from the PCRA Court Order Entered January 13, 2017 In the
Court of Common Pleas of Philadelphia County Criminal
Division at No(s): CP-51-CR-0713202-2002
BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.
Devin Rouse, appeals from the order denying his petition for
a writ of habeas corpus ("Habeas
Petition"), which the lower court treated as an untimely
petition filed pursuant the Post-Conviction Relief Act
("PCRA"), 42 Pa.C.S. §§ 9541-9546. After
careful review, we affirm.
facts underlying Appellant's 2005 conviction for
second-degree murder, robbery, carrying a firearm without a
license, and possessing an instrument of crime are not
germane to this appeal. After Appellant filed a direct
appeal, this Court affirmed his judgment of sentence on April
13, 2006, and our Supreme Court subsequently denied his
petition for allowance of appeal from our decision.
Commonwealth v. Rouse, 902 A.2d 981 (Pa. Super.
2006) (unpublished memorandum), appeal denied, 909
A.2d 304 (Pa. 2006).
filed his first PCRA petition on October 10, 2007, and
appointed counsel filed an amended petition on his behalf on
September 26, 2008. The PCRA court dismissed that petition
without a hearing on March 5, 2009. This Court vacated that
order, and remanded for an evidentiary hearing.
Commonwealth v. Rouse, 38 A.3d 925 (Pa. Super. 2011)
(unpublished memorandum). That hearing occurred on January
27, 2014. Subsequently, the PCRA court granted
Appellant's PCRA petition, ordering a new trial. The
Commonwealth appealed. On January 12, 2016, this Court
reversed the PCRA court's order, and our Supreme Court
denied Appellant's petition for allowance of appeal from
that decision. Commonwealth v. Rouse, 136 A.3d 1029
(Pa. Super. 2016) (unpublished memorandum), appeal
denied, 169 A.3d 30 (Pa. 2017).
instant matter began when Appellant filed his pro se
Habeas Petition on September 13, 2016. Therein, he
claimed that the sentencing statute for second-degree murder,
18 Pa.C.S. § 1102(b), is void for vagueness, in
violation of his due process rights under the Constitution of
the United States and/or of this Commonwealth. Appellant also
specifically averred in his Habeas Petition that his
claim was not cognizable under the PCRA. Habeas
Petition at 1-2.
trial court, concluding that Appellant's claim asserted
the illegality of his sentence, treated his Habeas
Petition as a PCRA petition subject to the PCRA's
timeliness provisions. Trial Court Opinion ("TCO"),
5/5/17, at 3-4. On that basis, the PCRA court determined that
Appellant's petition was untimely, and that none of the
PCRA's timeliness exceptions applied. As such, on
November 10, 2016, the court issued notice, pursuant to
Pa.R.Crim.P. 907, that it intended to dismiss Appellant's
Habeas Petition without a hearing. Appellant did not
file a response. On January 13, 2017, the trial court entered
an order dismissing Appellant's Habeas Petition.
filed a timely notice of appeal. Appellant did not file, and
the PCRA court did not order him to file, a Pa.R.A.P. 1925(b)
statement. The trial court issued its Rule 1925(a) opinion on
May 5, 2017.
now presents the following question for our review:
Did the lower court err in construing Appellant's state
habeas corpus petition as a 2nd PCRA petition (and
thereby time-barring it), when the PCRA statutes do not
clearly state whether the issue presented is cognizable under
the PCRA; whereas the writ of state habeas corpus
may be sought to inquire into the cause of detention
"under any pretense whatsoever[?"]
Appellant's Brief at 5.
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. Commonwealth v. Ragan, 923 A.2d
1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant's Habeas Petition, which
was construed by the lower court as a PCRA petition, because
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). 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 following
exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii)
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 ...