                                     PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                  No. 17-1993


           STEVEN L. ROMANSKY,

                             Appellant

                        v.

      SUPERINTENDENT GREENE SCI;
 THE ATTORNEY GENERAL OF THE STATE OF
PENNSYLVANIA; DISTRICT ATTORNEY OF PIKE
        COUNTY, PENNSYLVANIA



   Appeal from the United States District Court
     for the Middle District of Pennsylvania
     (D.C. Civil Action No. 1-09-cv-01472)
   District Judge: Honorable Sylvia H. Rambo
               ________________

             Argued March 6, 2019

     Before: SMITH, Chief Judge, AMBRO,
        and RESTREPO, Circuit Judges
              (Opinion filed: August 8, 2019)

Ronnie J. Fischer (Argued)
Bugaj Fisher, P.C.
P.O. Box 390
308 Ninth Street
Honesdale, PA 18431

      Counsel for Appellant

Josh Shapiro
Attorney General
Jennifer C. Selber
Executive Deputy Attorney General
James P. Barker (Argued)
Chief Deputy Attorney General
Office of Attorney General
Criminal Law Division
Appeals & Legal Service Section
Strawberry Square, 16th Floor
Harrisburg, PA 17120

Kelly M. Sekula
Office of Attorney General of Pennsylvania
1000 Madison Avenue, Suite 310
Norristown, PA 19403

      Counsel for Appellees
                   ________________

               OPINION OF THE COURT




                              2
AMBRO, Circuit Judge

       A long time ago a Pennsylvania jury convicted Steven
L. Romansky of car theft-related crimes. Over the decades his
case wound its way through the Pennsylvania courts and
eventually generated this federal habeas corpus petition in the
Middle District of Pennsylvania. The District Court denied
Romansky’s lengthy, multifaceted petition in full and declined
to grant a certificate of appealability. We did grant a certificate
of appealability as to two claims related to an alleged
discrepancy between the charging documents and the jury
instructions at Romansky’s trial over three decades past. But
because we conclude that this petition is not timely as to the
undisturbed events at that first trial, and are unpersuaded by his
other claims, we affirm.
I. Background

       One Pennsylvania court described this case as a
“procedural quagmire.” We have no quibble with that
portrayal.

        Steven Romansky came under suspicion in 1985 for his
involvement in an auto theft ring in northeastern Pennsylvania.
The Commonwealth convened an investigative grand jury, and
in May 1985 it issued Presentment No. 33. The Presentment
recommended charges against Romansky, among others, that
included receiving stolen property under 18 Pa.C.S.A. § 3925,
conspiracy under 18 Pa.C.S.A. § 903, removal or falsification
of identification numbers under 75 Pa.C.S.A. § 7102(b),
dealing in vehicles with removed or falsified numbers under 75
Pa.C.S.A. § 7103(b), dealing in titles and plates for stolen
vehicles under 75 Pa.C.S.A. § 7111, and false application for
certificate of title or registration under 75 Pa.C.S.A. § 7121.
(The presentment stated that it recommended bringing charges
“including, but not limited to[,] the listed offenses.”) In late




                                3
August 1985 the Commonwealth filed a criminal complaint
leveling the same slate of charges against Romansky. They
included three counts of each offense (except false application
for certificate of title or registration), with each count
pertaining to a different vehicle: a 1977 Pontiac Trans-Am
Firebird, a 1979 Ford Bronco, and a 1977 GMC truck.

       As the proceedings continued, the substantive offenses
remained intact, but the conspiracy charges changed. At a
preliminary hearing in September 1985, two of the three
conspiracy counts were dismissed, and notes from the hearing
indicate that the remaining count—dealing with the Pontiac—
was amended to conspiracy to receive stolen property. In
December 1985, however, a criminal information formally
charged Romansky with conspiracy to commit dealing in
vehicles with removed or falsified identification numbers
and/or theft. This information was the operative charging
document at the time of trial.

