fully explained by the parties. This much is known, however, with some certainty. On September 15, 2006, halfway house officials reported that Ghertler had escaped. Accordingly, on September 18, 2006, a disciplinary hearing was conducted in absentia for Ghertler on this infraction and he was found guilty of escaping from custody. Ghertler was sanctioned to a ten-day loss of good time credits, the loss of a sixty days of non-vested good time credits, and was recommended for a disciplinary transfer as a result of this misconduct finding.
While we know this much, the record of these disciplinary proceedings have been misplaced by the Bureau of Prisons. Therefore, we have no idea what evidence supported this charge; what procedural due process protections were provided to Ghertler and what the circumstances of this alleged infraction were.
Indeed, we have no clear idea where Ghertler actually was between September and November 2006. While one would think that this issue would admit of a simple answer, apparently it does not. Despite our repeated requests, the Respondents have been unable to provide any detail on this matter beyond NCIC notations, confirming Ghertler’s November 2006 arrest. As for Ghertler, in response to orders from this Court seeking some explanation of this simple factual matter he has refused to answer this question, citing his Fifth Amendment right to remain silent.
While Ghertler has declined to explain what transpired at this halfway house, and the government is seemingly unable to reconstruct these events, having lost virtually all pertinent records, other court records relating to Ghertler’s current federal conviction provide some contextual clarity to this matter. In United States v. Ghertler, 605 F.3d 1256, 1260 (11th Cir. 2010), the court of appeals ...