IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
September 11, 2007
ROBERT S. BARNHART, II, PETITIONER
JAMES L. GRACE, ET AL., RESPONDENTS
The opinion of the court was delivered by: Judge Conner
AND NOW, this 11th day of September, 2007, upon consideration of the report and recommendation of the magistrate judge (Doc. 56), to which objections were filed (Doc. 60), recommending denial of the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1), and it appearing that the petition avers that the 2005 decision of the Pennsylvania Board of Probation and Parole ("the Board") to schedule petitioner's parole review one year prior to his maximum sentence date was vindictive and in retaliation for petitioner's appeal from the Board's 2002 decision to deny his parole (see Doc. 1), that a presumption of vindictiveness may apply to those parole decisions that do not indicate any rationale for an increase in a sentence, see Marshall v. Lansing, 839 F.2d 933, 948 (3d Cir. 1988) (emphasizing that when the parole board, without explanation, added two months to a sentence after the prisoner successfully appealed an unrelated parole decision, the addition of the extra months constituted a presumption of vindictiveness), and that the United States Supreme Court has stated that a presumption of vindictiveness shall apply only when "there is a 'reasonable likelihood' . . . that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority," Alabama v. Smith, 490 U.S. 794, 799 (1989) (quoting United States v. Goodwin, 457 U.S. 368, 373 (1982)), and the court finding that the Board's 2005 decision does not give rise to a presumption of vindictiveness because petitioner's 2002 appeal was unsuccessful, the Board's 2002 decision was not reversed, and the Board's decision not to grant parole and to set the next parole review date one year prior to petitioner's maximum sentence date was based upon information obtained for the first time during the 2005 hearing*fn1 and made pursuant to normal review procedures, and the court further finding that petitioner has not established that the Board's 2005 decision was actually vindictive because the record does not reflect any evidence of actual vindictiveness,*fn2 it is hereby ORDERED that:
1. The report of the magistrate judge (Doc. 56) is ADOPTED.
2. The petition for writ of habeas corpus (Doc. 1) is DENIED.
3. A certificate of appealability is DENIED. See 28 U.S.C. § 2253.
4. The Clerk of Court is directed to CLOSE this case.
CHRISTOPHER C. CONNER United States District Judge