Opinion
1:19-CV-02082
07-07-2022
KEVIN PAUL PENO, Petitioner, v. MARK GARMAN, Respondent.
MARIANI JUDGE
REPORT AND RECOMMENDATION
SUSAN E. SCHWAB UNITED STATES MAGISTRATE JUDGE
I. Introduction.
After Petitioner Kevin Paul Peno, who was on probation, tampered with his ankle monitor, a judge of the Court of Common Pleas of Dauphin County, Pennsylvania revoked his probation and sentenced him to a maximum term of incarceration of 20 years to be followed by a 20-year term of probation. In this habeas corpus case, Peno is challenging that probation revocation. For the reasons discussed below, we recommend that the court deny Peno's petition for a writ of habeas corpus.
II. Background and Procedural History.
A. Peno's Original Conviction and Sentence.
In March 1998, a jury convicted Peno of possession of a firearm by a former convict. Commonwealth v. Peno, No. 1795 MDA 2015, 2016 WL 5951813, at *1 (Pa. Super. Ct. Oct. 13, 2016). A month later, at the time of sentencing for that conviction, Peno also “entered a negotiated guilty plea to one count each of rape, involuntary deviate sexual intercourse, aggravated indecent assault, statutory sexual assault, endangering the welfare of children, indecent assault, corruption of minors, and criminal conspiracy.” Id. (footnote omitted). Those “charges arose from [Peno]'s abuse of his two very young stepchildren.” Id.
In accordance with the terms of a plea agreement, the trial court sentenced Peno to a total term of incarceration (including for the firearm conviction) of seven and a half to fifteen years to be followed by a twenty-year term of probation. Id. The trial court also imposed as a condition of parole that Peno ‘“shall not be eligible for parole until he has completed whatever sexual offender programming is available to him in the state correctional system and found to be suitable for parole with regards to these sexual offenses against children. '” Id. (citation to the record omitted).
Although Peno did not file a direct appeal of his conviction and sentence, he filed multiple Post Conviction Relief Act (“PCRA”) petitions, which were denied. Id.
B. Peno's First Revocation of Probation and Sentence and the Superior Court's Vacation of that Revocation and Sentence.
“While incarcerated, [Peno] refused to complete a sexual offender's program.” Peno, 2016 WL 5951813 at *1. “Thus, [he] served the maximum of his aggregate incarceration sentence of fifteen years.” Id.
Immediately before Peno's release from prison, however, “the Dauphin County Probation Department lodged a detainer against him alleging that because he did not fulfill a condition of parole-that he complete sex offender treatment while in prison-he was not a candidate for probation.” Commonwealth v. Peno, No. 1669 MDA 2018, 2019 WL 3764571, at *1 (Pa. Super. Ct. Aug. 9, 2019). “After various proceedings, the court found him in violation of his probation (“VOP”), revoked his probation, and imposed [a] sentence” of 17 ½ to 35 years imprisonment. Id.; Commonwealth v. Peno, No. 1219 MDA 2012, 2013 WL 11254189, at *1 (Pa. Super. Ct. Aug. 16, 2013).
Peno appealed, and the Superior Court “vacated the VOP Judgment of Sentence, holding that the condition of parole imposed by the trial court had been illegal and, therefore, could not be used as [a] basis to revoke [Peno]'s probation.” Peno, 2019 WL 3764571, at *1. More specifically, the Superior Court explained that because Peno's maximum sentence was more than two years, under Pennsylvania law, the Pennsylvania Board of Probation and Parole had exclusive authority over Peno's parole. Peno, 2013 WL 11254189, at *2. “Accordingly, to the extent the trial court purported to impose a condition of parole in its sentencing order, the condition and the order exceeded the bounds of the court's authority and are subject to vacatur; thus, such a condition cannot be the basis for the revocation of [Peno]'s original sentence.” Id. (italics in original). The Superior Court also observed that Peno had “served the maximum sentence imposed of 15 years and was not subject to parole.” Id.
In a concurring opinion, Judge Wecht pointed out that the trial court and the Probation Department had confused probation and parole:
Because [Peno] did not complete the treatment, which again was only required to be completed had [Peno] sought release from prison prior to the expiration of his maximum date, the Probation Department determined that probation would not be an effective tool of rehabilitation. The trial court agreed with this determination. However, this determination was clearly based
upon the court's failure to observe the difference between parole and probation. It is difficult, if not impossible, to accept the premise that probation would not be an effective tool for [Peno]'s rehabilitation when the Probation Department lodged a detainer on [Peno] one day before he was even released from prison. In other words, [Peno] was deemed to have violated his probation one day before he began serving that probation.Id. at *3 (footnote omitted). According to Judge Wecht, the trial court “was undeniably frustrated with [Peno]'s choice to serve his entire sentence rather than complete the treatment[,]” and it “vindicated its frustration by violating [Peno]'s probation for failing to meet a parole condition.” Id. at *4. Noting that when resentencing Peno, the trial court imposed the same parole condition that it had imposed as to the original sentence, Judge Wecht suggested that the “trial court's newest sentence is a clear attempt vindictively to punish [Peno] for his choice to remain in prison rather than complete the sexual offender treatment.” Id. To Judge Wecht “[i]t seem[ed] quite clear that the trial court intended to keep [Peno] in prison for as long as possible, by whatever means possible.” Id.
Judge Wecht suggested that the trial court may also have been motivated by threats Peno had made against the court and the district attorney, but, Judge Wecht observed, “[w]hether the threats served as further motivation for the trial court's actions is a question that only the trial court itself can answer.” Id.
The Superior Court vacated Peno's judgment of sentence. Id. at *1-2. And on July 16, 2014, the Pennsylvania Supreme Court denied the Commonwealth's petition for allowance of appeal. Commonwealth v. Peno, 96 A.3d 1027 (Pa. Jul. 16, 2014) (Table).
