NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 15-1147 _____________

ROBERT ROBINSON, Appellant

v.

SUPERINTENDENT, SCI SOMERSET; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; THE DISTRICT ATTORNEY OF PHILADELPHIA COUNTY _______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No. 2-13-cv-06918) Honorable Robert F. Kelly, District Judge _______________

Argued: March 8, 2017

Before: HARDIMAN and KRAUSE, Circuit Judges, and STENGEL, Chief District Judge. ∗

(Filed: February 14, 2018) _______________

Cheryl J. Sturm, Esq. (Argued) 387 Ring Road Chadds Ford, PA 19317

Counsel for Appellant

∗ The Honorable Lawrence F. Stengel, Chief United States District Judge for the Eastern District of Pennsylvania, sitting by designation. Susan E. Affronti, Esq. Jennifer O. Andress, Esq. (Argued) Max C. Kaufman, Esq. Philadelphia County Office of District Attorney 3 South Penn Square Philadelphia, PA 19107

Counsel for Appellees ____________

OPINION ** ____________

KRAUSE, Circuit Judge.

Appellant Robert Robinson appeals the District Court’s order denying his petition

for habeas corpus on his claim that his convictions for both attempted murder and

aggravated assault violated his rights under the Fifth Amendment’s Double Jeopardy

Clause. Because Robinson’s double jeopardy claim is procedurally defaulted, we will

affirm.

I. Factual Background

Both of Robinson’s convictions at issue in this appeal arise from a violent episode

in which Robinson both shot his victim in the stomach and hit the victim over the head

with a gun. As reflected in the trial testimony, the incident began when the victim,

Kenneth Glenn, went to the home of an acquaintance with the intention of purchasing

cocaine. When he arrived, Glenn mistakenly rang the wrong doorbell and was told by a

** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 neighbor that the acquaintance was not home. Glenn apologized for the disturbance and

returned to his car to wait.

At this point, Robinson emerged from the apartment whose doorbell Glenn had

accidentally rung and ordered Glenn to get out of the car and give his money to

Robinson. When Glenn resisted, Robinson shot him in the stomach. As Glenn tried to

crawl back into his car, Robinson shot at him again and then hit Glenn in the head with a

gun.

After a jury trial, Robinson was convicted of attempted murder and aggravated

assault, among other offenses. Of relevance to this appeal, when giving its instruction on

the charge of attempted murder, the trial court explained that, in order to convict, the jury

would have to find that Robinson shot the victim. On the charge of aggravated assault,

however, the trial court simply instructed that the jury would have to find that Robinson

“caused serious bodily injury” to the victim without specifying that, if Robinson was

found guilty of attempted murder, the shooting could not, in addition to serving as the

ground for the attempted murder conviction, also constitute the “serious bodily injury”

necessary to support an aggravated assault conviction. App. 346. Robinson received

consecutive sentences for all counts totaling twenty-nine and one-half to seventy-two

years of incarceration.

II. Procedural History

Robinson appealed to the Pennsylvania Superior Court arguing, among other

things, that his sentences for attempted murder and aggravated assault should have

merged under Pennsylvania state law. In making this argument, Robinson relied on the

3 Pennsylvania Supreme Court’s decision in Commonwealth v. Anderson,

, 23-

24 (Pa. 1994), a case in which the Court held that aggravated assault is a lesser-included

offense of attempted murder and that, therefore, when convictions for those crimes are

based on the same criminal act, the sentences must merge. The Superior Court rejected

this argument, concluding the evidence at trial was sufficient to support a conviction for

attempted murder based on the shooting and a conviction for aggravated assault based on

the beating. Thus, the Superior Court explained, because Robinson’s convictions were

based on separate criminal acts, Anderson did not apply and there was no legal error in

Robinson’s receiving consecutive sentences.

Robinson then sought the discretionary review of the Pennsylvania Supreme

Court. In his petition for review, Robinson again argued that his sentences for attempted

murder and aggravated assault should have merged, but this time did not cite to

Anderson, arguing only that the Superior Court erred in analogizing the facts of his case

to those of Commonwealth v. Belsar,

(Pa. 1996), a Pennsylvania Supreme

Court case addressing when a prolonged violent episode involving both a shooting and a

beating should be considered one criminal act versus two. The Pennsylvania Supreme

Court denied Robinson’s petition.

Robinson then filed a petition for collateral review under Pennsylvania’s Post

Conviction Relief Act (PCRA), raising only claims that are no longer at issue in this

appeal. The PCRA Court denied Robinson’s petition for relief, and the Superior Court

affirmed that dismissal.

4 Having been denied relief in state court, Robinson filed a petition for habeas

corpus pursuant to 28 U.S.C § 2254 in the United States District Court for the Eastern

District of Pennsylvania. In his habeas petition, Robinson raised, among other claims, a

federal double jeopardy claim, arguing that he could not be lawfully convicted of both

attempted murder and aggravated assault “without a jury verdict justifying the conclusion

that the crime of attempted murder was based on the shooting and the aggravated assault

was based on the pistol whipping.” App. 95.

The District Court denied Robinson’s petition in full, and this timely appeal

followed. 1

III. Jurisdiction and Standard of Review

The District Court had jurisdiction under

, and we have

jurisdiction under

. Because the District Court based its decision on the

evidence contained in the state court record and did not engage in any independent fact-

finding, our review of the District Court’s denial of Robinson’s petition is plenary.

McAleese v. Mazurkiewicz,

(3d Cir. 1993).

