NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 14-3324

_____________

JOHN OLMEDO-SERRANO,

 Appellant

v.

SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;

THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA 

_____________

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania 

District Court No. 2-13-cv-03618

District Judge: The Honorable Petrese B. Tucker

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 19, 2016

Before: SMITH, Chief Judge, McKEE, and SHWARTZ, Circuit Judges

(Filed: April 5, 2017) 

_____________________

 OPINION

_____________________ 

 

SMITH, Chief Judge.

 

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent.
2

John Olmedo-Serrano appeals from the District Court’s order approving and 

adopting the Magistrate Judge’s Report and Recommendation, which 

recommended dismissing Olmedo-Serrano’s petition for writ of habeas corpus 

under 28 U.S.C. § 2254. We issued a certificate of appealability as to OlmedoSerrano’s claim of ineffective assistance of trial counsel following his guilty plea. 

We will affirm the District Court’s denial of that claim but on different grounds

than those upon which the District Court relied.

I.

In 2007, Olmedo-Serrano was arrested and charged with various criminal 

offenses connected to a drive-by shooting, which resulted in the crippling of one 

victim. Olmedo-Serrano confessed to the charged conduct. Represented by 

counsel, he pleaded guilty to attempted murder, aggravated assault, and conspiracy 

to commit murder. Olmedo-Serrano’s guilty plea was “open,” meaning that the 

guilty plea contained no agreed-upon recommendation for sentencing. OlmedoSerrano’s guilty plea subjected him to the following sentencing ranges: 120 to 480 

months for attempted murder, 42 to 54 months for aggravated assault, and 78 to 96 

months for conspiracy to commit murder. 

After considering counsels’ arguments, the sentencing court imposed a 

sentence of 12 1/2 to 25 years of incarceration, with 25 years of supervised 
3

probation. Olmedo-Serrano did not object to this sentence. On the record, counsel 

informed Olmedo-Serrano that he had “ten days to file a motion asking the court to 

reconsider [his] sentence and . . . thirty days to file an appeal with the Superior 

[C]ourt.” JA68. No motion for reconsideration or appeal was filed.

Nine months after sentencing, Olmedo-Serrano filed a pro se petition for 

relief under Pennsylvania’s Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. 

§ 9541 et seq. Among other allegations, Olmedo-Serrano’s PCRA petition 

claimed ineffective assistance for his trial counsel’s “fail[ure] to file a motion for 

re-consideration of sentence when he had assured [Olmedo-Serrano] he would 

file.” JA104. The PCRA petition, however, offered no explanation for why a 

motion for reconsideration was warranted or what arguments the motion for 

reconsideration would have raised. It simply noted that Olmedo-Serrano expected 

a lower sentence than he received and that his “sentence was manifestly 

excessive.” Id. The PCRA petition also made no mention of a failure by trial 

counsel to appeal Olmedo-Serrano’s sentence, a failure by trial counsel to discuss 

appealing the sentence, or any request by Olmedo-Serrano to appeal.

Following the petition’s filing, the PCRA Court appointed counsel to 

represent Olmedo-Serrano. Shortly after that appointment, Olmedo-Serrano filed 

an amended pro se PCRA petition, which reiterated only some of the allegations 
4

from the original petition. The amended pro se petition did not raise trial 

counsel’s failure to file a requested motion for reconsideration or an appeal.

PCRA counsel subsequently filed a Finley letter, stating that OlmedoSerrano’s petition lacked merit. See Commonwealth v. Finley, 550 A.2d 213, 215

(Pa. Super. Ct. 1988). Olmedo-Serrano objected to PCRA counsel’s letter and 

noted again that his trial counsel had failed to file a motion for reconsideration on 

his behalf. The PCRA Court then informed Olmedo-Serrano by letter of its 

intention to dismiss his petition. Olmedo-Serrano responded to the PCRA Court’s 

notice but again did not raise trial counsel’s failure to file either a motion for 

reconsideration or an appeal. Shortly thereafter, the PCRA Court dismissed 

Olmedo-Serrano’s petition. 

After the PCRA Court dismissed his petition, Olmedo-Serrano filed a pro se

“Statement of Matters Complained of on Appeal” with the PCRA Court, again 

making no mention of any failure to file an appeal, any failure by trial counsel to 

discuss an appeal, or any request by Olmedo-Serrano to appeal. The PCRA Court 

addressed Olmedo-Serrano’s filing in a written opinion. In relevant part, the 

PCRA Court observed that Olmedo-Serrano’s claim “that trial counsel was 

ineffective for failing to file a motion for reconsideration” was “without merit.” 

