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[U] Commonwealth v. Holston

Superior Court of Pennsylvania

February 18, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
GREGORY HOLSTON, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order June 5, 2013 in the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-1212981-2001

BEFORE: SHOGAN, J., OTT, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Appellant, Gregory Holston, appeals pro se from the order of June 5, 2013, denying his second petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The PCRA court set forth the relevant facts as follows:

Following a jury trial, on July 15, 2003, [Appellant] was convicted of three counts of robbery, one count of kidnapping, and firearms not to be carried without a license. On September 30, 2003, [Appellant] was sentenced to an aggregate term of 10 to 20 years of incarceration to be followed by 5 years of probation. On September 23, 2004, the Pennsylvania Superior [Court] affirmed the judgment of sentence. On February 18, 2005, the Supreme Court denied [allocatur].
[Appellant] filed a timely, pro se PCRA petition on October 4, 2005. Counsel was appointed, and after review, counsel filed a "no-merit" letter under Commonwealth v. Turner, [544 A.2d 927 (Pa. 1988)] and Commonwealth v. Finley[, 550 A.2d 213 (Pa.Super. 1988)]. The PCRA court also conducted its own review, after which the PCRA petition was dismissed. [Appellant] filed an appeal to the Superior Court, who affirmed the dismissal on July 24, 2007.

(PCRA Court Opinion, 6/05/13, at 1-2). Appellant filed the instant pro se PCRA petition, styled as a writ of habeas corpus, on February 26, 2013. The PCRA court entered notice of its intent to dismiss the petition without a hearing, pursuant to Rule 907, on May 10, 2013. See Pa.R.Crim.P. 907(a). Appellant did not respond. On June 5, 2013, the PCRA court denied the petition as untimely and entered an accompanying opinion. Appellant timely appealed.[1]

Appellant raises one compound question for our review:

Did the Commonwealth fail to prove each element necessary to permit a conviction for kidnapping, thereby creating an illegal conviction and sentence, and did the court err in dismissing the petition as untimely?

(Appellant's Brief, at unnumbered page 3).

Our standard of review on appeal from an order denying a PCRA petition is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. See Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001).

"The PCRA's timeliness requirements are jurisdictional in nature and a court may not address the merits of the issues raised if the PCRA petition was not timely filed." Commonwealth v. Abu-Jamal, 833 A.2d 719, 723-24 (Pa. 2003), cert. denied, 541 U.S. 1048 (2004) (citations and footnote omitted). Section 9545(b) sets forth the time limitations for filing of a PCRA petition as follows:

(b) Time for filing petition.-
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii), (2). When a petition is filed outside the one-year time limit, petitioners must plead and prove the applicability of one of the three exceptions to the PCRA timing requirements. See Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa.Super. 2008).

Here, Appellant's judgment of sentence became final on May 19, 2005, when his time to file a petition for writ of certiorari with the United States Supreme Court expired. See Sup. Ct. R. 13; 42 Pa.C.S.A. § 9545(b)(3). Hence, in order to comply with the filing requirements of the PCRA, Appellant's petition had to be filed by May 19, 2006. Because Appellant filed the instant petition on February 26, 2013, it is facially untimely and the PCRA court lacked jurisdiction to review it unless Appellant pleaded and proved one of the statutory exceptions to the time bar under 42 Pa.C.S.A. § 9545(b)(1).

Appellant asserts that his petition was timely filed as a petition for habeas corpus and that the PCRA court erred in dismissing it as an untimely PCRA petition. (See Appellant's Brief, at unnumbered page 2). Alternatively, he argues that the court erred in deeming the petition untimely based on the decision rendered in McQuiggin v. Perkins, 133 S.Ct. 1924 (2013). (See id.). We disagree.

First, the PCRA court properly construed Appellant's petition as a PCRA petition. The PCRA itself explicitly states that the statute is the sole means of obtaining collateral relief:

The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis.
42 Pa.C.S.A. § 9542.
Simply stated, the PCRA subsumes the remedy of habeas corpus with respect to remedies offered under the PCRA. . . The writ continues to exist, but is available only in cases in which no remedy is provided under the PCRA. The fact that a particular petitioner is precluded by the new timing requirements of the PCRA from presenting claims that would otherwise have been cognizable does not entitle him to habeas corpus relief.
Habeas corpus is an extraordinary remedy which may be invoked only when remedies in the "ordinary course" have been exhausted or are not available. A judgment rendered in the "ordinary course" is beyond the reach of habeas corpus and cannot be put aside lightly. The presumption of regularity becomes stronger the longer the conviction stands. Consequently, a writ of habeas corpus generally is not available to review a conviction which has been affirmed on appeal. . . . . This is so because such allegations may be raised in post-trial motions, on direct appeal, or litigated pursuant to statutory post-conviction provisions, i.e., the PCRA.

Commonwealth v. Johnson, 732 A.2d 639, 644 (Pa.Super. 1999) (citations and some quotation marks omitted). Here, Appellant claims that his petition "alleged that he was actually innocent of the kidnapping offense, as the Commonwealth was unable to charge him with this offense from the onset of the case." (Appellant's Brief, at unnumbered page 6). Specifically, he argues that, "in light of the Commonwealth's evidence, the objective of the Appellant's conduct was only to transport the victim to an ATM machine to remove money in the act of robbery." (Id. at unnumbered page 3). Despite his protest to the contrary, this is not a claim of innocence but in fact a challenge to the legal sufficiency of the Commonwealth's case, an allegation which should have been raised in post-trial motions or on direct appeal. See Johnson, supra at 644. Thus, the PCRA court properly construed Appellant's petition as an untimely serial PCRA petition. Appellant's first argument lacks merit.

Alternatively, Appellant argues that his petition is timely pursuant to the exception at 42 Pa.C.S.A. § 9545(b)(1)(iii), alleging a newly-recognized constitutional right to relief pursuant to McQuiggin, supra. (See Appellant's Brief, at unnumbered page 2). We disagree.

A review of Appellant's February 26, 2013 petition reveals that Appellant failed to assert any rights pursuant to McQuiggin, supra. In fact, the United States Supreme Court decided McQuiggin on May 28, 2013, three months after Appellant filed his petition. Thus, this claim is waived. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.").

Moreover, this claim would not merit relief, as McQuiggin concerned federal courts' habeas review. See McQuiggin, supra at 1928. Therefore, the holding in McQuiggin does not create a newly-recognized constitutional right that can serve as the basis for relief for Appellant in this Court. See 42 Pa.C.S.A. § 9545(b)(1)(iii); McQuiggin, supra at 1928. Accordingly, the PCRA court did not abuse its discretion by dismissing Appellant's petition where he failed to plead and prove the applicability of one of the three exceptions to the PCRA timing requirements. See Perrin, supra at 1285; see also Carr, supra at 1166. Appellant's petition is untimely, and we are without jurisdiction to address its merits. See Abu-Jamal, supra at 723-24.

Order affirmed.

Judgment Entered.


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