IV. Analysis

The Commonwealth contends that Robinson’s double jeopardy claim is

procedurally defaulted and, in any event, meritless. We agree on both points, and will

therefore affirm.

1 Robinson sought a certificate of appealability on a number of issues, but we granted it only as to “whether Robinson’s rights under the Double Jeopardy Clause were violated by the imposition of separate punishments for aggravated assault and attempted murder.” App. 3. 5 A state inmate “shall not be granted” a writ of habeas corpus unless the inmate

first “exhaust[s] the remedies available in the courts of the State.”

(b)(1). In order to properly exhaust a federal claim, the petitioner must have

“fairly presented” that claim to the state courts—that is, the petitioner must have

“present[ed] a federal claim’s factual and legal substance to the state courts in a manner

that put[] [the state courts] on notice that a federal claim [was] being asserted.”

McCandless v. Vaughn,

(3d Cir. 1999). If the petitioner fails to meet

this exhaustion requirement and the state court to which he would be required to present

his claims would now deem them procedurally barred, then “there is a procedural default

for purposes of federal habeas regardless of the decision of the last state court to which

the petitioner actually presented his claims.” Coleman v. Thompson,

, 735

n.1 (1991).

Although a Pennsylvania inmate is not required to seek the discretionary review of

the Pennsylvania Supreme Court before seeking habeas relief, Lambert v. Blackwell,

(3d Cir. 2004), if an inmate does petition for such review, the federal claim

at issue must have been “fairly presented” in that petition, and the fact that a petitioner

fairly raised his claim before a lower state court is not sufficient to satisfy the habeas

exhaustion requirement, Baldwin v. Reese,

(2004). Robinson

acknowledges that he never raised a federal double jeopardy claim in any state forum, but

contends that, by raising a similar state law merger claim, he satisfied the fair

presentation standard.

6 Working in Robinson’s favor, the Pennsylvania Supreme Court has stated that

“there is no difference between a double jeopardy analysis and a merger analysis,”

Anderson,

, and our Court has recently held, in a case where the petitioner

specifically cited to Anderson and argued the jury instructions given at his trial allowed

for two convictions on the basis of a single criminal act, that the Pennsylvania merger

claim raised by the petitioner in that case fairly presented a federal double jeopardy claim

to the state court. Wilkerson v. Superintendent Fayette SCI,

(3d

Cir. 2017), petition for cert. filed (Jan. 18, 2018). There, we concluded this argument,

coupled with the petitioner’s citation to Anderson and its pronouncement that merger and

double jeopardy employ an “identical” analysis, Anderson,

, so resembled

a double jeopardy claim that the petitioner had “asserted his claims in terms so particular

as to call to mind a specific right protected by the Constitution,” and his double jeopardy

claim was not procedurally defaulted, Wilkerson,

(brackets omitted)

(quoting McCandless,

).

The problem for Robinson, however, is that while he cited to Anderson and made

similar arguments in his appeal to the Pennsylvania Superior Court, he did not do so in

his petition for review before the Pennsylvania Supreme Court. Instead, in that petition,

Robinson argued that his sentences for aggravated assault and attempted murder should

have merged as a matter of state law based only on Belsar, a Pennsylvania Supreme

Court decision that addressed when a continuous, single violent incident should be

deemed two criminal acts instead of one under state law and that, unlike Anderson, made

7 no reference to a federal double jeopardy analysis. See

; cf. Anderson,

.

Moreover, Robinson did not argue to the state Supreme Court, as he does on

federal habeas review, that due to errors in the jury instructions at trial, he was convicted

of both crimes based on the single act of shooting of the victim. Rather, Robinson argued

only that the shooting and the beating were “one act” as a matter of state law because, in

contrast to Belsar, the evidence at Robinson’s trial reflected that the attack was never

“broken off” and then later resumed. App. 197-98; see Belsar,

. This

argument as to what evidence is sufficient under state law for a continuous attack to be

deemed to involve two separate acts does not “call to mind a specific right protected by

the Constitution,” McCandless,

, and, coupled with only a citation to a

state case that made no reference to federal law, was not sufficient to fairly present

Robinson’s federal claim to the Pennsylvania Supreme Court. Cf. Wilkerson,

. Because Robinson petitioned the Pennsylvania Supreme Court for review, but

did not fairly present his double jeopardy claim in that petition, that claim is procedurally

defaulted and Robinson is not eligible for habeas relief. Baldwin,

. 2

2 Even if we could reach the claim that Robinson has raised on federal habeas— that a double jeopardy violation occurred because “the charging instrument did not allege and the jury was not required to make a finding of fact that the attempted murder conviction was for the shooting and the aggravated assault was for the pistol whipping,” Appellant’s Br. 28—Wilkerson makes clear that claim would fail on the merits. As we explained there, we may only grant a state inmate habeas relief if the state court’s decision denying relief was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,”

(d)(1), and that standard is not satisfied when the state court rejects a double jeopardy claim based on its conclusion that the jury, given the evidence 8 V. Conclusion

For the foregoing reasons, we will affirm the judgment of the District Court

denying Robinson’s petition for habeas corpus.

adduced at trial, could have returned the two convictions based on two separate criminal acts. Wilkerson,

. Such was the case here, for just as in Wilkerson, the state court reviewed the trial record and concluded that the evidence was sufficient for the jury to have convicted Robinson of attempted murder on the basis of the shooting and of aggravated assault on the basis of a different act, i.e., the beating. 9