NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 17-2143 ______________

JOAN ORIE MELVIN Appellant

v.

DISTRICT ATTORNEY ALLEGHENY COUNTY; DIRECTOR ALLEGHENY COUNTY PROBATION SERVICES ______________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-15-cv-01225) District Judge: Hon. Mark R. Hornak ______________

Argued June 5, 2019

Before: JORDAN, BIBAS, and MATEY, Circuit Judges.

(Filed: January 14, 2020)

Patrick A. Casey, Esq. Suzanne P. Conaboy, Esq. Donna A. Walsh, Esq. [ARGUED] Myers, Brier & Kelly, LLP 425 Spruce Street, Suite 200 Scranton, Pennsylvania 18503 Counsel for Appellant Joan Orie Melvin

Stephen A. Zappala, Jr. Ronald M. Wabby, Jr. Esq. [ARGUED] Office of the District Attorney of Allegheny County 436 Grant Street Pittsburg, Pennsylvania 15219 Counsel for Appellees District Attorney Allegheny County and Director Allegheny County Probation Services ______________

OPINION * ______________

MATEY, Circuit Judge.

Former Pennsylvania Supreme Court Justice Joan Orie Melvin filed a federal habeas

petition challenging her state court convictions for diversion of services, misapplication of

government property, and conspiracy. She argues that each of these convictions violates

due process because they were based on internal workplace guidelines. We disagree. And

we lack jurisdiction to consider her challenge to count two for diversion of services as she

is not in custody for that conviction. So we will affirm in part and vacate and remand in

part with instructions to dismiss for lack of jurisdiction.

I. BACKGROUND

Orie Melvin became a judge in 1990. She rose steadily through the judicial ranks,

becoming a Superior Court judge in 1997 and winning a seat on the Pennsylvania Supreme

Court in 2009. In 2013, she was convicted of misusing her official staff, office, and

resources to promote her political campaigns. Her sisters, former Pennsylvania State

Senator Jane C. Orie, and Janine Orie, who was also Orie Melvin’s judicial aide, were

convicted of similar crimes all resulting from the same scheme. Orie Melvin appealed her

convictions and sentence in state court with minimal success. See Commonwealth v.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 Melvin,

(Pa. Super. Ct. 2014). She then sought a writ of habeas corpus under

before the District Court, which rejected her petition on the merits. We

granted her a limited certificate of appealability. We have jurisdiction under

and because of our grant of a certificate of appealability under

.

On federal habeas review of Orie Melvin’s state convictions, we defer to the Pennsylvania

Superior Court and will uphold its decisions unless they are “contrary to, or involved an

unreasonable application of, clearly established Federal law . . . .”

(d)(1).

Because the District Court did not hold an evidentiary hearing, our review is plenary.

Abdul-Salaam v. Sec’y, Pa. Dep’t of Corr.,

(3d Cir. 2018).

II. WE LACK JURISDICTION TO REVIEW NON-CUSTODIAL JUDGMENTS

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a

federal court has jurisdiction to hear a habeas petition only if the petitioner is “in custody”

under the judgment of a state court in violation of the Constitution or laws or treaties of the

United States.

(a). Custody is a “non-negligible restraint on . . . physical

liberty” resulting from a conviction. Piasecki v. Court of Common Pleas,

(3d Cir. 2019) (internal quotation marks omitted). By contrast, Orie Melvin was

determined guilty but sentenced “without further penalty” on count two of her diversion of

services convictions. (App. at 176, 301.) She received no sentence of incarceration or

confinement of any kind on that count and thus suffered no physical restraint. She argues

that her sentence was consecutive. But we review each offense independently. Maleng v.

Cook,

, 490–92 (1989). So a defendant convicted of multiple offenses can be

in custody for one but not for another. If invalidating a conviction will not alter the restraint,

3 the habeas remedy is unavailable for that conviction. See

. Orie Melvin’s sentence

on count two did not alter the restraints imposed by her conviction, so we lack jurisdiction

to consider her challenge on this point. 2

III. THE CONVICTIONS DID NOT VIOLATE DUE PROCESS

Orie Melvin argues that the Pennsylvania State Judiciary and, more narrowly,

individual judicial chambers set the rules governing use of office space, staff, and

resources. She notes that a violation of those rules is subject to penalties imposed by the

judiciary. She thus contends that basing criminal liability on workplace rules invites

arbitrary enforcement, in violation of her right to due process. We reach a different

conclusion.

