Attorneys for brothers Stewart and Michael Parnell had no trouble finding errors in a magistrate judge’s recommendations that would deny their 28 U.S.C. §2255 motions.

 Federal inmates  may  challenge their convictions, obtain sentence reductions,  or be freed from prison altogether through 2255 motions. Both of the Parnells’ convictions were related to a deadly 2008-09 Salmonella outbreak associated with Peanut Corporation of America’s peanut processing plant at Blakey, GA. 

The brothers have been involved in the 2255 process for about two years. Their latest moves are responses filed May 6 to the magistrate recommendations for denial of their 2255 motions.

The Middle District’s Magistrate Judge Thomas Q. Langstaff earlier this year recommended denial of the 2255 motions brought by the Parnells

In the two decisions, running about 40-pages each, the magistrate came to very similar conclusions. 

For Stewart Parnell, 67,  the magistrate’s finding  was “Petitioner has failed to establish by a preponderance of the evidence trial counsel’s ineffective assistance. Wherefore, it is recommended that Petitioner Stewart Parnell’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 be denied.”

And his  finding for for Michael Parnell, 63, was: “Petitioner has failed to establish by a preponderance of the evidence trial counsel’s ineffective assistance. Wherefore, it is recommended that Petitioner Michael Parnell’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 be denied.”

In their responses filed May 6,  the attorneys ask the U.S. District Court for the Middle District of Georgia to reject the magistrate judge’s recommendations and grant the Parnells’ motions to vacate their convictions and sentences.

If the Court should accept the denial recommendation, the brothers are both asking for “certificates of appealability” to allow them to pursue their 2255 motions with a higher court. Each brother is making that request on the basis that they’ve “made a substantial showing of the denial of a constitutional right.”

At issue in  both motions is whether the Parnell’s were denied effective counsel at their 2014 jury trial, which was held by the Middle District in Albany, GA.  

Stewart Parnell, former president of the now defunct Peanut Corporation of America, is serving 28 years for his convictions by that jury for 67 counts of conspiracy, fraud, adulterated food, misbranded food, and obstruction charges.

Michael Parnell is serving 20 years because he was not found responsible for putting as much misbranded food into interstate commerce. 

Savannah appellate attorney Amy Lee Copeland said: “(Stewart) Parnell filed a timely §2255 motion stating two claims of ineffective assistance by trial counsel: 1) the failure to seek a change of venue due to adverse pretrial publicity, jurors’ preconceived notions, and the media exposure in this division of court; and 2) the failure to move to strike for cause jurors with knowledge of allegations that deaths had occurred from a salmonella outbreak.”

A petitioner, like Parnell, must show both deficient performance by counsel and a “reasonable probability” of a different outcome, Copeland said. “But Parnell asserted that these claims go to the right to a fair and impartial jury, making it structural error eliminating the need to show prejudice.”

Ineffective counsel means Parnell received ineffective assistance in obtaining a change of venue.

“Albany is the ‘Peanut Capital of America:’ About 60 percent of all domestic peanuts are grown within 150 miles of the city, and the 2009 salmonella outbreak affected the entire industry in the area, Copeland writes.

“Pretrial publicity about Parnell and PCA was ample, to the extent that a prospective juror and the district judge referenced a previous evening’s news broadcast during jury selection.”

Copeland continues: “The local animus was reflected in a peanut farmer on the venire who said he wanted to ‘exact his pound of flesh’ against the defendants.  Into this confluence of publicity and animosity waded Parnell’s lead counsel, a trial team comprising three Virginia attorneys with limited criminal defense experience, infrequent visits to Albany via private plane, and a stated distrust of local counsel.

“Parnell’s first claim is that trial counsel rendered constitutionally ineffective assistance when they failed to seek a change of venue from the Albany Division due to adverse pretrial publicity and the animus of the community. Criminal defendants have a constitutional right to trial by an impartial jury.”

Charlottesville, VA attorney Elliott M. Harding, representing Michael  Parnell, also responds with  how council led to imperfections in the jury, which he says came out at last May’s evidentiary hearing.

“The Court should decline to give credence to the after-the-fact justifications offered at the hearing,” Harding writes. “Judge Hodges got it right when he admitted that the failure to move to strike these jurors was ineffective assistance.”

“Prior to trial, trial counsel fought hard to exclude evidence of deaths. In a motion in limine, they argued that death-related evidence at trial would “inflame the passions of the jury in the hope that if the jury becomes angry enough, it will want to convict someone of a crime, no matter what the evidence really shows.” 

 At a motions hearing, trial counsel argued that death evidence would “perhaps [result in] a conviction based for an economic crime based on improper reasons” and that this evidence “by itself could win the case for the government regardless of what the other facts of the case are.” 

“Trial counsel dismissed the notion that a limiting instruction would be sufficient to quell the tremendous prejudicial fact of a death or sickness that is not factually connected to PCA . . . ” the Virginia-based attorney added.

The government agreed at the hearing not to introduce evidence of deaths in the Salmonella outbreak. 

At jury selection, trial counsel did not move to strike any juror who knew about the deaths until the end, arguing that that knowledge “taint[ed]” the juror by “walking into this assuming a fact that’s not even going to be offered as proof. . . .” 

Later, in a motion for a new trial premised on the jurors’ discussion of deaths, trial counsel argued that “[t]he alleged salmonella-related deaths are not an inconsequential part of this case — there can hardly be a subject more substantive than death — and without question the nature of such extrinsic evidence was tenuous and prejudicial.” 

Despite trial counsel’s unequivocal language at the time, the recommendation posits that “each of the four (4) attorneys representing [Parnell] at trial believed the decision not to move to strike the identified jurors was a strategic decision.” 

“ When (trial attorney) Bondurant made this objection, he incorrectly believed that venire persons who had knowledge of the deaths had been struck for cause.“

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