Sentencing issues that were routine a mere three months ago now merit a full opinion. Defendant in this case pled guilty to a federal offense, use of a communication facility in drug trafficking, on March 25, 2004. Thereafter, the United States Probation Office prepared a pre-sentence report. Defense counsel lodged several objections to the report in early June 2004. On June 24, 2004, the Supreme Court issued its opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004), holding that all facts relevant to the “statutory maximum” sentence must be submitted to a jury and proved beyond a reasonable doubt. Understandably, defense counsel levied additional objections to the report based on the Blakely decision.
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Chief Judge Christopher C. Conner
Offense to the few is the repercussion of freedom for all. Gettysburg College, a private institution located in an area of the country best known for a three-day battle during the Civil War, plans to display an exhibit featuring the flag of the Confederacy. The exhibition opens later today. Two days ago, James Andrew Coleman commenced a civil action seeking to enjoin the display. He claims that he and the community will be irreparably harmed by presentation of this racially charged symbol. The complaint will be dismissed.
Presently before the court are objections (Doc. 14) by petitioner, Robert S. Barnhart (“Barnhart”), to the report of the magistrate judge finding petitioner’s claim of unconstitutional denial of parole by respondent, the Pennsylvania Board of Probation and Parole (“Board”), to be procedurally barred and recommending dismissal of the petition for writ of habeas corpus without prejudice to allow petitioner to seek additional state collateral review of his claim. Petitioner contends that his procedural default should be excused. Alternatively, he requests that the instant action be held in abeyance while he pursues available state remedies.
Resolution of the objections requires an examination of the twin doctrines of exhaustion and procedural default. For the following reasons, the court adopts the finding of the magistrate judge that petitioner’s claim is procedurally barred. However, the court concludes that a stay of this action is not warranted because state remedies are unavailable. Therefore, the court will dismiss the petition for writ of habeas corpus with prejudice.
Judge Malachy E. Mannion
On May 2, 1995, the petitioner pled guilty to 3 counts of criminal homicide, 1 count of burglary, and 2 counts of theft by unlawful taking. Subsequent to the plea colloquy, he was sentenced on the same date to 3 consecutive life imprisonment terms on the homicide counts; 10 to 20 years imprisonment on the burglary charge, to run consecutively to the 3 life terms, and 2 terms of 3 ½ to 7 years imprisonment on the theft by unlawful taking charges, also to run consecutively to the other terms.
On May 9, 1995, the petitioner wrote to his court appointed attorney, and advised him that he wished to file a Post Conviction Relief Act (“PCRA”) petition, and a direct appeal, and that he wished to withdraw his guilty plea. Counsel replied that he would not take any further action on the matter because the petitioner had waived his right to withdraw his guilty plea as part of the plea bargain.
The plaintiff, Adam Odenwalt, filed the instant action pursuant to 42 U.S.C. § 1983 on behalf of himself and his two (2) minor children. The plaintiff alleges that the defendants have violated his Eighth and Fourteenth Amendment rights in denying him contact visits with his minor children. The defendants have moved to dismiss the plaintiff’s complaint pursuant to Fed.R.Civ.P. 12(b)(6).
The documents submitted by the parties establish that Mr. Sopp was involved in a motor vehicle accident on May 5, 1999, which occurred while he was in the scope of his employment with co-defendant Kraft Foods. He sustained a number of injuries as a result of the motor vehicle accident, mostly to his left upper extremity, which are discussed in more detail below. He applied for and received short term disability benefits through August 31, 1999.
Judge A. Richard Caputo
The present action focuses on the events leading up to and surrounding the investment contracts made by the Luzerne County Retirement Board and Board members during the period of 1988 and 2002. Plaintiffs allege that various Board members engaged in a pay-to-play scheme in which contracts to invest or manage pension plan assets were awarded in exchange for campaign contributions to various Board members’ reelection campaigns.
Judge Sylvia H. Rambo
On October 17, 2003, following a jury trial, Defendant Franklin Brown was found guilty on ten counts of a thirty-seven count indictment. After the conviction, the probation office completed its Presentence Investigation Report, which set Defendant’s base offense level at six.1 The probation office calculated that Defendant’s base offense level should be adjusted upward by the following enhancements: (1) plus sixteen based on the amount of the loss calculated to be $38,113,383; (2) plus two because the offense involved more than minimal planning; (3) plus four because Defendant was an organizer and leader of the conspiracy to obstruct justice; (4) plus two for an abuse of a position of trust; and (5) plus two for an obstruction of justice enhancement. With enhancements, Defendant’s total offense level is thirty-two with a corresponding sentencing range of 121-151 months. Defendant submitted various objections, which, if resolved in his favor, would reduce his total offense level by ten levels.
The instant case is a civil rights action brought pursuant to 42 U.S.C § 1983 wherein Plaintiffs allege that Defendants violated their First and Fourteenth Amendment rights of free speech, freedom of assembly, and free exercise of religion. The following facts are undisputed unless otherwise noted.1 Plaintiffs are individuals who practice Christianity and whose sincerely held religious beliefs require them to preach publicly “in order to make the public aware of sin, including the sin of Halloween and of abortion.” (Pls.’ Sep. Stat. of Mat. Facts ¶ 3.) Plaintiffs exercise their religious beliefs by traveling to events across the country that draw large numbers of people in order to preach to crowds gathered at these events, to hand out tracts containing religious exhortations and to display signs containing, among other things, pictures of aborted fetuses. Defendants Russell Tschopp III, Kim Hibner, Eddie Lowe, and Roger Nestor are officers of the Police Department of the City of York (collectively “the Individual Defendants”). All of the Individual Defendants have had, at the time of their training at the police academy, training in the area of free speech rights. Defendant City of York (“the City”) is a municipal corporation organized and existing under the laws of the Commonwealth of Pennsylvania
Presently before the court is a motion (Doc. 18) in which defendants, the City of Lebanon (“Lebanon”), the Lebanon Police Pension Fund Board (“Board”), and members of the Board, seek summary judgment on the claims of plaintiff, George C. Pappas (“Pappas”), under 42 U.S.C. § 1983. Pappas asserts that the Board violated his rights to due process by failing to assist him in meeting statutory prerequisites for receipt of pension benefits and by denying his request to vest benefits without notice and a hearing.
The question presented is whether an agency’s denial of a claim to a benefit constitutes a “deprivation” of “property” under the Due Process Clause when governing law imposes conditions on receipt of the benefit that have not yet been deemed satisfied. For the reasons that follow, the court holds that it does not and will grant defendants’ motion for summary judgment.