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Sutton v. Giroux

United States District Court, W.D. Pennsylvania

October 21, 2014

JOHN SUTTON, Petitioner,
v.
NANCY GIROUX, et al., Respondents.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

SUSAN PARADISE BAXTER, Magistrate Judge.

I. RECOMMENDATION

It is respectfully recommended that Respondents' motion to dismiss [ECF No. 5] be granted, that the petition for a writ of habeas corpus be dismissed, and that a certificate of appealability be denied.

II. REPORT

A. Relevant Background

On April 16, 2002, the petitioner, John Sutton, shot and killed his estranged wife. He was charged in the Court of Common Pleas of Erie County with Criminal Homicide and Crimes Committed with Firearms. Following a jury trial in May 2003, Sutton was convicted of third-degree murder. On or around June 24, 2003, the Court of Common Pleas sentenced him to a term of 18 to 40 years' imprisonment.

In February 2004, Sutton was permitted to file a direct appeal nunc pro tunc. Robert J. Trambley, Public Defender of Crawford County, represented him. On November 3, 2004, the Superior Court of Pennsylvania affirmed his judgment of sentence. Commonwealth v. Sutton, No. 338 WDA 2004, slip op. (Pa.Super. Nov. 3, 2004) (Resp's Ex. 1, ECF No. 5 at 6-13). Sutton did not file a petition for allowance of appeal ("PAA") with the Supreme Court of Pennsylvania. Accordingly, his judgment of sentence became final on or around December 2, 2004, upon expiration of the time to file a PAA. Gonzalez v. Thaler, ___ U.S. ___ , 132 S.Ct. 641, 653-56 (2012) (a judgment of sentence becomes final at the conclusion of direct review or the expiration of time for seeking such review); Swartz v. Meyers , 204 F.3d 417, 419 (3d Cir. 2000) (same).

On or around March 23, 2006, Sutton filed a petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 PA.CONS.STAT. § 9541 et seq. (Resp's. Ex. 2). He raised claims of ineffective assistance and also wanted his direct appeal rights to be reinstated. He attached to his PCRA petition documents that he contended demonstrated that the Clerk of Courts of Crawford County and Public Defender Trambley misinformed him about the status of his direct appeal. The PCRA court appointed Jeffrey K. Millin, Esquire, to represent Petitioner.

In March 2007, the PCRA court issued an Opinion in which it held that Sutton's petition was untimely under the PCRA's one-year statute of limitations, 42 PA.CONS.STAT. § 9545(b). Sutton filed an appeal with the Superior Court. On May 23, 2008, the Superior Court issued a Memorandum in which it affirmed the PCRA court's decision. It held:

On appeal, Sutton raises the following issue for our review:
Whether the Appellant's PCRA Petition should be considered timely where the Appellant: (1) made numerous attempts to find out the status of his appeal to the Superior Court; (2) received letters from Crawford County Public Defender and the Crawford County Clerk of Courts misstating the status of the appeal; and (3) was never notified of the Superior Court's decision on the appeal?

Appellant's Brief, at 3.