       In May 1987 the case proceeded to trial on the
conspiracy charge for the Pontiac and on the substantive
charges for all three cars. The jury acquitted Romanksy as to
each charge relating to the GMC truck, but convicted on most
others dealing with the Pontiac and the Bronco. Importantly
for our purposes, he was convicted on the conspiracy charge,
which the jury instructions described as “conspiracy to deal in
vehicles with removed or falsified numbers and/or theft.” In
explaining the elements of this charge, however, the trial judge
omitted the “and/or theft” component and stated only that the
jury had to find that the defendant entered into an agreement
with others to deal in vehicles with removed or falsified
numbers. The verdict form indicated only that the jury found
Romansky guilty of “conspiracy” with no elaboration.
       Romansky’s sentence in 1987 was 9 to 18 years’ total
incarceration, including 2 to 4 years on the conspiracy charge.




                               4
He appealed in state court, unsuccessfully, and then brought a
state post-conviction claim. Among other things, he alleged
that the evidence was insufficient to show conspiracy to deal
in vehicles with removed or falsified numbers; and in
responding to this argument the Commonwealth noted that the
charge had been changed to conspiracy to receive stolen
property.
       Ten years after the trial, the Pennsylvania Superior
Court ultimately ruled that the Commonwealth had unlawfully
used false testimony and therefore vacated Romansky’s
convictions as to the Bronco, but not as to the Pontiac—and
therefore not including the conspiracy charge as to the latter.
Romansky was retried on the vacated charges in January 2000,
again resulting in conviction on all of those counts. Two
months later he received the same sentence on each of the
counts as in 1987—9 to 18 years in total, including 2 to 4 years
on the conspiracy charge. Romansky later testified that he
mentioned the discrepancy about the conspiracy charge to his
counsel prior to his resentencing, and then asked to file a
motion on the issue after the sentencing, but that his counsel
did not raise the issue at any time.

       After resentencing, Romansky filed another direct
appeal, and the Superior Court affirmed in June 2001. He did
not seek allowance of appeal from the Pennsylvania Supreme
Court. Instead, he filed another state post-conviction petition
in April 2001, while his direct appeal was still pending, as well
as several addenda to the petition in April a year later. The
post-conviction court dismissed the petition in June 2002, but
the Superior Court vacated that order in September 2003,
remanding with instructions to allow Romansky’s newly
appointed counsel to review the petition and file an amended
version. His counsel ultimately filed that amendment in
August 2008, but it was dismissed in July 2010, and again the
Superior Court reversed in part.




                               5
       The Court of Common Pleas appointed new counsel for
Romansky, and immediately she engaged in a flurry of activity
that included a Motion to Vacate Illegal Sentence as to the
conspiracy charge. At oral argument on this motion, the
Commonwealth’s lawyer conceded that the jury was instructed
on the wrong charge and thus did not oppose the motion. Yet
the Court denied it, and in October 2013 denied all of
Romansky’s post-conviction claims. This time the Superior
Court affirmed, and the Commonwealth Supreme Court denied
allowance of appeal in February 2015.

        In the meantime, Romansky had filed a federal habeas
petition before the District Court for the Middle District of
Pennsylvania, which was held in abeyance while he proceeded
to exhaust his state-court remedies. Once this was done and
the federal petition litigated, the District Court denied
Romansky’s claims in full in a March 2017 order and denied a
certificate of appealability. See Romansky v. Folino, 2017 WL
810689 (M.D. Pa. 2017). A panel of our Court granted a
certificate for two of the many issues raised in the petition:
whether Romansky was convicted and sentenced for a crime
with which he had not been charged—“conspiracy to deal in
vehicles with falsified identification numbers and/or theft”
instead of “conspiracy to receive stolen property”—and
whether his lawyer during the 2000 resentencing had been
ineffective for failing to raise this issue. We also asked the
parties to address whether the first claim is timely under
Magwood v. Patterson, 561 U.S. 320 (2010). Additionally,
Romansky asks us to expand the certificate of appealability to
include whether his prosecution for charges not identified in
Presentment No. 33 violated his constitutional rights under the
Fifth, Sixth, and Fourteenth Amendments.




