                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0298n.06

                                           No. 10-5461

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                    FILED
                                                                                    Mar 25, 2013
                                                                              DEBORAH S. HUNT, Clerk
LEONARD GROVES, JR.,                                     )
                                                         )
       Petitioner-Appellant,                             )         ON APPEAL FROM THE
                                                         )         UNITED STATES DISTRICT
               v.                                        )         COURT FOR THE WESTERN
                                                         )         DISTRICT OF KENTUCKY
JOSEPH MEKO, Warden,                                     )
                                                         )         AMENDED
       Respondent-Appellee.                              )
                                                         )



BEFORE: SILER, ROGERS, and WHITE, Circuit Judges.

       ROGERS, Circuit Judge. Leonard Groves Jr. appeals the district court’s denial of his petition

for a writ of habeas corpus. Groves argues that his state convictions for first-degree robbery and

first-degree wanton endangerment violate his constitutional right not to be subjected to double

jeopardy. There is no double jeopardy violation in Groves’s convictions, however, because each of

the two statutes under which Groves was convicted requires proof of an element that the other does

not.

       After admitting that he robbed a Wendy’s restaurant, Groves pled guilty in state court to one

count of first-degree robbery, in violation of KRS 515.020, and five counts of first-degree wanton

endangerment, in violation of KRS 508.060. Groves later asked the trial court to set aside his guilty

plea, arguing, among other things, that convictions for first-degree robbery and first-degree wanton

endangerment would violate the Double Jeopardy Clause. The trial court rejected Groves’s request
No. 10-5461
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and sentenced him to twenty years’ imprisonment on the robbery charge and five years’

imprisonment on each of the wanton endangerment charges. The trial court ordered that the

sentences be served concurrently for a total of twenty years’ imprisonment.

        Groves appealed and argued that his convictions constituted double jeopardy. The Kentucky

Court of Appeals, however, held that Groves waived his double jeopardy claim by voluntarily

pleading guilty. Groves v. Commonwealth, 2007 WL 2343767, *4 (Ky. Ct. App. 2007). Ultimately,

the court affirmed Groves’s convictions and sentence. Id.

        Groves then filed a petition for a writ of habeas corpus in federal district court. Groves

raised his double jeopardy argument but the district court held that the claim lacked merit. While

the district court did not address the waiver issue, it held that, under the test of Blockburger v. United

States, 284 U.S. 299 (1932), there is no double jeopardy violation in Groves’s convictions for both

first-degree robbery and first-degree wanton endangerment because each statute requires proof of

a fact that the other does not. In reaching this conclusion, the district court was persuaded by a

recent Kentucky Court of Appeals case which analyzed the two statutes in question and held that

they proscribed different offenses. Accordingly, the district court denied Groves’s habeas petition.

        Groves now appeals and claims once more that his convictions constitute double jeopardy.

Groves argues that the first-degree wanton endangerment charges were based on the “same conduct”

that gave rise to the first-degree robbery charge—pointing a gun at Wendy’s employees—and thus,

the wanton endangerment charges should have merged into the robbery charge.




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          Before turning to the merits of the double jeopardy claim, we must first address whether this

case is appropriate for appellate review. Under the “concurrent sentencing doctrine,” “an appellate

court may decline to hear a substantive challenge to a conviction when the sentence on the

challenged conviction is being served concurrently with an equal or longer sentence on a valid

conviction.” Dale v. Haeberlin, 878 F.2d 930, 935 n.3 (6th Cir. 1989); see United States v. Ware,

282 F.3d 902, 906 (6th Cir. 2002). In the instant case, Groves was sentenced to concurrent terms

of imprisonment for six felonies. Thus, even if we were to find that the convictions for wanton

endangerment were unconstitutional, he would still be required to serve the same twenty years in

prison.

          The concurrent sentencing doctrine is a discretionary one, and courts “are admittedly hesitant

to apply [it].” Dale, 878 F.2d at 935 n.3. Here, neither party asks us to apply the doctrine.

Accordingly, we decline to apply the doctrine and will address the double jeopardy claim.