___
Sutton filed the instant petition on March 23, 2006; thus, it is governed by the 1995 amendments to the PCRA, which were enacted on November 17, 1995, and became effective sixty days later. See Commonwealth v. Jones , 572 Pa. 343, 815 A.2d 598 (2002). Under those amendments to the PCRA, any petition for post-conviction relief, including a second or subsequent one, must be filed within one year of the date the judgment of sentence becomes final, unless one of the exceptions set forth in 42 PA.CONS.STAT.ANN. § 9545(b)(1)(i)-(iii) apply. The "PCRA timeliness requirements are jurisdictional in nature and, accordingly, a court cannot hear untimely PCRA petitions." Commonwealth v. Flanagan , 578 Pa. 587, 621, 854 A.2d 489, 509 (2004).
The judgment of sentence entered in this matter became final at the conclusion of direct review or the expiration of the period for seeking such review. See 42 PA.CONS.STAT.ANN. § 9545(b)(3). As noted, the record does not reveal that Sutton filed a petition for allowance of appeal with the Supreme Court of Pennsylvania. Therefore, Sutton's judgment of sentence became final thirty days after this Court dismissed his appeal, on December 2, 2004. See Pa.R.A.P., Rule 1113(a)... (petition for allowance of appeal with the Pennsylvania Supreme Court shall be filed "within 30 days of the entry of the order of the Superior Court or the Commonwealth Court sought to be reviewed").
As such, Sutton's PCRA petition is patently untimely; it was filed well-after one year of the date that his judgment of sentence became final. As previously mentioned, however, section 9545 also provides the following three exceptions that allow for review of an untimely PCRA petition: (1) petitioner's inability to raise a claim as a result of governmental interference; (2) the discovery of previously unknown facts or evidence that would have supported a claim; and (3) a newly-recognized constitutional right. [42 PA.CONS.STAT.ANN. § 9545(b)(1)(i)-(iii)]. To invoke an exception, the petitioner must plead it and satisfy the burden of proof. See Commonwealth v. Beasley , 559 Pa. 604, 608, 741 A.2d 1258, 1261-62 (1999), reargument denied. In addition, any exception must be raised within sixty days of the date the claim could have been presented. [42 PA.CONS.STAT.ANN. § 9545(b)(2)].
Instantly, Sutton invokes both the governmental interference and after-discovered evidence exceptions to the PCRA's jurisdictional time-bar. In support of his claims, Sutton argues that despite repeated efforts to contact his appointed counsel, the Crawford County Clerk of Courts, and the Prothonotary of the Pennsylvania Superior Court regarding the status of his direct appeal, he did not receive any information until almost a year after the appeal was denied, when, in November 2005, Sutton received letters that no outstanding matters on appeal were pending in his case. See Correspondence, 11/9/05, Eleanor R. Valecko, Deputy Prothonotary, The Superior Court of Pennsylvania; 11/17/05, Patricia A. Wetherbee, Clerk of Courts, Crawford County. Sutton additionally claims that he never received a copy of this Court's memorandum decision filed on November 3, 2004, in which we affirmed his judgment of sentence.
Even if we were to find that Sutton qualifies for relief under the timeliness exceptions to the PCRA, we are unable to afford relief. As previously noted, as early as November 9, 2005, Sutton had received notice from this Court's Deputy Prothonotary that no appeals or motions regarding Sutton's case were pending. Therefore, we agree with the PCRA court that as of November 2005 Sutton was on notice that his appeal had ended in some fashion. However, Sutton failed to file his PCRA petition until almost four months later, on March 23, 2006. As Sutton failed to file his PCRA petition within sixty days of the date the claim could have been presented as required by 42 PA.CONS.STAT.ANN. § 9545(b)(2), we are constrained to find that Sutton's PCRA petition is patently untimely. Accordingly, we affirm the PCRA court's order denying Sutton's PCRA petition.

Commonwealth v. Sutton, No. 796 WDA 2007, slip op. at 6-9 (Pa.Super. May 23, 2008) (footnotes omitted).[1] On October 30, 2008, the Supreme Court of Pennsylvania denied a PAA.

On April 21, 2010, Sutton filed a second PCRA petition, which the PCRA court dismissed as untimely on May 18, 2010. On September 29, 2010, Sutton asked the PCRA court for leave to appeal nunc pro tunc. The PCRA court denied Sutton's request on October 12, 2010. Commonwealth v. Sutton, No. 818 WDA 2013, slip op. at 2 (Pa.Super. Sept. 24, 2013).

Over two years later, on February 6, 2013, Sutton filed in state court a "motion for leave to proceed in forma pauperis pursuant to existing rights." The PCRA court held that Sutton's "Motion appears to be a request by [him] to have the Court reconsider and grant him an evidentiary hearing based on our refusal to do so in an April 27, 2010 Memorandum and a final Order of May 18, 2010 dismissing his second petition for PCRA relief without a hearing." Id . at 3. Sutton filed a notice of appeal. In his Rule 1925(b) statement, "he did not indicate what he intended to argue, but rather listed the time-bar exceptions." Id.

