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Jones v. Gilmore

United States District Court, W.D. Pennsylvania

February 24, 2015

BRAD JONES, EX-7435, Petitioner,
v.
R. GILMORE, et al., Respondents.

MEMORANDUM & ORDER

ROBERT C. MITCHELL, Magistrate Judge.

Brad Jones, an inmate at the State Correctional Institution at Waynesburg has presented a petition for a writ of habeas corpus.

Jones is presently serving a 21 ½ to 43 year sentence imposed following his conviction by a jury of third degree murder, carrying a firearm without a license, corruption of minors, criminal conspiracy and abuse of a corpse at No.CP-02-CR-14284-2001 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on May 9, 2002.[1] His appeal was dismissed on April 9, 2003 as a result of the failure of his counsel to file a brief.[2] Jones then filed a post-conviction petition on March 25, 2004 which was dismissed on September 20, 2004.[3] The dismissal was affirmed by the Superior Court on July 27, 2005 and leave to appeal was denied by the Pennsylvania Supreme Court on March 21, 2006.[4]

On March 27, 2007, Jones filed a second post-conviction petition which was dismissed on May 30, 2007.[5] No significant further action occurred until July 15, 2013 when Jones filed a habeas corpus petition, which the Court of Common Pleas determined should be considered as a post-conviction petition.[6] As such it was dismissed on September 23, 2013 as time barred.[7] On November 18, 2014, the Superior Court affirmed the denial of post-conviction relief as time barred.[8]

In the instant petition, executed on February 4, 2015 and received in this Court on February 13, 2015, Jones contends he is entitled to relief on the following grounds:

1. Petitioner is actually innocent of a crime, where the statute alleging a crime does not contain any elements constituting a crime.
2. The public has not been given lawful notice of the elements which constitute a 3rd degree murder.
3. The petitioner was not given lawful notice of the elements of 3rd degree murder to prepare a proper defense.
4. Pennsylvania law forbids a judge to sentence a person outside of the guidelines without citing on record the reasons for deviating from the guidelines.
5. The judge sentenced the petitioner outside the guidelines without stating the reasons on the record.
6. The 3rd degree murder statute classifies it as a felony of the 1st degree
7. The maximum sentence for a 1st degree felony is only a 10-20 year sentence.[9]

That is, the petitioner seeks to challenge both the validity of Pennsylvania's 3d degree murder provisions as well as his allegation that his imposed sentence was outside the sentencing guidelines with no stated reasons for the departure.

It is provided in 28 U.S.C. § 2244(d)(1) and (d)(2) that:

(1) A 1-year period of limitation shall apply to the 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.

An untimely post-conviction petition is not "properly filed". Pace v. DiGulglielmo, 544 U.S. 408 (2005).

In the instant case, petitioner's direct appeal was dismissed on April 9, 2003 and leave to appeal to the Pennsylvania Supreme Court was not sought. For this reason, his conviction becomes final on May 9, 2003 when the time in which to seek such review expired. Gonzalez v. Thaler, 132 S.Ct. 641 (2012).[10] On March 25, 2004, Jones filed a post-conviction petition which was dismissed on September 20, 2004. That dismissal was affirmed on July 27, 2005 and leave to appeal was denied on March 21, 2006.The effective date of the Antiterrorism and Effective Death Penalty Act which imposed the one year statute of limitations is April 24, 1996 and thus it is applicable here. The petitioner sought further post-conviction relief on March 21, 2006. That petition was dismissed and leave to appeal to the Pennsylvania Supreme Court was denied on March 21, 2006.

Jones filed another post-conviction petition on March 27, 2007 which was denied on May 30, 2007. Over six years later he submitted a habeas corpus petition which was treated as a post-conviction petition under Pennsylvania law. 42 Pa.C.S.A. §9542. Ultimately that petition was denied, and the denial was affirmed by the Superior Court which wrote:

Appellant's judgment of sentence became final on May 9, 2003 thirty days after this Court dismissed his appeal from his judgment of sentence... Accordingly, Appellant had until May 9, 2004, to file a timely PCRA petition, making his instant petition filed on July 15, 2013, patently untimely.[11]

Thus, combining the delay in initially seeking post-conviction relief with the delay in seeking relief here, far in excess of the one year period in which to seek relief has expired, and the petition here is time barred unless the petition can demonstrate a basis for invoking equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010), United States v. Bendolph, 409 F.3d 155 (3dCir. 2005)(en banc).

