PRISQUE v. UNITED STATES OF AMERICA

Filing 18

MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 1/19/2016. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOHN L. PRISQUE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

:
:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO. 14-1213 (MLC)
MEMORANDUM OPINION

COOPER, District Judge
This matter comes before the Court on the pro se motion of John L. Prisque
(“Petitioner”) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
The underlying criminal case in this Court was United States v. Atlantic States Cast Iron
Pipe Company, et al., Crim. No. 03-852-02 (MLC), aff’d sub nom. United States v.
Maury, 695 F.3d 227 (3d Cir. 2012), cert. denied sub nom. Atl. States Cast Iron Pipe Co.
v. United States, 133 S.Ct. 1600 (2013).
Petitioner was the Plant Manager of the Atlantic States Cast Iron Pipe Company
(“the Company”) pipe foundry in Phillipsburg, New Jersey. He was convicted in a jury
trial on six counts of a 34-count multi-defendant Superseding Indictment alleging
conspiracy under 18 U.S.C. § 371 and various substantive counts. Specifically, his
conviction was on all five alleged objects of the Count 1 conspiracy: to violate provisions
of the federal Clean Water Act and Clean Air Act, to defraud the United States, to make

false statements, and to obstruct a proceeding of the Occupational Safety & Health
Administration (“OSHA”). He was also convicted of substantive counts alleging
obstruction of OSHA under 18 U.S.C. § 1505 (Counts 8 and 9); altering an object with
intent to obstruct OSHA under 18 U.S.C. § 1519 (Count 11); negligent violation of the
Clean Water Act, 33 U.S.C. §§ 1311(a) and 1319(c)(1)(A) (Count 27); and violation of
the Clean Air Act, 42 U.S.C. § 7413(c)(1) (Count 34). His sentence of 70 months
imprisonment, with no term of supervised release or fine, was affirmed on direct appeal
and certiorari was denied.
This motion seeks to set aside Petitioner’s conviction and/or modify his sentence
on grounds of ineffective assistance of trial counsel. He asserts numerous claims
regarding his counsel’s advice and representation. Those claims are set forth in detail in
Section II.B. infra. The claims may be summarized generally as follows: (1) counsel
improperly advised Petitioner to waive any conflict of interest in having the Company, his
employer and co-defendant, provide defense counsel for him at company expense, and
therefore his waiver of that conflict on the record was not knowing and voluntary; (2)
counsel was generally inattentive to Petitioner’s interests and was protective of the
interests of the co-defendant Company, which was paying for his defense; (3) counsel
failed to call certain individuals as defense witnesses, and failed to make certain
arguments at trial; (4) counsel failed to oppose the 4-level role enhancement found by the
Court in calculating Petitioner’s guideline offense level; and (5) counsel failed to advise

2

Petitioner about his options other than going to trial, including cooperating against the
interests of his employer in return for a lesser sentence, despite his numerous requests to
counsel to take him to talk with the Government. (Second Section 2255 Motion, Dkt. 17
at 4–19; see n.3 infra.)
Based upon our review of the motion papers and the relevant materials contained
in the record of the underlying criminal case, this Court finds that the record must be
expanded, and an evidentiary hearing may be required, on the last issue among the claims
summarized above. Therefore, we will appoint counsel for Petitioner to pursue that issue
alone. We further conclude that each of Petitioner’s other claims should be adjudicated
based upon the record in this motion and the extensive record in the underlying criminal
case, and as to those claims the motion must be denied on the papers. See Rules
Governing Section 2255 Proceedings for U.S. District Courts (“Rule”), Rules 7 and 8; 18
U.S.C. § 3006A; United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994).
I.

PROCEDURAL HISTORY
Atlantic States and five of its employees, including Petitioner, were charged in an

indictment filed on December 11, 2003. (Crim. Dkt. 1.)1 A superseding indictment was
filed on September 14, 2004. (Crim. Dkt. 95.) After discovery and pretrial motion
practice, the trial commenced on September 12, 2005. (Crim. Dkt. 219.) The jury

1

The docket filings in the underlying criminal case in this Court, Crim. No. 03-852, are
voluminous. Where those filings are cited in this opinion, we simply refer to the numbered
docket entry as “Crim. Dkt.” The basic chronology of events in that case is found on the docket
sheet and is not cited here except where necessary to provide appropriate detail.
3

verdict, rendered on April 26, 2006, found the Company and four of the individual
defendants guilty on various counts, while one individual defendant was acquitted. The
verdict found Petitioner guilty on the six counts listed above. (Crim. Dkt. 610.)
This Court denied Petitioner’s motions for acquittal and for new trial under Federal
Rules of Criminal Procedure 29 and 33, in an opinion filed on August 2, 2007. (Crim.
Dkt. 721.) See United States v. Atl. States Cast Iron Pipe Co., 2007 WL 2282514 (D.N.J.
Aug. 2, 2007). Petitioner’s sentencing hearing was conducted on April 20, 2009. (Crim.
Dkts. 610, 760.) The other defendants who were found guilty, including the Company,
were also sentenced individually that week. They all appealed, and the judgments of
conviction and sentences were affirmed in an opinion of the Court of Appeals filed on
September 17, 2012. United States v. Maury, 695 F.3d 227 (3d Cir. 2012). That opinion
gave this overview of the nature of the action:
Following an eight-month criminal trial, a jury convicted Atlantic States Cast
Iron Pipe Company and four of its managers of various crimes. These
included conspiring to commit a host of environmental pollution and worker
safety violations, attempting to cover up or impede federal investigation of
those violations, and substantive violations of the Clean Water Act and the
Clean Air Act. Specifically, the Defendants were found to have illegally
pumped contaminated water into storm drains and, as a result, into the
Delaware River; to have unlawfully burned 50-gallon drums of paint waste in
a cupola and emitted the fumes from those activities into the air; and to have
attempted to cover up several work-related accidents at its facility, one of
which resulted in the death of an employee. The jury also found that the
Defendants engaged in a conspiracy to commit these acts – and to impede the
resulting federal investigation – in order to maximize productivity and profits
at the Plant.
Id. at 232–33.
4

The United States Supreme Court denied certiorari for Petitioner and the other
appellants on March 18, 2013. Atl. States Cast Iron Pipe Co. v. United States, 133 S.Ct.
1600 (2013).
Petitioner timely commenced this action with the filing of his original Section
2255 Motion on February 24, 2014. (Dkt. 1.)2 This Court afforded notice to Petitioner
pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999). (Dkt. 2.) In response to
the Miller notice, Petitioner filed a second Section 2255 Motion (the “Petition”) on April
7, 2014, and subsequently confirmed in a separate filing that it was the second motion that
he intended to pursue. (Dkt. 7 at 1–2.)3 This Court preliminarily reviewed the second
Section 2255 Motion, pursuant to Rule 4(b), and entered an order directing the United
States Attorney (“Respondent”) to file an answer, allowing Petitioner leave to reply.
(Dkt. 8.) Respondent filed its Answer (Dkt. 10); and Petitioner filed a reply brief with
exhibits (Dkt. 13).

2

The docket filings in this Court on Petitioner’s pending Section 2255 case, Civil No.
14-1213, are cited in this opinion as “Dkt.” This is to distinguish them from the filings in the
underlying criminal action, cited here as “Crim. Dkt.” See n.1 supra.
3

The procedural steps that led to the filing of Petitioner’s second Section 2255 Motion in
this action were slightly indirect but did result in a valid filing of his second Section 2255
Motion, which we find to be timely under the one-year limitation period of 28 U.S.C. § 2255
para. 6. (See Dkt. 6 (Second Miller Notice & Order ); Dkt. 7 (Petitioner’s Response ); see also
Second Section 2255 Motion [filed in a new docket, Civil No. 14-2199, but consolidated into this
action by Order filed on May 14, 2014 (Dkt. 6)].) We have directed the Clerk to re-file a copy of
the second Section 2255 Motion on the docket of this action, for ease of citation. (Dkts. 16, 17.)
5

II.

DISCUSSION
A.