          As an initial matter, the Government argues that Groves waived his double jeopardy claim

by voluntarily pleading guilty to the first-degree robbery and first-degree wanton endangerment

charges. This court need not resolve this issue, however, because even assuming, without deciding,

that Groves did not waive his double jeopardy claim, Groves’s appeal fails on the merits.

          There is no double jeopardy violation in Groves’s convictions for both first-degree robbery

and first-degree wanton endangerment. Under the test set forth in Blockburger, two statutes

proscribe different offenses if each provision requires proof of a fact that the other does not.

Blockburger, 284 U.S. at 304. Applying this test, the two statutes under which Groves was charged


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clearly proscribe different offenses. Compare KRS 515.020 with KRS 508.060. First-degree

robbery requires proof of theft and first-degree wanton endangerment does not. First-degree wanton

endangerment requires a manifestation of extreme indifference to the value of human life and first-

degree robbery does not. In other words, a person can commit either of these offenses without

committing the other. A person can commit first-degree wanton endangerment without committing

first-degree robbery; an example would be a defendant who shoots a gun into an occupied building.

And a person can commit first-degree robbery without committing first-degree wanton

endangerment; an example would be a defendant who uses an inoperable pistol to rob a college

student of his iPod. Accordingly, it is clear that, under Blockburger, first-degree robbery and first-

degree wanton endangerment are separate offenses. Therefore, there is no double jeopardy violation

in this case.

        Recent Kentucky case law supports this holding. As the Kentucky Supreme Court stated

succinctly in a 2005 unpublished opinion:

        KRS 515.020 (first-degree robbery) and KRS 508.060 (first-degree wanton
        endangerment) each require proof of an additional statutory fact that the other does
        not. For instance, first-degree robbery requires proof of theft and first-degree wanton
        endangerment does not. . . . First-degree wanton endangerment requires action that
        manifests an extreme indifference to human life and the robbery statute does not.
        Because each offense requires proof that the other does not, there is no double
        jeopardy violation.

Crisp v. Commonwealth, 2005 WL 629005, *2 (Ky. 2005). Similarly, in 2008, the Kentucky Court

of Appeals conducted a Blockburger analysis of the first-degree robbery and first-degree wanton

endangerment statutes and found that these are two distinct crimes. Grider v. Commonwealth, 2008


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WL 299023, *2 (Ky. Ct. App. 2008). These cases provide compelling support for what is in any

event a plain reading of the elements of the two Kentucky criminal statutes. Whether there is a

federal double jeopardy violation where each statute contains an element not required in the other

is a federal issue, however. In other words, Kentucky law determines the elements of the crimes;

federal law determines whether there is a double jeopardy violation when neither crime is a lesser

included offense of the other.

          Groves maintains that the first-degree wanton endangerment charges were based on the

“same conduct” that gave rise to the first-degree robbery charge—pointing a gun at Wendy’s

employees—and, therefore, the wanton endangerment charges should have merged into the robbery

charge. Groves cites the Kentucky Supreme Court cases of Marshall v. Commonwealth, 625 S.W.2d

581 (Ky. 1981), and Gilbert v. Commonwealth, 637 S.W.2d 632 (Ky. 1982), to support his argument.

These cases, however, were decided well before the 1993 United States Supreme Court decision

squarely rejecting the “same-conduct” test for double jeopardy and limiting the federal double

jeopardy analysis solely to the question of whether each crime contained an element not contained

in the other. United States v. Dixon, 509 U.S. 688, 703-12 (1993). In light of Dixon, it is immaterial

whether the victims of Groves’s wanton endangerment crimes were Wendy’s employees and, thus,

the charges “all emanated from the same conduct,” as Groves claims.1 What matters is whether,




          1
              It is likewise unnecessary to allow Groves to supplement the record to prove these
points.

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under Blockburger, first-degree robbery and first-degree wanton endangerment are separate offenses.

Since they clearly are, Groves’s double jeopardy claim is unavailing.

