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Rovito v. Kroger

United States District Court, W.D. Wisconsin

May 5, 2016

ANDREW ROVITO, Petitioner,
T. KROGER, [1] Respondent.


JAMES D. PETERSON District Judge

Petitioner Andrew Rovito is a prisoner in the custody of the Federal Bureau of Prisons (BOP). Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, contending that his current confinement is the result of a prison disciplinary decision in which the BOP stripped petitioner of good-time credit without “some evidence, ” in violation of due process.[2]

I held an evidentiary hearing on May 4, 2016, at which petitioner stated that the facts as presented by respondent were not in dispute. For reasons stated more fully on the record, I will deny the petition.


On December 22, 2014, while on home confinement, petitioner received a pass to go to Sam’s Club in Naperville, Illinois, between 12:00 p.m. and 4:00 p.m. Petitioner “checked out” at 11:58 a.m. and returned at 3:59 p.m. Petitioner states that he went to Sam’s Club, the approved location, but could not enter the store because he had forgotten his membership card. To “prove that [he] was in the area, ” he went to a nearby Jewel-Osco as “an act in good faith.” Dkt. 28-14, at 2. Petitioner claims that he returned home after that.

When petitioner’s resident advisor (RA) at the residential reentry center requested documentation of his trip to Sam’s Club, petitioner could provide only a receipt for a 12:36 p.m. purchase at the Jewel-Osco. Petitioner could not prove that he had gone to Sam’s Club and could not account for where he was between 12:36 p.m. and 3:59 p.m. As a result, his RA drafted an incident report charging petitioner with escape, in violation of BOP disciplinary Code 200.

The incident report provides that when petitioner met with his RA for his weekly case management meeting, petitioner did not provide documentation of his “scheduled movement.” Petitioner stated that he had forgotten his documentation (i.e., receipts) at home, and his RA told him that he had until 4:00 p.m. the next day to produce the receipts. When petitioner returned to the residential reentry center the next day without documentation, the RA filed an incident report. Dkt. 28-2. An investigation followed. Dkt. 28-3.

On January 9, 2015, petitioner received notice of a disciplinary hearing. Dkt. 28-8. The hearing took place on January 13, 2015. Dkt. 28-4. At the hearing, petitioner denied the charge and requested that it be reduced to “unauthorized movement.” Id. Petitioner did not produce or request any witnesses. Id. The Center Disciplinary Committee (CDC) determined that petitioner had committed the charged violation. The CDC relied on the sign-in/sign-out log that tracked petitioner’s movement on December 22, 2014; petitioner’s supervision plan; and the Jewel-Osco receipt. Id. at 2.

On January 27, 2015, a BOP discipline hearing officer reviewed the CDC’s findings and determined that evidence supported the charge. The evidence demonstrated that petitioner “deviated from custody” by not going to his approved destination and by going to an unauthorized location. The discipline hearing officer sanctioned petitioner 27 days of good conduct time and 33 days of non-vested good conduct time.[3] Also as a result of the escape, the BOP removed petitioner from the Residential Drug Abuse Program; he did not have the opportunity to complete the program or earn the one year’s worth of good-time credit that typically accompanies completion of the program.

According to BOP Program Statement 5270.09, Inmate Discipline Program, a Code 200 Escape is a “high severity level” prohibited act. Dkt. 28-1, at 46. Available sanctions include forfeiting earned statutory good time or non-vested good conduct time. Id. at 49. The Program Statement recommends disallowing 25-50 percent of an inmate’s available good-time credit available for that year.

After recalculating his projected release date, the BOP determined that petitioner was no longer within one year of release and relocated him from home confinement to a correctional institution.


Petitioner contends that his current incarceration is unconstitutional because the BOP did not have any evidence that he escaped from custody. Petitioner contends that losing his good-time credit amounts to a deprivation of liberty, in violation of his due process rights.

“Federal inmates must be afforded due process before any of their good time credits . . . can be revoked.” Jones v. Cross, 637 F.3d 841, 845 (7th Cir. 2011). If a disciplinary decision deprives an inmate of good-time credit without due process-and, as a result, lengthens the inmate’s period of incarceration-the inmate may petition the court for a writ of habeas corpus. See Waletzki v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994) (“[G]ood-time credits reduce the length of imprisonment, and habeas corpus is available to challenge the duration as well as the fact of custody. . . . [W]hen [a petitioner] is attacking the fact or length of his ...

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