United States District Court, D. Massachusetts
Charles Isler, Petitioner, Pro se, AYER, MA.
For Jeffrey Grondolsky, Respondent: Marissa Caylor, United States Attorney's Office, Boston, MA.
George A. O'Toole, Jr., United States District Judge.
The magistrate judge to whom this matter was referred has filed a Report and Recommendation with respect to the respondent's motion to dismiss or alternately for summary judgment. The petitioner objects to the Report and Recommendation for three reasons.
He first contends that his security classification as a sex offender violates his due process rights under the Fifth Amendment
because it will " affect the duration of his sentence" by decreasing the likelihood of placement in a halfway house.
Sandin v. Conner, 515 U.S. 472, 487, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). This contention is unpersuasive because such a placement affects the conditions and not the duration of his sentence.
The petitioner also states that the magistrate judge erred in failing to regard Ms. Dale's sworn affidavit as completely true. The magistrate judge made no determination about the truthfulness of the affidavit but merely observed that the affidavit did not support the petitioner's assertion that the sexual conduct never occurred.
The petitioner's final ground for objection is based on an inappropriate application of the term " hypothetical" as used in Carachuri-Rosendo v. Holder, 560 U.S. 563, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010), to the facts of this case. The magistrate judge's analysis of this argument is correct.
After careful review of the pleadings, submissions, and the pro se petitioner's objection to the Report and Recommendation, I approve and ADOPT the magistrate judge's recommendation in its entirety.
Accordingly, the respondent's Motion (dkt. no. 10) to Dismiss for Failure to State a Claim is GRANTED. The petitioner's Petition (dkt. no. 1) for Writ of Habeas Corpus under 28 ...