Legal Framework

Under 28 U.S.C. § 2255:
A prisoner in custody under sentence of a [federal] court . . . 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(a).
This Court has jurisdiction under 28 U.S.C. § 1331. Petitioner has the burden of
establishing any claim asserted in the motion. United States v. Abbott, 975 F.Supp. 703,
705 (E.D. Pa. 1997).
Section 2255 itself limits the discretion of a district court to deny a motion made
thereunder without a hearing:
Unless the motion and the files and records of the case conclusively show
that the prisoner is entitled to no relief, the court shall cause notice thereof to
be served upon the United States attorney, grant a prompt hearing thereon,
determine the issues and make findings of fact and conclusions of law with
respect thereto.
28 U.S.C. § 2255(b) (emphasis added).
The duty of the district court under this provision has been described generally as
follows:
When a motion is made under 28 U.S.C. § 2255 the question of whether to
order a hearing is committed to the sound discretion of the district court. In
exercising that discretion the court must accept the truth of the movant’s
6

factual allegations unless they are clearly frivolous on the basis of the
existing record. Further, the court must order an evidentiary hearing to
determine the facts unless the motion and files and records of the case show
conclusively that the movant is not entitled to relief.
Gov’t of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989); see also Rule 8(a). In deciding
whether to conduct an evidentiary hearing, the court must accept the truth of a petitioner’s
non-frivolous factual allegations and examine them to see if those claims conclusively
satisfy both prongs of the Strickland test, discussed infra. The court, however, can reject
clearly frivolous claims, Forte, 865 F.2d at 62, and can dispose of vague or conclusory
assertions as insufficient. Machibroda v. United States, 368 U.S. 487, 495–96 (1962); see
also United States v. Dawson, 857 F.2d 923, 927–28 (3d Cir. 1988) (describing procedure
for evaluating Strickland claims to determine whether hearing is necessary).
Petitioner asserts each of his claims under the theory of ineffective assistance of
his trial counsel, raising allegations regarding his decision to go to trial, and his
representation by counsel at trial and sentencing, citing Strickland v. Washington, 466
U.S. 668 (1984). Petitioner’s defense counsel of record throughout the proceedings in
this Court, as well as on appeal, was Michael D. Critchley, Esq. Mr. Critchley was
assisted during the trial by his associate, Edmund DeNoia, Esq. Here we summarize the
general legal standards that apply to such claims.
The Sixth Amendment provides in pertinent part: “In all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S.
Const. amend. VI. “A defendant has a Sixth Amendment right not just to counsel, but to
7

‘reasonably effective assistance’ of counsel.” United States v. Day, 969 F.2d 39, 42 (3d
Cir. 1992) (quoting Strickland, 466 U.S. at 687). The Supreme Court in Strickland has set
forth a two-pronged test for evaluating claims of ineffective assistance of counsel:
First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes both showings, it cannot be said
that the conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
Strickland, 466 U.S. at 687. As with any other claim under 28 U.S.C. § 2255, the burden
of proving ineffective assistance of counsel is on a petitioner. Gov’t of V.I. v. Nicholas,
759 F.2d 1073, 1081 (3d Cir. 1985).
The standard under the first prong of the Strickland test is that the appropriate
measure of attorney performance is “reasonableness under prevailing professional
norms.” Strickland, 466 U.S. at 688. A petitioner asserting a claim of ineffective
assistance of counsel must “identify the acts or omissions of counsel that are alleged not
to have been the result of reasonable professional judgment.” Id. at 690. Courts must
recognize the strong presumption that counsel has rendered adequate assistance and that
all significant decisions were made in the exercise of reasonable professional judgment.
Id. at 689; see also Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999); Reese v.
Fulcomer, 946 F.2d 247, 256–57 (3d Cir. 1991); United States v. Gray, 878 F.2d 702, 710

8

(3d Cir. 1989). The evaluation of the objective reasonableness of counsel’s performance
must be made “from counsel’s perspective at the time of the alleged error and in light of
all the circumstances, and the standard of review is highly deferential.” Kimmelman v.
Morrison, 477 U.S. 365, 381 (1986).
The second prong of the Strickland test requires a petitioner to show that counsel’s
deficient performance prejudiced the defense. Thus, “[a]n error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691. A
petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
Furthermore, “[i]t is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding” because “[v]irtually every act or
omission of counsel would meet that test.” Id. at 693.
The Strickland Court further held that both prongs must be established in order to
meet a petitioner’s burden, and that if either prong is not satisfied the claim must be
rejected, stating:
Although we have discussed the performance component of an
ineffectiveness claim prior to the prejudice component, there is no reason for
a court deciding an ineffective assistance claim to approach the inquiry in the
same order or even to address both components of the inquiry if the
defendant makes an insufficient showing on one. . . . If it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed. Courts

9

should strive to ensure that ineffectiveness claims not become so burdensome
to defense counsel that the entire criminal justice system suffers as a result.
Id. at 697.
B.

Petitioner’s Claims

Petitioner’s claims, exclusive of his citation to Strickland in each claim, are quoted
here:4
GROUND ONE:
Trial counsel’s representation of the petitioner at trial was ineffective
because he did not call witnesses on the petitioner’s behalf including but not
limited to:
(A) James Yukna the head mechanic at Atlantic States who would have
testified that the petitioner did not order him to repair the brakes on the
forklift which was central to the Government’s case against him.
(B) Willie Ledee a cement liner foreman who would have testified that the
petitioner did not order him to remove the shutoff limits on the cement
mixer which was relevant to the Government’s case against him.
(C) Eric Hucklebee, Don Harbin, Mike Devine, plant managers at
Alabama, New Jersey [sic: Birmingham, Alabama] who would have
testified that the petitioner was untrained on OSHA, and environmental
issues as part of his job design which was central to the Government’s case
against him; was also told he never needed to see a permit that Dan
Yadzinski was in charge.
(D) Mr. Wayne Smith who would have testified that the petitioner in Feb.
2000 told him what had happened at the Dec. 4th spill. A statement which
was contrary to the Government’s version of events.

4

This text is quoted verbatim from Petitioner’s second Section 2255 Motion (Dkt. 17),
except that we have corrected obvious clerical errors without so noting. We have also inserted
the notation “[sic]” where an inadvertent drafting error appears to exist.
10

Had these witnesses and others been called at trial by defense counsel Mr.
Michael Critchley Sr. as demanded by the petitioner who was hired by the
Company to represent him at trial ... the petitioner’s case would have been
made at the expense of the Company’s interests, such a failure amounted to
clear effectiveness [sic] of counsel.
GROUND TWO:
Trial counsel’s failure to put into evidence of Company lawyer Mr. John
O’Reilly’s assurance to the petitioner that his conduct on the job was within
EPA, DEP and other safety standards. Also clear conflict of interest since
Mr. O’Reilly hired Mr. Michael Critchley to represent him was ineffective
assistance of counsel, something that did not become apparent until the trial
was almost concluded. The petitioner was advised by Mr. Critchley to
waive his right to conflict of counsel prior to trial despite the Government’s
objection to Mr. Critchley. Representation [sic] did not knowingly,
intelligently or voluntarily waive his right to such conflict role.
Representation [sic] since he not only was improperly advised to give up
such a right by that very same lawyer. But also not advised in the law.
GROUND THREE:
Trial counsel failed to argue and contest the (4) level role enhancement for
acting in a leadership role level on the petitioner or to call witnesses on his
behalf on making argument was ineffective of counsel.
GROUND FOUR:
The following failures and ineffectiveness of (A) fully and properly advise
the petitioner of the circumstances under which a conflict of interest would
arise when the petitioner’s defense conflicted with the Company’s interests;
(B) fully and properly advise the petitioner of the options available to him
prior to trial including but not limited to cooperating against the interests of
the Company in return for a lesser sentence.
GROUND FIVE:
(A) Eddie DeNoia was inexperienced for a case this complex and Mr.
Critchley was always sleeping and working on other cases in the courtroom.

11

(B) Big concern through whole trial was they never told jury on all the
incidents that I had two bosses making all the decisions.
(C) Lawyer has nothing more to do with me after they promised to see me
all the way through. But when Company received a letter from my wife the
lawyers contacted me right away. The Company paid them 4 million dollars
to protect the Company not me.
(D) Asked the lawyers numerous times to take me in to talk with
Government but told me it would do me no good.
GROUND SIX:
George Shepard’s testimony was all lies. Why was his awol issues not
brought up. And 2 different stories of the forklift incident.
The petitioner had bosses over him the General Manager, Vice President of
Company, owner of Company.
Dennis Charko
Jim Singleton
Could not make any decision on his own without permission. When all this
came about in 1999 the petitioner was put in his position to take the fall.
GROUND SEVEN:
The petitioner never conspired to pollute water into the Delaware.
(Dkt. 17 at 4–19.)
We will address Petitioner’s claims in light of the constitutional and statutory
authorities set forth above. To do so, we have organized his claims into the five
subsections outlined below, because the allegations under the various numbered Grounds
of his motion do overlap in part. This discussion will draw upon specific portions of the
record and additional case law as applicable.

12

C.

Rulings on the Claims
1.