On September 24, 2013, the Superior Court issued a Memorandum in which it affirmed the PCRA court's denial of Sutton's motion. It held:

Our review indicates that appellant's "motion for leave to proceed in forma pauperis pursuant to existing rights" is actually an attempt by appellant to file a habeas corpus petition. In Commonwealth v. Kutnyak , 781 A.2d 1259, 1261 (Pa.Super. 2001), we noted that:
the PCRA is the exclusive vehicle for obtaining post-conviction collateral relief. Commonwealth v. Bronshtein , 561 Pa. 611, 614 n. 3, 752 A.2d 868, 869-70 n. 3 (2000). This is true regardless of the manner in which the petition is titled. Commonwealth v. Hutchins , 760 A.2d 50, 52 n. 1 (Pa.Super. 2000). Indeed, the PCRA statute specifically provides for such treatment:
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.
As this court stated when it affirmed the denial of appellant's first PCRA petition, his judgment of sentence became final on December 2, 2004. Thus, in accordance with the timeliness requirements of the PCRA, any second or subsequent petition filed by appellant had to be filed on or before December 2, 2005, one year after his judgment of sentence became final. See 42 Pa.C.S.A. § 9545(b)(1). Appellant's motion for leave to proceed in forma pauperis pursuant to existing rights was filed on February 6, 2013, more than seven years after the deadline for filing a timely PCRA petition. Moreover, appellant does not raise any exceptions to the timebar.

Id. at 3-4 (footnote omitted). On February 19, 2014, the Supreme Court of Pennsylvania denied a PAA.

On March 7, 2014, Sutton filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). He contends that Public Defender Trambley "abandoned" him during his direct appeal proceeding and that, as a result, he has "lost his appellate rights and... the state (Pa.) judicial powers in this case are using bill(s) of attainder and ex post facto law to abuse of power denying Const. (Pa. & U.S.) right to due process to prove innocence." [ECF No. 2 at 5].

Respondents have filed a motion to dismiss Sutton's habeas petition. [ECF No. 5]. They argue that the Court must dismiss the petition because it is untimely under the statute of limitations set forth in AEDPA, which is codified in relevant part at 28 U.S.C. § 2244(d). Sutton filed a Reply [ECF No. 9] to the Respondents' motion.

B. Discussion

AEDPA imposes a one-year limitations period for state prisoners seeking federal habeas review. It is codified at 28 U.S.C. § 2244(d) and it provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State Court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

Most federal habeas cases fall within § 2244(d)(1)(A), with AEDPA's limitation period beginning to run on the date the petitioner's judgment of sentence became final. Sutton's judgment of sentence became final on or around December 2, 2004. Accordingly, he had until on or around December 2, 2005, to file a timely petition for a writ of habeas corpus with this Court. Under § 2244(d)(1)(A), Sutton's March 7, 2014, federal habeas petition is untimely by more than 8 years and three months.[2]

In his Reply, Sutton contends that the Court should calculate AEDPA's limitations period under § 2244(d)(1)(B), not § 2244(d)(1)(A). As set forth above, § 2244(d)(1)(B) provides that AEDPA's limitation period shall run from "the date on which the impediment to filing an application created by State action... is removed... if the applicant was prevented from filing by such State action." Even if the Court applied that subsection here, Sutton's application for habeas relief would still be untimely by many years. Sutton was notified by at least November 9, 2005, that he had no appeal pending before the Superior Court. On May 23, 2008, the Superior Court issued its Memorandum holding that he could not receive any relief under the PCRA. Sutton has not identified an "impediment to filing" his federal habeas petition that would explain why he waited until March 7, 2014, to commence this case.[3]

Based upon all of the foregoing, Respondents' motion to dismiss [ECF No. 5] should be granted. They are correct that Sutton's habeas petition is untimely.

