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Abdel Fattah v. Pennsylvania Board of Probation& Parole

March 26, 2012


The opinion of the court was delivered by: Judge Caputo



Presently before the Court is the Report and Recommendation ("R & R") of Magistrate Judge Blewitt (Doc. 25) to Petitioner Abdel Fattah's Petition for Writ of Habeas Corpus. Magistrate Judge Blewitt recommends that the Petition for Writ of Habeas Corpus (Doc. 1) be denied because Respondents adequately complied with Petitioner's due process rights when Petitioner's executed parole was rescinded. Petitioner filed timely objections to the R & R. Because Petitioner's due process rights were not violated when Respondents rescinded Petitioner's executed parole, the Court will adopt the Magistrate Judge's recommendations and deny the Petition for Writ of Habeas Corpus.


As set forth in Magistrate Judge Blewitt's Report and Recommendation (Doc. 25), Petitioner Abdel Fattah is an inmate at the State Correctional Institute at Rockview ("SCIRockview), Bellefonte, Pennsylvania. (Doc. 25.) Petitioner is proceeding in this habeas corpus action pro se pursuant to 28 U.S.C. § 2254. (Doc. 1.) Petitioner is currently confined at SCI-Rockview for various crimes with a maximum original sentence date set to expire on July 25, 2013. (Doc. 19.)

In 2003, 2005, and 2007, the Pennsylvania Board of Probation and Parole ("the Board") reviewed Petitioner for parole, but parole was denied each time. (Doc. 19.) In December of 2007, however, Petitioner informed the Board that he wished to return to Egypt and that he had reached out to the Egyptian Government to secure his return. (Doc. 19.) As such, on January 8, 2008, the Board informed Petitioner that a parole determination hinged on verification of Petitioner's Egyptian citizenship. (Doc. 18, Ex. A, Att. 6.) After the United States Immigration and Customs Enforcement ("ICE") confirmed Petitioner's Egyptian citizenship, the Board, on May 13, 2008, issued a decision granting Petitioner's parole to ICE for deportation. (Doc. 18, Ex. A, Att. 8.)

ICE's attempts to deport Petitioner were unsuccessful due, in large part, to Petitioner sabotaging the deportation efforts. (Doc. 18, Ex. A, Att. 10.) As a result, on March 4, 2009, the Board lodged its warrant against Petitioner for his return to SCI-Camp Hill. (Doc. 18, Ex. A, Att. 11.) ICE released its warrant against Petitioner and returned him to SCI-Camp Hill on March 23, 2009. (Doc. 18, Ex. A., Att. 12.)

Petitioner was provided with notice of the charges for rescission of his parole on March 25, 2009. (Doc. 18, Ex. A, Att. 13.) And, on April 10, 2009, Petitioner was provided with a rescission hearing at which he was represented by counsel. (Doc. 18, Ex. A, Att. 14.) On June 9, 2009, the Board issued an order rescinding Petitioner's parole, and, ultimately, on October 21, 2010, the Pennsylvania Commonwealth Court affirmed the Board's decision to rescind Petitioner's parole. (Doc. 18, Ex. I.) Petitioner next filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court with respect to the Commonwealth Court's decision to affirm the Board's rescission of his parole. (Doc. 18, Ex. J.) The Pennsylvania Supreme Court denied Petitioner's Petition for Allowance of Appeal on April 27, 2011. (Doc. 18, Ex. K.)

As Plaintiff exhausted his available state court remedies, Petitioner commenced the present habeas action on May 23, 2011. (Doc. 1.) Petitioner asserts that the Board violated his due process rights by rescinding his parole. (Doc. 1.)

On August 22, 2011, Magistrate Judge Blewitt issued a R & R recommending Petitioner's Petition for Writ of Habeas Corpus be denied. (Doc. 25.) According to Magistrate Judge Blewitt, Petitioner's procedural due process rights were not violated when the Board rescinded his parole. (Doc. 25.) The Magistrate Judge also concluded that Petitioner was not denied any substantive due process rights when his parole was rescinded. (Doc. 25.) Petitioner objects to the Magistrate Judge's recommendations and asserts that Magistrate Judge Blewitt failed to properly consider the minimum due process requirements for rescinding a parolee's parole set forth by the Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L. E. 2d 484 (1972). According to Petitioner, rescission of his parole violated his procedural due process rights under Morrissey in the following respects: (a) he was denied the opportunity to confront and cross-examine adverse witnesses; (b) he was denied a written statement by the factfinder setting forth the reasons for rescinding his parole; (c) he was denied disclosure of the evidence against him; and (d) he was denied a hearing before a neutral and detached hearing body. (Doc. 28.) As Petitioner's objections are not supported by the documents of record, the Court will adopt the Magistrate Judge's recommendation to deny Petitioner's habeas corpus petition.

II. Discussion

A. Legal Standards

1. Legal Standard in Reviewing a Report and Recommendation

Where objections to the 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)). However, this only applies to the extent that a party's objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6--7 (3d Cir.1984) (emphasis added). In conducting a 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 law 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, 100 S.Ct. 2406, 65 L.Ed.2d 424 (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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Goney, 749 F.2d at 7. At the very least, the court should review ...

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