                                                     NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                        ______________

                             No. 13-2161
                           ______________

                     RICHARD T. BALSAVAGE

                                  v.

JOHN E. WETZEL, SECRETARY OF THE PENNSYLVANIA DEPARTMENT OF
   CORRECTIONS; DEBRA SAUERS, SUPERINTENDANT OF THE STATE
CORRECTIONAL INSTITUTION AT FOREST; THE DISTRICT ATTORNEY OF
 THE COUNTY OF BERKS; THE ATTORNEY GENERAL OF THE STATE OF
                        PENNSYLVANIA

                      The District Attorney of the County of Berks,
                                                            Appellant
                          ______________

       APPEAL FROM THE UNITED STATES DISTRICT COURT
         FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                        (D.C. No. 5-11-cv-05817)
               District Judge: Honorable Anita B. Brody
                            ______________

               Submitted Under Third Circuit LAR 34.1(a)
                          November 15, 2013
                           ______________

      Before: HARDIMAN, SHWARTZ, and SCIRICA, Circuit Judges.

                      (Filed: November 15, 2013)
                           ______________

                              OPINION
                           ______________
SHWARTZ, Circuit Judge.

       Richard T. Balsavage was convicted of sexually abusing children. He was

sentenced to prison followed by a period of probation. He violated a condition of

probation and was sentenced to an additional period in prison. After successfully

obtaining post-conviction relief on his sentence for the probation violation, he was

sentenced to a term of imprisonment seven times greater than his original probation

violation sentence. He filed a petition pursuant to 28 U.S.C. § 2254, alleging that the

new sentence was vindictively motivated by his appeals of the sentencing judge’s rulings.

The District Court agreed, granted the petition, and ordered the reimposition of the

original probation violation sentence. We will affirm the District Court’s order granting

the petition but vacate the order as to the remedy imposed.

                                              I.

       As we write principally for the benefit of the parties, we recite only the essential

facts and procedural history. Balsavage was convicted in the Court of Common Pleas of

Pennsylvania of eight counts of sexual abuse of children in violation of 18 Pa. Cons. Stat.

§ 6312(d) and was sentenced to 9 to 23 months’ imprisonment. Shortly after his release

from prison, he violated the conditions of his probation. At the probation revocation

hearing, the court [the “Gagnon court”]1 heard testimony from prison officials,


       1
         In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court defined the due
process rights of individuals accused of violating the conditions of their probation or
parole. The phrase “Gagnon court” is sometimes used to refer to the court that presides
over state probation and parole revocation proceedings.
                                              2
counselors, and Balsavage’s former cellmate, which indicated Balsavage’s deviancy,

danger to the community, and inability to be treated. The Gagnon court stated that

Balsavage was “not amenable to treatment” and, citing the need for punishment and to

protect children and the community at large, sentenced him to 3 ½ to 7 years’

imprisonment [the “original sentence”]. App. 82-83.

       Balsavage appealed and the Superior Court of Pennsylvania affirmed. Balsavage

then filed a petition for relief under the Post Conviction Relief Act [“PCRA”], 42 Pa.

Cons. Stat. §§9541-46, arguing, among other things, that he was denied his right of

allocution during the original violation sentencing hearing. The Gagnon court granted

Balsavage’s PCRA petition and convened a resentencing hearing.

       At the resentencing hearing, Balsavage exercised his right of allocution and

thanked the court, admitted responsibility for his actions, and expressed remorse. The

Gagnon court observed that there was “very little that - - virtually nothing that’s new or

different from the time of the prior sentencing, as far as the background information.”

App. 234. The Gagnon court proceeded to question Balsavage, and Balsavage responded

that: (1) since his prior sentencing hearing, he had been imprisoned and therefore lacked

access to children or materials related to children; (2) before his initial term of

imprisonment, he had victimized a total of thirteen children; (3) he did not cooperate with

the Sexual Offender Assessment Board at the time of his initial conviction, which

resulted in a finding that he was not a sexually violent predator; and (4) contrary to the

testimony of his probation officer, he did not harbor fantasies of murdering
                                               3
schoolchildren. In imposing the new sentence, the Gagnon court considered the need to

protect the public, the gravity of Balsavage’s offense, and his rehabilitative needs, as well

as “the fact that [Balsavage] appealed every decision and sentence this Court ever

imposed on [him].” App. 236. The Gagnon court sentenced Balsavage to 24 ½ to 49

years’ imprisonment, a sevenfold increase from his original sentence.

       Balsavage filed a Motion to Modify Sentence, which was denied. Balsavage

appealed his sentence to the Superior Court of Pennsylvania, arguing, among other

things, that his increased sentence was an unconstitutional deprivation of due process in

that it was imposed in retaliation for exercising his appellate rights. Relying exclusively

on Pennsylvania law, the Superior Court affirmed. Balsavage filed a Petition for

Allowance of Appeal to the Supreme Court of Pennsylvania, which was denied.