C. Certificate of Appealability

AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. 28 U.S.C. § 2253 provides that "[a] certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right." "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel , 529 U.S. 473, 484 (2000). Applying that standard here, jurists of reason would not find it debatable whether the petition should be dismissed as untimely. Accordingly, a certificate of appealability should be denied.

III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that Respondents' motion to dismiss [ECF No. 5] be granted, that the petition for a writ of habeas corpus be dismissed, and that a certificate of appealability be denied.

Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties are allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman , 637 F.3d 187, 193 n.7 (3d Cir. 2011).

Appeal from the PCRA Order Entered April 16, 2007 In the Court of Common Pleas of Crawford County Criminal at No(s): 2002-391

BEFORE: PANELLA, SHOGAN, and TAMILIA, JJ.

Appellant, John D. Sutton, appeals from the order entered on April 16, 2007, by the Honorable Gordon R. Miller, Court of Common Pleas of Crawford County, which denied his petition filed pursuant to the Post-Conviction Relief Act ("PCRA").[1] Additionally, Sutton has filed a pro se petition for remand for the appointment of new counsel, alleging ineffective assistance. After careful review, we deny Sutton's petition for remand and affirm the order denying his petition for post-conviction relief.

This case has its genesis in the April 16, 2002 shooting death of Sutton's estranged wife. On April 23, 2002, Sutton was charged with Criminal Homicide[2] and Crimes Committed with Firearms[3] in relation to the murder. Following a jury trial, on May 15, 2003, Sutton was convicted of third-degree murder. Thereafter, on June 24, 2003, the trial court sentenced Sutton to a term of 18 to 40 years imprisonment.

Following direct appeal, this Court filed a memorandum opinion on November 3, 2004 which confirmed Sutton's judgment of sentence.[4] Sutton did not seek allowance of appeal with the Pennsylvania Supreme Court. Subsequent thereto, Sutton filed a PCRA petition on March 23, 2006, after which, counsel was appointed and an amended PCRA petition was filed on September 11, 2006. The PCRA court denied Sutton's petition as untimely filed by memorandum opinion and order dated March 23, 2007. This timely appeal followed.

Preliminarily, we must first address Sutton's pro se allegations of PCRA counsel's ineffectiveness and the subsequent petition for remand. Our procedures and standard of review in this matter are well-settled:

When an appellant who is represented by counsel files a pro se petition, brief, or motion, this Court forwards the document to his counsel. 210 Pa.Code § 65.24; Commonwealth v. Ellis, 534 Pa. 176, 180, 626 A.2d 1137, 1139 (1993), aff'g 398 Pa.Super. 538, 581 A.2d 595 (1990) ( en banc) . If the document alleges ineffectiveness of counsel, counsel is required to file with the court a petition for remand, in which he identifies and evaluates appellant's pro se claims. Ellis, 534 Pa. at 180, 626 A.2d at 1139; Commonwealth v. Blystone, 421 Pa.Super. 167, 617 A.2d 778, 782 (1992); [ Commonwealth v. Lawrence, 596 A.2d 165, 168 (Pa.Super. 1991)]. This Court then reviews counsel's petition and the record to determine if a remand for appointment of new counsel is required. Blystone, 617 A.2d at 782; Lawrence, 596 A.2d at 168. In conducting this review, we adhere to the standard enunciated in Commonwealth v. McBee, 513 Pa. 255, 261, 520 A.2d 10, 13 [1985]. See Lawrence, 596 A.2d at 168. Following McBee, we will remand for appointment of new counsel " except where, [ sic ] it is clear from the record that counsel was ineffective or (2) where it is clear from the record that the ineffectiveness claim is meritless." Lawrence, 596 A.2d at 168 (quoting McBee, 513 Pa. at 261, 520 A.2d at 13).

Commonwealth v. Battle, 883 A.2d 641, 644 (Pa.Super. 2005), appeal denied, 588 Pa. 746 , 902 A.2d 1238 (2006).

