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Commonwealth v. Rizvi

Superior Court of Pennsylvania

June 19, 2017


         Appeal from the PCRA Order October 25, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0007762-2008

          BEFORE: LAZARUS, RANSOM, JJ., and STEVENS, P.J.E. [*]


          STEVENS, P.J.E.

         Anwar Rizvi ("Appellant") appeals from the order entered by the Court of Common Pleas of Allegheny County dismissing his second petition for collateral relief filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541-9546, as untimely. Appellant contends that extraordinary circumstances required the equitable tolling of the PCRA's one-year limitations period in his case, making the PCRA court's refusal to do so reversible error. We affirm.

         On August 11, 2009, Appellant was sentenced to 15 to 30 years' incarceration for criminal attempt-homicide, and he filed a direct appeal to this Court. On March 1, 2010, prior to our disposition of his direct appeal, Appellant was transferred to a correctional institution in the Commonwealth of Virginia as part of an agreement between the Virginia Department of Corrections and the Pennsylvania Department of Corrections, whereby Virginia agreed to house 1, 000 Pennsylvania male inmates.

         On January 10, 2011, this Court affirmed Appellant's judgment of sentence. Appellant did not file a petition for allowance of appeal with the Pennsylvania Supreme Court, making February 9, 2011, the date on which his judgment of sentence became final. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113(a) (judgment of sentence becomes final at the conclusion of direct review or the expiration of the time for seeking the review).

         According to Appellant, it was during this time that he encountered difficulties with conducting legal research on Pennsylvania rules pertaining to appellate rights. Specifically, he claims that the Virginia correctional facility in which he was housed contained an underequipped library that could only accommodate several inmate researchers at a time, impeding his ability to conduct meaningful conventional or computer-based research.

         On February 7, 2012, Appellant filed with the PCRA court an "Application for Notes of Testimony and All Other In-Court Related Documents." In his application, Appellant explained that the requested documents would enable him to conduct legal research and prepare an appeal under the PCRA. Apparently, the PCRA court never responded to Appellant's application.

         By late February, 2012, Appellant returned to the PDOC's custody and was housed at SCI-Graterford. On March 28, 2012, Appellant filed a Motion seeking permission to file a first PCRA petition nunc pro tunc. In this motion, Appellant requested an order from the PCRA court confirming that it would apply equitable tolling principles and the PCRA's government interference exception to the statutory time-bar to find his petition timely. In his motion, Appellant attached an affidavit averring that inadequacies within the VDOC made legal research and preparation of a timely appeal impossible.

         The PCRA court treated Appellant's motion as a first PCRA petition and appointed counsel to represent him. Appointed counsel subsequently filed a Turner/Finley[1] no merit letter and, by its Order of October 23, 2012, the PCRA Court granted counsel's motion to withdrawal and issued a notice, pursuant to Pa.R.Crim.P. 907, of its intent to dismiss Appellant's petition as meritless. On November 13, 2012, the PCRA court dismissed Appellant's petition. Appellant appealed to this Court, and we affirmed on grounds that Appellant's motion was an untimely first PCRA petition. See Commonwealth v. Rizvi, No. 148 WDA 2103, unpublished memorandum (Pa.Super. filed June 16, 2014).

         On January 17, 2016, Appellant filed the present, counseled petition, his second under the PCRA.[2] Among other claims, Appellant argued that both equitable tolling principles as well as statutory exceptions to the time-bar, infra, applied to except his otherwise patently untimely petition from the PCRA's timeliness requirements. The PCRA court, however, issued a Rule 907 Notice of its intent to dismiss the petition because it was untimely. Appellant filed objections to the notice, but the court entered its final dismissal order on October 26, 2016. This timely appeal followed.

         Appellant presents one question for our review:

The General Assembly constructed and worded the Post-Conviction Relief Act ("PCRA") with the intention of allowing the 1-year limitations period to be equitably tolled when extraordinary circumstances prevented the petitioner from timely filing his PCRA petition and the petitioner diligently pursued his PCRA rights. The facts presented in Mr. Rizvi's PCRA petition should have triggered the PCRA's equitable tolling exception, giving the PCRA court jurisdiction to substantively adjudicate his trial counsel ineffectiveness claim. The PCRA court, therefore, erred when ...

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