                              6
II. Jurisdiction and Standard of Review
      The District Court had jurisdiction under 28 U.S.C.
§ 2241. We have jurisdiction under 28 U.S.C. § 1291 and 28
U.S.C. § 2253(a).
       Because this is a habeas petition brought by a prisoner
in state custody, 1 the Anti-Terrorism and Effective Death
Penalty Act (“AEDPA”), 28 U.S.C. § 2254, applies. Thus we
cannot grant relief “with respect to any claim that was
adjudicated on the merits in State court proceedings unless the
adjudication of the claim (1) 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; or (2) 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.” Id.
§ 2254(d). Because the District Court did not hold an
evidentiary hearing, we review its decision de novo. Thomas
v. Horn, 570 F.3d 105, 113 (3d Cir. 2009).

III. Analysis

         A. We Decline to Expand the Certificate of
            Appealability.

        Romansky asks us to expand the certificate of
appealability to include the contention that his prosecution and
trial for crimes not charged in Presentment No. 33 violated his
constitutional rights. 28 U.S.C. § 2253(c)(2) provides that a
certificate of appealability shall issue only where “the
applicant has made a substantial showing of the denial of a
constitutional right.” This means “showing that reasonable
jurists could debate whether (or, for that matter, agree that) the

1
    Believe it or not, Romansky is still in custody.




                                  7
petition should have been resolved in a different manner.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot
v. Estelle, 463 U.S. 880, 893, 893 n.4 (1983)). But jurists of
reason could not debate whether Romansky’s constitutional
claim is valid for the simple reason that the Fifth Amendment
right to indictment by a grand jury has not been incorporated
into the Fourteenth Amendment’s guarantee of due process.
Hurtado v. California, 110 U.S. 516 (1884).

       Romansky argues that, once a state chooses to adopt a
grand jury system, it is bound by all the requirements of the
Grand Jury Clause of the federal Constitution, including the
rule of Stirone v. United States, 361 U.S. 212 (1960), that an
indictment cannot be amended or enlarged except by a grand
jury. Although creative, this argument is not supported by any
authority and is inconsistent with Hurtado. The reasoning of
Stirone depends on the fact that, in the federal system, no one
may be tried for a crime except as charged by a grand jury.
Naturally, then, an indictment cannot be modified at trial to
include new crimes without going back to the grand jury. But
state governments, including the Commonwealth of
Pennsylvania, are under no obligation to charge through a
grand jury, and there is nothing offensive about trying a
defendant for crimes some of which were charged by a grand
jury and some of which were not.

        Romansky also seeks an expanded certificate of
appealability for his claim that the Commonwealth violated his
right under Brady v. Maryland, 373 U.S. 83 (1963), by
withholding Presentment No. 33 from him until well after his
1987 trial—indeed, until after his 2000 retrial. The District
Court considered this contention at length in denying it, see
Romansky, 2017 WL 810689, at *19–25, and we conclude that
jurists of reason would not debate whether it was correctly
resolved.




                              8
      Thus we decline to expand the certificate of
appealability to include either of these issues.
       B.     Romansky’s Petition is Not Timely As To the
              1987 Trial.
         Romansky’s main claim before us is that his due process
rights were violated when he was tried for a crime different
from the one charged. The Sixth Amendment provides that
“[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be informed of the nature and cause of the
accusation.”       And the Supreme Court has held that
“[c]onviction upon a charge not made would be sheer denial of
due process.” De Jonge v. Oregon, 299 U.S. 353, 362 (1937);
see Cole v. Arkansas, 333 U.S. 196, 201 (1948) (“No principle
of procedural due process is more clearly established than that
notice of the specific charge, and a chance to be heard in a trial
of the issues raised by that charge, if desired, are among the
constitutional rights of every accused in a criminal proceeding
in all courts, state or federal.”).

