Opinion
3:15-cv-131-KRG-KAP
02-08-2022
CHARLES BELLON, Petitioner v. TAMMY FERGUSON, Superintendent, S.C.I. Benner, Respondent
REPORT AND RECOMMENDATION
KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE
Recommendation
Petitioner's motion at ECF no. 99 styled “Rule 70 Motion for Enforcing the Judgment of Immediate Release” should be denied.
Report
By an Order dated September 30, 2019, this Court granted in part and denied in part a petition for a writ of habeas corpus filed by petitioner, conditioning the writ of habeas corpus on the Blair County Court of Common Pleas resentencing the petitioner. ECF no. 80. The Court of Common Pleas resentenced petitioner on or about January 10, 2020, after which petitioner sought review in the Court of Appeals of the portion of this Court's order that denied two of his claims. The Court of Appeals for the Third Circuit denied petitioner's motion for a certificate of appealability on July 1, 2020. Bellon v. Superintendent, No. 19-3506 (3d Cir. July 1, 2020), see ECF no. 85.
Petitioner also pursued a direct appeal of the sentence to the Pennsylvania Superior Court. Commonwealth v. Bellon, 249 A.3d 1177 (table), text at 2020WL 688787 (Pa.Super. February 23, 2021). During this same time he was also pursuing his second collateral attack on his conviction. See Commonwealth v. Bellon, 227 A.3d 426 (table), text at 2020 WL 774045 (Pa. Super. Feb. 18, 2020), allocatur denied, 238 A.3d 1169 (Pa. September 22, 2020).
On March 26, 2021, petitioner filed in this case a Rule 70 Motion for Enforcing the Judgment of Immediate Release. See also In re: Bellon, No. 21-2638, 2021 WL 5632075 (3d Cir. Dec. 1, 2021)(denying writ of mandamus to this court to immediately rule on this motion). As the Court of Appeals characterized it, the Rule 70 motion claims “that the habeas judgment required the Court of Common Pleas to conduct a plenary resentencing and that his new sentence is illegal because the court did not do so.” Id., 2021 WL 5632075 at *1. Petitioner makes a distinction between vacating a sentence and altering a sentence: he argues that the state court merely altered the sentence originally imposed, and that this defied the conditional writ which required the state court to vacate the sentence originally imposed. Petitioner argues that this defiance requires the Court to discharge him unconditionally.
Petitioner raised this distinction between “resentencing = vacating a sentence” and “resentencing = altering a sentence” in the direct appeal. The distinction matters to petitioner because in his second collateral attack on his conviction and sentence in the state courts he sought to assert a claim based on Alleyne v. United States, 570 U.S. 99 (2013). The state courts held that because petitioner was sentenced in 2007 and Alleyne has not been held to apply retroactively, petitioner could not assert an Alleyne claim. However, if the resentencing that occurred as a result of the writ “vacated” the original sentence and the petitioner's sentence must be considered to date from the January 10, 2020 resentencing, then he would not be seeking retroactive application of Alleyne. The Superior Court rejected petitioner's two arguments on this point, his state law argument that his January 10, 2020 resentencing should be considered the date of his sentencing, and his federal law argument that this Court's writ vacated the 2007 sentence and therefore requires the recognition of a new sentencing date. Commonwealth v. Bellon, supra, 2020WL 688787.
Petitioner argument here is the same, although here he seeks unconditional discharge and not merely the opportunity to raise an Alleyne claim. The argument falters because it rests on a misquotation of the Court. Contrary to petitioner's assertion at ECF no. 99 at 1, this Court used neither the term “vacate” nor the term “alter” in ECF no. 80. In my Report and Recommendation set out at ECF no. 76 and ECF no. 78, I indeed used the word “vacate, ” but the Court's precise language in its judgment was:
A writ of habeas corpus shall issue if within 120 days the Court of Common Pleas of Blair County does not impose a new judgment of sentence in which the maximum sentence as to Counts II, III, IV, V, VI, VII, VIII, X, XI, and XII, is 10 years. This does not constrain petitioner from seeking or the Court of Common Pleas from making any other changes to its judgment of sentence.
As the Superior Court recognized, this “did not vacate Bellon's sentence, but rather, ordered the correction of only the maximum sentences.” Commonwealth v. Bellon, supra, 2020WL 688787 at *4. This Court's order did not take a position on whether the state courts should do anything else, it observed that petitioner could ask for additional relief in the state courts and that the writ did not constrain the state courts from granting such relief. The denial by the state courts of petitioner's request for additional relief was not in violation of the letter or the spirit of the writ.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties can within fourteen days file written objections. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).