Palmer v. United States ( 2002 )

Not for Publication in West’s Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-1181
CHARLES PALMER,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Charles Palmer on brief pro se.
Thomas P. Colantuono, United States Attorney and Peter E.
Papps, First Assistant U.S. Attorney, on brief for appellee.
May 30, 2003
Per Curiam. Charles Palmer was granted a certificate of
appealability ("COA") by the district court to appeal from the
denial of his § 2255 motion as to the following issue: "whether
Counts I and IV were multiplicitous in violation of the Double
Jeopardy Clause." Because this issue was presented for the first
time in his § 2255 motion, it is procedurally defaulted. To
overcome that procedural default, Palmer must establish cause and
prejudice. See Sustache-Rivera v. United States, 221 F.3d 8, 17 (1st
Cir. 2000). In an attempt to meet that standard, Palmer claims
ineffective assistance of counsel by the attorney who represented
him at trial and on appeal.
"[F]ailure to raise a well-established, straightforward
and obvious double jeopardy claim constitutes ineffective
performance" sufficient to excuse a procedural default. Jackson v.
Leonardo, 162 F.3d 81, 85 (2d Cir. 1998). Here, however, the issue
of whether the conduct charged in Counts Two and Four of Palmer's
indictment constitutes a single conspiracy or two separate
conspiracies seems a close question at best and not "clearly
stronger than those [issues] presented" on appeal. Smith v.
Robbins, 528 U.S. 259, 288 (2000).
"The Double Jeopardy Clause provides that no person shall
'be subject for the same offence to be twice put in jeopardy of
life or limb. . . .' U.S. Const. amend. V. The Clause has three
aspects: it shields a defendant from a second prosecution for the
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same offense after either conviction or acquittal, and it also
prohibits multiple punishments for the same offense." United States
v. Morris, 99 F.3d 476, 478 (1st Cir. 1996). Here, Palmer invokes
the Clause's protection against multiple punishments for the same
offense. The parties agree that although Palmer received concurrent
prison sentences on Counts One and Four, the $100 special
assessments imposed for each count, pursuant to 18 U.S.C. § 3013,
constitute multiple punishments. See Rutledge v. United States, 517
U.S. 292 (1996).
"In determining whether two charged conspiracies that
allege violations of the same substantive statute are actually the
same offense for double jeopardy purposes, we consider five
factors: (a) the time during which the activities occurred; (b) the
persons involved; (c) the places involved; (d) whether the same
evidence was used to prove the two conspiracies; and (e) whether
the same statutory provision was involved in both conspiracies."
United States v. Gomez-Pabon, 911 F.2d 847, 860 (1st Cir. 1990).
As to three of these factors, Counts One and Four are
identical: personnel, location and statutory provisions. Both
counts charge that Palmer conspired with Curtin to rob Sell's Mobil
Station in Nashua, New Hampshire, in violation of 18 U.S.C. § 1951.
However, the time frame for the two counts and the evidence
supporting them are distinct. Count One charges that the
conspiracy occurred on February 4, 1998, while Count Four charges
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that the conspiracy occurred on February 7, 1998. There is
evidence from which two separate agreements to rob the same store
on those two dates could be established.
"A single agreement to commit several crimes constitutes
one conspiracy. By the same reasoning, multiple agreements to
commit separate crimes constitute multiple conspiracies." United
States v. Broce, 488 U.S. 563, 570-71 (1989). Palmer's indictment
alleged multiple agreements to commit separate robberies. The
evidence, including Palmer's confession, supports a finding that
the agreement to rob Sell's Mobil Station on February 7, 1998, was
separate from the agreement to rob the same location on February 4,
1998. The evidence about the co-conspirators' motives and
circumstances could reasonably be interpreted to establish two
separate agreements, each arising from an immediate need for drugs
to support their addiction, rather than a single agreement,
extending over several days, to rob a specific store. See United
States v. Palmer 203 F.3d 55, 64 (1st Cir. 2000)(commenting that the
co-conspirators "conspired to rob the stores to feed their habits.
They did not follow normal patterns of behavior").
Counsel's failure to raise this doubtful double jeopardy
claim, as Palmer requested, did not amount to deficient performance
which, by a "reasonably probability," prevented Palmer from
receiving "a fair trial, understood as a trial resulting in a
verdict worthy of confidence." Prou, 199 F.3d at 49. We also note
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that it is uncertain whether the prejudice claimed by Palmer (a
$100 special assessment) would satisfy the applicable standard. See
Fields v. United States, 201 F.3d 1025, 1029 (8th Cir. 2000).
Because Palmer is not entitled to collateral relief on
the single issue for which a COA was granted, the district court's
denial of Palmer's § 2255 motion is affirmed.
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