In the case sub judice, Sutton seeks a remand for new PCRA counsel, on the grounds that Attorney Millin was ineffective for failing to address in his amended PCRA petition several issues which Sutton had included in his original, pro se PCRA petition. Pro Se Petition for Remand, 10/09/07. In reviewing an ineffectiveness claim, we begin with the presumption that counsel was effective. See Commonwealth v. Duda, 831 A.2d 728, 732 (Pa.Super. 2003).

To prevail on a claim alleging counsel's ineffectiveness under the PCRA, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's course of conduct was without any reasonable basis designed to effectuate his client's interest; and (3) that he was prejudiced by counsel's ineffectiveness, i.e. there is a reasonable probability that but for the act or omission in question the outcome of the proceeding would have been different. If a reasonable basis exists for the particular course chosen by counsel, the inquiry ends and counsel's performance is deemed constitutionally effective.

Commonwealth v. Lauro, 819 A.2d 100, 105-106 (Pa.Super. 2003), appeal denied, 574 Pa. 752 , 830 A.2d 975 (2003) (citations omitted). Failure to satisfy any prong of the test requires that the claim be dismissed. See Commonwealth v. O'Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal denied, 580 Pa. 696 , 860 A.2d 123 (2004).

Upon review, we find Sutton's allegations of PCRA counsel's ineffectiveness to be without merit. Sutton's petition for remand amounts to little more than a laundry list of facts and evidence which Sutton believed would prove his innocence of the murder of his wife. However, a claim of innocence, without more, does not present a cognizable claim under the PCRA.[5] As such, we cannot find counsel ineffective for failing to pursue meritless claims. See Lauro, 819 A.2d at 105-106 (appellant claiming ineffective assistance of counsel must demonstrate underlying claim is of "arguable merit"). Provided as we are with only bald allegations and mere conjecture contained in Sutton's petition, we are hard-pressed to fathom precisely in what way Attorney Millin acted to the detriment of his client. Accordingly, as Sutton has failed to establish that he suffered any prejudice as a result of Attorney Millin's alleged transgressions, we find his allegations of ineffectiveness of PCRA counsel meritless. Accordingly, we deny Sutton's petition to remand.

We now proceed to address the issues raised in Sutton's counseled appeal. On appeal, Sutton raises the following issue for our review:

Whether the Appellant's PCRA Petition should be considered timely where the Appellant: (1) made numerous attempts to find out the status of his appeal to the Superior Court; (2) received letters from Crawford County Public Defender and the Crawford County Clerk of Courts misstating the status of the appeal; and (3) was never notified of the Superior Court's decision on the appeal?

Appellant's Brief, at 3.

This Court's standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. See Commonwealth v. Halley, 582 Pa. 164, 169 n.2, 870 A.2d 795, 799 n.2 (2005). 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).

Sutton filed the instant petition on March 23, 2006; thus, it is governed by the 1995 amendments to the PCRA, which were enacted on November 17, 1995, and became effective sixty days later. See Commonwealth v. Jones, 572 Pa. 343, 815 A.2d 598 (2002). Under those amendments to the PCRA, any petition for post-conviction relief, including a second or subsequent one, must be filed within one year of the date the judgment of sentence becomes final, unless one of the exceptions set forth in 42 PA.CONS.STAT.ANN § 9545(b)(1)(i)-(iii) apply. The "PCRA timeliness requirements are jurisdictional in nature and, accordingly, a court cannot hear untimely PCRA petitions." Commonwealth v. Flanagan, 578 Pa. 587, 621, 854 A.2d 489, 509 (2004).

The judgment of sentence entered in this matter became final at the conclusion of direct review or the expiration of the period for seeking such review. See 42 PA.CONS.STAT.ANN. § 9545(b)(3). As noted, the record does not reveal that Sutton filed a petition for allowance of appeal with the Supreme Court of Pennsylvania. Therefore, Sutton's judgment of sentence became final thirty days after this Court dismissed his appeal, on December 2, 2004. See Pa.R.A.P., Rule 1113(a), 42 PA.CONS.STAT.ANN. ("petition for allowance of appeal with the Pennsylvania Supreme Court shall be filed "within 30 days of the entry of the order of the Superior Court or the Commonwealth Court sought to be reviewed").

