Richard Balsavage v. John Wetzel , 545 F. App'x 151 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-2161
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RICHARD T. BALSAVAGE
v.
JOHN E. WETZEL, SECRETARY OF THE PENNSYLVANIA DEPARTMENT OF
CORRECTIONS; DEBRA SAUERS, SUPERINTENDANT OF THE STATE
CORRECTIONAL INSTITUTION AT FOREST; THE DISTRICT ATTORNEY OF
THE COUNTY OF BERKS; THE ATTORNEY GENERAL OF THE STATE OF
PENNSYLVANIA
The District Attorney of the County of Berks,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 5-11-cv-05817)
District Judge: Honorable Anita B. Brody
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Submitted Under Third Circuit LAR 34.1(a)
November 15, 2013
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Before: HARDIMAN, SHWARTZ, and SCIRICA, Circuit Judges.
(Filed: November 15, 2013)
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OPINION
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SHWARTZ, Circuit Judge.
Richard T. Balsavage was convicted of sexually abusing children. He was
sentenced to prison followed by a period of probation. He violated a condition of
probation and was sentenced to an additional period in prison. After successfully
obtaining post-conviction relief on his sentence for the probation violation, he was
sentenced to a term of imprisonment seven times greater than his original probation
violation sentence. He filed a petition pursuant to 28 U.S.C. § 2254, alleging that the
new sentence was vindictively motivated by his appeals of the sentencing judge’s rulings.
The District Court agreed, granted the petition, and ordered the reimposition of the
original probation violation sentence. We will affirm the District Court’s order granting
the petition but vacate the order as to the remedy imposed.
I.
As we write principally for the benefit of the parties, we recite only the essential
facts and procedural history. Balsavage was convicted in the Court of Common Pleas of
Pennsylvania of eight counts of sexual abuse of children in violation of 18 Pa. Cons. Stat.
§ 6312(d) and was sentenced to 9 to 23 months’ imprisonment. Shortly after his release
from prison, he violated the conditions of his probation. At the probation revocation
hearing, the court [the “Gagnon court”]1 heard testimony from prison officials,
1
In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court defined the due
process rights of individuals accused of violating the conditions of their probation or
parole. The phrase “Gagnon court” is sometimes used to refer to the court that presides
over state probation and parole revocation proceedings.
2
counselors, and Balsavage’s former cellmate, which indicated Balsavage’s deviancy,
danger to the community, and inability to be treated. The Gagnon court stated that
Balsavage was “not amenable to treatment” and, citing the need for punishment and to
protect children and the community at large, sentenced him to 3 ½ to 7 years’
imprisonment [the “original sentence”]. App. 82-83.
Balsavage appealed and the Superior Court of Pennsylvania affirmed. Balsavage
then filed a petition for relief under the Post Conviction Relief Act [“PCRA”], 42 Pa.
Cons. Stat. §§9541-46, arguing, among other things, that he was denied his right of
allocution during the original violation sentencing hearing. The Gagnon court granted
Balsavage’s PCRA petition and convened a resentencing hearing.
At the resentencing hearing, Balsavage exercised his right of allocution and
thanked the court, admitted responsibility for his actions, and expressed remorse. The
Gagnon court observed that there was “very little that - - virtually nothing that’s new or
different from the time of the prior sentencing, as far as the background information.”
App. 234. The Gagnon court proceeded to question Balsavage, and Balsavage responded
that: (1) since his prior sentencing hearing, he had been imprisoned and therefore lacked
access to children or materials related to children; (2) before his initial term of
imprisonment, he had victimized a total of thirteen children; (3) he did not cooperate with
the Sexual Offender Assessment Board at the time of his initial conviction, which
resulted in a finding that he was not a sexually violent predator; and (4) contrary to the
testimony of his probation officer, he did not harbor fantasies of murdering
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schoolchildren. In imposing the new sentence, the Gagnon court considered the need to
protect the public, the gravity of Balsavage’s offense, and his rehabilitative needs, as well
as “the fact that [Balsavage] appealed every decision and sentence this Court ever
imposed on [him].” App. 236. The Gagnon court sentenced Balsavage to 24 ½ to 49
years’ imprisonment, a sevenfold increase from his original sentence.
Balsavage filed a Motion to Modify Sentence, which was denied. Balsavage
appealed his sentence to the Superior Court of Pennsylvania, arguing, among other
things, that his increased sentence was an unconstitutional deprivation of due process in
that it was imposed in retaliation for exercising his appellate rights. Relying exclusively
on Pennsylvania law, the Superior Court affirmed. Balsavage filed a Petition for
Allowance of Appeal to the Supreme Court of Pennsylvania, which was denied.
