1998 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
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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