JA141. The PCRA Court reasoned that “[c]ounsel cannot be deemed ineffective 
5

for failing to pursue a meritless claim and Appellant has failed to establish beyond 

a preponderance of the evidence that he was prejudiced by counsel’s act or 

omission. Error was not committed.” Id. 

Olmedo-Serrano then appealed the dismissal of his PCRA petition to 

Pennsylvania’s Superior Court. On appeal, Olmedo-Serrano argued that (1) trial 

counsel was ineffective for failing to file a motion for reconsideration, (2) trial 

counsel also caused him to lose his “direct appeal rights” by failing to file the 

motion for reconsideration, and (3) PCRA counsel was ineffective for filing the 

no-merit Finley letter. JA158. As to the allegations of trial counsel’s ineffective 

assistance for failing to file a motion for reconsideration and causing him to lose 

his “appeal rights,” the Superior Court concluded that Olmedo-Serrano had waived 

those claims by failing to raise them in both his original PCRA petition and his 

response to the PCRA Court’s notice of intent to dismiss. For the claim relating to

PCRA counsel, the Superior Court determined that counsel was not ineffective for 

filing a no-merit Finley letter. In doing so, it observed that the claims underlying 

Olmedo-Serrano’s PCRA petition, including his claim that trial counsel was 

ineffective for failing to file a motion for reconsideration, were “without merit.” 

JA187. The Superior Court consequently affirmed the dismissal of OlmedoSerrano’s PCRA petition in full. See Commonwealth v. Olmedo-Serrano, No. 
6

2836 EDA 2011, 2013 WL 11289218, at *4–5 (Pa. Super. Ct. Jan. 23, 2013).

Following that dismissal, Olmedo-Serrano filed his current petition for writ 

of habeas corpus pro se under 28 U.S.C. § 2254.

1 The petition raised only an

ineffective assistance claim for trial counsel’s failure to file a motion for 

reconsideration and noted that, “[a]s a result” of this failure, Olmedo-Serrano “did 

not file a direct appeal.” JA23. Olmedo-Serrano’s § 2254 petition made no 

allegation that trial counsel failed to discuss an appeal or that he even requested 

trial counsel to file an appeal.

Reviewing the § 2254 petition, the Magistrate Judge issued a Report and 

Recommendation, concluding in relevant part that Olmedo-Serrano’s claims

related to the motion for reconsideration and appeal were procedurally defaulted. 

While disagreeing with the Superior Court that Olmedo-Serrano failed to raise 

those allegations in his original petition, the Magistrate Judge nonetheless 

determined that the claims were procedurally defaulted because Olmedo-Serrano 

failed to raise them in his amended PCRA petition. Olmedo-Serrano objected to 

the Report and Recommendation, again making no mention of any failure to file a 

requested appeal by trial counsel. The District Court approved and adopted the 

 

1

In his § 2254 petition, Olmedo-Serrano also raised a claim of ineffective 

assistance of trial counsel regarding his guilty plea. We did not grant a certificate 

of appealability as to that claim and therefore will not review it now.
7

Magistrate Judge’s Report and Recommendation in full. 

II.2

Because we granted a certificate of appealability only with regard to 

whether the District Court properly denied Olmedo-Serrano’s claim that trial 

counsel was ineffective for “failing to file a motion for reconsideration of [his] 

sentence or take other action to preserve his appeal rights,” our review is limited to

that single issue. JA15. We conclude that the denial was proper but for reasons 

different than those relied on by the District Court. 

First, to the extent Olmedo-Serrano now argues that trial counsel was 

ineffective for failing to appeal his sentence, that claim is procedurally defaulted 

because Olmedo-Serrano failed to raise it in either his original or amended PCRA 

petition. Second, assuming no procedural default occurred as to OlmedoSerrano’s claim that trial counsel failed to file a motion for reconsideration, the 

Pennsylvania Superior Court’s dismissal of that claim on the merits was not 

unreasonable.

A.

Olmedo-Serrano’s claim that trial counsel failed to file an appeal is 

 

2 The District Court had jurisdiction over Olmedo-Serrano’s petition under 28 

U.S.C. §§ 2241 and 2254(a). We have jurisdiction under 28 U.S.C. §§ 1291 and 

2253.
8

procedurally defaulted. 

“Where a state court refuses to consider a petitioner’s claims because of a 

violation of state procedural rules, a federal habeas court is barred by the 

procedural default doctrine from considering the claims. . . .” Johnson v. Pinchak, 

392 F.3d 551, 556 (3d Cir. 2004). Here, the Superior Court determined that, based 

on state procedural rules, Olmedo-Serrano had waived his claim of ineffective 

assistance related to the failure to file an appeal by failing to raise the claim before 

the PCRA Court. See Commonwealth v. Wallace, 724 A.2d 916, 921 n.5 (Pa. 

