Gillespie v. Ryan

• Decision Date: 07 March 1988
• Docket Number: No. 87-5267,87-5267
• Citation: 837 F.2d 628
• Parties: GILLESPIE, James, Appellant, v. RYAN, Joseph (Superintendent); The Attorney General of the State of Pennsylvania.
• Court: U.S. Court of Appeals — Third Circuit

Page 628

837 F.2d 628

GILLESPIE, James, Appellant, v. RYAN, Joseph (Superintendent); The Attorney General of the State of Pennsylvania.

No. 87-5267.

United States Court of Appeals Third Circuit.

Argued Jan. 19, 1988.

Decided Jan. 29, 1988.

Rehearing and Rehearing En Banc Denied March 7, 1988.

Michael J. Foley (argued), Thomas J. Foley, Jr. and Associates, P.C., Scranton, Pa., for appellant.

Ernest D. Preate, Jr. (argued), Dist. Atty., Lois H. Lichtenwalner, Asst. Dist. Atty., Scranton, Pa., for appellees.

Before GIBBONS, Chief Judge, WEIS and GREENBERG, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Chief 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. Sec. 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.

I

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 Sec. 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.

II

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, 102 S.Ct. 1198, 71 L.Ed.2d 379 (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 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, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983); but see Simpson v. Commonwealth of Massachusetts, 795 F.2d 216, 219 (1st Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 676, 93 L.Ed.2d 727 (1986). On the other hand, this court is bound by the Pennsylvania Supreme Court's interpretation of Pennsylvania law. Hunter, 459 U.S. at 368, 103 S.Ct. at 679.

III

The Fifth Amendment provides, in relevant part, "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." It has been said that the double jeopardy clause serves three primary purposes. "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Since Gillespie was not subject to multiple prosecutions, only the third aspect, the multiple punishment aspect, is involved in this case.

The seminal case in the area of multiple punishments is Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). There the Court held that consecutive sentences under two different sections of the federal narcotics laws were permissible even though there was only one sale of narcotics since "[e]ach of the offenses created requires proof of a different element." 284 U.S. at 304, 52 S.Ct. at 182. "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id.

For a time, it appeared that the Blockburger test constituted a restriction on the power of states and Congress to define the substantive elements of criminal offenses. See Simpson v. United States, 435 U.S. 6, 10-13, 98 S.Ct. 909, 911-913, 55 L.Ed.2d 70 (1978); Jeffers v. United States, 432 U.S. 137, 155, 97 S.Ct. 2207, 2218, 53 L.Ed.2d 168 (1977) (plurality opinion authored by Justice Blackmun). As Justice Blackmun himself noted, this suggestion in Simpson and Jeffers "caused confusion among state courts that ... attempted to decipher our pronouncements concerning the Double Jeopardy Clause's role in the area of multiple punishments." Whalen v. United States, 445 U.S. 684, 698, 100 S.Ct. 1432, 1441, 63 L.Ed.2d 715 (1980) (Blackmun, J., concurring in the judgment). He pointed in particular to the "disorder among state appellate courts" regarding the permissibility of imposing, after a single trial, cumulative sentences for felony murder and the underlying felony. 445 U.S. at 698-99, 100 S.Ct. at 1441-42. Cf. Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (per curiam) (double jeopardy clause bars successive prosecutions for felony murder and the underlying felony).

The Court in Whalen, however, while alluding to Blockburger as a rule of statutory construction, 445 U.S. at 691, 100 S.Ct. at 1437, declined to follow Justice Blackmun's suggestion that it "repudiate those dicta [in Simpson and Jeffers ] squarely, and ... hold clearly that the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed." 445 U.S. at 698, 100 S.Ct. at 1441. This was the state of the law when the Pennsylvania Supreme Court, applying the Blockburger test, decided that the double jeopardy clause of the federal constitution bars multiple punishments for felony murder and the underlying felony. Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981) (overruling Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977)). ¹

However, subsequent to Tarver, the United States Supreme Court did what Justice Blackmun had suggested in Whalen. It held:

[S]imply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. The rule of statutory construction noted in Whalen is not a constitutional rule requiring courts to negate clearly expressed legislative intent. Thus far, we have utilized that rule only to limit a federal court's power to impose convictions and punishments when the will of Congress is not clear. Legislatures, not courts, prescribe the scope of punishments.

Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the "same" conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.

Missouri v. Hunter, 459 U.S. 359,...