As such, Sutton's PCRA petition is patently untimely; it was filed well-after one year of the date that his judgment of sentence became final. As previously mentioned, however, section 9545 also provides the following three exceptions that allow for review of an untimely PCRA petition: (1) petitioner's inability to raise a claim as a result of governmental interference; (2) the discovery of previously unknown facts or evidence that would have supported a claim; and (3) a newly-recognized constitutional right.[6] To invoke an exception, the petitioner must plead it and satisfy the burden of proof. See Commonwealth v. Beasley, 559 Pa. 604, 608, 741 A.2d 1258, 1261-62 (1999), reargument denied. In addition, any exception must be raised within sixty days of the date the claim could have been presented.[7]

Instantly, Sutton invokes both the governmental interference and after-discovered evidence exceptions to the PCRA's jurisdictional time-bar. In support of his claims, Sutton argues that despite repeated efforts to contact his appointed counsel, the Crawford County Clerk of Courts, and the Prothonotary of the Pennsylvania Superior Court regarding the status of his direct appeal, he did not receive any information until almost a year after the appeal was denied, when, in November 2005, Sutton received letters that no outstanding matters on appeal were pending in his case. See Correspondence, 11/9/05, Eleanor R. Valecko, Deputy Prothonotary, The Superior Court of Pennsylvania; 11/17/05, Patricia A. Wetherbee, Clerk of Courts, Crawford County. Sutton additionally claims that he never received a copy of this Court's memorandum decision filed on November 3, 2004, in which we affirmed his judgment of sentence.

Even if we were to find that Sutton qualifies for relief under the timeliness exceptions to the PCRA, we are unable to afford relief. As previously noted, as early as November 9, 2005, Sutton had received notice from this Court's Deputy Prothonotary that no appeals or motions regarding Sutton's case were pending. Therefore, we agree with the PCRA court that as of November 2005 Sutton was on notice that his appeal had ended in some fashion. However, Sutton failed to file his PCRA petition until almost four months later, on March 23, 2006. As Sutton failed to file his PCRA petition within sixty days of the date the claim could have been presented as required by 42 PA.CONS.STAT.ANN. § 9545(b)(2), we are constrained to find that Sutton's PCRA petition is patently untimely. Accordingly, we affirm the PCRA court's order denying Sutton's PCRA petition.

Order affirmed. Motion denied. Jurisdiction relinquished.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order, February 12, 2013, in the Court of Common Pleas of Crawford County Criminal Division at No. CP-20-CR-0000391-2002

BEFORE: FORD ELLIOTT, P.J.E., GANTMAN AND SHOGAN, JJ.

Appellant, John D. Sutton, appeals, pro se, from an order dated February 12, 2013, denying his "motion for leave to proceed in forma pauperis pursuant to existing rights." After careful review, we affirm.

On May 15, 2003, a jury convicted appellant of third degree murder. On June 26, 2003, appellant was sentenced to a term of imprisonment of 18 to 40 years with a credit for 435 days. On February 24, 2004, appellant was permitted to file a direct appeal nunc pro tunc. This court affirmed appellant's judgment of sentence on November 3, 2004.[1] Appellant did not seek allocatur with our supreme court.

Appellant filed his first PCRA petition on March 26, 2006. We affirmed the PCRA court's denial of appellant's petition on May 23, 2008, and our supreme court denied allocatur.[2] On March 1, 2010, appellant filed a request seeking the appointment of counsel to represent him, which the trial court denied on March 3, 2010, as there was nothing pending.