1999) (concluding that a petitioner’s failure “to raise [a claim] in the PCRA 

petitions presented to the PCRA Court” made the claim “not eligible for appellate 

review”); see also 42 Pa. Cons. Stat. § 9544(b) (“[A]n issue is waived if the 

petitioner could have raised it but failed to do so . . . in a prior state postconviction 

proceeding[.]”).

Olmedo-Serrano did not allege in either of his pro se PCRA petitions that

trial counsel was ineffective for failing to file an appeal. Rather, his original 

petition stated only that trial counsel “fail[ed] to file a motion for re-consideration 

of sentence when he had assured [Olmedo-Serrano] he would file.” JA104. But 

see JA117–21 (amended petition making no mention of trial counsel’s failure to 

file a motion for reconsideration). A motion for reconsideration, though, is not an 
9

appeal. See, e.g., United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999)

(stating that a claim for failing to file an objection is unlikely to “provide notice 

of” a claim for failure to file an appeal); see also United States v. Duffus, 174 F.3d 

333, 337 (3d Cir. 1999) (describing Craycraft as “compelling precedent”). Nor is 

a motion for reconsideration a prerequisite for an appeal; rather, a motion for

reconsideration is simply an additional means by which to raise an objection under 

Pennsylvania law. See Pa. R. Crim. P. 720(B)(1)(c) (“Issues raised before or 

during trial shall be deemed preserved for appeal whether or not the defendant 

elects to file a post-sentence motion on those issues.”); see also Commonwealth v. 

Reeves, 778 A.2d 691, 692 (Pa. Super. Ct. 2001) (“[I]ssues challenging the 

discretionary aspects of sentencing must be raised in a post-sentence motion or by 

raising the claim during the sentencing proceedings.” (emphasis added) (citation 

omitted)); cf. Commonwealth v. Jarvis, 663 A.2d 790, 792 (Pa. Super. Ct. 1995)

(concluding that, because an issue was not preserved during trial or after trial 

through a motion for reconsideration, the issue on appeal was waived). Therefore, 

the Superior Court’s conclusion that Olmedo-Serrano waived his ineffective 

assistance claim related to filing an appeal bars review of that claim.

In response to the invitation in our certificate of appealability, OlmedoSerrano argues for the first time that the procedural default here should be excused 
10

under Martinez v. Ryan, 132 S. Ct. 1309 (2012). That argument is unpersuasive. 

In Martinez, the Supreme Court held that “attorney error in [initial review] 

collateral proceedings may sometimes establish cause for the default of a claim of 

ineffective assistance of trial counsel.”

3

 Norris v. Brooks, 794 F.3d 401, 404 (3d 

Cir. 2015) (citing Martinez, 132 S. Ct. at 1315). The Supreme Court characterized 

this exception as “narrow.” Martinez, 132 S. Ct. at 1315.

Under Martinez, Olmedo-Serrano must demonstrate that an error by PCRA 

counsel “amounts to constitutionally ineffective assistance of counsel.” Id. at 

1324. “Sixth Amendment claims of ineffective assistance of counsel are governed 

by the familiar two-prong test of Strickland v. Washington.” Jacobs v. Horn, 395 

F.3d 92, 102 (3d Cir. 2005). Strickland’s two-prong test proceeds as follows: 

“First, the defendant must show that counsel’s performance was deficient. This 

requires showing that counsel made errors so serious that counsel was not 

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. 

Second, the defendant must show that the deficient performance prejudiced the 

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To be deficient, 

counsel’s performance must fail to meet an objective standard of reasonableness. 

 

3

 The Supreme Court also stated that, for this exception to apply, state law must 

require that “claims of ineffective assistance of trial counsel . . . be raised in an 
11

Id. at 688; see also id. at 689 (observing that courts “must indulge a strong 

presumption” that counsel was effective). “At all points, judicial scrutiny of 

counsel’s performance must be highly deferential.” Wong v. Belmontes, 558 U.S. 

15, 17 (2009) (per curiam) (quoting Strickland, 466 U.S. at 689) (internal 

quotation marks and alteration omitted).

Olmedo-Serrano does little to explain how his PCRA counsel was deficient. 

