NOT PRECEDENTIAL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.
2

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 
3

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 
4

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).
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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. 
6

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 
7

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). 
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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.