On Appeal from the United States District Court for the Middle District of Pennsylvania - Scranton, D.C. Civil No. 86-1789.
Russell and Hall, Circuit Judges, and Haynsworth, Senior Circuit Judge.
James Gillespie appeals from the district court's denial of his petition for a writ of habeas corpus. This court granted a petition for a certificate of probable cause and therefore has jurisdiction pursuant to 28 U.S.C. § 2253 (1982). We hold that the double jeopardy clause of the federal constitution was not violated by sentencing Gillespie for both felony murder and the underlying felony. Accordingly, we will affirm.
On October 9, 1969, James Gillespie robbed a gas station, took the attendant to an isolated area, and shot him to death. On June 28, 1972, he was convicted of first degree murder and armed robbery. At the time of the offense, the Pennsylvania murder statute provided: "All murder which shall be perpetrated by means of poison, or by lying in wait, or by another kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempting to perpetrate any arson, rape, robbery, burglary or kidnapping, shall be murder in the first degree." Act of June 24, 1939, P.L. 872 § 701. Since the trial judge charged the jury on both the premeditated and the felony murder aspects of the statute, it is impossible to know on which theory the jury convicted Gillespie of first degree murder.
Gillespie was sentenced to life imprisonment for the murder and a consecutive term of five to ten years for the robbery. The conviction was affirmed by the Supreme Court of Pennsylvania. His petition for a writ of habeas corpus was denied by the United States District Court for the Middle District of Pennsylvania. This court affirmed and the Supreme Court denied the petition for certiorari.
Gillespie returned to the Pennsylvania court system and filed a petition for post-conviction relief, claiming, among other things, that the sentence on both the murder conviction and the robbery conviction violated the double jeopardy clause of the federal constitution. The trial court denied the petition. On appeal, the Pennsylvania Superior Court accepted Gillespie's double jeopardy contention, relying on a closely analogous case decided by the Supreme Court of Pennsylvania, Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981) (overruling Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977)). Following a grant of allocatur, the Pennsylvania Supreme Court reversed the Superior Court, holding that the Tarver decision was not to be applied retroactively in collateral attacks on convictions. Commonwealth v. Gillespie, 512 Pa. 349, 516 A.2d 1180 (1986).
Gillespie filed another petition for a federal writ of habeas corpus. The magistrate to whom the petition was referred for a report and recommendation, concerned that Gillespie was raising an issue not presented to the Pennsylvania courts, asked Gillespie to clarify whether he was claiming any ground for relief other than the double jeopardy claim. While Gillespie's pro se response was far from clear, the magistrate recommended that the district judge view the petition as raising only the double jeopardy claim. The magistrate did not discuss the merits of the double jeopardy claim, agreeing with the Pennsylvania Supreme Court that Tarver should not be applied retroactively to Gillespie's case. On April 14, 1987, the district judge adopted the magistrate's report, denied the petition, and stated that there was no probable cause for appeal. On April 20, 1987, Gillespie filed a notice of appeal, and, on July 14, 1987, this court granted his petition for a certificate of probable cause and his motion for appointment of counsel.
It is clear that Gillespie exhausted his state remedies regarding the double jeopardy issue. Since Gillespie does not object to the magistrate's interpretation of his submissions as raising only the double jeopardy claim, we conclude that we are not faced with a "mixed" petition of exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982).
This appeal raises only questions of the interpretation and application of legal precepts. With regard to the merits of Gillespie's double jeopardy claim and the retroactivity of federal constitutional doctrine, we exercise plenary review. While the views of the both the district court and the Pennsylvania Supreme Court are entitled to respectful consideration, we cannot defer to their interpretation of federal law. Missouri v. Hunter, 459 U.S. 359, 368, 74 L. Ed. 2d 535, 103 S. Ct. 673 (1983); but see Simpson v. Commonwealth of Massachusetts, 795 F.2d 216, 219 (1st Cir.), cert. denied, 479 U.S. 1020, 107 S. Ct. 676, 93 ...