        Finally, Groves suggests that there is a double jeopardy violation because “the Kentucky

legislature did not intend an act of using a weapon while committing a robbery to result also in a

wanton endangerment conviction.” Groves cites Missouri v. Hunter, 459 U.S. 359 (1983), and its

progeny, to support his argument. Groves clearly misinterprets Hunter. There, the Supreme Court

held that even if two crimes constitute a single offense under Blockburger, a defendant may still be

convicted of and punished for both crimes in a single trial if the legislature intended for multiple

punishments to apply. Hunter, 459 U.S. at 368-69. It does not logically follow from this that if two

crimes are separate offenses under Blockburger, a defendant may not be convicted of both crimes

if the legislature did not intend for multiple punishments to apply. Indeed, Groves cites no legal

authority requiring such a reading of Hunter. Accordingly, Groves’s reliance on Hunter is misplaced

and his double jeopardy claim is without merit.

        A state may of course provide that a defendant may not be punished for one state crime if the

defendant has also been convicted of another particular crime, even though the crimes are different

under the Blockburger test. But such a legal prohibition would be a matter of state law. Under

Dixon, the federal double jeopardy prohibition applies only where each of the required elements of

one of the crimes is required for the other. Because that is clearly not the situation in this case, there

is no federal jeopardy violation, even if Kentucky law were interpreted to prohibit prosecution under

both statutes.


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       Judge White would affirm for different reasons. The judgment of the district court is

accordingly affirmed.




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        SILER, Circuit Judge, concurring and dissenting in part. I concur in the majority opinion

to the extent that it affirms the denial of the writ of habeas corpus by the district court on Counts 1-4,

6. I dissent, however, on the denial of the writ on Count 5 for the reasons stated herein. As the

majority observes, in Marshall v. Commonwealth, 625 S.W.2d 581 (Ky. 1981), the Supreme Court

of Kentucky held that a defendant’s conviction for first-degree wanton endangerment during a

robbery constituted double jeopardy when the defendant was also convicted of first-degree robbery.

Id. at 582-83. Of course, we must decide whether this is still the law after United States v. Dixon,

509 U.S. 688, 703-12 (1993). The test now for double jeopardy is not whether both charges involve

the same conduct, but whether each crime requires proof of a fact the other does not. As the majority

observes, after Dixon, Kentucky courts have held that charges for first-degree wanton endangerment

and first-degree robbery pass the test under Blockburger v. United States, 284 U.S. 299 (1932). See

Crisp v. Commonwealth, No. 2004-SC-0058-MR, 2005 WL 629005, at *2 (Ky. Mar. 17, 2005),

Grider v. Commonwealth, No. 2006-CA-001999-MR, 2008 WL 299023, at *2 (Ky. Ct. App. Feb.

1, 2008).

        While it is clear that first-degree robbery requires proof of an element that first-degree

wanton endangerment does not (i.e., theft), it is less clear whether the reverse is true. In other words,

it is unclear whether “us[ing] or threaten[ing] the . . . use of physical force upon another person”

while being “armed with a deadly weapon” (an element of first-degree robbery) constitutes

“manifesting extreme indifference to the value of human life” and “wantonly engag[ing] in conduct

which creates a substantial danger of death or serious physical injury to another person” (elements


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of first-degree wanton endangerment). See K.R.S. §§ 508.060, 515.020(1)-(1)(b). Both the Crisp

and Grider opinions gave only a cursory analysis on this issue. Both cases, however, based their

decisions on the fact that the acts giving rise to the wanton endangerment charge involved either

different victims or different time periods than the robbery charge.

