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Pope v. Wingard

United States District Court, M.D. Pennsylvania

April 12, 2017

BOB POPE, Petitioner
v.
TREVOR WINGARD, et al., Respondents

          MEMORANDUM

          Malachy E. Mannion United States District Judge

         I. Background

         Petitioner, Bob Pope, a former inmate at the Laurel Highlands State Correctional Institution, Somerset, Pennsylvania[1], 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.

         In 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).

         By 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. 18).

         Petitioner 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).

         On 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.

         II. Procedural History

         The 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. 13-4).

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 ...

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