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OWENS v. BEARD

August 13, 1993

ROBERT C. OWENS, Petitioner
v.
JEFFREY BEARD, WARDEN; and ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, Respondents



The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 August 13, 1993

 BACKGROUND

 Petitioner Robert C. Owens, an inmate at the State Correctional Institution at Camp Hill, Pennsylvania, filed a petition for writ of habeas corpus *fn1" challenging the Pennsylvania courts' refusal to permit him to remain free on bail following his sentencing and pending appeal. Petitioner was free on $ 100,000.00 bail prior to sentencing.

  Petitioner was convicted in the Court of Common Pleas of Centre County, Pennsylvania on charges of indecent assault and involuntary deviate sexual intercourse *fn2" filed to Centre County CR No. 1990-1611. He was sentenced on June 16, 1992 by the Honorable David E. Grine to an aggregate minimum term of imprisonment of sixteen years and a maximum term of 65 years, on sixteen separate counts. *fn3"

 Following petitioner's sentencing, the court revoked bail, stating that there existed a danger that the petitioner might commit other crimes if allowed to remain free on bail and citing the fact that he had been convicted of a felony. Petitioner appealed the bail revocation to the Pennsylvania Superior and Supreme Courts. Both denied the appeal. Petitioner's appeal from his conviction is still pending before the Pennsylvania Superior Court at No. 417 Harrisburg, 1992.

 Petitioner contends in this action that the Pennsylvania courts' refusal to grant bail pending his appeal is a violation of the Eighth Amendment right to be free from excessive bail. He also challenges the alleged failure of the trial court judge to set forth on the record facts supporting his determination that bail revocation was appropriate because of the possibility that the defendant would commit other crimes. Pa. R. Crim. P. 4010B2(c). Petitioner alleges that the trial court's failure to follow Pennsylvania procedural requirements constitutes a violation of his right to due process under the Fourteenth Amendment.

 The case was assigned to the Honorable J. Andrew Smyser, United States Magistrate Judge. In a report and recommendation dated May 7, 1993 (Record Document No. 6), the magistrate judge recommends that the petition for writ of habeas corpus be denied without a hearing.

 Petitioner filed objections to the magistrate judge's report and recommendation in which he argues that the Pennsylvania courts' bail revocation should be reversed because the trial court judge failed to state any factual basis on the record for his refusal to allow the petitioner to remain free on bail pending appeal. (Record Document No. 8).

 Standard of review of magistrate judge's report

 If objections are filed to the report of a magistrate judge, we are required to make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. We may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. 28 U.S.C. § 636(b)(1) and Local Rule 904.2. Although our review is de novo, we are permitted, by statute, to rely upon the magistrate judge's proposed findings and recommendations to the extent we, in the exercise of sound discretion, deem proper. United States v. Raddatz, 447 U.S. 667, 676, 65 L. Ed. 2d 424, 100 S. Ct. 2406 (1980). Accord: Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).

 Exhaustion of remedies

 Federal courts may grant habeas corpus relief to a state prisoner only if available state remedies have been exhausted. Hankins v. Fulcomer, 941 F.2d 246, 251 (3d Cir. 1991), citing 28 U.S.C. § 2254(b). Petitioner has exhausted state remedies for the claims asserted here as required by 28 U.S.C. § 2254(b). Petitioner appealed the state trial court's ...


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