C. Peno's Second Probation Revocation and Sentence.
After the Pennsylvania Supreme Court denied the Commonwealth's petition for allowance of appeal, “by agreement of the parties to expedite [Peno]'s release from incarceration, the trial court issued an order modifying the conditions of [Peno]'s probation to include certain geographic restrictions to be enforced by GPS monitoring.” Peno, 2016 WL 5951813, at *2. About a week later, Peno “tampered with the GPS monitoring device, which resulted in the Commonwealth charging him with criminal mischief and filing a Petition alleging a VOP.” Peno, 2019 WL 3764571, at *1. At Peno's probation-revocation hearing, his probation officer-Meredith E. Zurin-testified about Peno tampering with the GPS unit:
This Order is dated July 17, 2014. See doc. 7-6 at 12-14. But it appears that it was not docketed until July 18, 2014. See id. at 12 (date stamp). And the Pennsylvania Superior Court refers to the date of this Order as July 18, 2014. See Peno, 2016 WL 5951813 at *2.
Probation Officer Zurin stated [Peno] was released from incarceration on July 18, 2014 and that, the same day, she fitted [Peno] for an electronic monitoring ankle bracelet and explained the operation of the GPS component to him. She told [Peno] not to “mess” with the device and that all he was to do was plug it
in every night for charging. She noted that [Peno] signed the rules for use of the system. [Peno] was to use it until the probation office could complete procedures for a pre-arranged transfer for him to New Hampshire.
Probation Officer Zurin further testified that, on July 25, 2014, she received a tamper notification with respect to [Peno]'s electronic monitor. She attempted to contact [Peno] both via cell phone and by making the ankle bracelet buzz and beep but did not receive any response. Approximately twenty to twenty-five minutes later, Probation Officer Zurin located [Peno] sitting on a park bench in front of his residence. When questioned, [Peno] claimed that “[n]othing” was going on with the device. [Peno] pulled up his pants and Probation Officer Zurin ascertained that while the ankle bracelet was still around his leg, “the actual brain or device was not attached. It was just laying (sic) in his sock.” [Peno] claimed that the ankle bracelet irritated him, so he decided to clean it. Probation Officer Zurin showed the court a representative electronic monitoring appliance and demonstrated that it could not be taken apart without the use of tools.Peno, 2016 WL 5951813, at *2 (citations to the record omitted).
In May 2015, the trial court found Peno guilty of criminal mischief and sentenced him to pay a fine and the costs of prosecution. Id. at *3. About a month later, the court found that Peno had violated his probation, and in September 2015, the court sentenced him to a maximum term of incarceration of 20 years to be followed by a 20-year term of probation. Id.
D. Peno's Appeal of his Second Probation Revocation.
Peno appealed his second probation revocation raising several questions including the following:
Was the court's ordering of GPS monitoring as an amended condition of probation without a hearing and without [Peno's] consent rendered a nullity because: (a) it contravened the terms of 42 Pa.C.S.[A.] § 9771(d); (b) it contravened [Peno's] due process rights; (c) it constituted an unreasonable search; and (d) [Peno's] counsel had no standing to consent to the entry of such an order and was coerced into consenting under threat of a continuation of [Peno's] illegal incarceration?Peno, 2016 WL 5951813, at *3. The Superior Court rejected Peno's challenge to the GPS-monitoring condition, concluding that even assuming for the sake of argument that the GPS-monitoring condition was improper, illegal, or unconstitutional, Peno “provide[d] no support for his claim that this nullifies his revocation of probation.” Id. at *6 Noting that the “trial court revoked [Peno]'s probation based upon his conviction for criminal mischief and upon his technical violation of probation for tampering with the GPS device,” the Superior Court reasoned that “[t]here is simply no support in law for the concept that you can challenge the constitutionality of GPS monitoring as a condition of probation by damaging a GPS device and forcibly removing it.” Id. The court analogized Peno's case to cases upholding convictions for aggravated assault arising from resisting an arrest even though the arrest itself was found to be unlawful. Id. (citing Commonwealth v. Biagini, 655 A.2d 492 (Pa. 1995) and Commonwealth v. Jackson, 924 A.2d 618 (Pa. 2007)). The Superior Court held that “[e]ven if the imposition of the GPS monitoring was illegal, which we do not decide, [Peno] did not have a ‘free pass' to commit criminal mischief by damaging the device or to violate his probation by tampering with it.” Id. The Superior Court also rejected the other claims Peno raised on appeal, and it affirmed his judgment of sentence. Id. at *3-8.
On May 3, 2017, the Supreme Court denied Peno's petition for allowance of appeal. Commonwealth v. Peno, 168 A.3d 1290 (Pa. May 3, 2017) (Table).
E. Peno's PCRA Proceedings Regarding his Second Probation Revocation.
In June 2017, Peno filed a PCRA petition “alleging that (1) the trial court's July 18, 2014 Order violated 42 Pa.C.S. § 9771 because it modified his probation before the Superior Court had remanded his case record to the trial court; (2) the court's Order subjecting him to GPS monitoring constituted an illegal search and seizure; and (3) ‘all my counsels' provided ineffective assistance because he ‘did not know they were going to change condition until [he] saw parole, probation Officer on July 18, 2014.'” Peno, 2019 WL 3764571, at *2 (footnotes and internal citation to the record omitted).
The PCRA court appointed counsel to represent Peno, and counsel “filed a supplemental PCRA Petition reiterating [Peno]'s illegal sentencing claim and requesting additional time to review and determine the applicability of the Pennsylvania Supreme Court's July 19, 2017 holding in [Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)].” Id. Although counsel received numerous extensions of time to file an additional, supplemental PCRA petition, he instead filed a no-merit letter, concluding that Muniz did not apply to Peno's case, that Peno's ineffective-assistance-of-counsel claims lacked merit, and that the other claims that Peno sought to raise had been previously litigated on Peno's appeal and “were, therefore, not cognizable under the PCRA.” Id. (footnote omitted). The PCRA court granted counsel leave to withdraw. Id.