Balsavage thereafter filed a petition for a writ of habeas corpus under 28 U.S.C. §
2254, arguing that his sentence of 24 ½ to 49 years’ imprisonment was the product of
judicial vindictiveness and therefore violated his due process rights as articulated in
North Carolina v. Pearce, 395 U.S. 711 (1969). The District Court conditionally granted
Balsavage’s petition, ordering that a writ of habeas corpus would issue unless he was
resentenced within 120 days to a term of imprisonment not to exceed the original term of
3 ½ to 7 years. The Berks County District Attorney appealed.2
2
The District Court had subject matter jurisdiction under 28 U.S.C. § 2254. We
have appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253. Because the District
Court decided Balsavage’s petition without conducting an evidentiary hearing, our
4
II.
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
[“AEDPA”],
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Section 2254(d) requires a petitioner to show that: (1) “the state
court decision was contrary to clearly established federal law, as determined by the
Supreme Court”; (2) “the state court judgment rests upon an objectively unreasonable
application of clearly established Supreme Court jurisprudence”; or (3) “the state court
decision was based on an unreasonable determination of the facts in light of the evidence
presented to the state court.” Blystone v. Horn, 664 F.3d 397, 417 (3d Cir. 2011)
(internal quotation marks and citations omitted). If the state court has adjudicated a
petitioner’s claim on the merits, AEDPA “imposes a highly deferential standard for
review of the District Court’s decision is plenary. See Jacobs v. Horn, 395 F.3d 92, 99
(3d Cir. 2005).
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evaluating state-court rulings, and demands that state-court decisions be given the benefit
of the doubt.”3 Id. (quotation marks and citation omitted).
III.
A state court decision is “contrary to clearly established law if it applies a rule that
contradicts the governing law set forth in the [Supreme] Court’s cases or if it confronts a
set of facts that are materially indistinguishable from a decision of the Court and
nevertheless arrives at a result different from the Court’s precedent.” Id. (citing Williams
v. Taylor, 529 U.S. 362, 405-06 (2000)). Because the Superior Court’s decision analyzed
the sentence for an abuse of discretion, it contradicts Pearce.4
Under Pearce and its progeny, a rebuttable presumption of vindictiveness applies
when a defendant receives a more severe sentence after having exercised his due process
rights to appeal. See United States v. Goodwin, 457 U.S. 368, 374 (1982). This
presumption is limited to those cases where the circumstances demonstrate a “reasonable
likelihood that the increase in sentence is the product of actual vindictiveness on the part
3
If, however, a claim is not “adjudicated on the merits in State court,” we review
it de novo, without giving AEDPA deference to the state court. See Simmons v. Beard,
590 F.3d 223, 234 (3d Cir. 2009). The parties dispute whether Balsavage’s constitutional
due process claim was “adjudicated on the merits” in state court such that the deferential
standard of § 2254(d) applies. We assume, without deciding, that Balsavage’s due
process claim was adjudicated on the merits in state court.
4
The Superior Court concluded that Balsavage’s sentence did not constitute an
abuse of discretion under Pennsylvania law because the Gagnon court “thoroughly
explained its rationale and its concerns, which led to the imposition of the sentence it
deemed appropriate.” App. 337-38.
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of the sentencing authority.”5 Alabama v. Smith, 490 U.S. 794, 799 (1989) (internal
quotation marks and citation omitted). Thus, if a judge imposes a harsher sentence after a
successful appeal or collateral attack and the circumstances suggest a reasonable
likelihood of vindictiveness, then “the reasons for [the increased sentence] must
affirmatively appear.” Pearce, 395 U.S. at 726 (internal quotation marks and citation
omitted); see also United States v. DiFrancesco, 449 U.S. 117, 135-36 (1980) (applying
Pearce outside the context of retrial).
The presumption of vindictiveness “may be overcome only by objective
information in the record justifying the increased sentence,” Goodwin, 457 U.S. at 374,
that sheds “new light upon the defendant’s life, health, habits, conduct, and mental and
moral propensities.” Pearce, 395 U.S. at 723. This information includes both
“identifiable conduct on the part of the defendant occurring after the time of the original
sentencing proceeding,” id. at 726, and newly discovered information about conduct that
occurred before the original sentencing that objectively supports an increased sentence.
See Texas v. McCullough, 475 U.S. 134, 141 (1986).
The Superior Court’s decision, applying only Pennsylvania law, was contrary to
this clearly established Supreme Court precedent because it reviewed the resentencing for
an abuse of discretion instead of applying a presumption of vindictiveness or considering
the possibility that such a presumption applied. The Gagnon court’s reliance at
5
Absent “such reasonable likelihood, the burden remains upon the defendant to
prove actual vindictiveness . . . .” Alabama v. Smith, 490 U.S. 794, 799 (1989).
