J-S45023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GREGORY THOMAS
Appellant No. 1601 EDA 2013
Appeal from the PCRA Order of May 13, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos.: CP-51-CR-0316801-1989
CP-51-CR-0820411-1990
BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*
MEMORANDUM BY WECHT, J.: FILED AUGUST 08, 2014
Gregory Thomas appeals pro se from the May 13, 2013 order
dismissing his fifth petition for relief under the Post-Conviction Relief Act
-46. We affirm.
merits, we need not review the factual history of this case. The trial court
[Thomas] was found guilty of [two counts of] murder[1] and
related offensives [sic] stemming from the murders of Tom
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 2502(a) (first degree) and 2502(b) (second degree),
respectively.
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Corley and Clyde Henley, which occurred on November 28, 1988.
s of
ineffective assistance of trial counsel. On September 13, 1991,
-trial motions were denied. On December 13,
1991, [Thomas] was sentenced to two concurrent life sentences
for the two murder convictions. [Thomas] was also sentenced to
[one to two] years for aggravated assault,[2] [two to four] years
for criminal conspiracy,[3] [ten to twenty] years for robbery, [4]
[five to ten] years for robbery, [one to two] years for possession
of an instrument of crime,[5] and [one to two] years for
possession of an instrument of crime to run consecutive[ly] to
the life sentence but concurrent[ly] with each other.[6]
[Thomas] timely filed a Notice of Appeal, and on November 4,
1992, the Superior Court vacated the sentence for aggravated
assault and the matter was remanded for the imposition of
sentence [for] simple assault.[7] Allowance of Appeal was
sought, but the Supreme Court of Pennsylvania denied
8
]
On January 15, 1997, [Thomas] filed his first PCRA petition,
which [the PRCA court] dismissed on April 20, 1998. [Thomas]
appealed this decision to the Pennsylvania Superior Court, which
-conviction
____________________________________________
2
18 Pa.C.S. § 2702(a)(1).
3
18 Pa.C.S. § 903.
4
18 Pa.C.S. § 3701.
5
18 Pa.C.S. § 907(a).
6
Thomas was convicted on two separate counts of robbery and two
counts of possession of a criminal instrument.
7
Commonwealth v. Thomas, 620 A.2d 1238 (Pa. Super. 1992)
(table).
8
Commonwealth v. Thomas, 626 A.2d 1157 (Pa. 1993).
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petition on August 13, 1999.[9] On July 31, 2002, [Thomas]
filed his second pro se PCRA petition. On March 19, 2003, [the
[Thomas] appealed that decision to the Superior Court, which
affirmed the decision of [the PRCA court] by Order dated March
16, 2004.[10] On March 3, 2009, [the PRCA court] dismissed
pro se PCRA petition, originally filed on February
9, 2009. [Thomas] appealed and, again, the Pennsylvania
Superior Court affirmed the dismis
petition.[11] [Thomas] appealed that affirma[nce] to the
Pennsylvania Supreme Court[,] but that appeal was denied on
April 4, 2011.[12]
One week later, [Thomas] filed his fourth pro se PCRA petition
on April 11, 2011. [The PRCA court] dismissed the petition on
November 30, 2011. [Thomas] did not appeal that denial.
Instead, on April [4], 2012,[13] [Thomas] filed his fifth pro se
PCRA petition[,] which was denied [as] untimely on May 13,
2013.[14] [Thomas] now appeals that denial.
PCRA -2.15
____________________________________________
9
Commonwealth v. Thomas, 745 A.2d 47 (Pa. Super. 1999) (table).
10
Commonwealth v. Thomas, 1139 EDA 2003 (Pa. Super 2003).
11
Commonwealth v. Thomas, 912 EDA 2009 (Pa. Super 2009).
12
Commonwealth v. Thomas, 20 A.3d 487 (Pa. 2011).
13
The trial court incorrectly stated in its facts and procedural history that
Appellant filed his fifth pro se petition on April 16, 2012, but correctly stated
in its legal analysis that Thomas filed the petition on April 4, 2012. See
P.C.O at 2, 4.
14
It is not clear from the record why the PCRA court delayed for over a
15
The trial court did not order Thomas to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Without the
(Footnote Continued Next Page)
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Thomas raises the following issues, reproduced verbatim and with all
typographical errors preserved, for our review.16
1. WHETHER, under state law ineffective-assistance-counsel
claims must be raised in an initial-review collateral
proceeding, a procedural default will not bar States High
Courts from hearing those claims if, in the initial-review
collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective. by the Bedrock Principal.
2. WHETHER, the Appeals Court will agree with limited
circumstances recognized by the Federal Courts that the
Antiterrorism And Effective Death Penalty Act of 1996 does
not bar Thomas or speak to the questions presented here.
3. WHETHER Thomas attorney abandonment in his first
collateral proceeding was ineffective (Tariq Shabazz) and
whether his ineffective-assistance-at trial claim is substantial,
as well as the question of prejudice, are questions that
remain open for a decision on remand.
4. newly discovered evidence meets the
60 day rule.
5. Whether. an appeal court may excuse a procedural default of
an ineffective claim when the claim was not properly
preserved and presented in the lower/district court due to an
attorney errors in an initial-review collateral proceeding.