In Muniz, the Pennsylvania Supreme Court held that the retroactive application of Pennsylvania's Sex Offender Registration and Notification Act (“SORNA”) to a petitioner convicted of a sex offense prior to the effective date of that statute violated the Ex Post Facto Clause of the Pennsylvania Constitution. 164 A.3d 1189, 1193 (Pa. 2017). “Muniz was a divided opinion.” Piasecki v. Ct. of Common Pleas, Bucks Cty., PA, 917 F.3d 161, 175 n.108 (3d Cir. 2019). “Three justices joined the Opinion Announcing the Judgment of the Court . . . concluding that Pennsylvania's SORNA statute violated both the U.S. Constitution and the Pennsylvania Constitution, which, in their estimation, provided ‘even greater [ ex post facto] protections than its federal counterpart. '” Id. (quoting Muniz, 164 A.3d at 1223). “Two justices concurred in the entirety of the opinion except for the portions that held the Pennsylvania Constitution provided greater protections than the U.S. Constitution.” Id. “In their view, the ‘state and federal ex post facto clauses are coterminous.'” Id. (quoting Muniz, 164 A.3d at 1232 (Wecht, J., concurring)). “The Chief Justice of the Pennsylvania Supreme Court dissented, finding that ‘SORNA does not impose punishment and, thus, does not violate either the federal or state constitutions' ex post facto clauses.'” Id. (quoting Muniz, 164 A.3d at 1233 (Saylor, C.J., dissenting)). “The net precedential effect of these opinions was ‘confined to the determination that SORNA's registration requirement is punishment that runs afoul of the ex post facto clause of the Pennsylvania Constitution when applied retroactively.” Id. (quoting Commonwealth v. Hart, 174 A.3d 660, 667 n.9 (Pa. Super. Ct. 2017)).
As the Third Circuit has explained, “[a] no-merit letter is a mechanism by which appointed PCRA counsel may seek to withdraw from representing a petitioner, on the basis that the petition is meritless.” Velazquez v. Superintendent Fayette SCI, 937 F.3d 151, 156 n.1 (3d Cir. 2019). “The letter is sent to the petitioner and must detail the nature and extent of the lawyer's review of the case, list each issue the petitioner wishes to have reviewed, and contain an explanation of why the lawyer believes that the petitioner's issues are meritless.” Id. “The PCRA court must then ‘conduct[ ] its own independent review of the record” and determine whether it agrees that the petition is meritless.” Id. (italics in original) (quoting Commonwealth v. Finley, 550 A.2d 213, 215 (Pa. 1988)). “If so, counsel is permitted to withdraw, and the petitioner is allowed to proceed pro se or with the aid of private counsel.” Id.
After counsel withdrew, Peno filed an amended pro se PCRA petition, asserting “both that he had timely filed his Muniz claim and that it had merit, and he again reiterated his claim that the trial court's July 18, 2014 sentencing order was illegal on its face.” Id. (bold in original).
“On September 19, 2018, the PCRA court dismissed [Peno]'s PCRA Petition.” Id. (footnote omitted). Peno appealed that dismissal raising the following two issues before the Superior Court:
1. Whether the PCRA court was misplaced by granting appointed PCRA counsel's No-Merit Letter and Motion to Withdraw without a hearing in that former counsel [ ] Paul Muller, Andrea Haynes, James J. Karl of Dauphin County Public Defender[']s Office were all ineffective by allowing conditions which are now illegal since Com[monwealth] v. Muniz, 164 A.3d 1189 (Pa. 2017) made 42 Pa.C.S.[ ] subsect[]ions 9799.30, 9733 [ sic ] thus the entire SORNA program could not apply retroactively to persons who committed their crimes before December 20, 2012.
2. Whether the PCRA court erred by that [sic] an issue in this appeal is whether the Commonwealth may punish an individual for conduct which was made a crime by an amended statute where the original version of the statute has been [held] unconstitutional in its entirety?Id. at *3 (bold in original).
On August 9, 2019, the Superior Court rejected Peno's claims and affirmed the order denying his PCRA petition. Id. at *4.
F. The Present Petition for a Writ of Habeas Corpus.
On December 6, 2019, Peno, proceeding pro se, filed the present petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2015 probation revocation from the Court of Common Pleas of Dauphin County, Pennsylvania. We warned Peno in accordance with Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), of the effects of filing a § 2254 petition in light of the Antiterrorism and Effective Death Penalty Act, and Peno elected to proceed with his petition under § 2254.
After the respondent filed a response to the petition and Peno filed a reply, we determined that it was in the interest of justice to appoint counsel to represent Peno given that Peno's claims were not clear and given that he had asserted that he had not received the respondent's complete response to his petition. Thus, we appointed the Federal Public Defender's Office to represent Peno, and we ordered that office to file a supplemental reply brief addressing Peno's claims and the respondent's arguments in opposition to those claims. We further ordered that the respondent may file a responsive brief within 14 day after being served with Peno's supplemental reply brief. We also ordered the respondent to file additional documents from the state court proceedings. which the respondent filed.
After Peno, by then represented by counsel, requested and received six extensions of time, he filed his supplemental reply brief on October 29, 2021. In his supplemental reply, Peno clarifies that he is presenting five claims: (1) a Fourth Amendment claim that the GPS tracking condition of his probation amounted to an illegal search and seizure; (2) a due process claim based on his purported unawareness of the new probation terms before being released from prison and based on those new terms being imposed without a hearing; (3) an ex post facto claim based on Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017); (4) an ineffective-assistance-of-counsel claim based on his counsel agreeing to the GPS condition and failing to object that the court lacked subject-matter jurisdiction to impose that condition; and (5) a claim of cumulative error. On December 13, 2021, the respondent filed a reply to Peno's supplemental reply brief. And on June 22, 2022, Peno filed an amended supplemental reply brief.
For the following reasons, we will recommend that the court deny Peno's petition for a writ of habeas corpus.
III. The Standard for Addressing Habeas Claims on the Merits.
“The federal habeas statute, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes important limitations on the power of federal courts to overturn the judgments of state courts in criminal cases.” Shoop v. Hill, 139 S.Ct. 504, 506 (2019). In addition to overcoming procedural hurdles, a state prisoner must meet exacting substantive standards to obtain habeas corpus relief. A federal court may not grant habeas corpus relief with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication
(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.28 U.S.C. § 2254(d).