       Balsavage thereafter filed a petition for a writ of habeas corpus under 28 U.S.C. §

2254, arguing that his sentence of 24 ½ to 49 years’ imprisonment was the product of

judicial vindictiveness and therefore violated his due process rights as articulated in

North Carolina v. Pearce, 395 U.S. 711 (1969). The District Court conditionally granted

Balsavage’s petition, ordering that a writ of habeas corpus would issue unless he was

resentenced within 120 days to a term of imprisonment not to exceed the original term of

3 ½ to 7 years. The Berks County District Attorney appealed.2



       2
        The District Court had subject matter jurisdiction under 28 U.S.C. § 2254. We
have appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253. Because the District
Court decided Balsavage’s petition without conducting an evidentiary hearing, our
                                              4
                                             II.

       Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

[“AEDPA”],

       An application for a writ of habeas corpus on behalf of a person in custody
       pursuant to the judgment of a State court shall not be granted with respect
       to any claim that was adjudicated on the merits in State court proceedings
       unless the adjudication of the claim—

       (1) 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

       (2) 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.

28 U.S.C. § 2254(d). Section 2254(d) requires a petitioner to show that: (1) “the state

court decision was contrary to clearly established federal law, as determined by the

Supreme Court”; (2) “the state court judgment rests upon an objectively unreasonable

application of clearly established Supreme Court jurisprudence”; or (3) “the state court

decision was based on an unreasonable determination of the facts in light of the evidence

presented to the state court.” Blystone v. Horn, 664 F.3d 397, 417 (3d Cir. 2011)

(internal quotation marks and citations omitted). If the state court has adjudicated a

petitioner’s claim on the merits, AEDPA “imposes a highly deferential standard for




review of the District Court’s decision is plenary. See Jacobs v. Horn, 395 F.3d 92, 99
(3d Cir. 2005).
                                              5
evaluating state-court rulings, and demands that state-court decisions be given the benefit

of the doubt.”3 Id. (quotation marks and citation omitted).

                                             III.

       A state court decision is “contrary to clearly established law if it applies a rule that

contradicts the governing law set forth in the [Supreme] Court’s cases or if it confronts a

set of facts that are materially indistinguishable from a decision of the Court and

nevertheless arrives at a result different from the Court’s precedent.” Id. (citing Williams

v. Taylor, 529 U.S. 362, 405-06 (2000)). Because the Superior Court’s decision analyzed

the sentence for an abuse of discretion, it contradicts Pearce.4

       Under Pearce and its progeny, a rebuttable presumption of vindictiveness applies

when a defendant receives a more severe sentence after having exercised his due process

rights to appeal. See United States v. Goodwin, 457 U.S. 368, 374 (1982). This

presumption is limited to those cases where the circumstances demonstrate a “reasonable

likelihood that the increase in sentence is the product of actual vindictiveness on the part




       3
          If, however, a claim is not “adjudicated on the merits in State court,” we review
it de novo, without giving AEDPA deference to the state court. See Simmons v. Beard,
590 F.3d 223, 234 (3d Cir. 2009). The parties dispute whether Balsavage’s constitutional
due process claim was “adjudicated on the merits” in state court such that the deferential
standard of § 2254(d) applies. We assume, without deciding, that Balsavage’s due
process claim was adjudicated on the merits in state court.
        4
          The Superior Court concluded that Balsavage’s sentence did not constitute an
abuse of discretion under Pennsylvania law because the Gagnon court “thoroughly
explained its rationale and its concerns, which led to the imposition of the sentence it
deemed appropriate.” App. 337-38.
                                              6
of the sentencing authority.”5 Alabama v. Smith, 490 U.S. 794, 799 (1989) (internal

quotation marks and citation omitted). Thus, if a judge imposes a harsher sentence after a

successful appeal or collateral attack and the circumstances suggest a reasonable

likelihood of vindictiveness, then “the reasons for [the increased sentence] must

affirmatively appear.” Pearce, 395 U.S. at 726 (internal quotation marks and citation

omitted); see also United States v. DiFrancesco, 449 U.S. 117, 135-36 (1980) (applying

Pearce outside the context of retrial).

       The presumption of vindictiveness “may be overcome only by objective

information in the record justifying the increased sentence,” Goodwin, 457 U.S. at 374,

that sheds “new light upon the defendant’s life, health, habits, conduct, and mental and

moral propensities.” Pearce, 395 U.S. at 723. This information includes both

“identifiable conduct on the part of the defendant occurring after the time of the original

sentencing proceeding,” id. at 726, and newly discovered information about conduct that

occurred before the original sentencing that objectively supports an increased sentence.

See Texas v. McCullough, 475 U.S. 134, 141 (1986).

