Concepcion v. Varano et al
MEMORANDUM re REPORT AND RECOMMENDATIONS 54 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 11/30/17. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Civil No. 1:11-cv-2225
Judge Sylvia H. Rambo
Before 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.1
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.
Under 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
Concepcion was convicted in the Juniata Court of Common Pleas on July 24, 2008 of
possession with intent to deliver a controlled substance, criminal use of a communication
facility, corrupt organizations, criminal conspiracy, and dealings in proceeds of unlawful
activities. The background and procedural history of this proceeding are adequately set forth in
the report and recommendation and will be adopted herein.
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).
a. Double Jeopardy Claim
Concepcion 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 jeopardy violation.
In this 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.
In 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).
The 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.
In 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.
This 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.
Concepcion 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 to
co-conspirators. He claims that he never distributed drugs to anyone in Juniata
Concepcion was charged with criminal conspiracy to possess with the
intent to deliver a controlled substance. The Third Circuit has held that “venue can
be established wherever a co-conspirator has committed an act in furtherance of
the conspiracy.” United States v. Perez, 280 F.3d 318, 319 (3d Cir. 2002) (citing
Hyde v. United States, 225 U.S. 347, 363-64 (1912)). Juniata County was
considered the appropriate venue by the Superior Court because that was where the
drugs were distributed by Concepcion’s co-conspirators to whom he sold.2
Based on the foregoing, the petition will be dismissed. An appropriate
order will issue.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: November 30, 2017
The magistrate judge also addressed the issue of whether the vicinage provision of the Sixth
Amendment has been violated. Vicinage refers to the geographical area from which jurors may
be drawn. As the magistrate judge and respondent point out, this argument was not presented in
the initial petition or before the state court, and furthermore, the Third Circuit has held that the
Sixth Amendment vicinage provision is not applicable to state criminal trials. This court agrees
and will not address the issue, as it is not properly before the court.
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