2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-17-2012

Nigel Parms v. Raymond Sobina

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-4786

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 10-4786

_____________

NIGEL DWAYNE PARMS,

 Appellant

v.

RAYMOND J. SOBINA; 

THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; 

THE DISTRICT ATTORNEY OF THE COUNTY OF ALLEGHENY

______________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 10-cv-00987)

District Judge: Honorable Robert C. Mitchell

____________

Submitted Under Third Circuit LAR 34.1(a)

July 10, 2012

____________

Before: RENDELL, SMITH and BARRY, Circuit Judges

(Opinion Filed: July 17, 2012)

____________

OPINION

____________

BARRY, Circuit Judge

Petitioner Nigel Parms (“Parms”), an inmate in a Pennsylvania state prison, is 

currently serving a five to fifteen year sentence of imprisonment, to be followed by ten 
2

years of probation, for his conviction on charges of attempted rape and aggravated 

indecent assault of a five-year-old girl. He petitioned for a writ of habeas corpus pursuant 

to 28 U.S.C. § 2254, alleging ineffective assistance of counsel at trial. The District Court 

found his claim to be without merit and denied his request for relief. We will affirm.

I. Background

A. Underlying Facts

On the afternoon of July 1, 1997, Parms was drinking beer in the apartment of Mia 

Lewis (“Lewis), who was his brother’s girlfriend. At some point during that afternoon, a 

five-year-old girl who lived next door to Lewis, came into the apartment looking for 

Lewis’s children, who were her playmates. While in the apartment, the girl encountered 

Parms, who took her into a bathroom, removed her clothes, spread a lubricant onto her 

vagina, and attempted to have sex with her. That evening, the girl reported to her mother 

that Parms “did sexes on me.” After examining her daughter and discovering a greasy 

substance on her vagina, the mother called the police. 

In the early morning hours of July 2, 1997, law enforcement officers arrested 

Parms in Lewis’s apartment after finding him hiding behind a door. Parms, who is deaf, 

was taken to a police station where a certified interpreter was waiting. After waiving his 

Miranda rights, Parms provided a statement to police in which he confessed to assaulting 

the girl. The statement, which was written down by an officer and signed by Parms, is 

extraordinarily graphic, and so we do not quote it here in full: 

I went into the bathroom. The girl was already in there. I got the cream and 
3

touched her vagina. Then I put my penis on top of her vagina and I 

ejaculated on her . . . I gave her some toilet paper to clean up. I don’t know 

the girl’s name but she is five years old. This happened this evening at Mia 

Lewis’ apartment in Braddock. I used the cream that was in a red jar.

(J.A. at 147.) 

B. Suppression Hearing, Trial, & Sentencing

On March 30, 1998, Parms appeared in the Court of Common Pleas of Allegheny 

County to face charges of rape, aggravated indecent assault, and corruption of a minor 

under 18 Pa. Cons. Stat. Ann. §§ 3121, 3125, and 6301. Parms, who had by then 

disavowed his confession, moved to suppress his post-arrest statement on the ground that 

it had been coerced.1

At the one-day bench trial, the prosecution first called the girl, who testified that 

Parms “did sexes on me.” Specifically, she testified that Parms “put my clothes off,” 

“[t]ouched my privates,” and “put some grease on me.” (Id. at 131, 123-25.) She stated 

that he then “pulled his pants down” and “put [his] private on my private,” and that “[i]t 

was hurting” when he did so. (Id. at 125, 135, 138.) The prosecution also called 

 Following a hearing at which both Parms and the arresting officer 

testified, the motion was denied. Parms then elected to waive his right to a jury trial and 

immediately proceed with a bench trial. 

 1 At the suppression hearing, Parms testified that he initially denied any sexual contact 

with the girl and only decided to admit his involvement after the police “put a lot of 

pressure on me.” (J.A. at 101.) Specifically, he asserted that the police “asked me the 

same questions over and over and over again” and that the repeated questioning “made 

me tired and I felt I had to sign [the statement] . . . to make them stop asking me questions 

over and over again.” (Id. at 107-08.) We note that the police began questioning Parms 
4

Detective Dennis Ostrowski, who testified that after receiving a report of the assault, he 

went to Lewis’s apartment, found Parms hiding behind a door, and placed him under 

arrest. He explained that although Parms initially denied any wrongdoing, he soon 

confessed to the assault. Finally, Parms himself testified. Although he professed his 

innocence of the charges, he acknowledged being in the bathroom with the girl and 

admitted that “something happen[ed] inside the bathroom.” (Id. at 170.) He claimed, 

however, that the entire episode had been “an accident.” (Id. at 106-07.) Specifically, he 

testified that he had been masturbating in the bathroom with the assistance of some oil 

when the girl unexpectedly walked in: 

And I had my eyes closed and . . . [the girl] walked in and I felt her brush 

me; so I put my hands out and wait -- wait. Excuse me. She had her hands 

out and oil got on her, like and I said, what are you doing here? So I stood 

up to leave and I left; and she went . . . to go to the bathroom. So I just saw 

her, like, for a minute. 

