NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 18-3236 ______________

ROBERT BROWNLEE, Appellant

v.

SUPERINTENDENT, SCI FAYETTE; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA ______________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 2-17-cv-01172) District Judge: Hon. Nora B. Fischer ______________

Submitted Under Third Circuit L.A.R. 34.1(a) Thursday, April 23, 2020 ______________

Before: PORTER, RENDELL, and FISHER, Circuit Judges

(Filed: August 12, 2020)

______________

OPINION ______________

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PORTER, Circuit Judge.

The Commonwealth of Pennsylvania charged Robert Brownlee with 151 criminal

counts, including more than fifty counts of indecent exposure and more than fifty counts

of corruption of minors. He eventually pleaded guilty to nine counts of corruption of

minors, in violation of

(a), and one count of indecent assault, in

violation of

(a)(7). Brownlee did not directly appeal his guilty

plea and sentence. Instead, he petitioned under Pennsylvania’s Post Conviction Relief

Act (“PCRA”). In his petition, Brownlee claimed that he received ineffective assistance

of plea counsel because his lawyer did not object to the trial judge’s failure to explain the

“course of conduct” element of the corruption-of-minors charges. The PCRA court

denied Brownlee’s petition, finding that his counsel’s performance did not prejudice him.

Brownlee then filed a habeas petition under

. A Magistrate Judge

recommended denying Brownlee’s petition. The District Court overruled Brownlee’s

objections to the Magistrate Judge’s recommendation, denied his petition, and declined to

grant him a certificate of appealability. We, however, granted Brownlee’s request for a

certificate appealability on one question: Whether his “counsel rendered constitutionally

ineffective assistance by permitting [Brownlee] to plead guilty to an offense without

knowledge of a critical element of the offense.” App. 3. We will affirm.1

1 The District Court had subject-matter jurisdiction under

. We have appellate jurisdiction under

and 2253. We review de novo the District Court’s legal conclusions. Vickers v. Superintendent Graterford SCI,

(3d Cir. 2017). 2 * * *

When “a state court has rejected a petitioner’s claim on the merits,” we may grant

the petitioner’s habeas petition only if “the state court’s decision ‘was contrary to, or

involved an unreasonable application of, clearly established federal law, as determined by

the Supreme Court of the United States.’” Vickers v. Superintendent Graterford SCI,

(3d Cir. 2017) (quoting

(d)(1)).

Brownlee’s habeas petition is based on a claim of ineffective assistance of

counsel, so we analyze it using the standard first set forth in Strickland v. Washington,

(1984). “We have described Strickland as containing two prongs, both of

which must be met to sustain a claim of ineffective assistance of counsel: the

‘performance’ and ‘prejudice’ prongs.” Workman v. Superintendent Albion SCI,

(3d Cir. 2019) (citation omitted). “[A] petitioner must prove (1) that his

counsel’s performance was deficient, that is, it fell below an objective standard of

reasonableness[;] and (2) that counsel’s deficient performance prejudiced his client[.]”

Bey v. Superintendent Greene SCI,

(3d Cir. 2017) (internal quotation

marks and citation omitted). Prejudice has occurred when “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.”

(quoting Strickland,

).

“The standards created by Strickland and § 2254(d) are both highly deferential,

and when the two apply in tandem, review is doubly so.” Harrington v. Richter,

(2011) (internal quotation marks and citations omitted).

3 A

First, we must determine whether the PCRA court’s decision to deny Brownlee’s

petition contradicted federal law. See Vickers,

. We have said that

[a] decision is contrary to clearly established federal law if it applies a rule that contradicts the governing law set forth in Supreme Court precedent, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from that reached by the Supreme Court.

(quoting Eley v. Erickson,

(3d Cir. 2013) (internal quotation marks

omitted).

The PCRA court applied the Supreme Court of Pennsylvania’s gloss on

Strickland:

When a PCRA petitioner alleges ineffective assistance of counsel, counsel is presumed to have provided effective representation unless the petitioner pleads and proves that[ ] (1) the underlying claim is of arguable merit; (2) counsel had no reasonable basis for his or her conduct; and (3) the petitioner was prejudiced by counsel’s action or omission.