6. WHETHER, the State refusal to turn over all notes/documents
Detective interview notes concerning Raymond Bullock who
the State claim commented the murders Violates Brady
evidence. And the Initial Statement of star witness Arthur
Smith
_______________________
(Footnote Continued)
benefit of such a statement, on July 2, 2013, the trial court filed its opinion
pursuant to Rule 1925(a).
16
fifth pro se PCRA petition is
pro se PCRA petition, which was filed on April 11,
2011, and dismissed by the trial court on November 30, 2011. P.C.O. at 2.
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Brief for Thomas at 6-7.
Like the trial court, we begin by reviewing our jurisdiction to consider
-established that the PCRA time limits are
jurisdictional, and must be construed strictly, regardless of the potential
merit of the claims asserted. Commonwealth v. Leggett, 16 A.3d 1144,
1145 (Pa. Super. 2011); Commonwealth v. Murray, 753 A.2d 201, 202-
03 (Pa. 2000), abrogated on other grounds by Commonwealth v. Brown,
943 A.2d 264 (Pa.
filing requirements] in order to reach the merits of the claims raised in a
Murray, 753 A.2d at
203.
A petition under the PCRA must be filed within one year of the date
that the underlying judgment of sentence becomes final. 42 Pa.C.S.
§
direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
the tim 9545(b)(3). In the instant case,
he United States Supreme
Court, which he did not do, expired ninety days later. See U.S.Sup.Ct.R.
13(1). Thus, his judgment became final for purposes of the PCRA on or
about July 5, 1993. Consequently, under section 9545, Thomas had until
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July 5, 1994 to file a timely PCRA petition, unless he alleged one of the
exceptions enumerated in section 9545(b)(1). The instant petition,
however, was filed on April 4, 2012, more than seventeen years after the
expiration of the one-year period. Therefore, the petition is untimely on its
face.
Despite facial untimeliness, a tardy PCRA petition nonetheless will be
considered timely if (but only if) the petitioner pleads and proves one of the
three exceptions to the one-year time limit enumerated in
subsection 9545(b) of the PCRA, which provides as follows:
(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.
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42 Pa.C.S. § 9545(b). When an appellant files a facially untimely petition
under the PCRA, and fails to plead and prove one or more of the exceptions
-year jurisdictional time limit, the petition is untimely and
we must deny the appellant relief. Commonwealth v. Gamboa-Taylor,
753 A.2d 780, 784 (Pa. 2000). Moreover, even when one of the exceptions
may apply to a given petition, we will excuse the untimeliness only if the
petition was filed within sixty days of the date that the conditions underlying
the exception came to light. 42 Pa.C.S. § 9545(b)(2); Gamboa-Taylor,
753 A.2d at 783-84.
Thomas does not argue that any of the exceptions to the one-year rule
apply. Rather, he proceeds directly to assert various poorly developed
claims of ineffective assistance primarily with respect to trial counsel, claims
he has litigated unsuccessfully before. To prevail on an ineffective
Pa.C.S.A. § 9543(a)(2)(ii). In order to obtain relief on an IAC claim, the
petitioner must satisfy a three-prong test set forth by our Supreme Court,
and must do so by a preponderance of the evidence.
[I]n order to obtain relief based on [an IAC] claim, a petitioner
must establish: (1) the underlying claim has arguable merit;
(2)
act; and (3) petitioner suffered prejudice as a result of counsel's
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error such that there is a reasonable probability that the result of
the proceeding would have been different absent such error.
Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2009) (citing
Commonwealth v. (Charles) Pierce, 527 A.2d 973, 975 (Pa. 1987)).
The petitioner bears the burden of proving all three prongs of this test.
Commonwealth v. Meadows, 787 A.2d 312, 319-
is presumed to be effective[,] and Appellant has the burden of proving
Commonwealth v. Holloway, 739 A.2d 1039, 1044 (Pa.
1999). Finally, an IAC claim will be denied if the petitioner fails to meet any
one of the three prongs. Commonwealth v. (Michael) Pierce, 786 A.2d
203, 221-22 (Pa. 2001), abrogated on other grounds by Commonwealth v.
Grant, 813 A.2d 726 (Pa. 2002).
It is well-established that a claim of ineffective assistance of counsel
does not save an otherwise untimely PRCA petition. Commonwealth v.
Pursell, 749 A.2d 911, 915-16 (Pa. 2000) (citing Commonwealth v.
Beasley, 741 A.2d 1258, 1260 (Pa. 1999); Commonwealth v. Yarris, 731
A.2d 581, 586 (Pa. 1999)). This is true even when the allegations of IAC are
claimed to have contributed to the untimeliness of the petition, see id.,
IAC claims, he can establish his right to relief only by pleading and proving
that one of the timeliness exceptions applies. However, Thomas does not
-year
jurisdictional time limit. Furthermore, he does not argue that he filed the
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instant petition within sixty days of the date upon which he discovered facts
establishing any of his IAC claims.17 Indeed, he provides no discussion
PCRA petition is untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2014
____________________________________________
17
Although, as set forth supra, Thomas includes (as question presented
number four) a contention that his petition satisfied the sixty-day rule,
nothing appears in his argument to substantiate that claim.
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