Improper advice to waive conflict with co-defendant employer

Petitioner appears to allege that he received ineffective assistance of counsel
because the defendant Company, acting through its lawyer John O’Reilly, hired criminal
defense attorney Michael Critchley to represent him, without advising him that it was a
“clear conflict of interest since Mr. O’Reilly hired Mr. ... Critchley to represent him.”
(Dkt. 17 at 6.) He also claims that Mr. Critchley rendered ineffective assistance of
counsel because he was “advised by Mr. Critchley to waive his right to conflict of counsel
[sic] prior to trial despite the Government’s objection to Mr. Critchley.” (Id. at 6–7.) For
these reasons, according to Petitioner, he did not “knowingly, intelligently or voluntarily
waive his right to such conflict role,” -- apparently referring to the fact that the Company,
a fellow defendant and Petitioner’s employer, procured defense counsel for him and paid
for that counsel throughout the prosecution and the appeal. He argues, in sum, that “[t]he
Company paid them 4 million dollars to protect the co. not me.” (Id. at 18.)
Respondent argues that this line of attack on Petitioner’s conviction is foreclosed
by the record, which establishes that Petitioner did make a knowing and voluntary waiver
of his right to conflict-free counsel. (Dkt. 9 at 7–11.) The Court is constrained to agree
with Respondent on this issue, based upon the detailed and thorough exploration of
Petitioner’s options on this key topic that the Court provided to him at the critical time in
the underlying criminal case.

13

It is well-settled that a defendant can make a knowing and voluntary waiver
of his right to conflict-free counsel. Glasser v. United States, 315 U.S. 60, 70–71
(1942); United States v. Laura, 667 F.2d 365, 371–72 (3d Cir. 1981); United States ex rel.
Hart v. Davenport, 478 F.2d 203, 211 (3d Cir. 1973); Gov’t of V.I. v. Hernandez, 476
F.2d 791, 793–94 (3d Cir. 1973). A knowing and voluntary waiver of a defendant’s right
to conflict-free representation will insulate a conviction from later attack on this ground.
United States v. Flanagan, 679 F.2d 1072, 1075–76 (3d Cir. 1982), rev’d on other
grounds, Flanagan v. United States, 465 U.S. 259 (1984); Noe v. United States, 601 F.3d
784, 791–92 (8th Cir. 2010); Gumangan v. United States, 254 F.3d 701, 705–06 (8th Cir.
2001); United States v. Martinez, 143 F.3d 1266, 1269 (9th Cir. 1998); United States v.
Flores, 5 F.3d 1070, 1076–79 (7th Cir. 1993); United States v. Rodriguez, 982 F.2d 474,
477–78 (11th Cir. 1993); United States v. Straughter, 950 F.2d 1223, 1233–34 (6th Cir.
1991).
The issue of a potential conflict of interest for Petitioner’s representation arose
early in the case, as soon as the original indictment was filed. It arose because Petitioner
and each of his individual co-defendants were represented by criminal defense firms
selected and compensated by their employer, the Company, which was a co-defendant
under the same indictment. The indictment was filed on December 11, 2003. (Crim. Dkt.
1.) At the initial appearance of all defendants before the Magistrate Judge on December
15, 2003, Mr. Critchley entered his appearance on behalf of Petitioner (Crim. Dkt. 11), as

14

did other attorneys on behalf of the other individual defendants. (Crim. Dkts. 12–15.) On
that same day, the Government gave notice that it intended to move to disqualify each of
those attorneys, and an early schedule was set for adjudication of those motions. (Crim.
Dkt. 2.) This Court held oral argument on those motions on April 15, 2004, and an
extremely thorough record was made at that time. (See Crim. Dkt. 46.)
Prior to addressing the individual defendants at the motion hearing, the Court had
appointed Lisa Van Hoeck, a seasoned and experienced Assistant Federal Public
Defender, to meet with Petitioner and his fellow co-defendants “for the very limited
purpose of reviewing with them the considerations that go into a knowing and voluntary
acceptance of counsel under these circumstances and waiver of any potential conflict of
interest relating simply to the counsel arrangement.” (Id. at 31–32.) Attorney Van Hoeck
met privately with the individual defendants as a group and reviewed with them the issues
surrounding a potential conflict of interest. (Id. at 34.) Petitioner and his co-defendants
had an opportunity to discuss individually with Ms. Van Hoeck any questions they had in
regard to their right to conflict-free representation. (Id.)
Petitioner testified to this Court that day, after conferring with independently
appointed special counsel Van Hoeck. He testified that he understood that he had a right
to retain an attorney at his own expense to represent him in this case. (Id. at 36.) He
testified that he understood that his employer, Atlantic States, was a co-defendant in this
case that also faced criminal charges. (Id.) He testified that he understood that his trial

15

attorney, Michael Critchley, had been referred to him by counsel for Atlantic States. (Id.
at 37.) He explained the circumstances under which he opted to retain Mr. Critchley to
represent him. (Id.) He assured the Court that no one forced him in any way to use Mr.
Critchley as his attorney for this case. (Id.) He testified that he understood that Atlantic
States had agreed to pay Mr. Critchley to represent him. (Id. at 37–38.) He further
testified that he understood that “because [his] attorney’s fees are being paid by Atlantic
States there’s a possibility that Mr. Critchley’s loyalties could be divided between [him]
and Atlantic States[.] That’s what’s called a potential conflict of interest.” (Id. at 38.)
He also testified that he understood that he could replace Mr. Critchley at his own
expense, or at public expense if he qualified, if he was dissatisfied with Mr. Critchley’s
services on his behalf. (Id. at 39.)
Significantly, during the colloquy between Petitioner and this Court in that court
session on the record, Petitioner was informed by the Court and stated that he understood
that “[i]f you think it’s appropriate” he could “approach the Government and engage in
plea negotiations without knowledge of any other person or Atlantic States. You can
privately approach the Government to open plea negotiations at any time.” (Id.) The
Court explained, and Petitioner acknowledged, the benefits he could potentially receive if
he opted to cooperate with the Government. (Id. at 39–40.) The Court also explained the
dangers that might arise if one of his co-defendants later opted to plead guilty and testify
against him. (Id. at 40.) Petitioner acknowledged that he knew he had a right to consult

16

with another lawyer who had not been paid by any person or entity connected to his case
in regard to these matters. (Id.)
Finally, this Court explained to Petitioner the consequences of a decision by him to
waive his right to conflict-free counsel. This Court stated, and Petitioner responded:
Q. And do you understand that at the conclusion of this case should you be
found guilty you may not be able to complain or raise an argument at a later
time that your attorney, Mr. Critchley, had a potential conflict of interest in
that he was representing you but he was being paid by Atlantic States?
A. Yes.
Q. Are you willing to proceed in this case with Mr. Critchley and his firm
as your counsel knowing all of these facts?
A. Yes.
Q. And are you so far satisfied with the advice and representation that Mr.
Critchley and his firm are providing to you?
A. Yes.
Q. Okay. Do you have any further questions before I conclude this?
A. No, Your Honor.
(Id. at 40–41.)
Based on those thorough and meticulous proceedings to protect Petitioner’s rights
in the circumstances, as set forth in the undisputed record of the underlying criminal case,
this Court finds that it was entirely proper for the Court to accept Petitioner’s free and
uncoerced choice of counsel, including his knowing, informed and voluntary waiver of
his right to conflict-free representation. As the Court explicitly warned Petitioner during
17

that focused motion hearing initiated by the Government, “at the conclusion of this case
should you be found guilty you may not be able to complain or raise an argument at a later
time that your attorney, Mr. Critchley, had a potential conflict of interest in that he was
representing you but he was being paid by Atlantic States[.]” (Id. at 40.) Nor did
Petitioner at any later time during the lengthy progress of the criminal case, from that day
forward through all the trial and appeal processes, ever seek to change his representation.
Accordingly, the Court holds that the post-conviction claim of ineffective assistance of
counsel based upon an alleged conflict of interest regarding Petitioner’s trial and appeal
counsel, Mr. Critchley and his firm, must be denied.
2.

Failure to protect Petitioner’s interests rather than employer at trial

Petitioner makes generalized allegations to the effect that due to the alleged
conflict of interest because his counsel was selected and compensated by the co-defendant
Company, Mr. Critchley did not properly advise or vigorously defend him. (See, e.g.,
Dkt. 17 at 10–11, 18.) The Court has ruled, in Section II.C.1. supra, that any conflict of
interest was knowingly and effectively waived by Petitioner, and may not form the basis
of post-conviction relief in this case. The remainder of Petitioner’s assertions on this
ground fall into three specific categories and a more general complaint about the quality
of counsel’s performance. The three specific categories are addressed in the following
three Sections of this Memorandum Opinion. See Sections II.C.3., II.C.4., and II.C.5.
infra.