His arguments essentially boil down to the proposition that counsel should have 

raised a claim related to a separate factual matter that Olmedo-Serrano never 

raised, despite his numerous filings before the PCRA Court. None of OlmedoSerrano’s filings mention a failure by trial counsel to file an appeal, a failure by 

trial counsel to discuss an appeal, or that Olmedo-Serrano even requested trial 

counsel to file an appeal. Rather, his filings repeatedly assert trial counsel was 

ineffective for failing to file a motion for reconsideration after his sentence was 

higher than he expected. In his § 2254 petition, Olmedo-Serrano similarly makes 

no allegation that trial counsel failed to file a requested appeal. Even before this 

Court, Olmedo-Serrano makes no argument that trial counsel failed to file an 

appeal he requested.

PCRA counsel also discussed the petition with Olmedo-Serrano, particularly 

 

initial-review collateral proceeding.” Martinez, 132 S. Ct. at 1320. Pennsylvania 
12

Olmedo-Serrano’s allegations relating to the higher-than-expected sentence. 

Despite that discussion, PCRA counsel’s Finley letter provides no indication that 

Olmedo-Serrano expressed a desire to bring a failure-to-appeal claim or that 

Olmedo-Serrano had requested trial counsel to file an appeal. Olmedo-Serrano’s 

objection to the Finley letter and the PCRA Court’s notice of intent to dismiss 

similarly demonstrate that no such desire was expressed. 

Thus, while Olmedo-Serrano now asserts that he wished to file a failure-toappeal claim in his PCRA petition, he took no step toward making that claim: he 

did not raise it in his initial petition, in his amended petition, in discussions with 

PCRA counsel, or in any of his post-Finley letter filings. Under Strickland’s 

highly deferential review of counsel’s performance, we conclude that OlmedoSerrano fails to demonstrate that PCRA counsel was deficient and thus cannot 

show that his case fits within Martinez’s limited exception to procedural default.

B.

Olmedo-Serrano contends that he properly raised an ineffective assistance 

claim for trial counsel’s failure to file a motion for reconsideration. We are 

uncertain that this claim was procedurally defaulted, as the District Court 

concluded, because Olmedo-Serrano raised the claim in his original PCRA 

 

law so requires. See Cox v. Horn, 757 F.3d 113, 124 n.8 (3d Cir. 2014).
13

petition. Even assuming that Olmedo-Serrano properly raised that claim, the 

Pennsylvania Superior Court’s dismissal of that claim was not an unreasonable 

application of federal law.

“The Antiterrorism and Effective Death Penalty Act (AEDPA) dictates the 

manner in which we conduct our review.” Dennis v. Sec’y, Pa. Dep’t of Corr., 

834 F.3d 263, 280 (3d Cir. 2016) (en banc). Under AEDPA, federal habeas courts 

cannot grant relief “with respect to any claim that was adjudicated on the merits in 

State court” unless the adjudication “resulted in a decision that . . . involved an 

unreasonable application of[] clearly established Federal law, as determined by the 

Supreme Court of the United States.” 28 U.S.C. § 2254(d).

A state court decision involves an “unreasonable application of federal law” 

if the decision “identifies the correct governing legal rule . . . . but unreasonably 

applies it to the facts of the particular state prisoner’s case.” Williams v. Taylor, 

529 U.S. 362, 407 (2000). That said, “even a strong case for relief does not mean 

the state court’s contrary conclusion was unreasonable.” Harrington v. Richter, 

562 U.S. 86, 102 (2011). Rather, “[a] state court’s determination that a claim lacks 

merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’

on the correctness of the state court’s decision.” Id. at 101 (quoting Yarborough v. 

Alvarado, 541 U.S. 652, 664 (2004)). “If this standard is difficult to meet, that is 
14

because it was meant to be.” Id. at 102.

Here, the Pennsylvania Superior Court adjudicated Olmedo-Serrano’s

ineffective assistance claim related to the motion for reconsideration on the merits. 

When the Superior Court examined Olmedo-Serrano’s ineffective assistance claim 

relating to his PCRA counsel, it analyzed the underlying claims in OlmedoSerrano’s PCRA petition, including his motion-for-reconsideration claim. In 

doing so, the Superior Court concluded that the motion-for-reconsideration claim

was “without merit.” JA187 (“[T]he trial court, and now our Court, have both 

conducted independent reviews of Appellant’s claims and find them to be without 

merit.”); see also Richter, 562 U.S. at 98 (“By its terms § 2254(d) bars relitigation 

of any claim ‘adjudicated on the merits’ in state court, subject only to the 

exceptions in §§ 2254(d)(1) and (2). There is no text in the statute requiring a 

statement of reasons.”); Collins v. Sec’y of Pa. Dep’t of Corr., 742 F.3d 528, 548 

(3d Cir. 2014) (observing that “cursory statements” constitute an adjudication on 

the merits).

