IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

________________________________

:

PATRICK J. WAGNER, : CIVIL ACTION

:

 Petitioner, :

:

v. : NO. 05-2828

:

DAVID DI GUGLIELMO, et al., :

:

 Respondents. :

________________________________:

ARNOLD C. RAPOPORT

UNITED STATES MAGISTRATE JUDGE 

 

REPORT AND RECOMMENDATION

Before this Court is a pro se Petition for Writ of

Habeas Corpus filed by the Petitioner, Patrick J. Wagner

(“Petitioner”), pursuant to 28 U.S.C. section 2254. The

Petitioner is currently incarcerated in the State Correctional

Institution at Graterford, Pennsylvania. For the reasons that

follow, it is recommended that the Petition should be denied for

lack of jurisdiction.

Petitioner signed a previous pro se habeas petition in

this Court on February 12, 2004, which was docketed on February

24, 2004. Wagner v. Commonwealth of Pa., No. 04-774 (J. Edmund

Ludwig, 7/21/04). Petitioner’s claims in his prior habeas

petition were: (1) the Pennsylvania Board of Probation and Parole

(“PBPP”) abused its discretion or acted in an arbitrary or

capricious manner by applying the tougher new parole rules

enacted in 1996 to his case; and (2) the PBPP abused its

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discretion or acted in an arbitrary or capricious manner by

practicing bad faith and willful noncompliance in his case.

Petitioner’s claims currently before this Court are:

(1) the Board violated his Constitutional rights to due process

in that it did not have authority or jurisdiction over him in

order to impose additional convicted and technical parole

violations on hi[m] after being re-incarcerated by the Board on

October 1, 2001; (2) the Board violated his Constitutional rights

to due process in extending his judicially imposed sentence by 2

years, 1 month and 20 days; (3) the Board has violated the Ex

Post Facto Clause by applying post-1996 policies and procedures

to his parole release as a special condition; (4) the actions of

the Respondents have violated his Constitutional right to due

process; and (5) the actions of the Respondents are an abuse of

discretion, arbitrary and capricious in retaliation for the

exercise of his Constitutional rights. 

Pursuant to 28 U.S.C. § 2244(b)(3)(A), “[b]efore a

second or successive application permitted by this section filed

in the district court, the applicant shall move in the

appropriate court of appeals for an order authorizing the

district court to consider the application.” Nothing in the

record currently before this Court indicates that Petitioner

sought or obtained such authorization from the Third Circuit.

 Therefore, I make the following:

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RECOMMENDATION

AND NOW, this day of October, 2005, IT IS

RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas

Corpus filed pursuant to 28 U.S.C. section 2254 should be DENIED

for lack of jurisdiction. There are no grounds upon which to

issue a certificate of appealability. 

BY THE COURT:

_________________________________

ARNOLD C. RAPOPORT

United States Magistrate Judge

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