18

The more generalized complaints lack substance and specificity, and are otherwise
lacking in merit. Conclusory allegations of ineffective assistance, unmoored to the facts
of the case, do not support a claim of ineffective assistance of counsel or require an
evidentiary hearing. See, e.g., Palmer v. Hendricks, 592 F.3d 386, 394 (3d Cir. 2010);
United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000); Zettlemoyer v. Fulcomer, 923
F.2d 284, 298 & n.12 (3d Cir. 1991).
Petitioner’s generalized complaints include counsel’s alleged failure to “fully and
properly advise the petitioner of the circumstances under which a conflict of interest
would arise when the petitioner’s defense conflicted with the Company’s interests.” (Dkt.
17 at 20.) However, the defense of both Petitioner and the Company throughout the trial
was that neither the Company nor the individual defendants committed the acts of
obstruction and environmental violation that were criminally charged. In other words, as
Mr. Critchley explained at the outset of the case, with the exception of some highly
technical legal arguments such as definitions of mens rea, the defense posture of all the
defendants in response to the charges was simply that they did not commit the crimes
charged. On that defense, the interests of the Company and the individual employees
were precisely aligned.
Petitioner also asserts that “through the whole trial ... they [Mr. Critchley and his
associate, Mr. DeNoia] never told jury on all the incidents that I had two bosses making
all the decisions.” (Dkt. 17 at 18.) The “two bosses” referred to in the Petition are stated

19

to be Dennis Charko and Jim Singleton. (Id. at 19.) Petitioner testified at trial, under
direct examination by his counsel, Mr. Critchley, that during the relevant time period, Mr.
Charko was his immediate supervisor as General Manager; and Mr. Singleton had been
promoted from General Manager to a higher corporate position supervising all of the pipe
manufacturing facilities of the parent company. (Crim. Dkt. 1112 at 55–57.) According
to his testimony thus elicited by Mr. Critchley, although Petitioner was Plant Manager, he
had relatively little decision-making authority; for example, he could only authorize
expenditures up to $1,000 without approval by the General Manager. (Id. at 58–59.)
To the extent that this argument is related to Petitioner’s claim that his counsel
failed to oppose a supervisory role enhancement at sentencing, it is addressed in Section
II.C.4. infra. If, on the other hand, it suggests that Petitioner was directed by his superiors
to commit the criminal acts for which he was found guilty, that would be inconsistent
with his own sworn denials at trial and would in any event not be exculpatory as to his
own guilt. Competent defense counsel would surely have avoided any such fingerpointing as a defense tactic at trial, especially because Atlantic States as a company was
also a named defendant, and Mr. Singleton was a named co-conspirator in the
Superseding Indictment. (See Crim. Dkt. 95 at 16; Crim. Dkt. 717 at 38.) As such, this
argument is subject to the “strong presumption” that “all significant decisions were made
in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 689.
Finally, if this argument is directed to Petitioner’s claim that his counsel did not allow him

20

to try to cooperate with the Government and against the Company in hopes of obtaining a
more lenient sentence, that subject is addressed in Section II.C.5. infra.
Addressing the conduct of his counsel at trial, Petitioner criticizes Mr. DeNoia as
inexperienced and Mr. Critchley as inattentive. However, those arguments likewise are
unsupported by the record. Mr. Critchley was – and is – a well-known, deeply
experienced and highly respected federal criminal defense attorney in the District of New
Jersey. He filed numerous pretrial, trial, and post-trial motions, as well as appeal
materials, that were well-written, well-researched and well-argued. The docket of the
underlying criminal case is replete with those filings, almost too numerous to count. The
Government presented a total of 52 witnesses during the approximately 7 1/2-month jury
trial, and Mr. Critchley vigorously cross-examined virtually all of those witnesses in his
client’s defense.5 He also presented nine trial witnesses, and seven of those witnesses

5

Mr. Critchley personally conducted the cross-examination of the 34 trial witnesses
presented by the Government who were cross-examined on behalf of Petitioner. The Court has
reviewed the testimony of all 52 Government witnesses, and it is clear that Mr. Critchley made
reasonable strategic decisions not to cross-examine the other 18 Government witnesses for
reasons of practicality (for example, witnesses who merely identified documents), or tactics (for
example, witnesses who did not testify to facts relevant to the counts and overt acts charged
against Petitioner, or witnesses whose cross-examination by counsel for other co-defendants
covered all available impeachment material against those particular witnesses). Here is a list of
transcript citations to the first page only of the cross-examination by Mr. Critchley of those 34
Government witnesses. We cite only the first page of each such reference for a given witness,
because a reading of the transcripts (some on multiple days for a given witness) will indicate
where his cross-examination of that witness was completed. (See Crim. Dkt. 1019 at 15
(Barsony); Crim. Dkt. 1083 at 57 (Berberena); Crim. Dkt. 992 at 124 (Bobinis); Crim. Dkt. 1009
at 17 (Borger); Crim. Dkt. 1083 at 109 (Czapik); Crim. Dkt. 1016 at 118 (Decker); Crim. Dkt.
919 at 28 (Delker); Crim. Dkt. 906 at 4 (Doyle); Crim. Dkt. 957 at 98 (Fernicola); Crim. Dkt.
888 at 66 (Fleming); Crim. Dkt. 891 at 133 (Hay); Crim. Dkt. 1027 at 38 (Johnson); Crim. Dkt.
1087 at 154 (Kolbe); Crim. Dkt. 1016 at 4 (Kresge); Crim. Dkt. 995 at 164 (Lieberman); Crim.
21

were co-workers of Petitioner at the plant who offered exculpatory testimony in his favor
on various fact issues.6 Altogether, the defense attorneys presented a total of 52
witnesses, including many more plant employees and several expert witnesses, and Mr.
Critchley drew from those additional witnesses more points favorable to his client’s
defense when they testified. (See, e.g., Crim. Dkt. 1132 at 202–03; Crim. Dkt. 1135 at
78–79 & 109–10.) Mr. Critchley’s summation to the jury was nothing short of
extraordinary, when he demonstrated an encyclopedic command of the evidence and laid
out his client’s defense points in clear, logical, and persuasive words and presentation
materials. (Crim. Dkt. 570-1 at 165–214; Crim. Dkt. 572-1 at 4–100.) His briefs and
arguments at sentencing and on appeal were similarly comprehensive and highly skilled
professional defense work, all as reflected in the voluminous docketed entries in the
underlying criminal record. (See, e.g., Crim. Dkt. 765 at 6–7 & nn.4, 5.)7 Also, as
Dkt. 885 at 156 (Mantoni); Crim. Dkt. 1036 at 128 (Marchan); Crim. Dkt. 970 at 156
(Marchand-Mendoza); Crim. Dkt. 887 at 83 (Morgan); Crim. Dkt. 979 at 51 (Owens); Crim. Dkt.
1013 at 4 (Redcay); Crim. Dkt. 1027 at 121 (Reid); Crim. Dkt. 932 at 45 (Rush); Crim. Dkt. 979
at 214 (Salerno); Crim. Dkt. 1173 at 40 (Schmeltzly); Crim. Dkt. 998 at 151 (Schultz); Crim.
Dkt. 1059 at 24 (Shepherd); Crim. Dkt. 1087 at 93 (Silva); Crim. Dkt. 885 at 59 (Simonds);
Crim. Dkt. 1075 at 193 (Tiedeman); Crim. Dkt. 1050 at 31 (Velarde); Crim. Dkt. 1024 at 183
(Vine); Crim. Dkt. 885 at 117 (Viscomi); Crim. Dkt. 1024 at 128 (Zettlemoyer).)
6

The testimony of the witnesses presented by Mr. Critchley on behalf of Petitioner,
including the testimony of Petitioner himself, is contained in the trial record of the underlying
criminal case. (See Crim. Dkt. 1109 at 4–235; Crim. Dkt. 1112 at 5–224; Crim. Dkt. 1115 at
4–130; Crim. Dkt. 1118 at 4–189.)
7

The docket filing cited here, Crim. Dkt. 765, is a Memorandum Opinion filed by this
Court in the underlying criminal action, addressing guideline sentencing calculation issues as to
each of the defendants found guilty at trial. That opinion is 372 pages long in the docketed
version. It is also published at 627 F.Supp.2d 180 (D.N.J. 2009), but we will cite to the docketed
version here.
22

Respondent points out, as to Petitioner’s complaint that Mr. DeNoia lacked the requisite
experience for such a complex case, that cannot constitute a basis for collateral relief
where, as here, Petitioner was represented by undeniably highly competent counsel in the
person of Mr. Critchley, and Petitioner has not alleged how any lesser experience of Mr.
DeNoia possibly prejudiced him. (Dkt. 9 at 26.)8
3.