The standard under Section 2254(d) is highly deferential and difficult to meet. Cullen v. Pinholster, 563 U.S. 170, 181 (2011). It “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring)). State courts are presumed to know and follow the law, Woods v. Donald, 575 U.S. 312, 316 (2015), and § 2254(d) “‘demands that state-court decisions be given the benefit of the doubt.'” Pinholster, 563 U.S. at 181 (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).
Under § 2254(d)(1), only the holdings, not the dicta, of the Supreme Court constitute “clearly established Federal law.” Howes v. Fields, 565 U.S. 499, 505 (2012). “Furthermore, in determining what is ‘clearly established,' Supreme Court decisions cannot be viewed ‘at a broad level of generality,' but instead must be viewed on a ‘case-specific level.'” Rosen v. Superintendent Mahanoy SCI, 972 F.3d 245, 253 (3d Cir. 2020) (quoting Fischetti v. Johnson, 384 F.3d 140, 148 (3d Cir. 2004)). Thus, “[t]he ‘clearly established Federal law' provision requires Supreme Court decisions to be viewed through a ‘sharply focused lens.'” Id. (quoting Fischetti, 384 F.3d at 149).
Under the “contrary to” clause of § 2254(d)(1), “a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412 (2000). In other words, “a state court decision is ‘contrary to' clearly established law where ‘the Supreme Court has established a rule that determines the outcome of the petition.'” Rosen, 972 F.3d at 252 (quoting Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir. 1999) (en banc)). Thus, ‘“[i]t is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome.” Id. (quoting Matteo, 171 F.3d at 888 (italics in original)).
Under the “unreasonable application” clause of § 2254(d)(1), “a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 413. Because federal habeas relief may be granted only if the “state court's application of clearly established federal law was objectively unreasonable[,] an incorrect application of federal law alone does not warrant relief.” Keller v. Larkins, 251 F.3d 408, 418 (3d Cir. 2001). “The term ‘unreasonable' refers not to ‘ordinary error' or even to circumstances where the petitioner offers ‘a strong case for relief,' but rather to ‘extreme malfunctions in the state criminal justice syste[m].'” Mays v. Hines, 141 S.Ct. 1145, 1149 (2021) (quoting Harrington, 562 U.S. at 102).
Under the “unreasonable application” clause of § 2254(d)(1), “if the state-court decision was reasonable, it cannot be disturbed.” Hardy v. Cross, 565 U.S. 65, 72 (2011). “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.” Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “In other words, a federal court may intrude on a State's ‘sovereign power to punish offenders' only when a decision ‘was so lacking in justification . . . beyond any possibility for fairminded disagreement.'” Mays, 141 S.Ct. at 1149 (quoting Harrington, 562 U.S. at 103).
“When assessing whether a state court's application of federal law is unreasonable, ‘the range of reasonable judgment can depend in part on the nature of the relevant rule' that the state court must apply.” Renico v. Lett, 559 U.S. 766, 776 (2010) (quoting Yarborough, 541 U.S. at 664). “Because AEDPA authorizes federal courts to grant relief only when state courts act unreasonably, it follows that ‘[t]he more general the rule' at issue-and thus the greater the potential for reasoned disagreement among fair-minded judges-‘the more leeway [state] courts have in reaching outcomes in case-by-case determinations.'” Id. (emphasis in original).
Under the “unreasonable determination of the facts” provision of § 2254(d)(2), the test “is whether the petitioner has demonstrated by ‘clear and convincing evidence,' § 2254(e)(1), that the state court's determination of the facts was unreasonable in light of the record.” Roundtree v. Balicki, 640 F.3d 530, 537-38 (3d Cir. 2011). “[T]he evidence against which a federal court measures the reasonableness of the state court's factual findings is the record evidence at the time of the state court's adjudication.” Id. at 538.
“In considering a § 2254 petition, we review the ‘last reasoned decision' of the state courts on the petitioner's claims.” Simmons v. Beard, 590 F.3d 223, 231-32 (3d Cir. 2009) (citing Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir.2008)). Thus, “[w]e review the appellate court decision, not the trial court decision, as long as the appellate court ‘issued a judgment, with explanation, binding on the parties before it.'” Burnside v. Wenerowicz, 525 Fed.Appx. 135, 138 (3d Cir. 2013). But when the highest state court that considered the claim does not issue a reasoned opinion, we look through that decision to the last reasoned opinion of the state courts. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991). And we “presume that the unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). “But the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.” Id.
“AEDPA also restricts the ability of a federal habeas court to develop and consider new evidence.” Shoop v. Twyford, No. 21-511, 2022 WL 2203347, at *5 (U.S. June 21, 2022). “Review of factual determinations under § 2254(d)(2) is expressly limited to ‘the evidence presented in the State court proceeding. '” Id. “[R]eview under § 2254(d)(1) is [also] limited to the record that was before the state court that adjudicated the claim on the merits.” Pinholster, 563 U.S. at 181. Only in certain, narrow circumstances may a habeas petitioner present evidence that was not part of the state-court record. Shoop, 2022 WL 2203347, at *5. “Thus, although state prisoners may occasionally submit new evidence in federal court, ‘AEDPA's statutory scheme is designed to strongly discourage them from doing so.” Id. (quoting Pinholster, 563 U.S. at 186).
The highly deferential standard of § 2254(d) applies only to claims that have been “adjudicated on the merits” in the state court. Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir. 2012). “[I]f the state court did not reach the merits of the federal claims, then they are reviewed de novo.” Id. But we must still presume that the state court's factual determinations are correct, and the petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Further, even as to a claim adjudicated by the state court on the merits, if a habeas petitioner overcomes the § 2254(d) hurdle, the habeas court then considers the claim de novo. See Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (explaining that when § 2254(d) is satisfied, “[a] federal court must then resolve the claim without the deference AEDPA otherwise requires.”); Howell v. Superintendent Rockview SCI, 939 F.3d 260, 264 (3d Cir. 2019) (“If the state court erred, habeas relief should be granted only if, upon de novo review, the prisoner has established that he ‘is in custody in violation of the Constitution or laws or treaties of the United States.'” (quoting 28 U.S.C. § 2254(a))).