In his Memorandum of Law, Jones argues:

Petitioner is not maintaining that he is totally innocent of a specific type of crime, but is actually innocent of the degree of guilt he was convicted and sentenced under...
Petitioner was convicted and sentenced under third degree murder where the statute fails to give lawful notice of the elements of what type of conduct is prohibited to constitute the alleged offense...
The judge... did not do as mandated by the sentencing guideline statutes. He did not state on record the reasons for sentencing Petitioner outside the guidelines and did not provide a written statement of the reasons either...
Thus is can be shown that the Petitioner's conviction and sentence was a miscarriage of justice because Petitioner's due process, jury trial, and notice rights were violated... (ECF No.2).

The relevant Pennsylvania homicide statute, 18 Pa.C.S.A. §2502 provides in part:

(a) Murder of the first degree. - A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
(b) Murder of the second degree. - A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.

(c) Murder of the third degree. All other kinds of murder shall be murder of the third degree.

Thus, the elements of the criminal charge are clearly set forth, and as a matter of state law, petitioner's argument does not provide a basis for relief. Swarthout v. Cooke, 131 S.Ct. 859 (2011).

Petitioner also argues that the court is mandated to set forth any departure from the statutory sentencing guidelines. This issue is likewise a matter of state law and does not provide a basis for relief here. Swarthout, supra.

Because the instant petition is time barred as well as raises issues exclusively of state law, Jones is not entitled to relief here unless he can demonstrate an equitable basis for tolling the one year statute of limitations Accordingly he will be directed to set forth such a basis if one exists.

An appropriate Order will be entered.

ORDER

AND NOW, this 24th day of March, 2015, it is Ordered that on or before March 17, 2015 the petitioner show cause, if any, why the instant petition should not be dismissed as time barred.

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

Appellant, Brad E. Jones, appeals pro se from the trial court's March 12, 2014 order denying his "Writ of Habeas Corpus Ad Subjiciendum" (Writ of Habeas Corpus). We affirm.

On March 14, 2002, Appellant was convicted by a jury of third-degree murder, corruption of minors, abuse of a corpse, carrying a firearm without a license, and criminal conspiracy. His convictions stemmed from his shooting and killing Darrell Spencer, who had been Appellant's friend, after a night of drinking and taking drugs. Appellant was sentenced to an aggregate term of 21 ½ to 43 years' incarceration. He filed a direct appeal, which this Court dismissed on April 9, 2003, due to Appellant's failure to file a brief.

On March 25, 2004, Appellant filed a pro se petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel was appointed and filed an amended petition on Appellant's behalf. That petition was ultimately dismissed on September 20, 2004. Appellant appealed, and after this Court affirmed, our Supreme Court denied his petition for allowance of appeal. Commonwealth v. Jones, 883 A.2d 689 (Pa.Super. 2005) (unpublished memorandum), appeal denied, 897 A.2d 452 (Pa. 2006). Appellant filed a second pro se PCRA petition on March 27, 2007, which was denied on June 1, 2007. Appellant did not file an appeal from that order.

On July 15, 2013, Appellant filed his pro se Writ of Habeas Corpus, Therein, Appellant argued that he was being unlawfully detained because the third-degree murder statute (18 Pa.C.S. § 2502) is unconstitutional and, thus, the trial court did not have subject matter jurisdiction over his case. The court treated this filing as a PCRA petition and issued a Pa.R.Crim.P. 907 notice of its intent to dismiss on February 20, 2014. Appellant filed a pro se response, but on March 12, 2014, the PCRA court issued an order dismissing Appellant's petition. He filed a timely notice of appeal on March 24, 2014, as well as a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).[1] Herein, he presents two questions for our review, which we reproduce verbatim:

I. Whether the portion of 42 Pa.C.S. §9541 et seq. where it states "the action (PCRA)... shall be the sole means of obtaining relief and encompasses all other common law remedies for the same purpose that exist including habeas corpus and other statutes purporting to do the same violate the U.S. and/or PA. Constitutions?
II. Whether the United States Supreme Court's Ruling in Alleyne [2] deprived the lower court of subject-matter jurisdiction, to apply 42 PA.C.S. §9712 in the appellant's case, rendering his sentence illegal?

Appellant's Brief at ii.

