PARKIN v. UNITED STATES OF AMERICA
Filing
33
OPINION. Signed by Judge Joseph E. Irenas on 10/15/2012. (tf, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT COURT OF NEW JERSEY
HARRY PARKIN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
:
:
:
:
:
:
:
:
:
HONORABLE JOSEPH E. IRENAS
CIVIL ACTION. NO. 10-3582(JEI)
OPINION
APPEARANCES:
WILENTZ, GOLDMAN & SPITZER P.A.
By: Darren Gelber, Esq.
90 Woodbridge Center Drive
P.O. Box 10
Woodbridge, New Jersey 07095
Counsel for Petitioner
PAUL J. FISHMAN, UNITED STATES ATTORNEY
By: Glenn J. Moramarco, Assistant United States Attorney
Federal Building and U.S. Courthouse
401 Market Street, 4th Floor
Camden, New Jersey 08101
Counsel for Respondent
IRENAS, Senior District Judge:
Before the Court is Petitioner Harry Parkin’s Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255 (hereinafter “§ 2255”).
Parkin’s core argument is that he
was convicted under a theory of honest services fraud which the
Supreme Court later held unconstitutionally vague.
v. United States, 130 S.Ct. 2896 (2010).
See Skilling
However, for the
reasons set forth below, Parkin cannot overcome the procedural
hurdles in his path to habeas relief.
See generally United
States v. Frady, 456 U.S. 152, 166 (1982) (“to obtain collateral
relief a prisoner must clear a significantly higher hurdle than
would exist on direct appeal.”).
Accordingly, the Motion will be
denied without an evidentiary hearing.1
I.
After a jury trial lasting six weeks, on March 21, 2005,
Petitioner Harry Parkin was convicted on all counts of the
thirteen-count indictment against him.
Specifically, the
Indictment charged Parkin with twelve counts of mail fraud, in
violation of 18 U.S.C. § 1341 and 1346, for participating in a
scheme to defraud the public of his honest services in his role
as Chief of Staff to the Mercer County Executive.
p. 1-30).
(Indictment,
The thirteenth count charged Parkin with attempted
extortion under color of official right and wrongful use of fear
of economic harm in violation of the Hobbs Act, 18 U.S.C. § 1951.
(Indictment, p. 33).
At trial, the Government’s case had three components.
The
evidence established that Parkin (1) used his official position
to obtain contracts for companies owned and operated by Alex
Abdalla, Parkin’s business partner, thereby advancing Parkin’s
own financial interests; (2) obtained an ownership interest in
1
Also pending is Parkin’s unopposed Motion to file an
overlength brief. That Motion will be granted.
2
Central Jersey Waste & Recycling (“CJW&R”) under color of
official right and induced by wrongful use of fear of economic
harm, and (3) took affirmative steps to conceal material
information concerning his financial interests in CJW&R from
other government officials and the public.2
Parkin was sentenced on August 30, 2005 to a term of
imprisonment of 90 months on Count 13 (attempted extortion in
violation of the Hobbs Act), and 60 months on each of Counts 1
through 12 (honest services fraud), to be served concurrently; as
well as three years supervised release on each count, to be
served concurrently.3
Parkin filed his notice of appeal on September 1, 2005.
He
argued that his conviction should be overturned for three
reasons.
First, Parkin argued that the District Court erred in
granting his request to represent himself at trial.4
States v. Parkin, 319 F. App’x at 106.
United
Second, Parkin argued
that the District Court erred in denying Parkin’s motion for
judgment of acquittal on all thirteen counts based on legal
2
A more detailed discussion of the facts of this case may
be found at United States v. Parkin, 319 F. App’x 101 (3d Cir.
2009).
3
According to the Bureau of Prisons’ website, Parkin has
completed his term of imprisonment and is on supervised release.
4
Parkin, a former Mercer County prosecutor, represented
himself at the trial after the Court denied his request for
hybrid representation.
3
insufficiency of the evidence.
Id. at 107.
Third, Parkin argued
that the District Court erred in calculating Parkin’s sentencing
guideline range and that the ultimate sentence imposed was
unreasonable.
Id. at 110.
The Third Circuit found no error and
affirmed Parkin’s conviction on April 1, 2009.
Id. at 103.
Parkin filed the instant Petition and Motion on July 16,
2010.
II.
Section 2255 provides, in pertinent part, that:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess
of the maximum authorized by law, or is otherwise subject
to collateral attack, may move the court which imposed
the sentence to vacate, set aside or correct the
sentence.
