NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-1909
_____________
MARC A. PENNOCK,
Appellant
v.
SUPERINTENDENT MAHANOY SCI;
ATTORNEY GENERAL PENNSYLVANIA
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-14-cv-05070
Trial Judge: The Honorable Jan E. DuBois
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
November 8, 2017
Before: SMITH, Chief Judge, HARDIMAN, Circuit Judge, and BRANN, District
Judge†
(Filed: November 9, 2017)
_____________________
OPINION∗
_______________________
The Honorable Matthew W. Brann of the United States District Court for the
†
Middle District of Pennsylvania sitting by designation.
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
SMITH, Chief Judge.
Marc Pennock appeals the District Court’s judgment denying his petition for
a writ of habeas corpus. This Court granted a certificate of appealability as to one
issue: whether trial counsel provided ineffective assistance in failing to file a
motion to reconsider the sentence. Because Pennock has failed to establish that the
state court’s adjudication of his ineffectiveness claim resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established
federal law, we will affirm the judgment of the District Court.
I.
In January 2006, Pennock was charged with a number of crimes stemming
from an incident in which he and an associate robbed a taxi driver at gunpoint.
After a bench trial before the Court of Common Pleas of Philadelphia, Pennock
was found guilty of charges including attempted murder, aggravated assault, and
criminal conspiracy.
At sentencing, the trial court indicated that Pennock would be sentenced to a
concurrent term of 9 to 18 years’ imprisonment on the attempted murder and
aggravated assault charges. JA 254. In response, counsel notified the court that
he would be filing a motion to reconsider the attempted murder charge. Id. The
trial court then decided to suspend the sentence on the attempted murder charge,
and instead imposed concurrent sentences of 9 to 18 years’ imprisonment on the
2
aggravated assault charge and criminal conspiracy charge. Id. The trial court
imposed no further penalty on the remaining charges.
Pennock timely appealed. The Superior Court vacated Pennock’s attempted
murder conviction and affirmed the remainder of the trial court’s judgment. The
Pennsylvania Supreme Court denied his petition for allowance of appeal.
Pennock then filed a pro se petition pursuant to Pennsylvania’s Post
Conviction Relief Act (“PCRA”), and the PCRA court appointed counsel. PCRA
counsel filed a letter advising that the claims in the petition were without arguable
merit. The PCRA court notified Pennock of its intent to dismiss the petition,
which it later did. Pennock appealed the decision and, again, counsel was
appointed. Counsel argued that Pennock was denied the effective assistance of
counsel for failing to file a motion for reconsideration of the sentence, which
barred him from seeking review of the discretionary aspects of the sentence. The
Superior Court denied the claim and affirmed the denial of the PCRA petition.
On September 2, 2014, Pennock filed a petition for a writ of habeas corpus
in the United States District Court for the Eastern District of Pennsylvania. A
Magistrate Judge issued a report and recommendation recommending that the
petition be denied. Pennock filed objections. The District Court approved and
adopted the recommendation, overruled Pennock’s objections, denied the habeas
petition, and declined to issue a certificate of appealability. Pennock then timely
3
filed this appeal.
II.
The District Court exercised jurisdiction over Pennock’s petition pursuant to
28 U.S.C. § 2254. We have jurisdiction to review the District Court’s judgment
pursuant to 28 U.S.C. §§ 1291 and 2253. Where, as here, the District Court did not
conduct an evidentiary hearing, our review is plenary. Jacobs v. Horn, 395 F.3d
92, 99 (3d Cir. 2005). We may affirm the judgment for any reason supported by
the record. Cardona v. Bledsoe, 681 F.3d 533, 535 n.4 (3d Cir. 2012).
We may not grant federal habeas relief unless the Pennsylvania Superior
Court’s prior adjudication of Pennock’s claim “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.” 1 28 U.S.C.
§ 2254(d)(1); see Harrington v. Richter, 562 U.S. 86, 97–98 (2011). The Superior
Court’s decision is entitled to “deference and latitude,” and will stand so long as
“fairminded jurists could disagree” on the correctness of the decision. Id. at 101.
We are tasked not with deciding whether the state court’s decision was correct, but
only whether its determination was unreasonable and, because the state court is
1
Because there are no facts in dispute, we need not consider whether the Superior
Court’s adjudication “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2).