IV. Ineffective-Assistance-of-Counsel Claim.
Because Peno's counsel's actions bear on several of Peno's claims in this case, we begin by analyzing Peno's ineffective-assistance-of-counsel claim. Peno claims that his counsel was ineffective by agreeing to the GPS-monitoring probation condition and by failing to object that the court lacked subject-matter jurisdiction to impose that condition. The Superior Court addressed Peno's claim of ineffective assistance of counsel on the merits. The Superior Court's decision regarding this claim was not contrary to and did not involve an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. Nor was the Superior Court's decision based on an unreasonable determination of the facts. Thus, Peno is not entitled to a writ of habeas corpus as to this claim.
A. Ineffective Assistance of Counsel Standards.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defence.” U.S. Const. amend VI. The purpose of the right to the assistance of counsel is to ensure a fair trial, and “the Court has recognized that ‘the right to counsel is the right to the effective assistance of counsel.'” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. “The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.” Yarborough v. Gentry, 540 U.S. 1, 8 (2003). The clearly established federal law as to an ineffective-assistance-of-counsel claim is Strickland, 466 U.S. at 687, which sets forth a two-prong analysis.
Under the first prong of Strickland, the petitioner must establish that counsel's performance was deficient. Id. at 687. “Strickland's first prong sets a high bar.” Buck v. Davis, 137 S.Ct. 759, 775 (2017). To establish that counsel's performance was deficient, the petitioner must establish that “counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. “Judicial scrutiny of counsel's performance must be highly deferential.” Id. at 689. As such, the court “must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance,” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 689), and “[t]o overcome that presumption, a defendant must show that counsel failed to act ‘reasonabl[y] considering all the circumstances[,]'” Pinholster, 563 U.S. at 189 (quoting Strickland, 466 U.S. at 688). “The challenger's burden is to show ‘that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 687).
Under the second prong of Strickland, the petitioner must establish prejudice. Strickland, 466 U.S. at 687. To do so, the petitioner must show a reasonable probability that, if not for counsel's errors, the result of the proceeding would have been different. Id. at 694. The petitioner “need not prove that the evidence would have been insufficient if not for counsel's errors . . . [or] ‘that counsel's deficient conduct more likely than not altered the outcome.'” Saranchak v. Sec'y, Pa. Dep't of Corr., 802 F.3d 579, 588 (3d Cir. 2015) (quoting Strickland, 466 U.S. at 693). Rather, the issue is whether there is a reasonable probability of a different result. Id. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. “That requires a ‘substantial,' not just ‘conceivable,' likelihood of a different result.” Pinholster, 563 U.S. at 189 (quoting Harrington, 562 U.S. at 112).
To prevail on an ineffective-assistance claim, a petitioner must satisfy both prongs of Strickland. A court can choose which prong of the standard to apply first, and it may reject an ineffectiveness claim on the ground that the petitioner was not prejudiced without addressing whether counsel's performance was deficient. Strickland, 466 U.S. at 697.
“Surmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). “Even under de novo review, the standard for judging counsel's representation is a most deferential one.” Premo v. Moore, 562 U.S. 115, 122 (2011). And “[e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Harrington, 562 U.S. at 105. When the state court has decided the claim on the merits, “[t]he question ‘is not whether a federal court believes the state court's determination' under the Strickland standard ‘was incorrect but whether that determination was unreasonable-a substantially higher threshold.'” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Id.
B. The Superior Court's Decision.
The Superior Court construed Peno's claim as asserting that “because he did not consent to the GPS condition and did not authorize his attorney, Paul Muller, Esq., to waive the hearing requirement in order to obtain [his] prompt release from incarceration, counsel provided ineffective assistance of counsel.” Peno, 2109 WL 3764571 at *3. The Superior Court first set forth the standard for deciding ineffective-assistance claims under the PCRA. More specifically, the Superior Court set forth the three-part standard for ineffective-assistance-of-counsel claims set forth in Commonwealth v. Fulton, 830 A.2d 567 (Pa. 2003):
. . . Appellant must plead and prove by a preponderance of the evidence that: “(1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and, (3) but for counsel's ineffectiveness, there is a reasonable
probability that the outcome of the challenged proceeding would have been different.”Id. (quoting Fulton, 830 A.2d at 572). And applying that standard, the Superior Court found Peno's claim without merit, concluding that he had “not supported his bald claim that all his ‘counsels' provided ineffective assistance.” Id. The court reasoned that Peno “had not pled that the actions taken by his counsel were not designed to effectuate his interests, or that, but for his counsel's alleged ineffectiveness, the outcome of the proceedings would have been different.” Id. And it concluded that “[a]s a result of [Peno]'s failure to address these factors set forth in Fulton, supra, this issue warrants no relief.” Id. (bold in original).
C. The state court's adjudication was not contrary to clearly established Federal Law, as determined by the Supreme Court of the United States.
Although the Pennsylvania courts use slightly different language to articulate the ineffective-assistance-of-counsel standard, the standard used by the Pennsylvania courts is consistent with the Strickland standard. The Third Circuit “has repeatedly recognized that Pennsylvania's test for ineffective assistance of counsel is consistent with the Supreme Court's decision in Strickland because it requires ‘findings as to both deficient performance and actual prejudice.'” Tyson v. Superintendent Houtzdale SCI, 976 F.3d 382, 391 (3d Cir. 2020) (quoting Mathias v. Superintendent Frackville SCI, 876 F.3d 462, 476 (3d Cir. 2017)). Thus, the Superior Court's decision on Peno's claim of ineffective assistance of counsel was not contrary to clearly established federal law. So, we turn to whether the state court's decision resulted in a decision that involved an unreasonable application of clearly established federal law, i.e., Strickland, or resulted in a decision that was based on an unreasonable determination of the facts.
D. The state court's decision was not an unreasonable application of clearly established federal law, i.e., Strickland, and was not based on an unreasonable determination of the facts.
