Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Arce v. Outlaw

January 10, 2007

VICTOR ORTIZ ARCE, PETITIONER,
v.
T.C. OUTLAW, WARDEN, AND, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENTS



The opinion of the court was delivered by: Judge Muir

Petition filed 11/30/05

Magistrate Judge Smyser

ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On November 30, 2006, Petitioner Victor Ortiz Arce initiated this matter by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Respondents are the warden of the correctional institution at which Arce had been housed when he filed the petition, and the Pennsylvania Board of Probation and Parole (hereinafter "Pennsylvania Board"). All of Arce's claims stem from the Pennsylvania Board's decision to transfer Arce from state custody to federal custody on December 5, 1994, and subsequently lodge a detainer requiring his return to state custody after completion of a federal prison sentence.

Arce contends that the transfer constitutes a "re-parole" and that any attempt after the transfer to take him back into state custody would violate his federal constitutional due process rights, the Full Faith and Credit clause of the Constitution, "and/or" the supremacy clause of the Constitution. Arce is proceeding in forma pauperis with appointed counsel.

The Clerk of Court assigned this case to us and referred it to Magistrate Judge J. Andrew Smyser for preliminary consideration. On September 18, 2006, the Magistrate Judge issued a 17-page report recommending that Arce's petition be denied because he failed to exhaust his available state court remedies and, even if he had exhausted those remedies, the claims lack substantive merit.

On September 28, 2006, Arce filed objections to the Report and Recommendation supported by a brief. The Respondents filed their opposition brief on October 11, 2006. The time allowed for Arce to file a reply brief expired on October 30, 2006, and no such brief was filed. For the reasons discussed in our order of November 3, 2006, we did not view Arce's objections to the Magistrate Judge's Report and Recommendation as ripe for disposition and we required supplemental briefing. Arce's supplemental brief was timely filed on November 22, 2006, and the Respondents' supplemental brief was timely filed on December 7, 2006. The time allowed for Arce to file a supplemental reply brief expired on December 27, 2006, and to this date no such brief has been filed. Arce's objections to Magistrate Judge Smyser's Report and Recommendation are ripe for disposition.

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 v. Raddatz, 447 U.S. 667 (1980); 28 U.S.C. §636(b)(1); M.D. Pa. Local Rule 72.31. District judges have wide discretion as to how they treat recommendations of the magistrate judge. Id. 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, places on a magistrate judge's proposed findings and recommendations. Id.; See also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).

Before addressing the merits of Arce's objections we will set forth the material factual and procedural history of this case.

On September 12, 1985, Arce was sentenced in the Court of Common Pleas for Philadelphia County to 3 and 1/2 to 10 years for various sexual assault offenses. He was released on parole on August 23, 1990. On November 24, 1992, he was rearrested for technical parole violations. On January 11, 1993, the Pennsylvania Board of Probation and Parole decided to impose a sentence of 9 months' "backtime" for those technical parole violations.

While serving that nine-month sentence, a federal indictment was filed in the United States District Court for the Western District of Pennsylvania charging Arce with committing various offenses in three separate cases. On November 15, 1993, the Hon. D. Brooks Smith imposed a sentence of 241 months for those offenses.

On November 23, 1993, Judge Smith issued an order which provides in relevant part as follows:

[T]he orders imposing sentence in these matters on November 15, 1993 are amended, pursuant to Fed.R.Crim.P. 36, to correct a technical omission. The aggregate federal sentence of 241 months imposed at the above [caption] numbers shall be served concurrently to any sentence imposed by the Court of Common Pleas of Philadelphia County at No. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.