Failure to present some potential witnesses and arguments at trial

Petitioner contends that his trial counsel was ineffective for failing to present
several potential witnesses and to advance some arguments in his defense at trial. See
Section II.B. supra. Petitioner names the following persons, saying that they should have
been called by his lawyer to testify: (1) James Yukna, the head mechanic at Atlantic

8

Petitioner also claims in his Section 2255 motion that “Mr. Critchley was always
sleeping and working on other cases in the courtroom.” (Dkt. 17 at 18; see also Dkt. 13 at 8.)
The Government responds: “That allegation, however, is simply false. As this Court is well
aware, Critchley was awake, active, and vigorously representing Prisque throughout the trial.
Factual assertions that are flatly contradicted by the record are not a basis for collateral relief.”
(Dkt. 9 at 26.) The Court has considered this allegation most carefully, because there is federal
appellate case law to the effect that such circumstances, if present, may justify a presumption of
ineffective assistance of counsel, even without a showing of prejudice. See, e.g., Burdine v.
Johnson, 262 F.3d 336, 344–49 (5th Cir. 2001); Tippins v. Walker, 77 F.3d 682, 683–90 (2d Cir.
1996); Javor v. United States, 724 F.2d 831, 832–35 (9th Cir. 1984); see generally Wright v. Van
Patten, 552 U.S. 120, 124–25 (2008) (comparing standards under Strickland and United States v.
Cronic, 466 U.S. 648 (1984)); Bell v. Cone, 535 U.S. 685, 694–97 (2002) (same). However, the
Court must decline to grant relief on the basis of this allegation because all proceedings in the
underlying criminal prosecution, including the entire trial, took place in the presence of the
undersigned judicial officer and assigned court staff. We observed firsthand the attentiveness
and effectiveness of Petitioner’s counsel Mr. Critchley throughout the lengthy jury trial, and
during all prior and subsequent proceedings in this Court. There simply is no factual basis to
conclude that Petitioner was deprived of the attention and vigorous representation of his counsel
for any extended time or during any portions of the proceedings that had relevance to his defense.
In fact, the record is to the contrary, as described and cited in this Memorandum Opinion.
23

States; (2) Willie Ledee, a cement liner foreman; (3) Eric Hucklebee, Don Harbin, and
Mike Devine, described as plant managers in Birmingham, Alabama; (4) Wayne Smith, a
criminal investigative agent for the state of New Jersey; and (5) John O’Reilly, Esq.,
counsel for the defendant Company. Id.
Respondent correctly points out that Petitioner has not provided any affidavits
from those persons summarizing the testimony they would have given at trial, which
courts have generally expected to be presented in federal habeas petitions on such
grounds. (Dkt. 9 at 14 (citations omitted).) Respondent also argues that “what little
information [Petitioner] provides about these potential witnesses fails to raise a colorable
claim of ineffective assistance of counsel.” (Id.) This Court finds in favor of Respondent
on this issue, based upon our review of the Petition and relevant portions of the
underlying criminal case record.
Petitioner says that mechanic James Yukna should have been called as his defense
witness because Yukna “would have testified that petitioner did not order him to repair
the brakes on the forklift which was central to the Government’s case against him.” (Dkt.
17 at 4.) Respondent replies that:
[T]he Government never contended that Prisque directly ordered Yukna to fix
the brakes on the forklift. In fact, the Government never attempted to prove
the identity of the specific individual who fixed the forklift after the accident
in which Al Coxe died. The Government needed to prove only that the brakes
were fixed after the accident and prior to OSHA’s investigation in a deliberate
attempt to mislead the OSHA investigators. Because the Government did not
attempt to prove that Yukna was personally responsible for fixing the forklift
brakes after the accident, there is no reasonable possibility that his alleged
24

testimony that he did not fix the brakes, or that Prisque did not order him to
fix the brakes, would have changed the outcome of the case.
(Dkt. 9 at 14–15.)
This dispute refers to Counts 7, 9, and 10 of the Superseding Indictment,
concerning alleged obstruction of an OSHA investigation involving a fatal accident in
which a foreman was run over by a forklift at the plant. Petitioner was one of the
defendants named and convicted on Count 9 (as well as the related conspiracy allegation
in Count 1). (See, e.g., Crim. Dkt. 721 at 166–67.) The trial evidence on Count 9 is
described in detail, with citations to the trial record, in the post-trial Memorandum
Opinion of this Court. (Id. at 166–79.) The Court of Appeals decision included a similar
factual summary of the evidence on that Count. See Maury, 695 F.3d at 240–41. Based
on the trial record, the Court finds that Respondent is correct that the Government never
alleged or tried to prove that Petitioner instructed mechanic Yukna to fix the forklift after
the accident, nor did the Government try to prove which person did fix the forklift so that
it functioned properly when OSHA arrived. For these reasons, the Court finds that this
claim in the Petition does not satisfy the prejudice prong of Strickland, because even if
Yukna had been called to testify, and assuming he would have said what Petitioner
asserts, such testimony would not likely have changed the outcome on Count 9.
Next, Petitioner asserts that his trial counsel was ineffective for failing to call
cement liner foreman Willie Ledee to testify on his behalf. Petitioner states, without
documentary support, that Ledee would have testified that Petitioner did not order him to
25

remove the electrical shutoff limits on the cement mixer that was involved in the accident
where worker Hector Velarde lost three fingers while attempting to clean the inside of the
machine. (Dkt. 17 at 5.)
This dispute relates to Count 11 of the Superseding Indictment, charging that
Petitioner and the Company altered the cement mixer to conceal that they had previously
bypassed a safety device designed to shut down the mixer when its doors were opened.
Petitioner and the Company were convicted on Count 11 (as well as the related conspiracy
allegation in Count 1.) (See, e.g., Crim. Dkt. 721 at 179–80.) A review of the trial
record reveals, however, that Petitioner cannot show prejudice on this claim. Mr. Ledee
was a witness at trial, called to testify by co-defendant Davidson.9 He was asked about
those very facts. Among other things, Ledee testified that the safety devices on the
cement mixer doors (called “limit switches” or “safety switches”) typically got “knocked
off” and did not last long. (Crim. Dkt. 1162 at 23.) He said that the new cement mixer
that arrived in 2000 originally had safety switches on it, but they were removed before he
used it. (Id. at 74.) According to Ledee, he was not involved in the discussions on how
9

The defendants did not have a joint defense agreement. In other words, each defendant
was free to take any legal or factual position that might favor that defendant individually,
regardless of its impact on the other defendants also on trial. (See Crim. Dkt. 283 at 44.)
However, to the degree that their interests in defending against various charges were common,
they presented those defenses by calling various witnesses upon whom all could rely. That was
the situation when defendant Davidson presented Mr. Ledee as a witness, because in theory his
testimony would be exculpatory as to both Davidson and Petitioner with respect to the Velarde
incident. Davidson was not named as a defendant on Count 11, but there was evidence that he
was involved in the cement mixer situation. He was charged in the obstruction objective of the
Count 1 conspiracy, so he would have had the same interest as Petitioner and the Company to
defend the allegations in Count 11. (See generally Crim. Dkt. 721 at 179–92.)
26

those limit switches were removed. (Id. at 79.) This testimony by Ledee was therefore to
the effect that Petitioner did not order Ledee to remove those safety switches. To the
degree that this testimony was exculpatory to Petitioner, it was presented at the trial by
Ledee when he was called as a witness by Davidson, a defendant with a similar interest to
that of Petitioner on that issue. Therefore, Petitioner has shown no prejudice by the
“failure” of his own counsel to call that witness. See n.9 supra.
Petitioner also claims that his counsel should have called Messrs. Devine, Harbin,
and Hucklebee, described as managers who worked for the parent company in Alabama,
to testify that Petitioner as Plant Manager at Atlantic States did not receive OSHA or
environmental training as part of his job, “which was central to the Government’s case
against him.” (Dkt. 17 at 5.) This purported testimony, also not supported by
documentation, would not have been reasonably likely to change the outcome of the trial
for Petitioner. See Hinton v. Alabama, 134 S.Ct. 1081, 1089 (2014) (to establish
prejudice, defendant must show a “reasonable probability” that absent counsel’s errors,
“the result of the proceeding would have been different”).
At no time during the prosecution did the Government argue that Petitioner, as
Plant Manager, was familiar with all the details of the OSHA regulations or
environmental permits. As Respondent correctly states here, with respect to the
obstruction counts of conviction, “[t]he notion that Prisque needed particularized training
to know that he was not supposed to lie to or intentionally deceive government

27

investigators is simply untenable.” (Dkt. 9 at 16 and n.2.) Likewise, with respect to the
Clean Water Act and Clean Air Act counts of conviction, and the related Count 1
conspiracy allegations, no regulatory knowledge was needed beyond that which the
evidence clearly showed Petitioner possessed. The Government’s evidence at trial
pointed to chronic plant conditions known to Petitioner that repeatedly polluted the public
storm drain system, as well as deliberate actions by Petitioner to violate air emissions
requirements of which he was well aware. (See, e.g., Crim. Dkt. 721 at 192–234,
246–63.) For these reasons, the Court finds that the Petition fails to show prejudice based
upon counsel’s failure to call those named individuals to testify to the training or lack of
training afforded Petitioner on OSHA and environmental requirements.10
Petitioner also contends that his counsel should have called Wayne Smith to
testify. He asserts (again without documentation) that Mr. Smith “would have testified
that the petitioner in Feb. 2000 told him what had happened at the Dec. 4th spill. A
statement which was contreversy [sic: contrary] to the Government’s version of events.”

