                                                             NOT PRECEDENTIAL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