The Supreme Court has long observed the “basic principle that a criminal statute

must give fair warning of the conduct that it makes a crime.” Bouie v. City of Columbia,

, 350–51 (1964). A law “so vague that men of common intelligence must

necessarily guess at its meaning and differ as to its application violates the first essential

of due process of law.” Connally v. General Constr. Co.,

(1926). To

satisfy due process, “a penal statute [must] define the criminal offense [1] with sufficient

definiteness that ordinary people can understand what conduct is prohibited and [2] in a

manner that does not encourage arbitrary and discriminatory enforcement.” Skilling v.

United States,

, 402–03 (2010) (quoting Kolender v. Lawson,

(1983)). Failure by the legislature to provide “minimal guidelines” for a criminal

2 In so concluding we adopt the reasoning found in our opinions involving Orie Melvin’s sisters. 4 statute “may permit a standardless sweep that allows policemen, prosecutors, and juries to

pursue their personal predilections.” Kolender,

(internal quotation marks

omitted).

Orie Melvin first argues that the Pennsylvania statutes under which she was

convicted 3 do not purport to regulate political activity and do not give notice that violating

a workplace rule may lead to a criminal offense. But the statutes make clear that the misuse

of government property and diverting services belonging to another for one’s own benefit

is a crime. Conduct might, of course, violate both the norms specified in an employee

handbook and the criminal law. Examples from theft, to harassment, to embezzlement

spring quickly to mind. That workplace policies may cover such a topic doesn’t mean that

the employee didn’t also violate the criminal law, and the Pennsylvania Superior Court has

it right:

While the Supreme Court has adopted a rule prohibiting political activity by court employees, Orie Melvin was not criminally prosecuted for using her judicial staff to advance her political aspirations. . . . Instead she was prosecuted for the use, or rather the misuse, of her judicial staff in violation of criminal statutes prohibiting the diversion of services belonging to the Commonwealth to her own personal benefit.

Orie Melvin, 103 A.3d at 15–16 (footnotes omitted).

Orie Melvin also argues the Commonwealth used the internal judicial guidelines to

amend the vague standards for criminal liability. In particular, she reasons that the

3 A jury found Orie Melvin guilty of three counts of diversion of services, in violation of

(b); one count of misapplication of entrusted property and property of government or financial institutions, in violation of

(a); and two counts of criminal conspiracy, in violation of

(c). 5 prosecution only satisfied its burden by showing her awareness of the workplace rules. But

again, she was prosecuted for misusing tax-dollars for private benefit, not for political

activity. On this point, the Superior Court found that the trial judge gave clear instructions

to the jury that they may not find guilt for a violation of the judiciary workplace rules. See

Orie Melvin,

n.4. Moreover, in its briefing, the Commonwealth points to

the “overwhelming evidence” against Orie Melvin proffered at trial. (Appellee Br. at 42.)

This included evidence that she required judiciary employees—during the workday and

using public resources—to write letters to Republican party officials, draft political

speeches, fill out political questionnaires, prepare campaign fundraising and expense

reports, and write thank you letters to campaign donors. One law clerk testified to

personally taking campaign checks to the bank to deposit. And citing the trial court’s

findings, the Commonwealth also highlights that some employees testified to spending a

considerable percentage of their workday devoted to political tasks, rather than performing

the tasks related to the public jobs they held. So there was ample evidence supporting the

private benefits Orie Melvin enjoyed.

Finally, Orie Melvin argues that Pennsylvania judges have plenary authority over

the conduct of their employees. She notes that “at worst” violations of the workplace rules

could lead to loss of employment. (Opening Br. at 26–27.) While improper conduct may

cause termination of employment, the rules do not supersede or step in place of penalties

proscribed under criminal statutes. And she did not have immunity from criminal

prosecution because of her occupation as a judge.

6 In all, Orie Melvin’s arguments do not satisfy her high habeas burden. The criminal

statutes under which Orie Melvin was charged and convicted exist independent of any

internal judiciary workplace rule. And her conviction arises from criminal statutes, not for

violating the internal rules. We will thus vacate and remand count two of her diversion of

services convictions with instructions to dismiss for lack of jurisdiction. We will otherwise

affirm the District Court’s denial of Orie Melvin’s petition for writ of habeas corpus.

7