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GAMBINO v. GERLINSKI

April 6, 2000

THOMAS GAMBINO, PETITIONER,
V.
SUSAN GERLINSKI, WARDEN, LOW SECURITY CORRECTIONAL INSTITUTION — ALLENWOOD, RESPONDENT.



The opinion of the court was delivered by: Muir, District Judge.

ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS;

On May 11, 1993, Thomas Gambino was found guilty of a substantive violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c), and conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(d). On October 29, 1993, Gambino was sentenced to pay a $100,000 fine and serve 60 months in the custody of the Bureau of Prisons. Gambino was released on bail pending the appeal of his conviction. Gambino's appeal was not successful and on January 3, 1996, he reported to the Low Security Correctional Institution at Allenwood in White Deer, Pennsylvania. By that date Gambino had paid his fine in full. His sentence is due to expire on May 10, 2000.

On December 29, 1999, Gambino initiated this action by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. His petition is based on the claim that 18 U.S.C. § 3624(c) provides him with "a right to some `reasonable' period of halfway house or home confinement before his sentence expires, `if practicable.'"*fn1 (Petitioner's Reply to Respondent's Brief in Opposition to Objections to Magistrate Judge's Report and Recommendation, page 3) Gambino specifically contends that the Respondents' refusal to transfer him to a halfway house or to home confinement for some period within the last 10% of his sentence violates both 18 U.S.C. § 3624(c) and his Fifth Amendment due process rights.

The Clerk of Court assigned this case to us on December 30, 1999, but referred it to Magistrate Judge Blewitt for preliminary consideration. On March 8, 2000, the Magistrate Judge issued a report recommending, inter alia, "that the portion of Gambino's petition relating to pre-release custody be remanded to the Bureau of Prisons for proper consideration of Petitioner's eligibility for home confinement." (Report and Recommendation, pg. 7)

On March 23, 2000, Gambino filed an objection to that report and recommendation. After granting Gambino's motion for expedited briefing of his objection, the matter became ripe for disposition upon the filing of Gambino's reply brief on April 4, 2000.

When objections are filed to a report of a magistrate judge, we make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge to which there are objections. United States vs. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); 28 U.S.C. § 636(b)(1); M.D.Pa. Local Rule 72.3.

It is well-settled that "[a] necessary predicate for the granting of federal habeas relief [to a petitioner] is a determination by the federal court that [his or her] custody violates the Constitution, laws, or treaties of the United States." Rose vs. Hodges, 423 U.S. 19, 21, 96 S.Ct. 175, 177, 46 L.Ed.2d 162 (1975) (citing 28 U.S.C. § 2241). We first consider whether Gambino has established that predicate via a constitutional violation.

The United States Supreme Court has repeatedly said both that prison officials have broad administrative and discretionary authority over the institutions they manage and that lawfully incarcerated persons retain only a narrow range of protected liberty interests. . . . "Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." . . . Thus, there is no "constitutional or inherent" right to parole, . . ., and "the Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison," . . . despite the undoubted impact of such credits on the freedom of inmates. Finally, in Meachum v. Fano, supra., 427 U.S. [215,] 223, 96 S.Ct. [2532,] 2538, [49 L.Ed.2d 451], the transfer of a prisoner from one institution to another was found unprotected by "the Due Process Clause in and of itself," even though the change in facilities involved a significant modification in conditions of confinement, later characterized by the Court as a "grievous loss."

Hewitt vs. Helms, 459 U.S. 460, 467-68, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983) (citing Moody v. Daggett, 429 U.S. 78, 88, n. 9, 97 S.Ct. 274, 279, n. 9, 50 L.Ed.2d 236 (1976)). The Court in Hewitt summarized those decisions as holding that

[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight.

Id. at 468, 103 S.Ct. 864.

Title 18 U.S.C. § 3624 is entitled "Release of prisoner." Subsection (c) of that section, entitled "Pre-release custody," provides in relevant part that

[t]he Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community. The ...

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