7
sentencing on “the fact that [Balsavage] appealed every decision and sentence [the] Court
ever imposed on [him],” App. 236, suggests “actual vindictiveness on the part of the
sentencing authority.” Smith, 490 U.S. at 799. Moreover, that Balsavage’s current
sentence exceeds his original sentence by a factor of seven further shows the reasonable
likelihood that it is the product of judicial vindictiveness. In light of these circumstances,
the Superior Court’s failure to apply a presumption of vindictiveness was contrary to
Supreme Court precedent.
Furthermore, the Superior Court did not apply Pearce and its progeny to determine
whether the resentencing record contains objectively derogatory information about events
post-dating the original sentencing or newly discovered, objectively derogatory
information about events pre-dating the original sentencing. As the Gagnon court
acknowledged, Balsavage had been incarcerated since the time of his original sentencing
and hence there was “virtually nothing . . . new or different from the time of the prior
sentencing, as far as the background information.” App. 234. As the Superior Court
recognized, the only change between the original sentencing and the resentencing was
that Balsavage’s responses to the sentencing judge’s queries corroborated some of the
facts on which the Gagnon court relied in imposing the original sentence. This did not
provide new evidence to support a sevenfold increase in Balsavage’s sentence. See
Jacobs v. Redman, 616 F.2d 1251, 1259 (3d Cir. 1980) (“[T]he mere fact that a defendant
asserts his right to testify clearly does not negatively reflect on the defendant’s life,
health, habits, conduct or moral propensities in such a way as to justify the imposition of
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an increased sentence.” (citations omitted)). Thus, the Superior Court’s focus on the
Gagnon court’s discretion without consideration of Pearce and the presumption of
vindictiveness was contrary to Supreme Court precedent,6 and as a result, Balsavage is
presently detained “in violation of the Constitution . . . of the United States.” 28 U.S.C. §
2254(a).
IV.
Having concluded that Balsavage has met his burden of showing that his current
sentence is the product of judicial vindictiveness, we must consider the appropriate
remedy. In reviewing a state prisoner’s habeas petition, a federal court “does not review
a judgment, but the lawfulness of the petitioner’s custody simpliciter.” Coleman v.
Thompson, 501 U.S. 722, 730 (1991). Indeed, the federal court “does not have power to
directly intervene in the process of the [state] tribunal which has incorrectly subjected the
petitioner to the custody of the respondent official.” Barry v. Brower, 864 F.2d 294, 301
(3d Cir. 1988); see also McKeever v. Warden SCI-Graterford, 486 F.3d 81, 85 (3d Cir.
2007); Dickerson v. Vaughn, 90 F.3d 87, 92 (3d Cir. 1996). As it relates to resentencing,
the federal court may only “condition the issuance of a writ, which releases the body of
6
Although the Superior Court did not identify Pearce or its progeny as the
governing precedent, it did acknowledge that Balsavage’s sentence would be problematic
if the Gagnon court demonstrated a vindictive purpose. Even if that general discussion of
vindictiveness under Pennsylvania law could be said to be an “identifi[cation of] the
correct governing principle” from Supreme Court precedent, Blystone, 664 F.3d at 417,
its conclusion in this case would also rest upon an unreasonable application of the law to
the record here.
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the prisoner from custody obtained through unconstitutional means, upon the state’s
[imposition of a sentence] that comports with constitu[t]ional dictates.” Henderson v.
Frank, 155 F.3d 159, 168 (3d Cir. 1998).
Because it is possible that Balsavage could be resentenced above his original
sentence in a manner that comports with due process, we conclude that imposing a cap on
Balsavage’s new sentence would impermissibly limit the state court’s exercise of
sentencing discretion and exceed the federal court’s authority to act on the body of a
habeas petitioner.7 Consequently, although we agree with the District Court that
Balsavage’s present sentence is the product of judicial vindictiveness in violation of
Pearce, we will vacate the District Court’s remedy with instructions to conditionally grant
the writ of habeas corpus unless Balsavage is sentenced within 120 days in accordance
with the Due Process Clause and the law interpreting it.
V.
For the foregoing reasons, we will affirm the District Court’s order in part, vacate
in part, and remand for proceedings consistent with this opinion.
7
In fashioning a remedy, the District Court relied in part on Jacobs, 616 F.2d
1251, in which we held that a habeas petitioner’s sentence on a second conviction
violated Pearce and directed that the petitioner be resentenced to a term not to exceed his
original sentence. Jacobs, however, explicitly adopted the procedure used in Frank v.
Blackburn, 605 F.2d 910 (5th Cir. 1979), and that decision was subsequently vacated by
the Fifth Circuit en banc. 646 F.2d 873 (1980). Our subsequent precedent describing the
relief permissible under § 2254 provides that a habeas court should not interfere with the
state criminal process more than is necessary to ensure compliance with constitutional
law. See, e.g., McKeever, 486 F.3d at 85; Dickerson, 90 F.3d at 92; Barry, 864 F.2d at
301.
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