28 U.S.C. § 2255; see also Rules Governing § 2255 Cases, Rule
1(a).
Thus, Parkin is entitled to relief only if he can
establish that he his in custody in violation of federal law or
the Constitution.
A district court is given discretion in determining whether
to hold an evidentiary hearing on a habeas motion under § 2255.
See Gov’t of the V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989).
In exercising that discretion, the court must first determine
whether the petitioner’s claims, if proven, would entitle him to
4
relief, and then consider whether an evidentiary hearing is
needed to determine the truth of the allegations.
See
Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 (3d Cir. 1991).
Accordingly, a district court may summarily dismiss a motion
brought under § 2255 without a hearing where the “motion, files
and records, ‘show conclusively that the movant is not entitled
to relief.’” U.S. v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994)
(quoting U.S. v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992)); Forte,
865 F.2d at 62.
III.
The clear impetus for the instant Motion was the Supreme
Court’s decision in Skilling v. United States, wherein the
Supreme Court narrowed the reach of 18 U.S.C. § 1346, holding
that Ҥ 1346 criminalizes only fraudulent schemes to deprive
another of honest services through bribes or kickbacks.”
S.Ct. 2896, 2931 (2010).
130
Indeed, the standard statute of
limitations, 28 U.S.C. § 2255(f)(1), had expired before Parkin
filed the instant petition.
However, relying on § 2255(f)(3),
Parkin asserts (and the Government does not dispute) that his
petition is timely because it was filed within one year of the
Skilling decision.5
5
Section 2255(f)(3) states that the one year statute of
limitation shall run from “the date on which the right asserted
was initially recognized by the Supreme Court, if that right has
5
But as noted above, Parkin was not only convicted of honest
services fraud.
He was also convicted of attempted extortion in
violation of the Hobbs Act, and sentenced to 90 months
imprisonment on just that count of the Indictment (Count 13).
(Judgment of Conviction, p. 2)
This fact is crucial.
Only if
Parkin succeeds in getting his attempted extortion sentence
vacated will the Court reach the core Skilling issue, because
Parkin’s 60-month sentence as to the honest services fraud counts
ran concurrently to his 90-month sentence for attempted
extortion.
Thus, the Court turns to the parties’ arguments
regarding the attempted extortion conviction.
A.
Parkin asserts that his attempted extortion conviction must
be vacated because of “prejudicial spillover from the invalid
[honest services fraud] counts.”
(Moving Brief, p. 93)
According to Parkin, “the flood of damaging evidence and argument
regarding [his] ethical breaches and self-dealing undeniably
‘spilled over,’ saturating the remaining extortion count, to
which this abundant and prejudicial evidence was otherwise
been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” Because the
Government does not argue that Parkin’s Petition is time-barred,
and in light of the disposition of the instant Motion, the Court
will assume without deciding that Skilling is retroactively
applicable to cases on collateral review.
6
inadmissible.”
(Id. p. 94)
In opposition, the Government argues that Parkin’s
procedural default on this claim cannot be excused.
The Court
agrees.
Parkin did not raise the prejudicial spillover argument at
trial or on direct appeal.6
Therefore, before this Court may
reach the merits of the argument, Parkin must establish either
cause and actual prejudice, or actual innocence.
See United
States v. Frady, 456 U.S. 152, 168 (1982).
While Parkin argues that he is actually innocent of the
honest services fraud counts, he does not argue that he is
actually innocent of the attempted extortion count.
Therefore,
Parkin must establish cause and prejudice before the Court may
even consider the merits of his attack on the attempted extortion
conviction.
“To establish ‘cause’ for procedural default, a defendant
6
Parkin asserts that his arguments before the trial court
and the Court of Appeals that “the evidence was insufficient to
establish honest services mail fraud,” U.S. v. Parkin, 319 F.
App’x 101, 108 (3d Cir. 2009), demonstrates that he did not
procedurally default on his Skilling challenge. But nothing in
the record shows that Parkin ever mounted a constitutional
challenge to the honest services fraud counts. His arguments as
to the sufficiency of the evidence implicitly assumed the legal
validity of an undisclosed self-dealing theory of honest services
fraud.
Moreover, even if the Court were to accept Parkin’s argument
that he raised the Skilling issue, nothing in the record
demonstrates that he argued that the alleged taint from the
invalid honest services fraud counts spilled over to the
extortion count.
