Not for Publication in West’s Federal Reporter Citation Limited Pursuant to 1st Cir. Loc.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,

(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,

(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,

(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

-2- same offense after either conviction or acquittal, and it also

prohibits multiple punishments for the same offense." United States

v. Morris,

(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

,

constitute multiple punishments. See Rutledge v. United States,

(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,

(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

.

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

-3- 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,

(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

(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

-4- that it is uncertain whether the prejudice claimed by Palmer (a

$100 special assessment) would satisfy the applicable standard. See

Fields v. United States,

(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.

-5-