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Gene Smith v. Brian H. Thompson

March 29, 2011

GENE SMITH,
PETITIONER,
v.
BRIAN H. THOMPSON, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Mitchell, M.J.:

CK-0778,

MEMORANDUM and ORDER

Brian H. Thompson has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

The chronology of this prosecution is set forth in the December 3, 2010 Memorandum of the Superior Court, citing the memorandum of the post-conviction court, which appears as p.2 of Appendix (1) to the petition:

[Appellant] was charged . with Robbery and Criminal Conspiracy. He pled guilty to both charges and on April 27, 1994, he appeared before this Court and was sentenced to a term of imprisonment of six (6) to 20 years at the Robbery charge. [The trial court imposed no further penalty for the Criminal Conspiracy conviction.] Timely Post-Sentence Motions were filed and denied and the Superior Court affirmed the judgment of sentence on April 24, 1995.

On December 4, 1995, [Appellant] filed a pro se Post Conviction Relief Act Petition [("PCRA"). 42 Pa.C.S.A. §§ 9541-46.] Counsel was appointed and an Amended Petition followed. After giving the appropriate noticed, this Court dismissed the Amended Petition without a hearing on August 25, 1998. That Order was subsequently affirmed by the Superior Court on November 15, 1999.

On March 22, 2007, [Appellant] filed a second pro se PCRA Petition. After giving appropriate notice, this Court again dismissed the Petition without a hearing on May 8, 2007.

On November 20, 2008, [Appellant] filed a "Request for Permission to File Motion for Guilty Plea Nunc Pro Tunc Pursuant Under Pa.R.Crim.P. 1410, New Rule 720". [Appellant] did not mail a copy of the Motion to this Court and, for reasons unknown to this Court, the Clerk of Courts did not forward the Motion to this Court until February 6, 2009. On February 6, 2009, [Appellant] filed a "Motion for Withdraw of Guilty Plea Nunc Pro Tunc Pursuant Under Pa.R.Crim.P. 1410, new Rule 720(B)(1)(A)(i)." On February 23, 2009, this Court entered an Order denying both Motions.

In these consolidated pro se appeals, Gene Smith ("Appellant") challenges the orders denying his latest filings requesting post-conviction relief. We affirm.

The Superior Court then turned to its own analysis observing:

Before considering the merits of Appellant's claims, we must first determine whether his appeals are properly before us. Because Appellant was sentenced over sixteen years ago, Appellant's three most recent motions must be considered motions for post-conviction relief. As such, these filings are subject to the time limitations of the PCRA. The timeliness of a post-conviction petition is jurisdictional. Generally, a petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment is final unless the petition alleges, and the petitioner proves, that an exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections 9545(B)(1)(i). (ii), and (iii), is met. A PCRA petition invoking one of these statutory exceptions must "be filed within 60 days of the date the claims could have been presented.". Moreover, exceptions to the time restrictions for the PCRA must be pled in the petition, and may not be raised for the first time on appeal.

Appellant's judgment of sentence became final on May 25, 1995, after the thirty-day period for filing a petition for allowance of appeal to the Pennsylvania Supreme Court had expired.Because Appellant's judgment of sentence became final before the effective date of the 1995 amendments to the PCRA, Appellant had one year form the date the amendments took effect, or January 16, 1997, to file a timely petition for post-conviction relief. Because Appellant filed the motion and petitions at issue on or about March 11, 2010, they are patently untimely unless Appellant has satisfied his burden of pleading and proving that one of the enumerated exceptions apples.

[H]e has failed to meet his burden of establishing any of the three exceptions to the timeliness requirement . the PCRA court lacked jurisdiction to review the merits of Appellant's claims. Thus, the PCRA court's orders denying post-conviction collateral relief was proper (Appendix (1) at pp. 5-7)(footnotes and internal citations omitted).

In a similar manner, applications for federal habeas corpus relief must also be filed timely. It is provided in 28 U.S.C. ...


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