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