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MORENA v. GONZALES

December 2, 2005.

VINCENZO MORENA, Petitioner
v.
ALBERTO R. GONZALES, et al., Respondents.



The opinion of the court was delivered by: JOHN JONES III, District Judge

MEMORANDUM AND ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On May 2, 2005, Petitioner Vincenzo Morena ("Petitioner" or "Morena"), through counsel, filed a Petition for Writ of Habeas Corpus ("the Petition") pursuant to 28 U.S.C. § 2241. In his Petition, Morena, who is detained at the Clinton County Prison, challenges the constitutionality of his continued detention by United States Immigration and Customs Enforcement ("ICE"), and seeks release from confinement.

  The Petition was initially referred to United States Magistrate Judge Thomas M. Blewitt. On June 6, 2005, this Court adopted Magistrate Judge Blewitt's Report and Recommendation to dismiss an Eighth Amendment Claim that Morena had raised in his original Habeas Petition. The following day Morena filed an Amended Petition for Writ of Habeas Corpus ("Amended Petition") with exhibits. (Rec. Doc. 9.)

  On October 4, 2005, Magistrate Judge Blewitt issued a seventeen page Report and Recommendation, which recommended that Morena's Amended Petition be denied.

  On October 21, 2005, Petitioner filed objections to the Report and Recommendation. This matter is therefore ripe for disposition. The Court will address Petitioner's objections and adopt the Magistrate Judge's Report and Recommendation, thereby dismissing Morena's Amended Petition and closing the case.

  STANDARD OF REVIEW:

  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. See United States v. Raddatz, 447 U.S. 667 (1980); see also 28 U.S.C. § 636(b)(1); Local Rule 72.3. Furthermore, district judges have wide discretion as to how they treat recommendations of a magistrate judge. See id. Indeed, in providing for a de novo review determination rather than a de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. See id., see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).

  FACTUAL BACKGROUND:

  We briefly reiterate the relevant facts of this case. Petitioner is a native and citizen of Italy and entered the United States as a lawful permanent resident as an infant in 1973. On March 30, 2001, Petitioner was convicted of Racketeering in violation of 18 U.S.C. § 1962(d), in the United States District Court for the Eastern District of New York. (Rec. Doc. 26-2, Ex. C.) Morena was sentenced to fifty-one (51) months imprisonment. Id. As a result of his conviction, removal proceedings were commenced on July 23, 2001, when the then-INS served Morena with a Notice to Appear. (Rec. Doc. 26-2, Ex. A). The Notice to Appear charged that Morena was removable under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), as an alien who had been convicted of an aggravated felony as defined in § 101(a)(43) of the INA.

  On November 4, 2003, an Immigration Judge ("IJ") sitting in Philadelphia, Pennsylvania ordered Morena removed from the United States to Italy. (Rec. Doc. 26-2, Ex. D.) Morena appealed this decision to the Board of Immigration Appeals ("BIA"). On March 25, 2004, the BIA summarily denied his appeal. (Rec. Doc. 26-2, E.)

  On April 15, 2004, Morena filed a Petition for Writ of Habeas Corpus seeking to challenge his removal in the United States District Court for the Eastern District of New York. Morena v. Ashcroft, No. 04-1551 (E.D.N.Y.) (Amon, J.) On April 21, 2004, Morena was granted a temporary stay of deportation pending resolution of Petitioner's claims in his petition filed in the Eastern District of New York. By an order dated October 3, 2005, Morena's petition filed in the Eastern District of New York was transferred to the United States Court of Appeals for the Third Circuit. Morena v. Aschroft, No. 04-1551, Rec. Doc. No. 41 (E.D.N.Y. Oct. 3, 2005) (Amon, J.); see also Morena v. Atty Gen. U.S., No. 05-4494 (3d Cir. 2005). Morena's stay was not lifted when the case was transferred.

  ICE conducted a custody review of Morena in September 2004, and issued an order on or about November 24, 2004 that found that Morena should remain in ICE custody during the pendency of the judicial review. (Rec. Doc. 10-2, Ex. H.) ICE reiterated that Morena was found removable on the basis of his conviction of an aggravated felony, found that Morena had a violent criminal conviction with a weapon, and stated that on that basis he may pose a threat to society. Id. ICE also noted that a travel document and removal will easily be obtained once the stay of removal is lifted. Id. Finally, ICE informed Morena that if the stay was not lifted within a year of the November 2004 order, he would be scheduled for a Post-Order Custody Review and served with a Notice to Alien of File Custody Review.

  During the pendency of his petition in the Eastern District of New York Morena filed the instant Petition challenging ...


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