IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOEL GAUCHE, :

:

Petitioner : No. 4:04-CV-1248

:

v. : Petition Filed 6/9/04

:

THOMAS LAVAN, WARDEN, ET AL., : (Judge Muir)

:

:

Respondents :

ORDER

June 3, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On June 9, 2004, Petitioner Joel Gauche, an inmate at

the State Correctional Institution at Dallas, Pennsylvania, filed

a petition for writ of habeas corpus pursuant to 28 U.S.C. §

2254. Gauche is presently serving aggregated sentences for

robbery, theft, two counts of simple assault, two counts of

indecent assault, two counts of rape, two counts of unlawful

restraint and one count of indecent exposure imposed by the Court

of Common Pleas of Bucks County in 1981 and 1982 and one count of

possession of a controlled substance and drug paraphernalia

imposed by the Court of Common Pleas of Luzerne County in 1990. 

The minimum term of these aggregated sentences is twenty years

and the maximum is forty years and fifteen days. In the present

petition Gauche contends that the Pennsylvania Department of

Corrections improperly aggregated his consecutive sentences 19

years after their imposition and that the Pennsylvania Parole

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Board denied him parole in violation of the ex post facto clause

because it relied on post-1996 parole guidelines. This case was

assigned to us but referred to Magistrate Judge Malachy E.

Mannion for preliminary consideration. 

On April 5, 2005, Magistrate Judge Mannion filed a

report recommending that Gauche’s petition for writ of habeas

corpus be denied.

On May 2, 2005, Gauche filed objections to the report

and a brief in support thereof. On May 17, 2005, Respondents

filed a brief in opposition. The petition became ripe for

disposition on May 31, 2005, when Gauche elected not to file a

reply brief. 

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 vs. Raddatz, 447 U.S. 667 (l980); 28 U.S.C. §636(b)(l);

Local Rule 72.3l. Furthermore, district judges have wide

discretion as to how they treat recommendations of the magistrate

judge. 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. Id. See also Mathews vs.

Weber, 423 U.S. 261, 275 (l976); Goney vs. Clark, 749 F.2d 5, 7

(3d Cir. l984).

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Gauche in his objections basically reiterates the

arguments he made before Magistrate Judge Mannion. Magistate

Judge Mannion in a 24-page report explained why Gauche’s petition

should be denied. We will not repeat that explanation other than

to note (1) that the claim relating to the aggregation of

sentences is barred by the one-year statute of limitations

because the action of the Department of Corrections to aggregate

the sentences became final at the expiration of the thirty day

appeal period following the Commonwealth Court’s January 19,

2001, decision which dismissed Gauche’s petition for writ of

mandamus, and (2) that with regard to the ex post facto claim the

Parole Board relied on many factors in denying Gauche parole,

including his lack of remorse and recommendations of the

Department of Corrections, and did not place additional weight on

the public safety concerns set forth in the post-1996 amendments

to the parole guidelines. 

Gauche’s objections are devoid of merit. We will,

therefore, overrule those objections and adopt Magistrate Judge

Mannion’s report in toto.

 NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Gauche’s objections to Magistrate Judge Mannion’s

report are overruled.

2. Magistrate Judge Mannion’s report filed on March 4,

2005, is adopted in toto.

3. Gauche’s petition for writ of habeas corpus is

denied.

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4. The Clerk of Court shall close this case and send a

copy of this order to Magistrate Judge Mannion.

5. Any appeal from this order will be deemed lacking

in probable cause, i.e., a substantial showing of the denial of a

constitutional right, and a certificate of appealability will not

issue. 

 s/Malcolm Muir ______________________________

 MUIR, U.S. District Judge

MM:gs

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