7
must show that ‘some objective factor external to the defense
impeded counsel’s efforts to raise the claim.’” U.S. v. Pelullo,
399 F.3d 197, 223 (3d Cir. 2005) (quoting McClesky v. Zant, 499
U.S. 467, 493 (1991)).
“Examples of external impediments which
have been found to constitute cause in the procedural default
context include interference by officials, a showing that the
factual or legal basis for a claim was not reasonably available
to counsel, and ineffective assistance of counsel.”
Id.
(internal citations and quotations omitted).
Parkin makes two “cause” arguments.
First, he asserts that
the failure to raise the Skilling argument, and presumably the
attendant spillover argument, was the result of ineffective
assistance of counsel.
According to Parkin, his appellate
counsel should have argued that the honest services fraud
convictions were constitutionally infirm and that the prejudicial
spillover from those counts required reversal of the extortion
count as well.
At the time of Parkin’s appeal (and his trial), however, an
undisclosed self-dealing theory of honest services fraud was
legally valid in this Circuit.
See, e.g., United States v.
Panarella, 277 F.3d 678 (3d Cir. 2002); United States v. Antico,
275 F.3d 245 (3d Cir. 2001).7
Thus, Parkin essentially argues
7
See also United States v. Riley, 621 F.3d 312, 322-23 (3d
Cir. 2010) (observing that “[t]he law of this circuit, prior to
Skilling,” was that honest services fraud “[did] not require a
8
that his appellate counsel was ineffective for failing to raise a
constitutional challenge to a theory of honest services fraud
that was accepted law at the time.8
However, the Third Circuit has explained that appellate
counsel “has no duty to raise every possible claim on appeal,”
and particularly significant to this case, “in making litigation
decisions, there is no general duty on the part of defense
counsel to anticipate changes in the law.”
96 F.3d 666, 670 (3d Cir. 1996).
Sistrunk v. Vaughn,
Thus, in Sistrunk, the Third
Circuit held that appellate counsel did not transgress
Strickland’s9 standards by failing to anticipate the change in
the law effected by Batson v. Kentucky, 471 U.S. 1052 (1985).
The Court said,
[w]hile we do not dispute that there were criminal
defense lawyers who . . . predicted that a case like
Batson might be decided as it was, we decline to hold
that the performance of petitioner’s appellate counsel
was constitutionally deficient because she did not
find the likelihood of that eventuality sufficient to
alter her appellate advocacy strategy.
Sistrunk, 96 F.3d at 672.
scheme to defraud another to obtain money or property, and could
instead be based on a violation of a duty of honest, faithful,
disinterested service.”).
8
The Supreme Court granted Skilling’s petition for a writ
of certiorari six months after the Third Circuit affirmed
Parkin’s convictions. See Skilling v. United States, 130 S.Ct.
393 (2009).
9
Strickland v. Washington, 466 U.S. 668 (1984).
9
This case is analogous to Sistrunk.10
Accordingly, Court
holds that Parkin’s counsel was not constitutionally defective
for failing to raise the Skilling issue and the attendant
spillover argument.
Parkin’s first “cause” argument fails.
Parkin alternatively argues in a footnote that he can
establish “cause” because the claim he asserts now was so novel
at the time of his trial and appeal that its legal basis was not
reasonably available to counsel.
See Bousley v. United States,
523 U.S. 614, 622 (1998) (“a claim that is so novel that its
legal basis is not reasonably available to counsel may constitute
cause for a procedural default.”) (internal citation and
quotation omitted).
However, United States v. Rybicki, 354 F.3d
124 (2d Cir. 2003)(en banc) cert. denied 543 U.S. 809 (2004),
belies this assertion.
The very first sentence of that opinion
reads: “[w]e agreed to rehear this case in banc in order to
consider whether 18 U.S.C. § 1346 . . . is unconstitutionally
vague.”
Id. at 126.
While Rybicki held that the statute was not
unconstitutionally vague, the relevant fact is that the argument
was clearly raised and extensively analyzed and therefore was not
10
Sistrunk is somewhat different from this case in that
Batson overturned a previous Supreme Court case, Swain v.
Alabama, 380 U.S. 202 (1965), whereas Skilling did not. While
one might argue that appellate counsel’s judgment call as to
whether to raise the constitutional challenge would have been a
closer call in Parkin’s case (because there was no controlling
Supreme Court precedent on the issue) the decision was still one
on which competent counsel might reasonably disagree.
