United States District Court, M.D. Pennsylvania
November 7, 2005.
ROBERT A. SMITH, Petitioner,
WARDEN SOBINA, Respondent.
The opinion of the court was delivered by: JAMES McCLURE JR., District Judge
MEMORANDUM AND ORDER
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
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.
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 were
separated in time and occurred in different venues were two
different criminal episodes for purposes of the Double Jeopardy
Petitioner entered a guilty plea to eight (8) counts of
burglary in the Cumberland County Court of Common Pleas on June
19, 2000. He was sentenced to a three (3) to fifteen (15) year
term of imprisonment. Almost one year later, on May 10, 2001,
Smith entered guilty pleas in the York County Court of Common
Pleas in three (3) separate cases. In Case 4825, Petitioner pled
guilty to access device fraud and was given a one (1) to two (2)
year sentence. In Cases 5058 and 5027, Smith pled guilty to
burglary and received two (2) to four (4) year concurrent
sentences which were to run consecutively to the sentence imposed
in Case 4825. Thereafter, Smith entered a guilty plea in the
Perry County Court of Common Pleas on June 15, 2001. He was
sentenced on July 12, 2001 to a term of imprisonment to run
concurrently and coterminous with any sentence imposed in
Cumberland County. Perry County, citing McPhail, asserts that it recognized the
presence of a consolidation issue with respect to Smith's
prosecution. It also acknowledges that law enforcement officials
gave Smith assurances that his charges would be consolidated.
However, since the Petitioner's Perry County sentence was
directed to run concurrently and coterminous with any Cumberland
County sentence, Perry County argues that there was no resulting
Petitioner's guilty pleas in the three (3) York County cases
were the result of a plea bargain negotiated by his Public
Defender. As a result of that plea agreement, the York County
sentences were directed to run concurrently with Smith's
Cumberland County sentences. In addition, time spent by
Petitioner in the Cumberland County prison while awaiting
disposition of his York County proceeding was credited towards
service of the York County sentences. York County similarly seeks
dismissal on the grounds that the failure to consolidate was
non-prejudicial since concurrent sentences were imposed.
Smith counters that the above arguments are unpersuasive
because his Perry, Dauphin and York County sentences are still
viewed as separate sentences by the Pennsylvania Board of
Probation and Parole and thus, negatively impacts his eligibility
It is undisputed that Smith has been released on parole,
consequently, Petitioner's argument that his separate state
convictions negatively impacted his parole eligibility is moot. Second, the purpose of the Double Jeopardy
Clause is to prevent a second prosecution for the same offense
after acquittal, a second prosecution for the same offense after
conviction or multiple prosecutions for the same offense. United
States v. $184,505.01 in U.S. Currency, 72 F.3d 1160, 1165 (3d
The undisputed record clearly establishes that criminal charges
against Smith did not stem from a single uninterrupted course of
conduct. Petitioner acknowledges that his underlying criminal
activities transpired over a one month period of time and
occurred in various locales. Based on an application of the
standards announced in U.S. Currency and Cicchinelli, it is
apparent to this Court that the multiple state prosecutions of
the Petitioner for numerous non-continuous criminal acts which
occurred over a one month span in different counties did not
constitute multiple prosecutions for the same offense in
violation of the Double Jeopardy Clause. As demonstrated in
Cicchinelli, the failure of the Commonwealth to consolidate
Petitioner's criminal charges into a single proceeding as
contemplated under McPhail does not warrant a conclusion that
there was a violation of the Double Jeopardy Clause.
Moreover, this determination is further bolstered by the lack
of any indication that Petitioner suffered any resulting
prejudice since his York and Perry County sentences were
apparently directed to run concurrently to his Cumberland County sentence.*fn2 In conclusion, the separate state prosecutions
for crimes committed in different cities on different dates was
constitutionally acceptable and provides no basis for federal
habeas corpus relief.
In a related claim, Petitioner asserts that the various defense
attorneys who represented him with respect to the Cumberland,
Dauphin, Perry and York County prosecutions were ineffective for
not seeking a McPhail consolidation.
The United States Supreme Court in Strickland v. Washington,
466 U.S. 668, 688 (1984) held that to prove a constitutional
violation for ineffective assistance of counsel, a habeas
petitioner must meet a two-pronged test. First, the petitioner
must prove that counsel's performance was deficient. Jermyn v.
Horn, 266 F.3d 257, 282 (3d Cir. 2001). That is, he must show
that counsel's "representation fell below an objective standard
of reasonableness." Strickland, 466 U.S. at 688. There exists a
"strong presumption" that trial counsel's performance was
reasonable and might be considered sound trial strategy.
Jermyn, 266 F.3d at 282 (quoting Berryman v. Morton,
100 F.3d 1089, 1094 (3d Cir. 1996)).
Second, he must show that he was prejudiced by the deficient
performance. Strickland, 466 U.S. at 687. The prejudice test is
whether there is a reasonable probability that, but for the deficient performance, the outcome
of the proceedings would have been different. Id. at 694. A
reasonable probability is one that is "sufficient to undermine
confidence in the outcome." Id. at 694. "Without proof of both
deficient performance and prejudice to the defense . . . it could
not be said that the sentence or conviction resulted from a
breakdown in the adversary process that rendered the result of
the proceeding unreliable, and the sentence or conviction should
stand." Bell, 535 U.S. at 695 (internal quotations and citation
omitted). In assessing an ineffective assistance claim, the
totality of the evidence before the jury must be considered.
Jermyn, 266 F.3d at 283.
Based on the concurrent sentence imposed, York County argues
that Petitioner was not prejudiced by the failure of his Public
Defender to seek a McPhail-type consolidation. Since Smith was
not required to serve any additional period of incarceration, the
result defense counsel achieved via obtaining a concurrent
sentence was the same as if the charges had been consolidated
into a single proceeding along with the charges from the other
As previously noted, the sentences from the Perry and York
County convictions were ordered to be served concurrently with
the Cumberland County sentence. There is no claim and no
indication in the record that a consecutive sentence was imposed in Dauphin County.*fn3 Second, this
Court has already concluded that the multiple state prosecutions
did not violate the Double Jeopardy Clause. Furthermore, since he
has already been granted release on parole any argument that the
multiple prosecutions adversely affected Smith's parole
eligibility is moot. In conclusion, since the performance of
defense counsel did not prejudice the Petitioner, his claims of
ineffective assistance of counsel are baseless under
IT IS HEREBY ORDERED:
1. The petition for writ of habeas corpus is DENIED.
2. The Clerk of Court is directed to CLOSE the case.
3. Based on the Court's determination there is no basis for the
issuance of a Certificate of Appealability.
© 1992-2005 VersusLaw Inc.