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Harry Parkin v. United States of America

October 15, 2012

HARRY PARKIN,
PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Honorable Joseph E. Irenas

OPINION

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. See Skilling v. United States, 130 S.Ct. 2896 (2010). 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.*fn1

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. (Indictment, p. 1-30). 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 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.*fn2

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.*fn3

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.*fn4 United States v. Parkin, 319 F. App'x at 106. Second, Parkin argued that the District Court erred in denying Parkin's motion for judgment of acquittal on all thirteen counts based on legal 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 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 ...


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