4
afforded additional latitude in applying a “general standard,” our review is “doubly
deferential” to the state court. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
Pennock’s claim arises under the familiar standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Strickland requires that, to prevail on a claim of
ineffective assistance of counsel, a defendant must establish both that counsel’s
performance was deficient, i.e., it “fell below an objective standard of
reasonableness,” id. at 688, and that he suffered prejudice as a result, meaning that
there must be a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,” id. at 694. Thus,
we must assess whether the Superior Court’s denial of Pennock’s ineffective
assistance of counsel claim is contrary to, or involves an unreasonable application
of, Strickland.
On PCRA appeal, the Superior Court acknowledged that trial counsel’s
failure to file a post-sentence motion for reconsideration resulted in the appellate
waiver of any arguments concerning the discretionary aspects of his sentence.2 JA
91 (citing Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. Ct. 2004)).
2
Although the Commonwealth interprets certain record statements by trial counsel
as oral motions for reconsideration, the Superior Court expressly concluded that
“counsel did not file a motion for reconsideration.” JA 93. We therefore reject the
Commonwealth’s contention that Pennock cannot demonstrate a reasonable
probability that he would have been resentenced on grounds that the trial court
already had “twice declined to reconsider its sentence.” Commonwealth Br. at 31.
5
Rather than considering whether counsel’s failure to file such a motion fell below
an objective standard of reasonableness, the Superior Court instead considered
only whether Pennock suffered prejudice.
The Superior Court rejected Pennock’s primary contention: that counsel’s
failure to preserve this particular aspect of Pennock’s appeal right completely
deprived Pennock of the assistance of counsel and therefore resulted in prejudice
per se. JA 83–84; 92–93. The Superior Court instead held that Pennock was
required to demonstrate that he suffered actual prejudice as a result of counsel’s
failure—i.e., that “there is a reasonable probability that, but for counsel’s error, the
outcome of the proceedings would have been different.” JA 93.
As to actual prejudice, Pennock argued to the Superior Court, without
further elaboration, that “[i]n the case sub judice, while the Pennsylvania
Sentencing Guidelines were mentioned on the record, they clearly were not
followed.” JA 84. This, in the view of the Superior Court, was inadequate to
demonstrate prejudice because Pennock “never claim[ed] that the result of the
proceeding would have been any different if a post-sentence motion had been
filed.” JA 94. Accordingly, the Superior Court concluded that Pennock “failed to
6
assert, much less prove” that he suffered the requisite prejudice to warrant PCRA
relief. 3 Id.
We conclude that the Pennsylvania Superior Court’s decision is neither
contrary to, nor an unreasonable application of, the Supreme Court’s decision in
Strickland. The Superior Court’s conclusion that counsel’s failure to move to
reconsider the sentence does not constitute prejudice per se is a determination of
Pennsylvania state law not subject to our review. See Estelle v. McGuire, 502 U.S.
62, 67–68 (1991). Similarly, we may not reexamine the Superior Court’s
assessment that Pennock failed to meet his burden to establish that he suffered
actual prejudice as a result of counsel’s failure. See Priester v. Vaughn, 382 F.3d
394, 402 (3d Cir. 2004). Given our “deference and latitude” to these
determinations, we conclude that fairminded jurists could disagree about the
correctness of the Superior Court’s disposition of Pennock’s ineffective assistance
claim. See Harrington, 562 U.S. at 101.
3
Pennock argues that the Superior Court’s decision is contrary to Strickland
because it stated that he never claimed that “the result of the proceedings would
have been different,” when Strickland requires only a “reasonable probability” of a
different outcome to the proceedings. Reading the Superior Court’s opinion as a
whole, we are satisfied that the Superior Court applied the correct standard,
inasmuch as it set forth the correct “reasonable probability” language twice in the
course of its opinion. See JA 90, 93; Woodford v. Visciotti, 537 U.S. 19, 23–24 (an
occasional imprecise reference is not sufficient to undermine an opinion that
otherwise “painstakingly” describes the Strickland standard).
7
III.
For the foregoing reasons, we will affirm the judgment of the District
Court.4
4
In the District Court, the Magistrate Judge recommended that Pennock’s
ineffective assistance of counsel claim be denied on grounds that “[h]e obtained
relief as to the sentence for [the attempted murder] charge.” JA 12. The District
Court adopted and approved the Magistrate Judge’s recommended disposition. We
do not agree with the District Court’s narrow interpretation of Pennock’s claim. In
our view, Pennock’s pro se habeas petition broadly claimed ineffectiveness for
counsel’s failure to preserve his right to challenge all of the discretionary aspects
of his sentence, including the concurrent 9 to 18 year sentences on the two charges
that were not vacated. See JA 110. Accordingly, our decision rests upon different
grounds from those relied on by the District Court.
8