10

It is also to be noted that Mr. Devine was a supervisor working under Petitioner during
at least part of the alleged conspiracy time frame, as was Donald Harbin. (See Crim. Dkt. 721 at
184 n.102.) They were both involved in the Velarde cement mixer OSHA obstruction. (Id. at
186–91.) In fact, Harbin was named in the Superseding Indictment as unindicted co-conspirator
“Y” with reference to that incident, and the jury was so instructed at trial. (Id. at 180.) In
addition, Mr. Devine was a convicted felon at the time, relating to his company work in
Alabama, which conviction was only later reversed on appeal. (See Dkt. 9 at 15 n.3.) Therefore
it would have been unlikely that those two individuals would have testified, even if called at trial
by Petitioner’s defense counsel. Rather, most likely they would have invoked their Fifth
Amendment privilege not to testify. Experienced trial counsel for Petitioner surely was aware of
that likelihood in making his decision not to call them as witnesses.
28

(Dkt. 17 at 5.) First, this contention is extremely vague as to what Petitioner allegedly
told Mr. Smith, and as such fails to meet Petitioner’s burden of particularity under Section
2255. It is well-settled that a court can dispose of vague or conclusory assertions in a
petition as insufficient. Machibroda, 368 U.S. at 495–96. However, giving Petitioner as
a pro se litigant a broad reading of this contention, Haines v. Kerner, 404 U.S. 519,
520–21 (1972), we will examine it in the context of the trial record.
Co-defendants Maury and Davidson, as well as the Company, were convicted on
two false statement substantive counts, Counts 3 and 4. (See Crim. Dkt. 721 at 139–49.)
Those counts referred to statements allegedly made by Maury and Davidson to federal and
state investigators during a search warrant execution at the plant on February 24, 2000, in
connection with a discharge of oil-contaminated wastewater from the plant into the
municipal storm drains flowing into the Delaware River that occurred on December 4–5,
1999. According to the Government’s evidence upon which those convictions were
based, the cause of that discharge was intentional pumping of wastewater from the plant’s
“cement pit” water containment basin onto the ground, where it flowed into the storm
drains. During the search warrant execution, as charged in Counts 3 and 4 and as
accepted in the jury verdict, Maury and Davidson used fabricated excuses – Maury saying
that he believed the spill originated from a truck hydraulic line (Count 3), and Davidson
saying that he believed the spill occurred because an outlet hose on a sump pump had a
hole that leaked the water out. (Count 4). (Id.) These two convictions were based on the

29

testimony of the investigating agents, Agent Fernicola as to Maury and Agent Hill as to
Davidson, each accompanied by one other agent. (Id.)11
Petitioner was not charged in a substantive false statement count as to that incident,
but one of the five alleged objectives of the Count 1 conspiracy was to make false
statements to federal officials (Crim. Dkt. 711 at 11–12); and one of the alleged overt acts
of the conspiracy was that “[o]n ... February 24, 2000, [Petitioner] falsely told law
enforcement officials that the discharge on December 4 and 5, 1999, was caused when a
hole blew in the hose leading from a sump pump.” (Id. at 17.) Petitioner was convicted
on all five alleged objectives of that Count 1 conspiracy. (See Crim. Dkt. 610 at 1.)
Agent Hill testified at trial that not only did he interview defendant Davidson, but
he also was present when agents were asking Petitioner (who was the Plant Manager)
what caused the December 4–5, 1999 incident. According to witness Hill, “[Petitioner]
told us that the incident was caused by a hole in the middle of the hose,” referring to a
sump pump used to pump water out of the cement pit. (See Crim. Dkt. 948 at 35–37.)
Hill also testified that he, Hill, was introduced to Davidson by Hill’s supervisor, Wayne
Smith, and was instructed by supervisor Smith to do the interview of Davidson. (See
Crim. Dkt. 951 at 179.)

11

There was federal jurisdiction for these counts, and for the corresponding alleged
objective of the Count 1 conspiracy, because some of the investigating agents were federal such
as FBI, and others were state environmental agents operating under Clean Water Act delegated
federal authority. (See, e.g., Crim. Dkt. 721 at 140, 145–46, 146 n.79, and 149.)
30

The Petition asserts that it was supervisor Wayne Smith who interviewed
Petitioner, impliedly denying that Agent Hill did interview Petitioner. (Dkt. 17 at 5.) The
Petition also asserts that if Wayne Smith had been called as a defense witness for
Petitioner, Smith “would have testified that the petitioner ... told him what had happened
at the Dec. 4th spill.” (Id.) However, when Petitioner himself did testify in his own
defense at the trial, he merely stated that it was Smith who interviewed him, with no other
persons nearby, and that Hill never interviewed him. (Crim. Dkt. 1115 at 68–70.) He did
not volunteer on direct testimony what he allegedly told Smith at that time, nor did he do
so when asked on cross-examination about the conversation he alleged took place
between himself and Wayne Smith. (Id.; Crim. Dkt. 1118 at 97–99.) Given the fact that
his trial posture was to deny that he spoke to Agent Hill, and further to deny that he made
the alleged false statements to supervising Agent Smith – without testifying to his version
of what he did say to Agent Smith – it can hardly be said that Petitioner’s defense counsel
was ineffective for deciding not to call Agent Smith as a trial witness. Here, based on the
record, the Court must apply the “strong presumption” that the decision of Petitioner’s
experienced trial counsel not to call Agent Smith as a witness was “made in the exercise
of reasonable professional judgment.” Strickland, 466 U.S. at 689. Therefore, this
contention fails to satisfy the performance prong of the Strickland test.
The last contention in this group of claims is that Petitioner’s trial counsel failed to
offer “evidence of Company lawyer Mr. John O’Reilly[’s] assurance to the petitioner that

31

his conduct on the job was within EPA, DEP and other safety standards.” (Dkt. 17 at 6.)
As previously stated, Attorney O’Reilly was corporate counsel for the Company prior to
issuance of the indictment in the underlying criminal case, and he served as defense
counsel for the Company throughout the prosecution and appeal, after separate defense
counsel had been retained for each of the individual defendants including Petitioner. See
Section II.C.1. supra. The first problem with Petitioner’s contention that legal opinions
given by Attorney O’Reilly to him should have been placed in evidence at trial is that to
have done so would have opened the door for the Government to argue that Petitioner had
thereby waived any attorney-client privilege between himself and Attorney O’Reilly prior
to retention of his separate counsel. This could then have exposed Petitioner to a
thorough recapitulation, at trial, of all the discussions he had with Attorney O’Reilly that
would otherwise have been protected by that privilege. Experienced defense counsel such
as Mr. Critchley would hardly have inflicted that consequence on his client by attempting
to call Mr. O’Reilly as a defense witness for Petitioner at trial.
Even more fundamentally, however, Petitioner cannot seriously contend that Mr.
O’Reilly was made aware of known safety or environmental violations or accident coverup conduct by Petitioner, and yet advised him that it was legally proper. As Respondent
states this principle, “it is highly implausible that O’Reilly or any attorney informed
Prisque that it was acceptable to, for example, pollute the environment, remove safety
devices from equipment, to lie to and otherwise attempt to deceive Government

32

investigators, and to order his subordinates to engage in such behavior.” (Dkt. 9 at 16.)
Thus, it is reasonable that either Petitioner did not reveal misconduct to Attorney
O’Reilly, or Mr. O’Reilly did not advise Petitioner that the alleged criminal conduct was
acceptable. Either way, the argument that Petitioner’s defense counsel should have called
Mr. O’Reilly to testify, or evidence of his legal advice to Petitioner should have been
presented at trial, fails on the performance prong of Strickland.
Respondent also points out in this connection that defendants called as trial
witnesses three other attorneys who each performed environmental legal services
regarding Company operations at the plant: Anthony Reitano, John Fetterly, and
Kathleen Caminiti. (Id. at 18; see Crim. Dkt. 1145 at 102–208.) Although the topics
covered by each of them varied slightly, the implication of their testimony was that, at
least in the environmental compliance area, defendants’ conduct was guided by the
Company’s attorneys. Respondent argues, and this Court agrees, that there is no reason to
find, based on Petitioner’s vague and conclusory allegations, that the thrust of Mr.
O’Reilly’s testimony would have been anything other than cumulative of the testimony
elicited from those witnesses. (Dkt. 9 at 18–19.) Accordingly, the Court finds that this
contention of the Petition also fails to satisfy the prejudice prong of Strickland.
For the reasons stated in this Section, the Court finds that the Petition fails to meet
the burden of establishing constitutionally ineffective assistance of counsel with respect to
Petitioner’s arguments that his counsel should have called the following potential

33

witnesses to testify in his defense: (1) James Yukna, (2) Willie Ledee, (3) Eric Hucklebee,
Don Harbin, and Mike Devine, (4) Agent Wayne Smith, and (5) Attorney John O’Reilly.
To the extent that the Petition contends that other persons should also have been presented
as defense witnesses (see Dkt. 17 at 4), those vague assertions may not form the basis of
relief under Section 2255. Machibroda, 368 U.S. at 495–96.12
4.

