Leo James Smith v. TIMOTHY ENGLISH, Superintendent, SCIG, Greensburg

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 02-1386
LEO JAMES SMITH,
Appellant
v.
TIMOTHY ENGLISH, Superintendent,
SCIG, Greensburg;
ATTORNEY GENERAL OF THE COMMONW EALTH
OF PENNSYLVANIA
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 99-cv-00843)
District Judge: Hon. Malcolm Muir
Argued December 2, 2003
Before: SLOVITER, ALITO and FRIEDMAN,* Circuit Judges
(Filed December 3, 2003)
Theresa A. Kennedy (Argued)
Washington, N.J. 07882
(Attorney for Appellant)
_______________________
* Hon. Daniel M. Friedman, United States Senior Circuit Judge for the Federal Circuit,
sitting by designation

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D. Michael Fisher
Attorney General
William H. Ryan, Jr.
Executive Deputy Attorney General
Andrea F. McKenna
Senior Deputy Attorney General
Jerome T. Foerster (Argued)
Senior Deputy Attorney General
Office of Attorney General of Pennsylvania
Harrisburg, PA 17120
(Attorneys for Appellees)
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Petitioner Leo James Smith appeals from the District Court’s order dated January
28, 2002 denying his petition for a writ of habeas corpus. A state prisoner convicted of
two counts of burglary, Smith contends that the increase in his prison sentence following
his successful appeals of the original conviction and sentence following a new trial
violated his Fourteenth Amendment Due Process rights. After review, we will affirm the
District Court’s order.
I.
Background
Smith was convicted by a jury of two counts of burglary in the Pennsylvania Court
of Common Pleas on January 31, 1991. He had proceeded pro se with standby counsel
during trial, but was represented by counsel for sentencing. After a three and a half year

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delay, Smith received on July 24, 1994 concurrent sentences of nine to twenty years for
the conviction. The Pennsylvania Superior Court subsequently reversed Smith’s
conviction and granted a new trial, finding that Smith had not waived his right to counsel
during trial.
Following a second jury trial, Smith was again convicted on September 22, 1995
of two counts of burglary. The trial court subsequently sentenced Smith to twenty to forty
years in prison, and denied Smith’s motion to modify the sentence. On appeal, the
Pennsylvania Superior Court vacated the sentence and remanded for a new sentence,
ruling that the trial court failed to cite any identifiable conduct occurring after the first
sentencing to justify a new sentence twice the original length. Smith was then
resentenced to two concurrent nine to twenty year terms on March 11, 1997, but with the
sentences running consecutively to any other sentence Smith was then serving. Smith
filed a motion for a new trial or arrest of judgment, which the sentencing court denied.
The Superior Court affirmed the new sentence on April 21, 1998, and the Pennsylvania
Supreme Court denied Smith’s Petition for Allowance of Appeal.
Smith filed a petition for writ of habeas corpus in the District Court for the
Western District of Pennsylvania on April 12, 1999. The petition was subsequently
transferred to the Middle District of Pennsylvania. In his petition, Smith raised twelve
grounds for relief. The District Court subsequently dismissed Smith’s petition, finding
that Smith had not exhausted all of his claims in state courts. This court then vacated and

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remanded the case, finding Smith to have fairly presented the claims in state courts. On
remand, the District Court denied Smith’s petition on the merits on January 28, 2002, and
declined to issue a certificate of appealability. This court subsequently granted a
certificate of appealability with respect to Smith’s claim that his increased sentence
violated due process.
II.
Jurisdiction
The District Court has jurisdiction under 28 U.S.C. § 2254. This Court has
jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253. Our review of the District Court’s
order is plenary. Pursuant to 28 U.S.C. § 2254(d), a state court's adverse resolution of a
claim of constitutional error provides a basis for federal habeas relief only if the state
adjudication “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 if it “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.” See Williams v. Taylor, 529 U.S. 362 (2000).
III.
Discussion
In North Carolina v. Pearce, 395 U.S. 711 (1969), the Supreme Court stated that
“Due Process of law . . . requires that vindictiveness against a defendant for having

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successfully attacked his first conviction must play no part in the sentence he receives
after a new trial.” Id. at 725. As the Court explained in United States v. Goodwin, 457
U.S. 368 (1982), Pearce creates a “presumption of vindictiveness” when the same trial
judge imposes a harsher sentence following a new trial after the defendant had
successfully appealed his/her original conviction, which presumption “may be overcome
only by objective information in the record justifying the increased sentence.” Id. at 374;
see Chaffin v. Stynchcombe, 412 U.S. 17, 27 (1973) (finding that the Pearce presumption
derives from the judge’s “personal stake in the prior conviction”). The Pearce rule,
however, “do[es] not apply in every case where a convicted defendant receives a higher
sentence on retrial.” Texas v. McCullough, 475 U.S. 134, 138 (1986). Where there is no
“reasonable likelihood” that “the increase in sentence is the product of actual
vindictiveness on the part of the sentencing authority . . . the burden remains upon the
defendant to prove actual vindictiveness.” Alabama v. Smith, 490 U.S. 794, 799-800
(1989).
Smith, relying on Pearce, contends that the sentencing court vindictively enhanced
his prison sentence after he had successfully overturned, on separate appeals, his original
guilty verdict and the twenty-to-forty-year sentence following retrial. He contends that
the main reason offered by the sentencing judge for enhancing his sentence–his prison
misconducts prior to sentencing–is so insubstantial that it indicates the sentencing court’s
animosity toward him. He further argues that the sentencing court should have credited

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him with time served from April 6, 1990, the date of his arrest, to March 11, 1997, the
date of his final resentencing.
We conclude that the Pennsylvania Superior Court’s upholding of Smith’s
sentence is neither contrary to, nor an unreasonable application of, established federal
law. By imposing a new sentence to be served “consecutive to any sentence that [Smith
is] currently serving,” App. at 24, rather than dating it from April 5, 1990 (as was the case
during Smith’s first sentencing), the trial judge increased Smith’s term of incarceration
following retrial. But even if the Pearce presumption were applicable, the record clearly
presents sufficient evidence to rebut that presumption here. The presentence
investigation report on Smith, completed prior to the most recent sentencing, shows four
prison misconducts between June, 1994 and December, 1996. While some of these
misconducts may be minor infractions such as possession of excessive commissary,
others include assault on a correction officer and conducting a gambling operation while
in prison. These are serious misconducts that were unknown to the trial judge during
Smith’s first sentencing hearing, and the trial judge properly considered this objective and
material information in imposing an increased sentence following retrial. See
McCullough, 475 U.S. at 142 (“Nothing in the Constitution requires a judge to ignore
objective information . . . justifying the increased sentence.”) (internal quotation and
citation omitted). Moreover, during the most recent sentencing hearing the trial judge
exhibited no signs of animosity toward Smith, and had even stated that “I don’t find you

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to be a disagreeable fellow.” App. at 23. While such disclaimer alone may be
insufficient in overcoming the presumption of vindictiveness, it supports the finding that
Smith’s new sentence was the product of the trial judge’s objective reasoning rather than
personal emotions. Therefore, we cannot hold that the Pennsylvania Superior Court
unreasonably applied existing federal law in affirming Smith’s sentence.
IV.
Conclusion
For the foregoing reasons, we will affirm the District Court’s order.
/s/ Dolores K. Sloviter
Circuit Judge

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