United States District Court, M.D. Pennsylvania
Malachy E. Mannion United States District Judge
Bob Pope, a former inmate at the Laurel Highlands State
Correctional Institution, Somerset,
Pennsylvania, filed the above captioned petition for
writ of habeas corpus pursuant to 28 U.S.C.
§2254. (Doc. 1). He challenges his
resentencing, after being found guilty of probation
violations, by the Court of Common Pleas for Dauphin County,
Pennsylvania. Id. Pope claims violations of the
Double Jeopardy Clause when: (1) the trial court revoked
Pope's probation, (2) the trial increased Pope's
sentence for State count one, (3) the trial court increased
the sentence for State counts seven and eight, and (4) the
trial court increased the sentence for State counts two,
five, six, and fifteen. Id.
accordance with United States v. Miller, 197 F.3d
644 (3d Cir. 1999), and Mason v. Meyers, 208 F.3d
414 (3d Cir. 2000), this Court issued formal notice to Pope
that he could either have the petition ruled on as filed but
lose his ability to file a second or successive petition, or
withdraw his petition and file one all-inclusive §2254
petition within the one-year statutory period prescribed by
the Antiterrorism Effective Death Penalty Act
(“AEDPA”). (Doc. 3). On April 10, 2014,
Pope returned the notice of election, indicating that he
wished to proceed with his petition for writ of habeas corpus
as filed. (Doc. 4). On May 23, 2014, the Respondents
filed a motion to dismiss on the grounds that Pope had not
exhausted state court remedies. (Doc. 13).
Memorandum and Order dated December 23, 2014, the Court,
having concluded that Pope presented a mixed petition,
directed Petitioner to notify the Court as to his intention
to delete his unexhausted claims and proceed on the merits of
his exhausted claims, have the Court dismiss his petition
without prejudice, or request a stay and abeyance. (Doc.
having indicated to the Court that he wished to delete count
one, his unexhausted claim, and proceed on the merits of
counts two, three and four, his exhausted claims, the Court,
by Order dated October 31, 2016, directed a response to be
filed to Petitioner's exhausted claims, specifically,
counts two, three and four. (Doc. 30).
December 27, 2016, a response to Petition's exhausted
claims, counts two, three and four, was filed. (Doc.
33). No traverse has been filed. The petition is
ripe for disposition. For the reasons set forth below, the
petition will be denied.
following account of the procedural history of this case is
taken from the Pennsylvania Superior Court's May 6, 2013
decision affirming the denial of Pope's claims that his
sentences were illegal or unconstitutional. (Doc.
On November 3, 2003, [Pope] entered a plea of nolo
contendere to two counts each of criminal solicitation
to commit rape, statutory sexual assault, involuntary deviate
sexual intercourse, aggravated indecent assault, indecent
assault, indecent exposure, and corruption of minors, as well
as to one count of criminal use of a communication facility.
On March 11, 2004, he was sentenced to two to four years of
imprisonment, followed by five years of probation. At the
conclusion of the sentencing hearing, Pope was advised of his
post-sentencing rights. Pope did not file a direct appeal.
On August 29, 2005, Pope file [sic] a petition for relief
under the Post Conviction Relief Act (“PCRA”). On
May 23, 2007, the amended petition was denied in part and
granted it [sic] in part. The Court granted the petition as
it pertained to an illegal sentence based on improper merge
[sic] of some of the counts, and vacated the sentences as
those [sic] counts.
On August 1, 2007, Pope was re-sentenced to the original
sentence of two to four years of imprisonment, followed by
five years of probation. On August 8, 2007, Pope filed a
timely post-sentence motion. The order denying the motion was
not entered by the prothonotary until March 7, 2008. [A]
timely appeal followed.
This Court affirmed the judgment of sentence. On January 12,
2009, Pope faced a revocation hearing at which the trial
court determined Pope ...