Failure to argue against upward role adjustment at sentencing

Petitioner also claims that his trial counsel “failed to argue and contest the (4) level
role enhancement for acting in a leadership role ... or to call witnesses on his behalf” in
making that argument. (Dkt. 17 at 9.) If true, that allegation could support relief under
Section 2255. See, e.g., United States v. Otero, 502 F.3d 331, 337 (3d Cir. 2007)
(defendant received ineffective assistance when counsel failed to object to a particular
enhancement in the PSR); Jansen v. United States, 369 F.3d 237, 244 (3d Cir. 2004)
(“where defense counsel fails to object to an improper enhancement under the Sentencing
Guidelines, counsel has rendered ineffective assistance.”). However, in this case, as
Respondent accurately replies, “[in] written submissions to this Court, and in oral
argument at the sentencing hearing, defense counsel vigorously contested” the application
of that enhancement. (Dkt. 9 at 20.)
12

Petitioner’s Reply Brief lists an additional sixteen names of individuals whom he
suggests should have been called as defense witnesses at trial, further contending that “there was
a litany of potential witnesses that would have provided testimony that would have supported
Movant’s defenses.” (See Dkt. 13 at 3–5, citing id. at 13–23 (investigator work product,
summary of interviews).) The Court has reviewed these further materials, but finds them
insufficient to carry the burden on either the performance or the prejudice prong of Strickland as
to those uncalled witnesses.
34

The chronology of the sentencing proceedings in the underlying criminal case was
extremely protracted because of the numerous defendants, counts of conviction, and
guideline and non-guideline issues to be addressed by the parties and ultimately decided
by this Court. Essentially, each convicted defendant contested each calculation in the
original draft of the Presentence Report, and many of those disputes were issues of first
impression in sentencing under the obstruction statutes and the Clean Water Act and
Clean Air Act.
The briefing and presentations by both sides on sentencing were truly extensive.
Petitioner was ultimately sentenced on April 20, 2009, having remained on bail since the
jury verdict was rendered on April 26, 2006. (See Crim. Dkts. 610, 760.) Thus, almost
three full years elapsed between verdict and sentencing, owing to the volume of the trial
evidence, the extensive post-trial motions, and the numerous sentencing issues. This
Court issued its 271-page Memorandum Opinion on the post-trial motions for acquittal
and new trial on August 2, 2007. (Crim. Dkt. 721.)13 Immediately thereafter, the parties
were permitted to begin submitting sentencing briefs on schedules determined by the
Court. As of February, 2008, there were numerous sets of sentencing briefs, including
opening and reply briefs from each of the convicted defendants and responsive briefing by
the Government.

13

The briefing materials filed by the parties on the Rule 29 and Rule 33 post-trial
motions alone totaled approximately 595 pages, exclusive of appendices and exhibits. (See
Crim. Dkt. 765 at 7 n.5; Crim. Dkt. 721 at 130.)
35

On February 6, 2008, this Court heard a full day of oral argument by those parties,
including Petitioner, directed solely to the guidelines issues including offense level
calculations and potential departures. (Crim. Dkt. 738.) Based on those submissions and
arguments, this Court prepared, and provided to the parties on December 31, 2008 (but
did not simultaneously docket), a 372-page Memorandum Opinion setting forth its
tentative rulings on those sentencing issues. (See Crim. Dkt. 765 at 6.) Thereafter the
parties were permitted to submit additional sentencing materials, and the sentencing
hearings were completed during one week in April, 2009. The individual sentencing
hearing for Petitioner was conducted on April 20, 2009. (Crim. Dkts. 760, 783.)
Thereafter, the Court docketed an updated version of its previously-drafted sentencing
Memorandum Opinion on April 30, 2009 (“Sentencing Opinion”). (Crim. Dkt. 765.) See
n.7 supra. This elaborate sentencing procedure thus afforded counsel for each of the
defendants, including Petitioner, a full opportunity to advocate exhaustively on behalf of
their individual clients, as well as collectively, on issues common to all or specific to each
of them; and they fully utilized that opportunity.
As noted in our Sentencing Opinion, by February, 2008, the sentencing briefs by
all parties totaled approximately 650 pages, and those briefs were all directed to
guidelines calculations and potential grounds for guidelines departures. (Crim. Dkt. 765
at 7 n.5.) Of those, approximately 215 pages were submitted by counsel for Petitioner, in
three separate briefs with exhibits. This Court refers to those briefs as Prisque I (dated

36

October 12, 2007), Prisque II (dated December 21, 2007), and Prisque III (dated February
21, 2008). (Id.) In addition, at the oral argument on the guidelines calculation disputes
conducted in this Court on February 6, 2008, counsel for Petitioner argued the guidelines
issues raised in those briefs, including the guidelines leadership role enhancement issue,
and made a PowerPoint presentation containing 28 slides, of which 11 slides addressed
that issue. (See Crim. Dkt. 738 at 33–40, 168–70; Crim. Dkt. 1262.)
The subsequent sentencing briefs filed by Petitioner’s counsel, again pursuant to
scheduling directives of this Court, addressing the remaining sentencing issues under the
sentencing statute, 18 U.S.C. § 3553(a), will be referred to as Prisque IV (letter brief
dated March 23, 2009), Prisque V (sentencing memorandum dated March 23, 2009), and
Prisque VI (reply sentencing memorandum received in chambers April 16, 2009).
Sentencing briefs are not customarily filed on the docket, but in order to address the issue
raised in the pending Petition regarding counsel’s advocacy during the sentencing phase,
the Court has filed those briefs (and the related PowerPoint slides) on the docket of the
underlying criminal case under seal, so that they are preserved in the electronic case file
system.14 Here we cite the specific locations in counsel’s many sentencing materials
14

Sentencing memoranda by parties are not routinely docketed in this Court. That
practice was followed in Petitioner’s criminal case, and all sentencing submissions from all
parties were submitted to chambers rather than filed on the public docket. (See Crim. Dkt. 765 at
2 n.3.) In preparing this Memorandum Opinion addressing Petitioner’s pending Section 2255
motion, the Court has directed the Clerk to file, under seal in the underlying criminal case, the
chambers copies of the sentencing briefs and exhibits submitted by Petitioner’s counsel. (See
Crim. Dkts. 1258, 1260–1263, & 1265–1267, consisting of: Order to File Under Seal dated Jan.
14, 2016; brief dated Oct. 12, 2007 (Prisque I); reply brief dated Dec. 21, 2007 (Prisque II); letter
brief dated Feb. 21, 2008 (Prisque III); letter brief dated Mar. 23, 2009 (Prisque IV); brief dated
37

submitted for Petitioner where any guidelines role enhancement for him was vigorously
disputed, and indeed a minor role reduction was requested. (See Crim. Dkt. 1260 at
77–78, 127–36; Crim. Dkt. 1261 at 49; Crim. Dkt. 1262 at 11–21; Crim. Dkt. 1266 at 4–7,
19–21; Crim. Dkt. 1267 at 6–7.)
This Court made a searching analysis of the role adjustment issue during the
sentencing process. That analysis was so detailed that it was included in the written
Sentencing Memorandum circulated to the parties on December 31, 2008, and docketed
on April 30, 2009, immediately after the sentencing of all defendants was concluded.
(Crim. Dkt. 765.) It consumes 40 pages in the Sentencing Memorandum, with specific
factual findings as to Petitioner’s role enhancement as well as regarding other convicted
defendants, each individually. (Id. at 91–130.) Counsel for Petitioner correctly chose not
to attempt to re-argue the role enhancement issue on the final sentencing hearing date of
April 20, 2009, because all of that advocacy had previously been presented to the Court in
writing in counsel’s many sentencing briefs (see n.14 supra) and at the sentencing hearing
oral argument on February 6, 2008. Instead, on the record during the sentencing hearing
on April 20, 2009, counsel simply stated -- and this Court agreed -- that all of his