The state court's adjudication of Peno's ineffective-assistance-of-counsel claim was not an unreasonable application of Strickland. Nor was the state court's decision based on an unreasonable determination of the facts.
As set forth above, the Superior Court concluded that Peno “had not pled that the actions taken by his counsel were not designed to effectuate his interests,” i.e., counsel's performance was not deficient. Peno asserts, however, that his counsel admitted he was ineffective. During Peno's revocation hearing on March 16, 2015, the following discussion occurred between Peno's counsel (Attorney Muller), the court, and the prosecutor (Attorney Chardo) regarding whether counsel was ineffective by agreeing to the probation terms:
ATTORNEY MULLER: Judge, for the record, as indicated by Mr. Chardo, Judge Cherry issued an order on July 17th after the case has been remanded by Superior Court on allocator and been denied by the Supreme Court and Mr. Peno was to be released.
These 13 averments in the order establishing additional conditions on Mr. Peno's probation -- at some point I believe prior to that, Mr. Chardo had communicated with me as defense counsel to see if this would be acceptable to do it this way to speed things up. At the time, I did not object to it. I was probably not being strict enough in my interpretation of the rules, Your Honor, because Section 9771 of Title 42 requires that there be a hearing with the Defendant present when terms of probation or supervision are being increased or modified upward. Downward modifications - -
THE COURT: No problem.
ATTORNEY MULLER: -- don't require, upward modifications do.
Mr. Peno has, you know, let us know this over this period of time that he was not present, was not sufficiently informed of this when it occurred, and I think from a procedural standpoint, Your Honor, it's ineffectiveness on its face. I don't think it's something that has to be established. The rule requires that there be a hearing, and there really is no waiver component to that. I certainly don't have anything signed by Mr. Peno that would indicate that. Therefore, I would argue or I would state to the Court that I think I'm per se ineffective for that part of the case and that order which included the requirement for - -
THE COURT: That's Judge Cherry's order?
ATTORNEY MULLER: Judge Cherry, Averment Number 6, The Defendant must submit to GPS monitoring and bear the cost of the same.
I wanted to put that on the record. I think it's important. I know this case has been a procedural nightmare from quite a while ago and this just adds to it, but it is what it is.
ATTORNEY CHARDO: Your Honor, I believe that Mr. Muller was not ineffective. I think that he made a concession. I reviewed this proposed order prior to its entry, as he indicated, and he did agree with that and he did that to advance the interests of his client, to facilitate his prompt release from the Dauphin County Prison, and that there was a reasonable basis for doing that.
Moreover, it seems to me that order having been -- that the hearing requirement was satisfied as noted in the order because there had been prior hearings in which the Court was informed of the background of the Defendant that necessitated this probation condition, and there was a provision in that order that it could be revisited at any time upon application. That had not been done. So I don't believe that defense counsel was ineffective, that there was a reasonable basis to advance the client's interests in existence.
Moreover, even if there was ineffectiveness, that does not negate the violation. For instance, if you have someone that is arrested wrongfully for a crime and put in the Dauphin County Prison, that does not entitle them to kill a guard or escape. There is an order in place. They cannot violate that order because they don't feel that it is a just order. The order was in place, he violated that order, and that goes to - that is a violation of probation unless and until that order is modified, and it was not prior to his commission of the violation. So we respectfully request that the claim of ineffectiveness be denied at this time.
ATTORNEY MULLER: If I can just respond -
THE COURT: Sure, go ahead.
ATTORNEY MULLER: As far as there being prior hearings, there certainly were -- there were revocation hearings addressing the issue of whether he should be revoked and resentenced. Nothing like these conditions was addressed specifically, and as I indicated, there are 13 conditions or
averments in here that were not addressed with the Defendant, to the Defendant, or by the Defendant at any prior hearing. So just because he's had a prior revocation hearing does not put him on notice as to an increase in any conditions, and, further, I don't think the analogy of someone being in prison unjustly and killing someone applies here. It would be more akin as to someone is in prison unjustly and they're charged with an administrative violation in the prison and they violate that and they get punished for that and that would be the equivalent and that wouldn't be just, but I'll leave it at that on my part.Doc. 20-1 at 2-5.
Here, although Attorney Muller asserted that he was ineffective in agreeing to the GPS condition without insisting on a hearing, the Superior Court found otherwise. The court reasoned that Peno “had not pled that the actions taken by his counsel were not designed to effectuate his interests, or that, but for his counsel's alleged ineffectiveness, the outcome of the proceedings would have been different.” Peno, 2019 WL 3764571, at *3. And it concluded that “[a]s a result of [Peno]'s failure to address these factors set forth in Fulton, supra, this issue warrants no relief.” Id. (bold in original).
Under the “doubly deferential” standard that applies to a Strickland claim evaluated under 28 U.S.C. § 2254(d)(1), Knowles, 556 U.S. at 123, the Superior Court's determination that counsel was not ineffective was reasonable.
Peno also contends that the court lacked subject-matter jurisdiction to impose the GPS condition on him on July 17, 2014, because the record had not yet been remanded to the trial court from the Pennsylvania Supreme Court. He cites Commonwealth v. Salley, 957 A.2d 320, 325 (Pa. Super. Ct. 2008), which held that based on the Pennsylvania Rules of Appellate Procedure, the trial court lacked subject-matter jurisdiction to sentence Salley before the record had been remanded from the appellate court to the trial court, and, thus, the sentence was a legal nullity. In addition to addressing sentencing-rather than the imposition of probation conditions-Salley is a Pennsylvania case based on Pennsylvania law. “In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). Thus, ‘“federal habeas corpus relief does not lie for errors of state law.'” Id. at 67 (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). Thus, to the extent Peno's claim is based on state law (rather than his Sixth Amendment right to effective assistance of counsel), it is not a claim that can be brought in a federal habeas corpus petition.
