John Olmedo-Serrano v. Secretary Pennsylvania Departm , 684 F. App'x 260 ( 2017 )

NOT PRECEDENTIAL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.
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 Olmedo-
Serrano’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. Olmedo-
Serrano’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
2
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
3
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 Olmedo-
Serrano’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
4
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 Olmedo-
Serrano’s PCRA petition in full. See Commonwealth v. Olmedo-Serrano, No.
5
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.
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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 Olmedo-
Serrano’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.
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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
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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, Olmedo-
Serrano argues for the first time that the procedural default here should be excused
9
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
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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 Olmedo-
Serrano’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
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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-to-
appeal 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 Olmedo-
Serrano 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).
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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
13
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 Olmedo-
Serrano’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
14
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.
15
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
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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 Olmedo-
Serrano. 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 Olmedo-
Serrano’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
17
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.
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