Mar. 23, 2009 (Prisque V); reply brief received Apr. 16, 2009 (Prisque VI); and 28-page
PowerPoint slide set presented by Petitioner’s counsel at oral argument on February 6, 2008.
The same order to file also filed under seal the pertinent versions of Petitioner’s Presentence
Report as prepared by the U.S. Probation Office. (See Crim. Dkt. 1258 at 2; Crim. Dkts. 1259 &
1264.)
38

arguments in opposition to the guideline calculations made by the Court were to be
preserved. (Crim. Dkt. 783 at 9–20.)
Petitioner’s objections to the role enhancement applied by this Court at sentencing
were indeed preserved on behalf of Petitioner by his counsel, who then proceeded to
appeal that ruling, among many others, to the Court of Appeals and argue that issue in his
briefing materials on appeal. See 3d Cir. No. 09-2345, 2-2-11 Proof Brief On Behalf Of
Appellant John Prisque at 31–37; id., 10-31-11 Joint Proof Reply Brief On Behalf Of
Appellants at 69–73 (concerning Petitioner’s individual arguments); id., 12-15-11 Brief
On Behalf Of Appellant John Prisque at 31–36. The decision of the Court of Appeals
recognized that the defendants, including Petitioner, appealed on many issues including
“the District Court sentencing determinations.” See United States v. Maury, 695 F.3d
227, 233 (3d Cir. 2012) (published appeal decision). That decision set forth the sentence
that each convicted defendant received, including Petitioner, and the fact that the
sentencing decisions were being challenged on appeal. Id. at 246–47. The Court of
Appeals decision then discussed a host of issues raised by the parties on appeal, but did
not include a discussion of the sentencing issues. Instead, at the end of the discussion, the
Court of Appeals decision concluded that “[h]aving carefully considered the Defendants’
various remaining arguments, we find them to be without merit.” Id. at 267. Accordingly,
the Court of Appeals affirmed all of the convictions and sentences, “in all respects.” Id.

39

A review of the written and oral advocacy of Petitioner’s counsel, as contained in
the docket of the underlying criminal case, clearly demonstrates that counsel objected
vigorously to an upward guidelines offense level leadership role adjustment under USSG
3B1.1 for his client, whether for four points or for any points. (See Crim. Dkt. 783 at
34–89.) See n.14 supra and accompanying text. He made similar efforts on behalf of
Petitioner on appeal. Based on that strenuous effort and the many evidentiary facts in the
record as cited by Petitioner’s defense counsel, this Court concludes that there is no basis
upon which to find any deficiency on the performance prong of Strickland as to that issue.
Therefore, although in Petitioner’s Reply Brief he contends that “the issue regarding the
misapplication of a four (4) level enhancement can be corrected and at minimal expense
to all parties” (Dkt. 13 at 10), this Court simply has no legal authority to grant a
modification of his sentence so as to eliminate the effect of that role enhancement.
5.

Failure to advise about plea options

Petitioner also asserts that motivated by a conflict of interest, his counsel did not
“fully and properly advise the petitioner of the options available to him prior to trial
including but not limited to cooperating against the interests of the Company in return for
a lesser sentence.” (Dkt. 17 at 10–11; see also Dkt. 1 at 10–11.) In that connection,
Petitioner also states that he “asked the lawyers numerous times to take me in to talk with
Government but told me it would do me no good.” (Dkt. 17 at 18.) These allegations

40

relate to the time “prior to trial,” as Petitioner states, and may also refer to the time period
when the trial was in progress, although that is unclear as stated in the Petition.
Respondent replies that these allegations are waived because they are part of the
conflict of interest claim waiver that permitted Mr. Critchley and his firm to represent
him, and that Petitioner was told by the Court at the time of his waiver of the potential
conflict between his interest in cooperating and the interests of the Company, which was
paying his legal fees. (Dkt. 9 at 27.) However, in the view of the Court, these allegations
must be considered despite the fact that we have found Petitioner’s waiver of the inherent
conflict of interest to have been knowing and voluntary. See Section II.C.1.
“Defendants have a Sixth Amendment right to counsel, a right that extends to the
plea-bargaining process.... During plea negotiations defendants are ‘entitled to the
effective assistance of competent counsel.’” Lafler v. Cooper, 132 S.Ct. 1376, 1384
(2012) (citations omitted). Where a plea offer is rejected and the defendant proceeds to
trial and is convicted, to establish prejudice as a result under Strickland a petitioner must
“show that but for the ineffective advice of counsel there is a reasonable probability that
the plea offer would have been presented to the court ..., that the court would have
accepted its terms, and that the conviction or sentence, or both, under the offer’s terms
would have been less severe than under the judgment and sentence that ... were imposed.”
Id. at 1385. Even when a defendant receives no plea offer or only an unacceptable plea
offer, an ineffectiveness of counsel claim may be premised on a failure of counsel to

41

advise that an open plea could be entered. See, e.g., United States v. Booth, 432 F.3d 542
(3d Cir. 2005) (remanding for a hearing based on such allegations). Of course, in each
instance to prevail on such claims, a petitioner would have to show prejudice, in the sense
that a petitioner would have chosen to plead guilty rather than to proceed through trial,
and that the result for a petitioner would have been better than it was after trial. Lafler,
132 S.Ct. at 1385.
When addressing a contention regarding plea bargaining, as well as in general the
advice of defense counsel leading to the decision whether or not to proceed to trial, the
District Court generally lacks a foundation in the record of the underlying criminal case
because those deliberations take place out of the presence of the court. In these
circumstances, at the pleadings stage of the Section 2255 case, if the allegations are not
clearly frivolous, “we must accept the factual allegations in [the] petition as true.” Day,
969 F.2d at 42 (citing Forte, 865 F.2d at 62).
This Court finds, again construing Petitioner’s pro se allegations liberally, Haines,
404 U.S. at 520–21, that this particular claim is not frivolous on its face and it cannot be
adjudicated on the records and files before the Court. Those records contain no
information on whether plea negotiations took place, or what discussions Petitioner had
with his counsel prior to trial and/or during the trial on the subject of a possible negotiated
plea or even an open plea. See, e.g., Fed.R.Crim.P. 11(c)(1) (“An attorney for the

42

government and the defendant’s attorney ... may discuss and reach a plea agreement. The
court must not participate in these discussions.”).
The Court finds, for these reasons, that the factual issues raised in the Petition
regarding Petitioner’s decision to proceed through trial rather than to plead guilty, with or
without a plea agreement, must be resolved by an evidentiary hearing. United States v.
Tolliver, 800 F.3d 138, 140–43 (3d Cir. 2015); Day, 969 F.2d at 44–47. The next steps
will be to appoint counsel for Petitioner; allow a counseled petition or declaration to be
filed; and then conduct the hearing as soon as practicable after giving the attorneys
adequate time to investigate, conduct any necessary discovery, and prepare. Id. at 46–47;
Rule 8. The discovery and hearing will be limited to the issues identified in this Section
(II.C.5.) of this Memorandum Opinion.
III.

CONCLUSION
The Court concludes that based upon the papers filed by the parties in this action,

as well as the record of the underlying criminal action (Criminal No. 03-852), as cited and
discussed in this Memorandum Opinion, Petitioner has not met his burden of establishing
a claim of ineffective assistance of counsel under 28 U.S.C. § 2255 as to the following
contentions:
1.

Improper advice to waive conflict with co-defendant employer (see Section
II.C.1. supra);

43

2.

Failure to protect Petitioner’s interests rather than employer at trial (see
Section II.C.2. supra);

3.

Failure to present certain potential witnesses and arguments at trial (see
Section II.C.3. supra); and

4.

Failure to argue against upward role adjustment at sentencing (see Section
II.C.4. supra).

The Court finds that as to the contention that Petitioner received ineffective
assistance of counsel by failing to advise him about plea options, an evidentiary hearing
will be conducted upon appointment of counsel for Petitioner pursuant to Rule 8(c).
The Court has reviewed the other allegations in the Petition and finds them to be
without merit and not requiring further discussion, for the reasons stated in the
Respondent’s Opposition Brief. (See Dkt. 9 at 28–29.)
An appropriate Order accompanies this Memorandum Opinion.

s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: January 19, 2016

44