United States District Court, M.D. Pennsylvania
H. RAMBO UNITED STATES DISTRICT JUDGE
the court is a report and recommendation filed by the
magistrate judge in which she recommends that the remaining
two issues in the petition filed by Juan Concepcion pursuant
to 28 U.S.C. § 2254 be dismissed with
prejudice.The remaining two claims for habeas relief
involve (1) an alleged violation of the double jeopardy
clause (Doc. 1, p. 13; Doc. 53, p. 10); and (2) improper
venue and vicinage. Objections have been filed to the report
and recommendation, and the government has filed an
opposition to those objections. For the reasons that follow,
the report and recommendation will be adopted.
28 U.S.C. § 2254(d), “[a]n 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” unless such adjudication “resulted in a
decision that was contrary to . . . clearly established
Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1).
Double Jeopardy Claim
argues that Counts 1 and 4 (possession with intent to deliver
a controlled substance) and Counts 2 and 5 (delivery of a
controlled substance) of the Indictment were aggregate
charges and thus multiplicitous as the conduct was
continuance in nature, and therefore constitute a double
case, the Pennsylvania Superior Court found that
Concepcion's acts were with different people at different
times and involved different amounts, and rejected the
argument that the crimes had to merge. The court relied on
Commonwealth of Pennsylvania v. Williams, 958 A.2d
522 (Pa. Super. 2008) and Commonwealth of Pennsylvania v.
McCalman, 795 A.2d 412 (Pa. Super. 2002) wherein the
Superior Court had previously rejected merger arguments
similar to those presented by Concepcion.
Ohio v. Johnson, 467 U.S. 493 (1984), the Supreme
Court held that, “[b]ecause the substantive power to
prescribe crimes and determine punishments is vested with the
legislature, the question under the Double Jeopardy Clause
whether punishments are ‘multiple' is essentially
one of legislative intent.” Id. at 499
(internal citations omitted).
Pennsylvania statute at issue in this case states:
“[e]xcept as authorized by this act, the manufacture,
delivery, or possession with intent to manufacture or
deliver, a controlled substance by a person not registered
under this act . . . or knowingly creating, delivering or
possessing with intent to deliver, a counterfeit controlled
substance [is prohibited].” 35 Pa. C.S.A.
§780-113(a)(30). In examining this statute, Pennsylvania
courts have concluded that each instance of drug possession
and delivery constitute separate acts and are not the same
offense for purposes of double jeopardy and merger.
United States v. Kennedy, 682 F.3d 244, 257 (3d Cir.
2012), the Third Circuit held “that the acts of
possession and distribution involved discrete quantities of
narcotics, ” as in the instant case, and are not
subject to merger.
court must defer to state appellate court determinations of
state law questions. Furthermore, the Pennsylvania court has
not rendered a decision in this case that is contrary to
clearly established federal law. Accordingly, there has been
no violation of the double jeopardy clause.
argues that his trial in Juniata County was improper under
the Sixth Amendment. He claims that his right to a speedy
trial by peers from his own community was violated when he
was tried by citizens of Juniata County instead of Dauphin
County where he is a resident and where he distributed drugs