10
novel.11
Indeed, four judges dissented from the majority opinion
in Rybicki, concluding that § 1346 was unconsitutionally vague on
its face.
Id. at 155-65.12
Thus, even before Parkin was indicted, a ready-made argument
as to § 1346’s unconstitutionality-- in the form of the Rybicki
dissent-- was available to him.
Therefore, the legal basis for
his claim he asserts here was not novel, and could have been
raised at trial or on appeal.13
11
Rybicki contained the most extensive discussion of the
issue, but other defendants had also argued that § 1346 was
unconstitutionally vague. See United States v. Welch, 327 F.3d
1081, 1109 n.29 (10th Cir. 2003); United States v. Hasner, 340
F.3d 1261, 1268-69 (11th Cir. 2003); United States v. Easton, 54
F. App’x 242, 244 (8th Cir. 2002); United States v. Frost, 125
F.3d 346, 370-71 (6th Cir. 1997).
12
Nor would it have been futile to raise the claim in light
of the majority holding in Rybicki and Third Circuit law
embracing the undisclosed self-dealing theory of honest services
fraud. “[F]utility cannot constitute cause if it means simply
that a claim was unacceptable to that particular court at that
particular time.” Bousley, 523 U.S. at 622 (internal citation
and quotation omitted).
13
In support of his assertion that the Skilling argument
was not reasonably available to him, Parkin relies on Lomelo v.
United States, 891 F.2d 1512 (11th Cir. 1990) and Dalton v.
United States, 862 F.2d 1307 (8th Cir. 1988) which held that
habeas petitioners established cause for their procedural default
by demonstrating that their claims marked a departure from
otherwise settled law. These cases, however, predated the
Supreme Court’s decision in Bousley which made clear that the
“reasonably available” inquiry focuses on whether the claim was
“novel,” 523 U.S. at 622, not whether the claim departed from
“settled law,” Lomelo, 891 F.2d at 1515, or broke with “a nearunanimous body of lower court authority,” Dalton, 863 F.2d at
1312. See also United States v. Jenkins, 333 F.3d 151, 155 (3d
Cir. 2003) (holding that habeas petitioner had not established
cause for failing to raise on direct appeal his argument based on
11
Seizing on the conceptual tension between his two asserted
grounds for cause-- ineffective assistance of counsel and “not
reasonably available to counsel”-- Parkin asserts that the
Government cannot have it both ways: it cannot be simultaneously
true that the Skilling argument was not novel, yet his counsel
was not constitutionally defective for failing to raise that nonnovel argument.
The flaw in this reasoning, however, lies in the difference
between should and could.
Whether to raise an argument on appeal
is often-- and would have been in Parkin’s case-- a matter of
strategy (i.e., should the argument be raised), see Sistrunk, 96
F.3d at 672, but no impediment external to the defense actually
prevented the argument from being raised (i.e., could the
argument be raised), see Pelullo, 399 F.3d at 223.
Appellate
counsel could have read the Rybicki dissent and made the
objectively reasonable decision not to raise the
unconstitutionality of § 1346 in light of the majority opinion in
Rybicki, and the Third Circuit’s opinions in Panarella and Antico
(not to mention the holdings of the cases cited supra at n. 11).
Accordingly, the Court holds that Parkin has not established
Apprendi v. New Jersey, 530 U.S. 466 (2000) because the claim was
not novel and therefore not reasonably unavailable to counsel).
Moreover, in both Lomelo and Dalton, the petitioners were
ultimately denied habeas relief for failing to establish the
prejudice prong of the procedural default analysis, thereby
rendering the discussions of “cause” merely dicta.
12
“cause” for failing to argue that the prejudicial spillover from
the honest services fraud counts tainted his extortion
conviction.
There is no basis for excusing Parkin’s procedural
default, therefore Parkin’s conviction and sentence as to the
Hobbs Act violation (Count 13) will not be vacated.
As previously explained, Parkin’s sentence as to the honest
services fraud convictions (Counts 1 through 12) ran concurrently
to the Count 13 sentence, therefore the Court need not consider
Parkin’s collateral attacks on Counts 1 through 12.
IV.
For the reasons set forth above, Parkin’s Motion will be
denied.
The Court finds that Parkin has not made a substantial
showing of the denial of a constitutional right, therefore no
certificate of appealability shall issue.
§ 2253(c).
See 28 U.S.C.
An appropriate Order accompanies this Opinion.
Date: October 15, 2012
s/ Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J.
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?