Commonwealth v. Brownlee, No. 686 WDA 2016,

, at *4 (Pa. Super.

Ct. May 11, 2017) (citing Commonwealth v. Spotz,

(Pa. 2014)). The

Pennsylvania Supreme Court has said that its “standard judging ineffectiveness claims

[is] identical to the ineffectiveness standard enunciated” in Strickland, and we have

accepted that assessment. Werts v. Vaughn,

, 203–04 (3d Cir. 2000)

(discussing Commonwealth v. Pierce,

, 976–77 (Pa. 1987)). Thus, the

PCRA court’s decision is not contrary to federal law. Cf. Vickers,

(concluding that “the [state court] failed to apply Strickland altogether, resulting in a

4 decision contrary to clearly established federal law.” (emphasis added) (internal

quotation marks and alteration omitted)).

B

Next, we must decide whether the PCRA court’s decision amounted to an

unreasonable application of clearly established federal law. See

. “A decision

contains an unreasonable application of clearly established law if no fairminded jurist

could agree with the state court’s decision.”

(quoting Harrington,

)

(internal quotation marks omitted). Here, Brownlee had to show “a reasonable probability

that, but for [his] counsel’s errors, he would not have pleaded guilty.” See Hill v.

Lockhart,

(1985). The PCRA court acknowledged that “the question

[presented by Brownlee’s petition] is close.” Brownlee,

, at *7. But it

ultimately rejected Brownlee’s ineffective-assistance-of-counsel claim because he was

not prejudiced by his counsel’s performance. See

The PCRA court found that “[t]he failure to mention the course of conduct

element during the guilty plea colloquy did not induce [Brownlee] to plead guilty.”

(emphasis added). “Instead, the record satisfie[d] [the PCRA court] that he pleaded guilty

to avoid the danger of going to trial.”

As the PCRA court aptly observed,

“[p]roceeding to trial would have exposed [Brownlee] to the risk of a guilty verdict on

151 sexual offenses—a risk that would have been exacerbated by the introduction of his

five prior convictions for sexual offenses.”

(emphasis omitted). What’s more, having

conducted a hearing, the PCRA court made a fact-finding that Brownlee “was on notice

at the time of his guilty plea that at least one of the incidents in his course of sex offenses

5 took place after December 6, 2010,” when

(a)—the statute

prohibiting corruption of minors—was amended to add the course-of-conduct element.

See id.2

In short, we agree with the District Court that fairminded jurists would be hard

pressed not to accept the PCRA court’s prejudice analysis of Brownlee’s ineffective-

assistance-of-counsel claim.3 Under our highly deferential standards, see Harrington,

, we will affirm the District Court’s order because the PCRA court did not

unreasonably apply clearly established law when it analyzed whether Brownlee’s counsel

prejudiced him.

* * *

The District Court properly denied Brownlee’s § 2254 petition.4 For that reason,

we will affirm.

2 We presume that the PCRA court’s “determination of a factual issue” is correct.

(e)(1). 3 We note that, when deciding whether a reasonable probability existed that, but for his counsel’s errors, Brownlee would not have pleaded guilty, that determination turns “in large part on a prediction whether [the need to prove the course-of-conduct element] likely would have changed the outcome of a trial.” See Hill v. Lockhart,

(1985). Brownlee admitted during the PCRA hearing that he committed six sex offenses—his concern was not his innocence, but whether the Commonwealth overcharged him. See App. 312–13. For that reason, we cannot say that the PCRA court misapplied Hill by concluding that Brownlee pleaded guilty to avoid a potentially longer sentence, rather than as a result of his counsel’s error. 4 Because Brownlee failed to overcome the deference we must afford the PCRA court under

(d)(1), we do not reach a tertiary question posed to the parties by our order granting Brownlee’s request for a certificate of appealability: “whether prejudice may be presumed for [Brownlee’s] ineffective assistance claim.” App. 4. 6