GRAVES v. HENRY et al

Filing 7

MEMORANDUM ORDER adopting 5 REPORT AND RECOMMENDATION as the opinion of this Court; Petitioner's Objections (Docket No. 4 ) are OVERRULED; The Petition (Docket No. 1 ) and the initial Report and Recommendation dated December 8, 2023 (Dock et No. 3 ) are DISMISSED, as moot; No certificate of appealability shall issue as Petitioner has not made a substantial showing of a denial of a Constitutional right; the Clerk of Court shall mark this case CLOSED. Signed by Judge Nora Barry Fischer on 1/7/2025. (lyk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DANTE GRAVES,
Petitioner,
v.
PENNSYLVANIA ATTORNEY GENERAL
MICHELLE
HENRY,
KLINEFELTER,
Pennsylvania Parole Board Superintendent,
Respondents.

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Civil Action No. 3:23-258
Judge Nora Barry Fischer
Magistrate Judge Keith Pesto

MEMORANDUM ORDER
AND NOW, this 7th day of January, 2025, upon consideration of the Report and
Recommendation filed by United States Magistrate Judge Keith A. Pesto on December 8, 2023,
(Docket No. 3), recommending that the § 2254 habeas petition filed by Petitioner Dante Graves
against Pennsylvania Attorney General Michelle Henry and Klinefelter, Pennsylvania Parole
Board Superintendent, wherein he challenges the denial of parole and seeks release from state
custody to parole, be denied, without a certificate of appealability, Petitioner’s objections which
were timely filed within 14 days as directed by the Magistrate Judge, (Docket No. 4), and the
subsequent Report and Recommendation by the Magistrate Judge dated December 18, 2024,
recommending that the Petition be dismissed, as moot, given that the Petitioner has been released
from state custody and is now on parole, (Docket No. 5), no objections having been filed to this
latter Report and Recommendation, this matter having been recently reassigned to the undersigned
for prompt disposition of the matter, (Docket No. 6), and upon independent review of the record
and de novo consideration of the Magistrate Judge’s Report and Recommendation of December
18, 2024, (Docket No. 5), which is ADOPTED as the opinion of this Court,
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IT IS HEREBY ORDERED that Petitioner’s Objections (Docket No. 4) are
OVERRULED;
IT IS FURTHER ORDERED that the Petition (Docket No. 1) and the initial Report and
Recommendation dated December 8, 2023 (Docket No. 3) are DISMISSED, as moot, see e.g.,
Malik v. Warden Loretto FCI, No. 23-2281, 2024 WL 3649570, at *2 (3d Cir. Aug. 5, 2024)
(“Because Malik had been released to prerelease custody, his request for release to such custody
was moot.”); Lee v. Superintendent Greene SCI, No. 15-2412, 2016 WL 11786206, at *1 (3d Cir.
Jan. 13, 2016) (denying certificate of appealability to petitioner regarding habeas petition
challenging denial of parole because he was released from custody on parole and did not show any
collateral consequences such that his petition was moot); Fitzgerald v. Pennsylvania Board of
Probation and Parole, 2024 WL 4755397, at *2 (W.D. Pa. Oct. 31, 2024) (“Fitzgerald is no longer
incarcerated. He was granted parole in July 2024 and was released to parole in October 2024.
Accordingly, there is no relief that this Court can provide to him and this habeas case is now
moot.”);
IT IS FURTHER ORDERED that no certificate of appealability shall issue as Petitioner has
not made a substantial showing of a denial of a Constitutional right; and,
FINALLY, IT IS ORDERED that the Clerk of Court shall mark this case CLOSED.
s/Nora Barry Fischer
Nora Barry Fischer
Senior U.S. District Judge

cc/ecf: Magistrate Judge Keith A. Pesto
cc:
Dante Graves
QL-4753
SCI Houtzdale
P.O. Box 1000
209 Institution Drive
Houtzdale, PA 16698-1000
(via first class mail)

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