(Id. at 171.) 

Parms was found not guilty of rape, but guilty of attempted rape, aggravated 

indecent assault, and corruption of minors. At the subsequent sentencing hearing, he was 

sentenced to five to fifteen years’ imprisonment to be followed by ten years’ probation. 

On direct appeal, the Pennsylvania Superior Court affirmed the judgment of sentence, and 

the Supreme Court of Pennsylvania denied his Petition for Allowance of Appeal. 

 

at 1:52 a.m. and that Parms signed the confession less than one hour later, at 

approximately 2:40 a.m. (Id. at 81, 108.) 
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C. Post-Conviction Proceedings

On April 29, 2002, Parms filed a pro se petition for relief under the Pennsylvania 

Post-Conviction Relief Act (“PCRA”). Counsel was appointed and entered an 

appearance on Parms’ behalf, but no action was taken on his petition. On April 29, 2004, 

Parms filed another pro se PCRA petition and requested new counsel, claiming that his 

attorney had abandoned him. Again, no action took place, and on August 4, 2008, Parms 

filed yet another pro se PCRA petition, and again, nothing happened. On July 29, 2010, 

after more than eight years of inaction on his state PCRA petitions, Parms filed a pro se

petition for writ of habeas corpus in the Western District of Pennsylvania. 

Following the filing of this federal habeas petition, the PCRA court appointed new 

counsel to represent Parms and the Commonwealth filed an answer to his last PCRA 

petition. Meanwhile, the Commonwealth argued to the District Court that because Parms 

had not exhausted his state court remedies, any review of the habeas petition should “be 

stayed until the state court is able to fully review the merits of [Parms’] PCRA petition.” 

(J.A. at 7.) On December 6, 2010, the District Court determined that the exhaustion 

requirement should be excused in light of the almost nine-year delay in adjudicating 

Parms’ PCRA petition and the fact that Parms had been jailed for over thirteen years and 

was “rapidly approaching his maximum sentence expiration date.” (Id.) Accordingly, it 
6

proceeded to reach the merits of Parms’ petition.

2

Parms’ habeas petition raised eight separate claims. Seven of these claims charged 

ineffective assistance on the part of Parms’ trial counsel for his alleged failure to 

investigate, develop, or pursue certain issues during trial.

 

3

 The District Court dismissed 

Parms’ habeas petition, describing his ineffective assistance claims as “patently 

frivolous” and declining to issue a certificate of appealability (“COA”). (Id. at 13.) 

Parms timely appealed, and on March 10, 2011, we issued a COA on his claim that trial 

counsel “rendered ineffective assistance by failing to address at trial evidentiary 

inconsistencies regarding: (1) the order in which appellant and the victim entered the 

bathroom; (2) the color of the jar from which appellant took the grease; and (3) the state 

of the victim’s clothing.” (Id. at 15.) The application for a COA was denied as to all 

other claims.4

 2 The Commonwealth has not raised an exhaustion argument before us. We note that 

Parms’ PCRA petition was denied on September 15, 2011, and a timely appeal to the 

Pennsylvania Superior Court remains pending. 

 

3 Parms’ eighth claim related to the “inordinate delay in the state courts in disposing of 

his [PCRA] petitions,” (J.A. at 9), which the District Court addressed by waiving the 

exhaustion requirement.

4 Although we specifically denied the request for a COA on the remaining claims, Parms 

revisits several of them in his brief on appeal. (See, e.g., Appellant’s Br. at 17 [trial 

counsel was ineffective for failing to emphasize the short period of time that the girl was 

present in Lewis’s apartment]; id. at 19 [trial counsel was ineffective for failing to 

investigate conflicting lab reports on physical evidence of sexual assault].) While we 

may, in our discretion, sua sponte “expand the scope of the COA beyond the scope 

announced by the motions panel,” Villot v. Varner, 373 F.3d 327, 337 n.13 (3d Cir. 2004), 

it is well-established that we need not consider arguments that are “not within the scope 

of the issue on which we granted a certificate of appealability.” Miller v. Dragovich, 311 

F.3d 574, 577 (3d Cir. 2002). Here, where both the District Court and the motions panel 
7

II. Discussion5

Because the District Court did not conduct an evidentiary hearing, we exercise

plenary review over its dismissal of Parms’ petition. Williams v. Beard, 637 F.3d 195, 

203-04 (3d Cir. 2011). In evaluating a claim of ineffective assistance of counsel, we 

apply the familiar two-prong test established by the Supreme Court in Strickland v. 

Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must show: (1) “that 

counsel’s performance was deficient”; and (2) “that the deficient performance prejudiced 

the defense.” Id. at 687. This is a demanding standard. To demonstrate deficient 

performance, a defendant must show that counsel’s representation “fell below an 

objective standard of reasonableness.” Outten v. Kearney, 464 F.3d 401, 414 (3d Cir. 

2006). As for the prejudice prong, the defendant must demonstrate “‘a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.’” Id. (quoting Strickland, 466 U.S. at 694). 

We granted a COA on three specific allegations of ineffective assistance, and will 

address each in turn. None of these allegations has merit.

A. 

Parms first claims that his trial counsel “rendered ineffective assistance by failing 

to address . . . evidentiary inconsistencies regarding . . . the order in which appellant and 

 

have already considered and rejected Parms’ request for a COA on these other claims, we 

decline to sua sponte expand the scope of the COA.

5 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254. We have 

appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. 
8

the victim entered the bathroom.” (J.A. at 15.) This claim is grounded in the crossexamination of the girl at trial, during which defense counsel pressed her on the details of 

her encounter with Parms, including questioning her closely on whether she or Parms had 

entered the bathroom first. We excerpt that exchange in full: 

Q: What was he doing when you went back there to the bathroom?

A: He told me to come here and he came in the bathroom and put my own clothes 

off.

Q. Wait a minute now. Are you saying that you went to the bathroom first or that 

you walked -- are you saying you walked back there with Nigel? 

A: No. I went in the bathroom. 

Q: You walked into the bathroom?

A: Yeah.

Q: And was Nigel in the bathroom when you walked into the bathroom? Did you 

see Nigel was in the bathroom when you walked in?

A: He came in and I came in.

Q: So he went in first and then you went in after him; is that right?

A: Yeah.

Q: Okay. Did you walk right behind him or was he in the bathroom and then you 

walked in after him? Do you understand what I’m saying?

A: Yeah.

Q: Were you right behind him or was he already in the bathroom?

A: He was already -- he was in there.
9

(Id. at 130-31.) 

Parms characterizes this testimony as “vacillat[ing] about the sequence of events,” 

and he asserts that his trial counsel was ineffective because he “never challenged [the 

girl] on any of the inconsistencies in her testimony.” (Appellant’s Br. at 17.) This 

argument fails under both Strickland prongs. First, trial counsel’s performance was not 

deficient because, as the above transcript clearly shows, he did challenge the girl on 

supposed inconsistencies in her testimony. Second, even if the failure to further crossexamine her on the question of who entered the bathroom first amounted to ineffective 

assistance, Parms cannot establish prejudice. Parms admits to being in the bathroom 

alone with her, and so it is difficult to see how the question of who entered first is even 

relevant. In any event, given the strength of the evidence against Parms—including his 

signed confession—and the preposterous exculpatory story he presented at trial, there is 

no reasonable probability that he would have been acquitted if defense counsel had 

further pursued this issue on cross-examination.

B.

Parms next claims that trial counsel was ineffective for failing to address the 

inconsistency as to the color of the jar from which he took the lubricant used in the 

assault. In his confession, Parms stated that he used cream from a red jar. At trial, 

however, Detective Ostrowski testified that he seized four different creams or lotions 

from Lewis’s apartment and that Parms identified a black jar when these items were 
10

shown to him at the police station. Parms asserts that his trial counsel’s failure to 

emphasize this inconsistency amounted to ineffective assistance because this discrepancy 

“makes the details of his confession unreliable.” (Appellant’s Br. at 19.) Parms is wrong. 

The inconsistency as to the color of the jar is entirely immaterial to the charged crime 

given that there is no dispute that Parms used a lubricant on the afternoon in question. 

C. 

The third example of purported ineffective assistance is that trial counsel failed to 

address “evidentiary inconsistencies regarding . . . the state of the victim’s clothing.” 

(J.A. at 15.) This argument stems from the girl’s testimony, under cross-examination, that 

she “ke[pt her] panties on” during her encounter with Parms. (Id. at 134.) On redirect, 

however, the prosecutor revisited the issue:

Q: How did he put the grease on your private part if your panties were on?

A: He put my panties down to my, to my legs so he put them, put the grease on.

Q: Okay. How far down did he pull your panties? Do you remember?

A: Down here. (Pointing.)

Q: Okay. Let me see where you are pointing to.

THE COURT: Low to mid thigh.

Q: Okay. Is that where your panties were when he put his private on your private?

A: Yeah.

(Id. at 137-38.) Parms argued to the District Court that “counsel was ineffective for 
11

fail[ing] to address” this supposedly inconsistent testimony. (Id. at 26.) He has 

abandoned this argument on appeal, and we deem it waived. See Ghana v. Holland, 226 

F.3d at 175, 180 (3d Cir. 2000). 

III. Conclusion

For the foregoing reasons, we will affirm the District Court’s dismissal of Parms’ 

habeas petition.