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Bartelho v. Ebbert

United States District Court, M.D. Pennsylvania

April 1, 2019

THOMAS J. BARTELHO, Petitioner,
v.
WARDEN DAVID EBBERT, Respondent.

          Conner Chief Judge

          REPORT AND RECOMMENDATION

          MARTIN C. CARLSON UNITED STATES MAGISTRATE JUDGE.

         I. Statement of Facts and of the Case

         A. Introduction

         This case presents a federal habeas corpus petition filed by the petitioner, Thomas Bartelho, a federal inmate, which invites us to examine the results of a prison disciplinary hearing that led to the forfeiture of good time and other privileges. Because we find that Bartelho was afforded the full panoply of procedural protections and find that there is sufficient evidence to support the prison's finding of misconduct, it is recommended that this petition be denied.

         B. DHO Proceedings

         Bartelho is a federal inmate who is presently confined at the United States Penitentiary in Terre Haute, Indiana. On January 19, 2017, while the petitioner was confined at USP Atwater, a Special Investigative Services (“SIS”) technician reviewed an outgoing letter from Bartelho. The letter was contained in a manila envelope, and the technician discovered an additional layer of paper glued to the inner section of the envelope that contained instructions on how to introduce narcotics into the prison. Additionally, Bartelho's letter asked the recipient to continue to send him post cards saturated with “spice, ” which is a term used for synthetic marijuana. The unit officer reported that he had received the envelope from Bartelho, and the recipient of the letter was listed as the petitioner's friend in the Bureau of Prisons' computer system.

         Based on the foregoing, the BOP issued Bartelho an incident report, which charged him with attempted introduction of narcotics and use of mail for illegal purposes. Bartelho received a copy of the incident report, which charged him with this misconduct, on January 19, 2017. Bartelho was advised of his rights on that same day, and he remained silent and did not request any witnesses or a staff representative. The Unit Disciplinary Committee (“UDC”) held a hearing on January 22, after which the UDC referred the report to the Discipline Hearing Officer (“DHO”). The DHO gave Bartelho written notice of the hearing on January 22, and Bartelho indicated that he did not wish to have witnesses at the hearing but requested a staff representative. Bartelho was also given a written statement advising him of his rights. The DHO hearing was held on February 24, 2017, and Bartelho was represented by Senior Officer Specialist A. Fontes.

         At the hearing, the DHO confirmed that Bartelho understood his rights and that he did not want to present any witnesses. Bartelho gave a statement, claiming that he had made a card in hobby craft, and that he did not know what the envelope contained, as he simply reached into a box and put the card in the first envelope he found. His staff representative confirmed that he participated in hobby craft but stated that there was no videotape evidence of Bartelho looking into the card box. Bartelho did not present any evidence at the hearing.

         In addition to the petitioner's and his staff representative's statements, the DHO relied on the officer's report, photographic evidence, an address list, and Bartelho's disciplinary record. The photographs indicated Bartelho's name on the envelope, as well as the instructions on the inside of the envelope regarding the introduction of narcotics. Further, Bartelho's disciplinary record indicated a history of attempting to introduce narcotics, among other infractions.

         Based on the greater weight of the evidence, the DHO found Bartelho guilty of violating codes 111(A) (Attempted Introduction of Narcotics) and 196 (Use of the Mail for Illegal Purposes). The sanctions imposed on Bartelho included loss of 41 days good conduct time, disciplinary segregation for thirty days, and the loss of phone and commissary privileges for two years. The DHO reasoned that the sanctions were imposed to deter Bartelho from future similar actions, and additionally, because past sanctions had been futile and had an insufficient impact on his behavior.

         Dissatisfied with the outcome of these proceedings, Bartelho first attempted to appeal the DHO's decision administratively. He then filed the instant federal habeas corpus petition while he was housed at USP Lewisburg, challenging this prison incident report issued to him and sanctions subsequently imposed upon him by the DHO. This matter has been fully briefed by the parties and is now ripe for resolution.

         For the reasons set forth below, it is recommended that this petition be denied.

         II. Discussion

         A. This Petition is Unexhausted.

         Bartelho's complaint about his 2017 disciplinary hearing suffers from a fundamental procedural flaw since the petitioner has failed to properly exhaust his administrative remedies within the federal prison system. Although 28 U.S.C. § 2241 contains no express exhaustion requirement, “[o]rdinarily, federal prisoners are required to exhaust their administrative remedies prior to seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241.” Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998); see also, e.g., Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000); Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981). These exhaustion rules serve an important and salutary purpose. The United States Court of Appeals for the Third Circuit requires administrative exhaustion of a claim raised under § 2241 for three reasons: “(1) allowing the appropriate agency to develop a factual record and apply its expertise facilitates judicial review; (2) permitting agencies to grant the relief requested conserves judicial resources; ...


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