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November 7, 2005.

ROBERT A. SMITH, Petitioner,
WARDEN SOBINA, Respondent.

The opinion of the court was delivered by: JAMES McCLURE JR., District Judge



Robert Allan Smith filed this pro se habeas corpus action pursuant to 28 U.S.C. § 2254 with respect to convictions and/or sentences which occurred in Cumberland, York, Dauphin and Perry counties. Service of the petition was previously ordered. Smith has notified the Court that he was granted parole effective September 7, 2004. See Record document no. 24.

  By Memorandum and Order dated April 18, 2005, this Court denied Respondents' respective arguments that this matter should be dismissed for the Petitioner's failure to fully exhaust state court remedies. The Memorandum additionally directed the Respondents to file supplemental responses which in part should address the question of whether Smith still satisfied the in custody requirement of 28 U.S.C. § 2254(a). On May 12, 2005, this Court denied requests for dismissal on the basis that Petitioner no longer satisfied the in custody requirement due to his release on parole. See Record document no. 32.

  Petitioner states that while being held in the Cumberland County Prison, he was interviewed by detectives from Cumberland, York, Dauphin, and Perry counties. Those law enforcement officials purportedly promised Smith that if he admitted to his participation in some unsolved burglaries which transpired in those respective counties, they would make sure that all charges against him would be consolidated into a single proceeding. Based on that alleged promise, the Petitioner apparently confessed to committing a number of burglaries in the four counties during a one (1) month span. Smith notes that consolidation of criminal charges is permissible under Pennsylvania state law even if the offenses occurred in different counties. His present petition contends that the law enforcement officials reneged on their agreement and he was improperly subjected to separate criminal prosecutions in each of the four counties.

  Smith concludes that the Commonwealth's failure to consolidate all of his pending charges violated the prohibition against double jeopardy. He also seeks federal habeas corpus relief on the grounds that his defense attorneys provided ineffective assistance by not requesting that all of the pending criminal charges be consolidated into a single proceeding.


  Standard of Review

  "The Antiterrorism and Effective Death Penalty Act of 1996 modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). Specifically, when a federal-law issue has been adjudicated on the merits by a state court, the federal court reverses only when the decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1).*fn1 See generally, Gattis v. Snyder, 278 F.3d 222, 234 (3d Cir. 2002); Moore v. Morton, 255 F.3d 95, 104-05 (3d Cir. 2001). The Court has held that the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have independent meaning. Williams v. Taylor, 529 U.S. 362, 404-405 (2000). As explicated in Bell, 535 U.S. at 694:
A federal habeas court may issue the writ under the `contrary to' clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. . . . The court may grant relief under the `unreasonable application' clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. . . . The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable. . . .
This deferential standard of review applies to state court decisions on ineffective assistance of counsel claims. Id. at 694-98. Furthermore, resolution of factual issues by the state courts are presumed to be correct unless the petitioner shows by clear and convincing evidence that they are not. 28 U.S.C. § 2254(e)(1).

  In summary, the appropriate inquiry for federal district courts in reviewing the merits of § 2254 petitions is whether the state court decisions applied a rule different from the governing law set forth in United States Supreme Court cases, decided the case before them differently than the Supreme Court has done on a set of materially indistinguishable facts, or unreasonably applied Supreme Court governing principles to the facts of the particular case. State court factual findings may be set aside only if rebutted by clear and convincing evidence. This Court will address Smith's claims in accordance with the above standards.

  Double Jeopardy

  As noted earlier, Petitioner claims that the failure of the Commonwealth to have all his outstanding criminal charges consolidated into a single proceeding violated the Double Jeopardy Clause. The Double Jeopardy Clause of the Fifth Amendment provides, "No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb." The Clause serves the function of preventing both "successive punishments and successive prosecutions." United States v. Usery, 111 S.Ct. 2135, 2139 (1996). It "prohibits the government from punishing twice or attempting a second time to punish criminally for the same offense." Id. at 2139-40, see also; United States v. Rice, 109 F. 3d 151, 153 (3d Cir. 1997). The Double Jeopardy Clause is applicable to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784 (1969).

  In Commonwealth v. MacPhail, 692 A.2d 139, 141 (Pa. 1997), the Pennsylvania Supreme Court recognized that multiple charges stemming from the same criminal episode, even if some of the charges were filed in a different county, may be consolidated into a single prosecution in order to avoid substantial duplication and waste of judicial resources.

  However, in Cicchincelli v. Shannon, 2001 WL 1352331 (E.D. Pa. Oct. 31, 2001), the Eastern District of Pennsylvania correctly noted that while the Double Jeopardy Clause prohibits multiple prosecutions for the same conduct, the underlying criminal activity must be part of a "single and uninterrupted course of conduct." Id. at *5. The activities "must be inherently continuous to constitute a single criminal transaction." Id. The Eastern District concluded that a defendant's sexual assaults of the same victim which ...

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