First, Appellant argues that the court erred by treating his Writ of Habeas Corpus as a PCRA petition. He basically contends - in a lengthy and confusing discussion - "that the PCRA can not [sic] displace the common law writ of Habeas Corpus." Appellant's Brief at 7 (citing Commonwealth ex. rel . Levine v. Fair, 146 A.2d 834 (Pa. 1958) (finding that the Habeas Corpus Act of 1937 did not displace the more extensive habeas corpus remedy found at common law, which "may issue in all sorts of cases where it is shown to the court that there is probable cause for believing that a person is restrained of his liberty unlawfully or against the due course of law").

Appellant's claim is meritless. This Court has stated:

It is well-settled that the PCRA is intended to be the sole means of achieving post-conviction relief. 42 Pa.C.S. § 9542; Commonwealth v. Haun, 613 Pa, 97, 32 A.3d 697 (2011). Unless the PCRA could not provide for a potential remedy, the PCRA statute subsumes the writ of habeas corpus. [ Commonwealth v.] Fahy, [737 A.2d 214, ] 223-224 [(Pa.1999)]; Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242 (1999). Issues that are cognizable under the PCRA must be raised in a timely PCRA petition and cannot be raised in a habeas corpus petition. See Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998); see also Commonwealth v. Deaner, 779 A.2d 578 (Pa.Super. 2001) (a collateral petition that raises an issue that the PCRA statute could remedy is to be considered a PCRA petition). Phrased differently, a defendant cannot escape the PCRA time-bar by titling his petition or motion as a writ of habeas corpus. FN3
FN3. The common law writ of habeas corpus has not been eliminated. In both Commonwealth v. West, 595 Pa. 483, 938 A.2d 1034 (2007)[, ] and Commonwealth v. Judge, 591 Pa. 126, 916 A.2d 511 (2007), our Supreme Court held that claims that fall outside the sphere of the PCRA can be advanced via a writ of habeas corpus.

Commonwealth v. Taylor, 65 A.3d 462, 465-466 (Pa.Super. 2013).

Here, the claim raised in Appellant's Writ of Habeas Corpus is cognizable under the PCRA. Again, in that petition, Appellant argued that he is being unlawfully detained because the third-degree murder statute under which he was convicted is unconstitutional and, as such, the trial court did not have subject matter jurisdiction over his case. This claim is encompassed within 42 Pa.C.S. § 9543(a)(2)(viii) (stating a petitioner may be eligible for PCRA relief if he proves that his conviction or sentence resulted from "[a] proceeding in a tribunal without jurisdiction'). Accordingly, the court properly treated Appellant's Writ of Habeas Corpus as a PCRA petition.

We must next assess the timeliness of Appellant's petition. Appellant's judgment of sentence became final on May 9, 2003, thirty days after this Court dismissed his appeal from his judgment of sentence. See 42 Pa.C.S. § 9545(b)(3) (stating judgment of sentence becomes final at the conclusion of direct review or the expiration of the time for seeking the review); Pa.R.A.P. 1113(a) (stating "a petition for allowance of appeal shall be filed with the Prothonotary of the Supreme Court within 30 days of the entry of the order of the Superior Court sought to be reviewed"). Accordingly, Appellant had until May 9, 2004, to file a timely PCRA petition, making his instant petition filed on July 15, 2013, patently untimely.

The PCRA time limitations implicate our jurisdiction and may not be altered or disregarded in order to address the merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our jurisdiction and may not be altered or disregarded to address the merits of the petition); Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa.Super. 2002) (holding the Superior Court lacks jurisdiction to reach merits of an appeal from an untimely PCRA petition). Under 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.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant part:

(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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of these exceptions "shall be filed within 60 days of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).

Appellant does not expressly state which timeliness exception he satisfies. Instead, he argues that the United States Supreme Court's decision in Alleyne renders his sentence illegal. In Alleyne, the Court held that any fact that serves to aggravate the minimum sentence must be found by the fact-finder beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2160-2161. Here, Appellant contends that the court imposed a mandatory minimum sentence under 42 Pa.C.S. § 9712.1, and the imposition of that sentence violates the holding of Alleyne.

We construe Appellant's argument as an attempt to invoke the exception set forth in section 9545(b)(1)(iii). However, Appellant first asserted his claim that Alleyne invalidates his sentence in his brief to this Court, which was filed on July 3, 2014, over one year after the Alleyne decision was issued on June 17, 2013. Accordingly, Appellant has failed to comply with the 60-day requirement of section 9545(b)(2). Consequently, Appellant's petition is untimely and the PCRA court did not err in denying it.

Order affirmed.


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