       The Superior Court’s decision, applying only Pennsylvania law, was contrary to

this clearly established Supreme Court precedent because it reviewed the resentencing for

an abuse of discretion instead of applying a presumption of vindictiveness or considering

the possibility that such a presumption applied. The Gagnon court’s reliance at


       5
        Absent “such reasonable likelihood, the burden remains upon the defendant to
prove actual vindictiveness . . . .” Alabama v. Smith, 490 U.S. 794, 799 (1989).
                                             7
sentencing on “the fact that [Balsavage] appealed every decision and sentence [the] Court

ever imposed on [him],” App. 236, suggests “actual vindictiveness on the part of the

sentencing authority.” Smith, 490 U.S. at 799. Moreover, that Balsavage’s current

sentence exceeds his original sentence by a factor of seven further shows the reasonable

likelihood that it is the product of judicial vindictiveness. In light of these circumstances,

the Superior Court’s failure to apply a presumption of vindictiveness was contrary to

Supreme Court precedent.

       Furthermore, the Superior Court did not apply Pearce and its progeny to determine

whether the resentencing record contains objectively derogatory information about events

post-dating the original sentencing or newly discovered, objectively derogatory

information about events pre-dating the original sentencing. As the Gagnon court

acknowledged, Balsavage had been incarcerated since the time of his original sentencing

and hence there was “virtually nothing . . . new or different from the time of the prior

sentencing, as far as the background information.” App. 234. As the Superior Court

recognized, the only change between the original sentencing and the resentencing was

that Balsavage’s responses to the sentencing judge’s queries corroborated some of the

facts on which the Gagnon court relied in imposing the original sentence. This did not

provide new evidence to support a sevenfold increase in Balsavage’s sentence. See

Jacobs v. Redman, 616 F.2d 1251, 1259 (3d Cir. 1980) (“[T]he mere fact that a defendant

asserts his right to testify clearly does not negatively reflect on the defendant’s life,

health, habits, conduct or moral propensities in such a way as to justify the imposition of
                                               8
an increased sentence.” (citations omitted)). Thus, the Superior Court’s focus on the

Gagnon court’s discretion without consideration of Pearce and the presumption of

vindictiveness was contrary to Supreme Court precedent,6 and as a result, Balsavage is

presently detained “in violation of the Constitution . . . of the United States.” 28 U.S.C. §

2254(a).

                                             IV.

       Having concluded that Balsavage has met his burden of showing that his current

sentence is the product of judicial vindictiveness, we must consider the appropriate

remedy. In reviewing a state prisoner’s habeas petition, a federal court “does not review

a judgment, but the lawfulness of the petitioner’s custody simpliciter.” Coleman v.

Thompson, 501 U.S. 722, 730 (1991). Indeed, the federal court “does not have power to

directly intervene in the process of the [state] tribunal which has incorrectly subjected the

petitioner to the custody of the respondent official.” Barry v. Brower, 864 F.2d 294, 301

(3d Cir. 1988); see also McKeever v. Warden SCI-Graterford, 486 F.3d 81, 85 (3d Cir.

2007); Dickerson v. Vaughn, 90 F.3d 87, 92 (3d Cir. 1996). As it relates to resentencing,

the federal court may only “condition the issuance of a writ, which releases the body of


       6
         Although the Superior Court did not identify Pearce or its progeny as the
governing precedent, it did acknowledge that Balsavage’s sentence would be problematic
if the Gagnon court demonstrated a vindictive purpose. Even if that general discussion of
vindictiveness under Pennsylvania law could be said to be an “identifi[cation of] the
correct governing principle” from Supreme Court precedent, Blystone, 664 F.3d at 417,
its conclusion in this case would also rest upon an unreasonable application of the law to
the record here.

                                              9
the prisoner from custody obtained through unconstitutional means, upon the state’s

[imposition of a sentence] that comports with constitu[t]ional dictates.” Henderson v.

Frank, 155 F.3d 159, 168 (3d Cir. 1998).

       Because it is possible that Balsavage could be resentenced above his original

sentence in a manner that comports with due process, we conclude that imposing a cap on

Balsavage’s new sentence would impermissibly limit the state court’s exercise of

sentencing discretion and exceed the federal court’s authority to act on the body of a

habeas petitioner.7 Consequently, although we agree with the District Court that

Balsavage’s present sentence is the product of judicial vindictiveness in violation of

Pearce, we will vacate the District Court’s remedy with instructions to conditionally grant

the writ of habeas corpus unless Balsavage is sentenced within 120 days in accordance

with the Due Process Clause and the law interpreting it.

                                            V.

       For the foregoing reasons, we will affirm the District Court’s order in part, vacate

in part, and remand for proceedings consistent with this opinion.


       7
         In fashioning a remedy, the District Court relied in part on Jacobs, 616 F.2d
1251, in which we held that a habeas petitioner’s sentence on a second conviction
violated Pearce and directed that the petitioner be resentenced to a term not to exceed his
original sentence. Jacobs, however, explicitly adopted the procedure used in Frank v.
Blackburn, 605 F.2d 910 (5th Cir. 1979), and that decision was subsequently vacated by
the Fifth Circuit en banc. 646 F.2d 873 (1980). Our subsequent precedent describing the
relief permissible under § 2254 provides that a habeas court should not interfere with the
state criminal process more than is necessary to ensure compliance with constitutional
law. See, e.g., McKeever, 486 F.3d at 85; Dickerson, 90 F.3d at 92; Barry, 864 F.2d at
301.
                                            10