       This claim concerns the events surrounding
Romansky’s first trial in 1987, and so before we can address
the merits of his argument we must first decide whether his
habeas petition was timely filed as to the undisturbed
conspiracy conviction in the 1987 trial. 28 U.S.C. § 2244(d)
states that a “1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court.” This limitations
period begins running from any of several dates identified in
the statute; the relevant one for our purposes is “the date on
which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review.”
Id. § 2244(d)(1)(A). This restriction on habeas actions was
adopted by AEDPA in 1996, and so, for cases where final
judgment had already been entered before AEDPA was




                                9
adopted, the limitations period began on AEDPA’s effective
date and expired on April 23, 1997. See Burns v. Morton, 134
F.3d 109, 111 (3d Cir. 1998). The statute also provides that
“[t]he time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted
toward any period of limitation under this section.” 28 U.S.C.
§ 2244(d)(2). Because Romansky’s post-conviction claim as
to his 1987 trial was not resolved until November 1997, the
limitations period would have expired one year later, in
November 1998.
       This petition was not filed until 2009, yet Romansky
argues it is nonetheless timely as to the 1987 conspiracy
conviction because of his retrial and resentencing in 2000 on
other, previously vacated, convictions. The Commonwealth
does not dispute that the petition is timely as to the 2000 trial:
Romansky’s state post-conviction motions were filed less than
one year after his time for seeking appeal in the Pennsylvania
Supreme Court had expired, and his federal petition was filed
while the state post-conviction proceedings were still ongoing.
But Romansky claims that the 2000 resentencing for non-
conspiracy convictions in effect reset the clock for any claims
pertaining to the 1987 trial, and invokes Magwood, 561 U.S. at
342, in support of this claim. We disagree, and therefore
conclude that any claims pertaining to Romansky’s first trial
are not properly a part of his current habeas petition.

       Magwood concerned a separate requirement of the
AEDPA habeas rules, specifically the limits on “second or
successive” petitions. See 28 U.S.C. § 2244(b). There a death
row inmate had filed one federal habeas petition attacking his
sentence and been afforded relief. After resentencing he filed
another federal petition; the State of Alabama argued that this
was a “second or successive” petition and that, because he
could have challenged his initial sentence on similar grounds,




                               10
his claims must be dismissed. The Supreme Court disagreed,
reasoning that Magwood “challenge[d] a new judgment for the
first time.” 561 U.S. at 324. It rejected Alabama’s “claim-
based” view of the “second or successive” rule, instead
adopting a “judgment-based” rule. Id. at 331.
        The Court expressly left open, however, whether “a
petitioner who obtains a conditional writ as to his sentence
[can] file a subsequent application challenging not only his
resulting, new sentence but also his original, undisturbed
conviction.” Id. at 342 (emphases in original). “The State
believe[d] this result follows because a sentence and
conviction form a single ‘judgment’ for purposes of habeas
review,” but the Court held the case “gives us no occasion to
address that question, because Magwood has not attempted to
challenge his underlying conviction.” Id.

       The Circuits have split on this question, with the
Second, Fourth, Sixth, Ninth, and Eleventh Circuits all
concluding that a petition after resentencing challenging an
undisturbed conviction is not “second or successive.” For
these courts, the new sentence acts as a new judgment and thus
provides a reset window to challenge the underlying conviction
even if it was never disturbed. See Johnson v. United States,
623 F.3d 41, 46 (2d Cir. 2010); In re Gray, 850 F.3d 139, 141–
42 (4th Cir. 2017); King v. Morgan, 807 F.3d 154, 158 (6th
Cir. 2015); Wentzell v. Neven, 674 F.3d 1124, 1127–28 (9th
Cir. 2012); Insignares v. Sec’y, Fla. Dep’t of Corrections, 755
F.3d 1273, 1281 (11th Cir. 2014) (per curiam). 2 Two Circuits

