Roscoe Parrish v. Thomas Fulcomer, Warden, Sci Huntingdon the District Attorney of the County of Philadelphia the Attorney General of the State of Pa

NYGAARD, Circuit Judge. Petitioner Roscoe Parrish waived his right to a jury trial in return for the Commonwealth of Pennsylvania’s agreement not to seek the death penalty. He was convicted of first degree murder and criminal conspiracy and was sentenced to life in prison. In his petition for a writ of habeas corpus and before us, Parrish argues that waiver of his federal constitutional right to a jury trial, induced by the prosecution’s pledge not to seek the death penalty, violated his federal constitutional right to due process. He further contends that his trial counsel was ineffective “for failing to secure a valid constitutional waiver of a jury trial colloquy, for participating and advising [Parish] in such negotiations, and for allowing the trade-off to even be a factor in the decision to waive or not to waive trial by jury,” Pet’r Br. at 12, and for failing to raise this issue on direct appeal. The Petitioner has exhausted all of *328 his available state remedies on each of his claims for relief. See 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). It is axiomatic that Parrish is entitled to reasonably effective assistance of counsel. Nonetheless, a defendant is only entitled to habeas relief if he can establish that counsel’s ineffectiveness resulted in some harm or prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). This applies to representations made during the plea process as well as the trial "process. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); see also Bivens v. Groose, 28 F.3d 62, 63 (8th Cir.1994). The legal component of an ineffective assistance of counsel claim in the habeas context is subject to plenary review. McAleese v. Mazurkiewicz, 1 F.3d 159, 165 (3d Cir.1993). In reviewing counsel’s performance, our scrutiny must be “highly deferential,” and not “second-guess counsel’s assistance after conviction.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Specifically, we must “judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, reviewed as of the time of counsel’s conduct.” Id. at 690, 104 S.Ct. at 2066; Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir.1996). Parrish argues that United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), supports his argument that waiver of the federal constitutional right to a jury trial, when induced by the prosecution’s pledge not to pursue the death penalty, violates due process. We do not agree. In Jackson, the Court examined the Federal Kidnaping Act, which provided for the death penalty only after a jury trial. 390 U.S. at 571, 88 S.Ct. at 1210. Under that provision, a defendant who waived a jury trial was assured that he would not be executed. Id. at 582, 88 S.Ct. at 1216. The Court held that the inevitable effect of the provision was to excessively deter the exercise of the Sixth Amendment right to demand a jury trial, and found the capital punishment provision of the Act unconstitutional. Id. The Court explicitly limited Jackson two years later in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970): “We decline to hold, however, that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant’s desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged.” Id. at 751, 90 S.Ct. at 1470. Although Brady involved a plea of guilty rather than a waiver of right to a jury trial, the Court noted that a guilty plea involves the waiver of the right to a jury trial as well as the waiver of the right not to incriminate oneself. Id. at 748, 90 S.Ct. at 1469. The Court explicitly held that “a plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty.” Id. at 755, 90 S.Ct. at 1472. Indeed, the Court made clear in North Carolina v. Alford that “Jackson established no new test for determining the validity of guilty pleas. . The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). Here, as in Brady, there is no allegation that the Commonwealth threatened prosecution on a charge not justified by the evidence, nor threatened a more onerous penalty than indicated by the facts for the purpose of obtaining an unfair advantage in negotiating with Parish’s counsel. Brady, 397 U.S. at 751 n. 8, 90 S.Ct. at 1470 n. 8. That being the case, counsel was not ineffective for “failing to secure a valid constitutional waiver of a jury trial colloquy, for participating and advising [Parish] in such negotiations, and for allowing the trade-off to even be a factor in the decision to waive or not to waive trial by jury.” Pet’r Br. at 12. It follows that we do not deem it ineffective assistance for counsel to have so proceeded. And on direct appeal, counsel assistance does not become ineffective by failing to raise an issue when convincing Supreme Court case law shows it to be without merit. See Moore v. Deputy Comm’rs of SCI Hun- *329 tingdon, 946 F.2d 236, 245 (3d Cir.1991) (holding that trial counsel was not ineffective for failure to object to charge that he was justified on basis of evidence). In sum, the district court followed these standards and denied the petitioner relief. We will affirm.