In his amended supplemental reply brief, Peno notes that he alleged in his PCRA petition that his counsel was ineffective for failing to argue the absence of subject-matter jurisdiction. See doc. 39 at 15. Given Peno's muddled argument in his appellate brief in the Superior Court, see doc. 7-12 at 16-21, we cannot fault the Superior Court for construing Peno's claim as asserting that “because he did not consent to the GPS condition and did not authorize his attorney, Paul Muller, Esq., to waive the hearing requirement in order to obtain [his] prompt release from incarceration, counsel provided ineffective assistance of counsel.” Peno, 2109 WL 3764571 at *3. Nevertheless, the Superior Court noted that Peno had failed to flesh out his claim because he did not address the relevant factors for an ineffective-assistance-of-counsel claim. Further, the Superior Court concluded that because Peno had not pleaded that his counsel's actions were not designed to effectuate his interests, or that the outcome of the proceedings would have been different, his claim fails. And, as discussed above, the Superior Court's decision as to Peno's ineffective-assistance-of-counsel claim was reasonable. Accordingly, Peno is not entitled to habeas relief as to this claim.
V. Fourth Amendment Claim.
Peno claims that the GPS tracking condition of his probation amounted to an illegal search and seizure under the Fourth Amendment. Peno is not entitled to habeas relief as to this claim.
At the outset, we note that the respondent suggests that Peno's Fourth Amendment claim is barred by Stone v. Powell, 428 U.S. 465 (1976). In Stone, the Supreme Court held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” 428 U.S. at 481-82. “Even otherwise potentially meritorious Fourth Amendment claims are barred on habeas when the petitioner had a full and fair opportunity to litigate them.” Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir. 1994). Here, Peno litigated his Fourth Amendment claim in state court, and the state court denied his claim. Because Peno had an opportunity for full and fair litigation of his Fourth Amendment claim, the respondent contends that under Stone, such a claim is unavailable to Peno on habeas. Given that Stone dealt with a claim that evidence that was obtained in an unconstitutional search or seizure was introduced at trial, and the parties have not addressed whether Stone applies to the circumstances at issue in this case (i.e., a condition of probation), we will not recommend that Peno's Fourth Amendment claim be denied based on Stone.
Nevertheless, Peno is not entitled to habeas relief based on the Fourth Amendment. The Superior Court addressed Peno's claim regarding the GPS monitoring on the merits, concluding that even assuming for the sake of argument that the GPS-monitoring condition was improper, illegal, or unconstitutional, Peno “provide[d] no support for his claim that this nullifies his revocation of probation.” Peno, 2016 WL 5951813, at *6. Noting that the “trial court revoked [Peno]'s probation based upon his conviction for criminal mischief and upon his technical violation of probation for tampering with the GPS device,” the Superior Court reasoned that “[t]here is simply no support in law for the concept that you can challenge the constitutionality of GPS monitoring as a condition of probation by damaging a GPS device and forcibly removing it.” Id. The Superior Court held that “[e]ven if the imposition of the GPS monitoring was illegal, which we do not decide, [Peno] did not have a ‘free pass' to commit criminal mischief by damaging the device or to violate his probation by tampering with it.” Id.
Peno has not shown that the Superior Court's decision in this regard was contrary to, or an unreasonable application, of clearly established federal law as determined by the Supreme Court or that it was based on an unreasonable determination of the facts. Peno cites Grady v. North Carolina, 575 U.S. 306 (2015), a case in which the Supreme Court determined that subjecting a sex offender who had served his sentence to satellite-based monitoring constituted a search under the Fourth Amendment. The Court held that a state “conducts a search when it attaches a device to a person's body, without consent, for the purpose of tracking that individual's movements.” Id. at 309. Although the Court determined that subjecting Grady to satellite-based monitoring was a search, the Court noted that it was not holding that the search violated the Fourth Amendment. Id. at 310. Rather, the Court noted that the “Fourth Amendment prohibits only unreasonable searches” and that the “reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations.” Id. at 310. Here, in addition to failing to show that the Superior Court's decision was contrary to, or an unreasonable application, of clearly established federal law as determined by the Supreme Court, Peno has not shown that the GPS condition was unreasonable in his case. Moreover, as discussed above, Peno's counsel agreed to the GPS-monitoring condition, and the Superior Court's conclusion that counsel was not ineffective in doing so was reasonable. Thus, Peno is not entitled to a writ of habeas corpus on the basis that the GPS-monitoring condition violated the Fourth Amendment.
VI. Due Process Claim.
Peno contends that the imposition of the new conditions of probation violated his right to due process. His due process claim is based on his contention that he was not informed of the new probation conditions before he was released from prison and that those conditions were imposed without a hearing in violation of 42 Pa. Stat. and Cons. Stat. Ann. § 9771(d). As set forth above, the Superior Court addressed Peno's contentions regarding the GPS conditions by concluding that “[e]ven if the imposition of the GPS monitoring was illegal,” Peno “did not have a ‘free pass' to commit criminal mischief by damaging the device or to violate his probation by tampering with it.” Peno, 2016 WL 5951813, at *6. Again, Peno has not shown that the Superior Court's conclusion in this regard was contrary to, or an unreasonable application, of clearly established federal law as determined by the Supreme Court or that it was based on an unreasonable determination of the facts. In fact, the only Supreme Court case that Peno's counsel cites in support of the due process claim is Mathews v. Eldridge, 424 U.S. 319 (1976). Although Mathews is a seminal due process case, it had nothing to do with the imposition of probation conditions. And Peno failed to develop his due process argument.
Moreover, as to his contention that he was not informed of the probation conditions before he was released from prison, in addition to failing to cite to evidence to support that contention and failing to cite to where in the state courts he raised that specific contention, Peno was informed of and signed the probation conditions at the time the GPS device was attached, as his probation officer testified.
And as to Peno's contention that imposition of the conditions violated 42 Pa. Stat. and Cons. Stat. Ann. § 9771(d), that is not a cognizable habeas corpus claim as errors of state law do not provide a basis for habeas corpus relief. Estelle, 502 U.S. at 67. Because as set forth above, Peno failed to develop a due process argument, his claim based on a violation of 42 Pa. Stat. and Cons. Stat. Ann. § 9771(d) is not a claim that can be brought in a federal habeas corpus petition.