To ascertain whether that merits decision by the Superior Court was an 

unreasonable application of federal law, we must “determine what arguments or 

theories supported or, as here, could have supported, the state court’s decision; 

and then [we] must ask whether it is possible fairminded jurists could disagree that 
15

those arguments or theories are inconsistent with the holding in a prior decision 

of” the Supreme Court. Dennis, 834 F.3d at 282 (quoting Richter, 562 U.S. at 

102). 

Olmedo-Serrano argues that trial counsel was deficient for failing to file a 

motion for reconsideration to have the sentencing court better explain the reasons 

for his sentence and that this failure to file the motion prejudiced him.

4 As noted 

earlier, we evaluate claims of ineffective assistance through a two-prong approach, 

analyzing counsel’s performance for deficiency and whether that deficiency 

prejudiced the defendant. See Strickland, 466 U.S. at 687. Making the prejudice 

inquiry, we “must ask if [Olmedo-Serrano] has met the burden of showing that the 

decision reached would reasonably likely have been different absent the errors.” 

Id. at 696. Here, fairminded jurists could not disagree as to whether the failure to 

file a motion for reconsideration was prejudicial to Olmedo-Serrano because he 

has not met his burden to demonstrate that filing a motion for reconsideration 

would have altered his sentence. 

 

4 Olmedo-Serrano failed to properly preserve these arguments for appeal, having 

not raised them first before the District Court. See United States v. Melendez, 55 

F.3d 130, 136 (3d Cir. 1995) (declining to address argument first raised on 

appeal); see also Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (declining to 

consider arguments related to § 2254 petition that were not made before the 

District Court). Notably, he did not explain to the state habeas courts the basis for 

a motion for reconsideration, which may explain the state court’s brevity. 
16

Olmedo-Serrano faced recommended sentencing ranges of 120 to 480 

months for attempted murder, 42 to 54 months for aggravated assault, and 78 to 96 

months for conspiracy to commit murder. With those ranges as background, the 

sentencing court considered extensive argument as to the appropriate sentence for 

Olmedo-Serrano. 

Olmedo-Serrano’s trial counsel requested a sentence of 5 to 10 years of 

incarceration for Olmedo-Serrano. In support of this below-guidelines request,

trial counsel argued that Olmedo-Serrano’s criminal history score overstated his 

criminal history and noted several factors militating against a lengthy sentence, 

including that a licensed psychologist identified Olmedo-Serrano as learning 

disabled and possessing an IQ of 70, that Olmedo-Serrano had a difficult family 

situation and was “in and out of institutions since the age of 12,” that he took 

responsibility for his conduct and pleaded guilty, that he offered to assist in the 

prosecution of other individuals connected to his crimes, and that Olmedo-Serrano 

was young. 

After hearing from Olmedo-Serrano’s counsel, the sentencing court 

considered arguments from the State. The State first presented the testimony of a

victim’s mother. She described the impact the shooting had on her son and her 

family. The State also contended that Olmedo-Serrano appreciated the gravity of 
17

his offense and emphasized that Olmedo-Serrano’s recent criminal history 

included a conviction for gun possession. The State thus requested a sentence of 

15 to 30 years of incarceration for Olmedo-Serrano. 

The sentencing court ultimately imposed 12 1/2 to 25 years of incarceration. 

That sentence was just above the Pennsylvania sentencing guidelines’ 10-year

recommendation and well below the 40-year statutory maximum facing OlmedoSerrano. The sentence was also below the State’s requested sentence of 15 to 30 

years. 

Given that background, Olmedo-Serrano fails to explain how a better 

explanation from the sentencing court, following a motion for reconsideration, 

would have changed his sentence. With the statutory ranges at issue, the 

sentencing court’s consideration of extensive sentencing arguments, and OlmedoSerrano’s failure to explain how further explanation from the sentencing court 

would have changed his sentence, it is not unreasonable to conclude that further 

explanation from the sentencing court would not have altered his sentence, and 

thus the Superior Court’s ruling that the claim lacked merit was not unreasonable. 

See Dennis, 834 F.3d at 281 (“A rule’s unreasonable application corresponds to 

the specificity of the rule itself: ‘[t]he more general the rule, the more leeway 

courts have in reaching outcomes in case-by-case determinations.’” (alteration in 
18

original) (quoting Richter, 562 U.S. at 101)). Thus, even if the issue were not 

procedurally defaulted, Olmedo-Serrano’s assertion that his counsel was 

ineffective for failing to file a motion for reconsideration does not provide a basis 

for relief.

III.

For the foregoing reasons, we will affirm the order of the District Court

denying Olmedo-Serrano’s petition.