       The problem here, obviously, is that Groves pled guilty to the charges and now raises his

double jeopardy claim. The government asserts that under United States v. Broce, 488 U.S. 563,

574 (1989), the petitioner cannot collaterally attack his conviction. The Supreme Court held that

the defendants in Broce could not “prove their claim by relying on those indictments and the existing

record,” so their double jeopardy claim was foreclosed. Id. at 576. Therefore, in light of Broce, the

inquiry becomes whether, based on the face of the indictment and the state court record, the wanton

endangerment claims merge with the first-degree robbery claim. Groves asserts that the five

individual victims in Counts 2-6 were the same Wendy’s employees referred to in Count 1 and thus,

double jeopardy applies. However, the record is unclear whether the named victims were Wendy’s

staff or customers or whether the actions related in Counts 2-6 occurred during, after, or before the

robbery. Nevertheless, there is an affidavit from the state court record signed by Evon Gould, the

apparent victim in Count 5. This affidavit was created in 2005, less than one month before Groves

pled guilty, and it states that Evon was one of Wendy’s employees working on the date when the

store was robbed.

       It is unclear from the face of the indictment and the state court record whether the indictment

charges two separate crimes arising out of separate events. We have interpreted Broce broadly to


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mean that a guilty plea does not waive double jeopardy challenges where “‘the [double jeopardy]

issues appear on the face of the indictment and can be resolved without an additional evidentiary

hearing.’” United States v. Ehle, 640 F.3d 689, 694 (6th Cir. 2011) (quoting United States v.

Ragland, 3 F. App’x 279, 284 n.3 (6th Cir. 2001). Because the record shows that Gould was the

victim in Count 1 and was an employee at the time the store was robbed, I would remand the case

to the district court with directions to grant the writ with respect to Count 5 only, and to deny the writ

with respect to all the other remaining counts in the state indictment.




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No. 10-5461
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        HELENE N. WHITE, Circuit Judge, concurring. I concur in the result of the lead opinion

but my reasoning is more in line with the dissent. The federal courts generally have no role in

determining whether the federal Double Jeopardy Clause is violated when a defendant is convicted

of multiple offenses in a single proceeding. Rather, the question in such circumstances is whether

the state legislature intended that there be multiple punishment under the circumstance; and “[w]hen

assessing the intent of a state legislature, a federal court is bound by a state court’s construction of

that state’s own statutes.” Banner v. Davis, 886 F.2d 777, 780 (6th Cir. 1989) (citations omitted).

Had the state appellate court ruled that multiple punishment was intended that would be the end of

this case, without regard to Blockburger or any other test for determining whether two offenses are

the same offense. See id. at 780–82. The wrinkle here is that the state appellate court did not rule

on the double jeopardy question; it ruled on the waiver question. For that reason, I believe the

dissenting opinion correctly wades into those waters. I agree that the correct inquiry to determine

whether the double jeopardy claim could constitutionally be waived by the plea is whether the

violation is clear on the face of the indictment or requires factual development, and that in the instant

case, the violation is not clear on the face of the indictment and factual development is necessary.

Here, I part ways with the dissent. Although the affidavit cited by the dissent appears to support

Groves’s claim, the affidavit does not establish that the charge, “judged on its face[,] . . . is one

which the State may not constitutionally prosecute.” Menna v. New York, 423 U.S. 61, 63 n.2.

(1975). In United States v. Broce, the Supreme Court rejected a double jeopardy challenge brought

by two defendants as foreclosed by their guilty pleas, reasoning that their double jeopardy claim did


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not fall within Menna’s exception to the waiver rule because they could not “prove their claim by

relying on th[eir] indictments and the existing record.” 488 U.S. 563, 576 (1989). These cases do

not establish that an affidavit can be considered in the guilty-plea context to prove that the same

conduct gives rise to both charges. Reference to an affidavit is, in my view, inappropriate. An

affidavit can be contradicted by other affidavits, and the presence of an affidavit in the record

without more does not support its accuracy. Thus, the decision of the Kentucky Court of Appeals

was not an unreasonable application of Menna and Broce.

       I feel constrained to observe that Marshall v. Commonwealth, 625 S.W.2d 581 (Ky. 1981),

and Gilbert v. Commonwealth, 637 S.W.2d 632 (Ky. 1982), were decided long before Groves pled

guilty and have not been overruled. If in fact the reckless endangerment here was part of the robbery,

one must wonder why trial counsel did not address the issue before Groves entered his pleas, and

why this issue was not included in the ineffective-assistance-of-counsel claims.




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