Note: a defendant had more success last week on a double jeopardy challenge to conviction on multiple firearms counts under Virgin Islands law in United States v. Hodge, No. 15-2621. At the same time, Hodge rejected a variety of additional double jeopardy challenges, including one to multiple mandatory minimums under 18 U.S.C.§ 924(c) where the defendant committed multiple crimes of violence during the same criminal episode.
Wednesday, September 13, 2017
Double Jeopardy Claim Falls Short on Deferential Habeas Review
In the habeas matter of Wilkerson v. Superintendent Fayette SCI, Nos. 15-1598 & 15-2673, the Third Circuit defers to a state court determination that the defendant’s conviction of both an attempted murder count and an aggravated assault count based on the same altercation did not violate the Double Jeopardy Clause.
The evidence was that during the altercation, the defendant both struck the victim in the head with a gun and shot him in the chest. The Pennsylvania Superior Court upheld consecutive sentences on the theory that the evidence was sufficient to permit a jury to find the striking to support one count and the shooting the other. Despite the jury instructions’ and verdict form’s failure to require each of these discrete findings, the Third Circuit holds that the state court’s reasoning was sound enough to withstand deferential review the AEDPA’s “clearly established Federal law” limitation. “[W]here the jury instructions were merely ambiguous and did not foreclose the jury from rendering multiple constitutionally sound convictions,” the Third Circuit reasons, “the state court was not unreasonable in sustaining those convictions based on the sufficiency of the trial evidence” — or at least not “so unreasonable as to put it ‘beyond any possibility for fairminded disagreement,’” the opinion elsewhere states, quoting Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015).
In Wilkerson, the Court also renders several procedural rulings, holding that the defendant’s claim on direct appeal that Pennsylvania’s merger doctrine barred imposition of sentence on both counts sufficed to exhaust his federal double jeopardy claim; that the 14-day deadline for notice of a cross appeal in a federal civil case is not jurisdictional; and that the original, pro se habeas petition’s failure to state a subsequently raised Apprendi challenge rendered this claim untimely because it did not “relate back” to the defendant’s double jeopardy claim.
Amendment 801 to § 2G2.2(b)(3)(F) is a substantive change to the Guidelines, and does not apply retroactively under § 2255
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