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. e du/thir dc ir c uit_1998/181Filed 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 AppelleesOPINION OF THE COURT

NYGAARD, Circuit Judge.

Petitioner Roscoe Parrish waived his right to a jur y trial in return for the Commonwealth of Pennsylvania's agreement not to seek the death penalty. He was con victed 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 wa iver of his federal constitutional right to a jury trial, i nduced by the prosecution's pledge not to seek the death pena lty, violated his federal constitutional right to due pr ocess. He further contends that his trial counsel was ineffec tive "for failing to secure a valid constitutional waiver of a jury trial colloquy, for participating and advising [Parish] i n such negotiations, and for allowing the trade-off to eve n be a factor in the decision to waive or not to waive tri al by jury," Pet'r Br. at 12, and for failing to raise this issu e on direct appeal. The Petitioner has exhausted all of his ava ilable state remedies on each of his claims for relief. Se e 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 reasona bly effective assistance of counsel. Nonetheless, a def endant 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 represent ations made during the plea process as well as the trial p rocess. Hill v. Lockart, 474 U.S. 52, 58, 106 S. Ct. 366, 3 70 (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 r eview. McAleese v. Mazurkiewicz, 1 F.3d 159, 165 (3d Cir. 1993). In reviewing counsel's performance, our scrutiny mu st 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 th e reasonableness of counsel's challenged conduct on t he facts

2of 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 t hat waiver of the federal constitutional right to a jur y trial, when induced by the prosecution's pledge not to pur sue the death penalty, violates due process. We do not agre e. In Jackson, the Court examined the Federal Kidnaping A ct, which provided for the death penalty only after a j ury trial. 390 U.S. at 571, 88 S. Ct. 1210. Under that provisi on, a defendant who waived a jury trial was assured that he would not be executed. Id. at 582, 88 S. Ct. at 121 6. The Court held that the inevitable effect of the provis ion was to excessively deter the exercise of the Sixth Amendme nt right to demand a jury trial, and found the capital punis hment provision of the Act unconstitutional. Id.

The Court explicitly limited Jackson two years late r in Brady v. United States, 397 U.S. 742, 90 S. Ct. 146 3 (1970):

"We decline to hold, however, that a guilty plea is compelled and invalid under the Fifth Amendm ent whenever motivated by the defendant's desire to accept the certainty or probability of a lesser pen alty rather than face a wider range of possibilities ext ending 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 invol ved a plea of guilty rather than a waiver of right to a j ury trial, the Court noted that a guilty plea involves the wai ver 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 inval id merely because entered to avoid the possibility of a death penalty." Id. at 755, 90 S. Ct. at 1472. Indeed, the Court ma de clear in North Carolina v. Alford that "Jackson establish ed no new test for determining the validity of guilty pleas. The standard was and remains whether the plea represent s a voluntary and intelligent choice among the alternat ive courses of action open to the defendant." 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970).

3Here, as in Brady, there is no allegation that the

Commonwealth threatened prosecution on a charge not justified by the evidence, nor threatened a more on erous penalty than indicated by the facts for the purpose of obtaining an unfair advantage in negotiating with P arish's counsel. Brady, 397 U.S. at 751 n.8, 90 S. Ct. at 1 470 n.8. That being the case, counsel was not ineffective fo r"failing to secure a valid constitutional waiver of a jury t rial colloquy, for participating and advising [Parish] i n such negotiations, and for allowing the trade-off to eve n be a factor in the decision to waive or not to waive tri al 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 ineffect ive by failing to raise an issue when convincing Supreme C ourt case law shows it to be without merit. See Moore v. Deputy Comm'rs of SCI Huntingdon, 946 F.2d 236, 245 (3d Ci r. 1991) (holding that trial counsel was not ineffecti ve for failure to object to charge that he was justified o n 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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