                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-31-1998

Parrish v. Fulcomer
Precedential or Non-Precedential:

Docket 98-1010




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Recommended Citation
"Parrish v. Fulcomer" (1998). 1998 Decisions. Paper 181.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/181


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Filed July 31, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1010

ROSCOE PARRISH,
       Appellant

v.

THOMAS FULCOMER, WARDEN, SCI HUNTINGDON;
THE DISTRICT ATTORNEY OF THE COUNTY OF
PHILADELPHIA; THE ATTORNEY GENERAL OF THE
STATE OF PA

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. No. 97-cv-02553

Argued June 4, 1998

Before: SCIRICA, NYGAARD and SEITZ, Circuit Judges

(Opinion Filed: July 31, 1998)

       Norris E. Gelman (ARGUED)
       Suite 750, 6th and Walnut Streets
       The Curtis Center
       Philadelphia, PA 19106

       Counsel for Appellant

       Marilyn F. Murray (ARGUED)
       Office of the District Attorney
       1421 Arch Street
       Philadelphia, PA 19102

       Counsel for Appellees
OPINION OF THE COURT

NYGAARD, Circuit Judge.

Petitioner Roscoe Parrish waived his right to a jury trial
in return for the Commonwealth of Pennsylvania's
agreement not to seek the death penalty. He was convicted
of first degree murder and criminal conspiracy and was
sentenced to life in prison. In his petition for a writ of
habeas corpus and before us, Parrish argues that waiver of
his federal constitutional right to a jury trial, induced by
the prosecution's pledge not to seek the death penalty,
violated his federal constitutional right to due process. He
further contends that his trial counsel was ineffective "for
failing to secure a valid constitutional waiver of a jury trial
colloquy, for participating and advising [Parish] in such
negotiations, and for allowing the trade-off to even be a
factor in the decision to waive or not to waive trial by jury,"
Pet'r Br. at 12, and for failing to raise this issue on direct
appeal. The Petitioner has exhausted all of his available
state remedies on each of his claims for relief. See 28
U.S.C. S 2254(b); Rose v. Lundy, 455 U.S. 509, 102 S. Ct.
1198 (1982).

It is axiomatic that Parrish is entitled to reasonably
effective assistance of counsel. Nonetheless, a defendant is
only entitled to habeas relief if he can establish that
counsel's ineffectiveness resulted in some harm or
prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 2964 (1984). This applies to representations
made during the plea process as well as the trial process.
Hill v. Lockart, 474 U.S. 52, 58, 106 S. Ct. 366, 370 (1985);
see also Bivens v. Brosse, 28 F.3d 62, 63 (8th Cir. 1994).
The legal component of an ineffective assistance of counsel
claim in the habeas context is subject to plenary review.
McAleese v. Mazurkiewicz, 1 F.3d 159, 165 (3d Cir. 1993).
In reviewing counsel's performance, our scrutiny must be
"highly deferential," and not "second-guess counsel's
assistance after conviction." Strickland, 466 U.S. at 689,
104 S. Ct. at 2065. Specifically, we must "judge the
reasonableness of counsel's challenged conduct on the facts

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of the particular case, reviewed as of the time of counsel's
conduct." Id. at 690, 104 S. Ct. at 2066; Sistrunk v.
Vaughn, 96 F.3d 666, 670 (3d Cir. 1996).

Parrish argues that United States v. Jackson, 390 U.S.
570, 88 S. Ct. 1209 (1968), supports his argument that
waiver of the federal constitutional right to a jury trial,
when induced by the prosecution's pledge not to pursue the
death penalty, violates due process. We do not agree. In
Jackson, the Court examined the Federal Kidnaping Act,
which provided for the death penalty only after a jury trial.
390 U.S. at 571, 88 S. Ct. 1210. Under that provision, a
defendant who waived a jury trial was assured that he
would not be executed. Id. at 582, 88 S. Ct. at 1216. The
Court held that the inevitable effect of the provision was to
excessively deter the exercise of the Sixth Amendment right
to demand a jury trial, and found the capital punishment
provision of the Act unconstitutional. Id.

The Court explicitly limited Jackson two years later in
Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463
(1970):

       "We decline to hold, however, that a guilty plea is
       compelled and invalid under the Fifth Amendment
       whenever motivated by the defendant's desire to accept
       the certainty or probability of a lesser penalty rather
       than face a wider range of possibilities extending from
       acquittal to conviction and a higher penalty authorized
       by law for the crime charged."

Id. at 751, 90 S. Ct. at 1470. Although Brady involved a
plea of guilty rather than a waiver of right to a jury trial,
the Court noted that a guilty plea involves the waiver of the
right to a jury trial as well as the waiver of the right not to
incriminate oneself. Id. at 748, 90 S. Ct. at 1469. The Court
explicitly held that "a plea of guilty is not invalid merely
because entered to avoid the possibility of a death penalty."
Id. at 755, 90 S. Ct. at 1472. Indeed, the Court made clear
in North Carolina v. Alford that "Jackson established no new
test for determining the validity of guilty pleas. The
standard was and remains whether the plea represents a
voluntary and intelligent choice among the alternative
courses of action open to the defendant." 400 U.S. 25, 31,
91 S. Ct. 160, 164 (1970).

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Here, as in Brady, there is no allegation that the
Commonwealth threatened prosecution on a charge not
justified by the evidence, nor threatened a more onerous
penalty than indicated by the facts for the purpose of
obtaining an unfair advantage in negotiating with Parish's
counsel. Brady, 397 U.S. at 751 n.8, 90 S. Ct. at 1470 n.8.
That being the case, counsel was not ineffective for"failing
to secure a valid constitutional waiver of a jury trial
colloquy, for participating and advising [Parish] in such
negotiations, and for allowing the trade-off to even be a
factor in the decision to waive or not to waive trial by jury."
Pet'r Br. at 12. It follows that we do not deem it ineffective
assistance for counsel to have so proceeded. And on direct
appeal, counsel assistance does not become ineffective by
failing to raise an issue when convincing Supreme Court
case law shows it to be without merit. See Moore v. Deputy
Comm'rs of SCI Huntingdon, 946 F.2d 236, 245 (3d Cir.
1991) (holding that trial counsel was not ineffective for
failure to object to charge that he was justified on basis of
evidence).

In sum, the district court followed these standards and
denied the petitioner relief. We will affirm.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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