If you’ve been convicted by a jury, had your conviction and sentence upheld by an appellate court, and the Supreme Court declined to review your case, there’s still a 2255 petition.

And if you are 65 years old with another 20 years before the federal Bureau of Prisons plans on releasing you, a 2255 petition is what you call hope.

All Stewart Parnell needs now to keep hope alive is a hearing on his 2255 petition. His attorneys, Amy Levin Weil of Atlanta an Amy Lee Copeland of Savannah, GA, claim he is entitled one.

Government attorneys do not agree. Whether or not the Parnell 2255 petition is given a hearing is up to Magistrate Judge Thomas Q. Langstaff at the U.S. District Court for the Middle District of Georgia.

That’s because 2244 petitions are filed in the sentencing court, not the appellate courts. It was a Middle District jury that convicted Parnell and his peanut broker brother Michael Parnell in 2014. The trial judge was W. Louis Sands, now in senior status.

A 2255 petition may be filed by state or federal prisoners to claim their imprisonment violates federal law, statutes or the U.S. Constitution. It is not “direct appeal,” but rather a Habeas Corpus “collateral appeal”

A 2255 petition claims some mistake was made during the trial or sentencing and can only be made after other appeals are exhausted. It can include arguments about infective counsel, prosecution misconduct, newly discovered evidence, or substantial changes in law made retroactive by the Supreme Court.

And, a 2255 petition has appeal possibilities beyond the trial court.

Parnell’s 2255 petition makes several claims including:

His trial court counsel was ineffective for failing to move for a change of venue
In their reply to the government, Parnell’s attorneys say the problems with the venue went beyond “adverse pretrial publicity.” Involved, they said, was a small, close-knit community with its local economy ruined by the salmonella outbreak “wher many prospective jurors and even one who sat on the panel admitted to being directly impacted (financially and otherwise) by the peanut industry.

His trial court counsel was infective in failing to strike for cause jurors with knowledge of deaths
The government contends Parnell already lost this issue on direct appeal, but his attorneys say this is incorrect both legally and factually. They say “the government does not fully appreciate the danger of allowing a jury with knowledge of highly prejudicial extrajudicial facts to determine a defendant’s fate.”

“In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom wher there is full judicial protection of the defendant’s right of confrontation, of cross-examination and of counsel, ” Weil and Copeland wrote.

Trial counsel’s errors were structural errors that always result in fundamental unfairness
They said the error in Parnell’s case — violation of the right of an impartial jury by failing to strike jurors for causes and failing to move for a change in venture — fits into a category of structural errors, which does not require proof of prejudice,

Parnell’s 2255 petition seeks a new trail.

Background
In late 2008 and early 2009,  the Peanut Corporation of America peanut processing plant at Blakely, GA, found itself at the center of one of the most deadly Salmonella outbreaks in modern U.S. history, with three deaths reported in Minnesota, two in Ohio, two in Virginia, and one each in both Idaho and North Carolina.

The U.S. Centers for Disease Control and Prevention reported 714 confirmed cases in 46 states, but the unreported cases likely topped 22,000. The Food and Drug Administration said the recall of PCA related peanut products by almost 400 companies was likely the largest of its kind in history.

Federal indictments in the PCA criminal case came in 2013 after four years of investigation by federal agents from both the FBI and FDA’s Office of Criminal Investigations.  A jury trial followed in 2014. A jury convicted the Parnell brothers of numerous federal felonies, including multiple counts of knowingly putting adulterated food into the marketplace.

Stewart Parnell, the CEO,  was sentenced to 28 years in federal prison. His brother Michael received a 20-year sentence.