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