On April 21, 2010, appellant filed his second pro se PCRA petition. On April 27, 2010, the PCRA court wrote a memorandum and entered an order indicating the court's intention to dismiss in accordance with Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A. Appellant was given 20 days to respond. Appellant responded by sending a letter to the court on May 3, 2010. On May 18, 2010, the PCRA court dismissed appellant's second PCRA petition as untimely. On September 29, 2010, appellant petitioned the PCRA court for leave to appeal nunc pro tunc to this court. An order denying appellant's petition to appeal nunc pro tunc was filed on October 12, 2010.

Over two years later, on February 6, 2013, appellant filed a "motion to leave to proceed in forma pauperis " and a "motion for leave to proceed in forma pauperis pursuant to existing rights." According to the PCRA court, appellant's first motion was strictly a request to proceed in forma pauperis which appellant had been doing throughout this case and was granted by Judge Mark D. Stevens on February 6, 2013. ( See Memorandum and Order, 2/12/13 at 1.)

Regarding the second motion filed by appellant, the PCRA court stated: "[appellant's] Motion appears to be a request by [appellant] to have the Court reconsider and grant him an evidentiary hearing based on our refusal to do so in an April 27, 2010 Memorandum and a final Order of May 18, 2010 dismissing his second petition for PCRA relief without a hearing." ( Id. ) Appellant filed a notice of appeal on March 7, 2013; and on March 14, 2013, the PCRA court ordered appellant to file a concise statement of errors complained of on appeal pursuant to Rule 1925(b) within 21 days. On March 27, 2013, appellant filed a pro se Rule 1925(b) statement wherein he did not indicate what he intended to argue, but rather listed the time-bar exceptions. ( See certified record, document #114.)

Our review indicates that appellant's "motion for leave to proceed in forma pauperis pursuant to existing rights" is actually an attempt by appellant to file a habeas corpus petition. In Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001), we noted that:

the PCRA is the exclusive vehicle for obtaining post-conviction collateral relief. Commonwealth v. Bronshtein, 561 Pa. 611, 614 n. 3, 752 A.2d 868, 869-70 n. 3 (2000). This is true regardless of the manner in which the petition is titled. Commonwealth v. Hutchins, 760 A.2d 50, 52 n. 1 (Pa.Super.2000). Indeed, the PCRA statute specifically provides for such treatment:
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.

As this court stated when it affirmed the denial of appellant's first PCRA petition, his judgment of sentence became final on December 2, 2004. Thus, in accordance with the timeliness requirements of the PCRA, any second or subsequent petition filed by appellant had to be filed on or before December 2, 2005, one year after his judgment of sentence became final. See 42 Pa.C.S.A. § 9545(b)(1). Appellant's motion for leave to proceed in forma pauperis pursuant to existing rights was filed on February 6, 2013, more than seven years after the deadline for filing a timely PCRA petition. Moreover, appellant does not raise any exceptions to the time-bar.[3]

There is some question here as to whether a final order has been entered. Accordingly, we must determine whether this court has jurisdiction over the instant appeal, which is a matter we may raise sua sponte. Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa.Super. 2007), appeal denied, 599 Pa. 691 , 960 A.2d 838 (2008). An order is appealable if it is: (1) a final order, (2) an interlocutory order appealable by right or permission, or (3) a collateral order. Commonwealth v. Frey, 41 A.3d 605, 609 (Pa.Super. 2012), appeal denied, 65 A.3d 413 (2013).

"A final order is any order that: (1) disposes of all claims and of all parties; or (2) is expressly defined as a final order by statute; or (3) is entered as a final order." Pa.R.A.P. 341(b). Rule 910 of the Pennsylvania Rules of Criminal Procedure expressly defines a final order in the PCRA context as an "order granting, denying, dismissing, or otherwise finally disposing of a petition for post-conviction collateral relief shall constitute a final order for purposes of appeal." Pa.R.Crim.P. 910. As we view appellant's pro se motion as an attempt to file a petition for habeas corpus relief, which falls under the ambit of the PCRA, we consider the February 12, 2013 order to be a final order.

Accordingly, we affirm the PCRA court's denial of appellant's motion. Judgment Entered.


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