2
  Additionally, the Fifth Circuit has taken a more nuanced
position. See In re Lampton, 667 F.3d 585, 588–89 (5th Cir.
2012). There, it seemed to acknowledge that, under Magwood,
a petition would not be second or successive if a new sentence
has been imposed for an undisturbed conviction. But because




                              11
have gone the other way. The Seventh Circuit reasoned that its
pre-Magwood precedent to the contrary was not disturbed, as
Magwood expressly declined to address the issue. Suggs v.
United States, 705 F.3d 279, 282–83 (7th Cir. 2013). The Tenth
Circuit relied on pre-Magwood precedent from our Circuit
without mentioning Magwood. Prendergast v. Clements, 699
F.3d 1182, 1186–88 (10th Cir. 2012) (citing Fielder v. Varner,
379 F.3d 113 (3d Cir. 2004)).

        Romansky urges us to adopt the majority view and hold
that his resentencing in 2000 formed a new judgment as to the
undisturbed convictions from the 1987 trial. If so, his current
habeas petition is timely as to the events of that trial. But the
question we have is slightly different from the one left open in
Magwood. There the issue was whether, when a defendant is
resentenced on a given charge (such as capital murder), the
new judgment includes the underlying conviction as well as the
sentence. Here it is whether, where some but not all counts of
conviction are disturbed on appeal or in post-conviction
proceedings, the defendant’s eventual resentencing is a new
judgment as to the undisturbed counts of conviction.


Lampton’s prior petition, successfully challenging one of his
convictions under the Double Jeopardy Clause, had merely
resulted in having that conviction vacated with no change in
the sentence for any other count of conviction, the Court held
that there had been no such intervening judgment. Thus it
appears that the Fifth Circuit largely agrees with the majority
rule, although it may take a narrower view of when a new
judgment has been imposed than, for example, the Second
Circuit in Johnson, 623 F.3d at 45–46 (finding that an amended
judgment had been entered on all counts of conviction in
essentially identical circumstances to Lampton).




                               12
       We conclude the answer is no. The sentence imposed
in 2000 after retrial was not a new judgment on the undisturbed
counts of conviction. This is plain from considering a
counterfactual (that is, hypothetical) in which Romansky was
acquitted on all charges during the retrial for the vacated
counts. In that case there would have been no new sentence:
instead he would simply have continued serving out his
sentence on the undisturbed counts. Romansky conceded at
oral argument that in this scenario the time limits for filing his
federal habeas petition would not have been reset in 2000. If
an acquittal at retrial would not change the undisturbed
conviction, Romansky’s argument that a conviction should
have such an effect is illogical.
        Nor did the 2000 sentencing order impose a new
sentence as to the undisturbed counts. Instead it imposed
sentences for the charges on retrial, and then stated that they
would “run consecutively to the sentence imposed on [the
undisturbed counts] on December 17, 1987.” Potentially the
result could be different in a court system using the “sentencing
package” doctrine, where a trial court will undertake a de novo
resentencing as to all counts of conviction if any count is
vacated on appeal, under the theory that the sentencing judge
would “craft a disposition in which the sentences on the
various counts form part of an overall plan.” United States v.
Miller, 594 F.3d 172, 180 (3d Cir. 2010) (quoting United States
v. Davis, 112 F.3d 118, 122 (3d Cir. 1997)). In that case the
resentencing might constitute a new judgment as to every count
of conviction, at least if we were to follow the majority
approach to the open question in Magwood. Here, however,
the Pennsylvania counts imposed separate sentences for each
count and conducted only a “limited” resentencing after the
retrial. See Miller, 594 F.3d at 179–80 (explaining the concept
of “limited resentencing”).




