The opinion of the court was delivered by: Judge Caputo
Presently before the Court are Magistrate Judge Thomas M. Blewett's Report and Recommendation (Doc. 4) and Zanini's Objections to the Magistrate Judge's Report and Recommendation (Doc. 9). For the reasons set forth below, the Court will reject the Report and Recommendation. As such, the Petitioner's motion for a hearing will be granted.
Petitioner, Tom Zanini, an inmate at the United States Penitentiary at Lewisburg, Pennsylvania, filed a Petition for Writ of Habeas Corpus on May 15, 2006, pursuant to 28 U.S.C. § 2241. (Doc. 1.) Petitioner attached several typewritten continuation pages to his habeas petition. (Doc. 1 pp 8-23.) Petitioner essentially challenged the November 23, 2005 decision to rescind his parole grant effective date of April 24, 2006, and to continue to a presumptive parole date of January 24, 2008, by the United States Parole Commission ("USPC") with respect to his sentence for a December 12, 1997 criminal conviction in the District of Columbia ("D.C.") Superior Court for attempted second degree burglary and unauthorized use of a motor vehicle. (Doc. 1 pp. 16-17.)
On December 12, 1997, after a jury found him guilty, Petitioner was sentenced by the D.C. Superior Court to a ten year sentence. (Doc. 1 p. 20.) Petitioner directly appealed his judgment of conviction to the D.C. Court of Appeals. (Doc. 1, p. 3). Petitioner does not indicate if he filed a Motion for Reduction of Sentence under D.C. Code § 23-110 with the D.C. Superior Court.
Petitioner was granted parole regarding his D.C. sentence for his stated D.C. Code violations 22-103 and 22-3815. The conditions of his D.C. parole are not "upon the record." (Id. p. 17.) Seemingly, when Petitioner became eligible for parole, subsequent to August 5, 2000, the USPC had been given authority, pursuant to the Revitalization Act, over his case and authority to issue parole violation warrants. (Id. p. 16.) Petitioner implies that he was granted parole.
On November 17, 2003, a parole violation warrant was executed by the USPC for Petitioner for allegedly violating a condition of his D.C. Parole. Petitioner had a parole revocation hearing on February 4, 2004 before the USPC. Petitioner states that on November 23, 2005, the USPC issued a Notice of Action and ordered: "Rescind presumptive date of April 24, 2006. Continue to presumptive parole January 24, 2008. Reason: Your current rescission behavior was (Fighting)." (Id.)
On June 5, 2006, Magistrate Judge Blewitt issued his Report and Recommendation denying claims 1-4, 6, and 7 of Petitioner. (Doc. 4 p. 17.) In response to this, Petitioner filed his Motion in Opposition and Objection to the United States Magistrate Judge Thomas M. Blewitt Report and Recommendation on July 10, 2006.(Doc. 9.)
Where objections to a magistrate judge's report are filed, the Court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989)(citing 28 U.S.C. §636(b)(1)(C)), provided the objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984).In making its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the Court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).
Petitioner raises seven (7) claims in the instant Habeas Petition. These claims are as follows:
Claim One, abuse of discretion by USPC in depriving Petitioner his due process rights during his February 4, 2004 parole revocation hearing since no specific statutory offense was cited. USPC only indicated that Petitioner's violation behavior was fleeing and attempting to elude police officer. Petitioner states that this was a Pennsylvania State offense, not a D.C. Code offense, and not a condition of his D.C. parole. Petitioner did not violate any condition of his D.C. parole. The revocation hearing was conducted in a manner in which Petitioner was denied his rights since the charge for his parole violation was fleeing and attempting to elude police officer, but the hearing examiner found he committed a Pennsylvania State law violation of aggravated assault on a police officer without any cite to the Pennsylvania statute. (Doc. 1, pp. 9-11). Petitioner concludes that "it was objectively unreasonable for the [USPC] to revoke Petitioner Tom Zanini, parole and set a 32 months (sic) set-off for a state offense, which has no specific statue." (Id., p. 12).
Claim Two, the USPC acted beyond its authority and abused its discretion by failing to apply D.C. parole laws with ...