That statute provides, in pertinent part: “There shall be no revocation or increase of conditions of sentence under this section except after a hearing at which the court shall consider the record of the sentencing proceeding together with evidence of the conduct of the defendant while on probation.” 42 Pa. Stat. and Cons. Stat. Ann. § 9771(d).
Moreover, counsel agreed to the conditions, and as set forth above, the Superior Court's conclusion that counsel was not ineffective was not unreasonable. For these reasons, Peno is not entitled to habeas corpus relief as to his due process claim.
VII. Ex Post Facto Claim.
Peno presents an ex post facto claim based on Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). He is not entitled to habeas relief based on that claim.
The Superior Court addressed Peno's claim based on Muniz on the merits. It started by noting that Peno had presented “a convoluted, nearly incomprehensible, discourse that essentially boils down to an averment that the PCRA court erred in finding that he had not raised a valid Muniz claim with respect to the court's July 18, 2014 imposition of the GPS monitoring condition.” Peno, 2019 WL 3764571, at *3 (bold in original). The Superior Court concluded that Peno was not entitled to relief based on Muniz:
[Peno]'s reliance on Muniz is misplaced. In Muniz, our Supreme Court held that enhanced sexual offender registration requirements constituted punishment and that retroactive application of the registration provisions of the Sexual Offender Registration and Notification Act (“SORNA”) violates the ex post facto clause of the Pennsylvania Constitution. Muniz, 164 A.3d at 1193.
Muniz pertains to registration requirements imposed on sex offenders; the “punishment” [Peno] complains of is GPS monitoring as a probationary condition. Unlike Muniz, this probationary condition does not pertain to SORNA or any other statute relevant to registration requirements imposed on sex offenders. Thus, the PCRA court did not err in concluding that the Muniz holding does not entitle [Peno] to relief.Id. at *4 (bold in original).
“Section 2254(d)(1), limits habeas relief to cases where a state-court decision contravenes or unreasonably applies ‘clearly established Federal law, as determined by the Supreme Court of the United States.'” Brown v. Davenport, 142 S.Ct. 1510, 1525 (2022) (quoting 28 U.S.C. § 2254(d)(1)). Here, Peno has not shown that the state-court decision violated clearly established Supreme Court precedent. In fact, Peno does not cite any Supreme Court precedent with regard to his ex post facto claim. Rather, he cites only Muniz, which is a Pennsylvania case, not a United States Supreme Court case. Peno has not shown that the Superior Court's decision in this regard was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court or that it was based on an unreasonable determination of the facts.
Peno does also cite Strickland in connection with his ex post facto claim. See doc. 27 at 13. But Strickland, while applicable precedent as to Peno's ineffective-assistance-of-counsel claim, is not relevant precedent as to his ex post facto claim.
In his amended supplemental reply brief, Peno contends that the Superior Court misunderstood his argument regarding Muniz, and that his argument was that the registration requirements under SORNA were illegal. See doc. 39 at 13. But we agree with the Superior Court that Peno's argument in his appellate brief is not clear. And considering the argument as presented, it was reasonable for the Superior Court to address the Muniz claim as related to the GPS condition, not the condition that Peno register under SORNA. Moreover, Peno's probation was not revoked based on a failure to comply with SORNA's registration requirements; it was revoked based on his tampering with his GPS unit.
Further, we note that Muniz is no longer good law. In response to Muniz, the Pennsylvania legislature replaced Pennsylvania's SORNA with SORNA II. Reaves v. Rowles, No. 1:21-CV-0904, 2021 WL 5416248, at *6 (M.D. Pa. Nov. 19, 2021). SORNA II created “two registries contained in Subchapters H and I of SORNA II.” Bell v. PA Bd. of Prob. & Parole, No. CV 3:15-1842, 2019 WL 5692768, at *5 (M.D. Pa. Nov. 4, 2019). “Subchapter H, which essentially, contains the same requirements as the original SORNA, applies only to individuals who committed a registerable offense on or after December 20, 2012.” Id. Subchapter I, on the other hand, contains “less onerous” provisions and “applies retroactively to individuals convicted on or after April 22, 1996 but before December 20, 2012 of a registerable offense,” as well as “to individuals who were required to register under a former sex offender registration law on or after April 22, 1996 but before December 20, 2012 whose period of registration has not expired.” Id. (footnote omitted). The Pennsylvania Supreme Court has held that Subchapter I of SORNA II does not constitute punishment, and, thus, ex post facto claims based on that provision fail. Commonwealth v. Lacombe, 234 A.3d 602, 626-27 (Pa. 2020). And “ [t]he Pennsylvania Supreme Court has since issued a per curiam order extending this ruling to individuals whose crimes were committed before the enactment of any sex offender registration schemes.” Reaves, 2021 WL 5416248, at *6 (citing T.S. v. Pennsylvania State Police, 241 A.3d 1091 (Pa. 2020)).
In sum, Peno has not shown that he is entitled to habeas relief as to his ex post facto claim.
VIII. Cumulative Error Claim.
Peno's final claim is a claim of cumulative error. “The cumulative error doctrine allows a petitioner to present a standalone claim asserting the cumulative effect of errors at trial that so undermined the verdict as to constitute a denial of his constitutional right to due process.” Collins v. Sec 'y of Pennsylvania Dep t of Corr., 742 F.3d 528, 542 (3d Cir. 2014). But “a claim of cumulative error must be presented to the state courts before it may provide a basis for habeas relief.” Id. at 543 (citing 28 U.S.C. § 2254(b)(1)(A) (exhaustion requirement)). Here, Peno did not present his cumulative error claim to the state courts. Because “[i]t is now too late for him to return to the state courts to exhaust that claim,” “it is therefore procedurally defaulted and not properly before us.” Id. Peno has not shown or argued that his procedural default is excused. Thus, he is not entitled to habeas relief on this claim. Moreover, even were we to excuse Peno's procedural default of his cumulative-error claim, that claim fails as we have not found any errors in the first place.
IX. Recommendation.
For the foregoing reasons, we recommend that Peno's petition for a writ of habeas corpus be DENIED.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.