                               13
       In summary, we conclude that Romansky’s habeas
petition was not timely as to the conspiracy conviction at his
1987 trial because the petition was not filed within one year of
the conclusion of his state post-conviction process and because
the 2000 resentencing did not impose a new judgment as to the
undisturbed counts of conviction (including the conspiracy
charge). Accordingly, we affirm the District Court’s dismissal
of Romansky’s claim that he was denied due process by the
purported discrepancy between the charging documents and
the jury instructions as to the nature of the conspiracy charge
against him.
       C.     Romansky Was Not Denied the Effective
              Assistance of Counsel.
        Romansky also asserts he was denied the effective
assistance of counsel when his lawyer during the 2000 retrial
and resentencing refused to raise the issue of the 1987
conspiracy-charge discrepancy despite repeated requests that
he do so. Because this pertains to events in 2000, it is
undoubtedly timely. We nonetheless conclude that Romansky
is not entitled to habeas relief on this claim.

        To prevail on a claim of ineffective assistance, a
defendant must show (1) deficient performance and (2)
prejudice. Strickland v. Washington, 466 U.S. 668, 687
(1984). The first prong requires a showing that “counsel’s
performance . . . fell below an objective standard of
reasonableness;” the second requires demonstrating “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Albrecht v. Horn, 485 F.3d 103, 127 (3d Cir. 2007) (quoting
Strickland, 466 U.S. at 688, 694). To award Romansky relief
on his ineffectiveness claim, we would need to conclude that
his lawyer behaved unreasonably by failing to raise this issue
at the time of the resentencing and that, had he done so,




                              14
Romansky likely would have obtained relief (or at least that
this was reasonably possible).
        Here, Romansky’s ineffectiveness claim fails because
the conspiracy charge was not at issue during the 2000 retrial,
but only those counts of conviction the Superior Court had
vacated in 1997. There was no basis for Romansky’s counsel
to raise any argument related to that conviction during the
retrial. Moreover, we doubt Romansky would have been
afforded any relief had he done so. Thus his counsel was not
ineffective for failing to raise the issue, and in any event that
failure may not have prejudiced Romansky.
       To the extent he claims that his counsel during the retrial
was ineffective for failing to file a post-conviction claim on his
behalf challenging the conspiracy conviction, it is well
established that the Sixth Amendment right to counsel does not
extend to post-conviction proceedings. See Pennsylvania v.
Finley, 481 U.S. 551 (1987). Rather it extends only to trial and
“to the first appeal of right.” Id. at 555. This claim of
ineffective assistance would therefore fail as a threshold
matter, as Romansky had no constitutional right to the
assistance of counsel in filing such a collateral attack on his
conspiracy conviction.

IV. Conclusion

       Though the history of this case is lengthy and
convoluted, the question before us is ultimately quite simple.
Romansky was convicted in 1987 and, after some but not all
counts of conviction were vacated, retried and again convicted
on those counts in 2000. Romansky now believes he has found
an error in the 1987 trial regarding the conspiracy charge that
was never vacated. So did the retrial and resentencing in 2000
gave him another bite at the apple to raise this issue in a federal
habeas petition? We think not. The new sentence imposed in




                                15
2000 was not a new judgment on the undisturbed counts of
conviction from the 1987 trial. Therefore, neither Magwood
nor any of its possible implications apply to our case.

       Accordingly, Romansky’s principal claim—that he was
deprived of due process by the discrepancy between the
conspiracy charge as described in the charging documents and
the charge as presented to the jury—is not properly before us
because his habeas petition was not timely filed as to events
pertaining to his 1987 trial. His ancillary claim of ineffective
assistance fails because the conspiracy conviction was not at
issue during the 2000 retrial. And his request that we expand
our certificate of appealability fails, as his claim under the
Grand Jury Clause is foreclosed by Supreme Court precedent
from the Nineteenth Century and he has not made a substantial
showing as to his Brady claim.

       Thus we affirm.




                              16
