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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CECIL HOLMES
Appellant No. 1964 EDA 2014
Appeal from the PCRA Order May 30, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0721531-1979
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 05, 2015
Appellant, Cecil Holmes, appeals pro se from the order dismissing his
petition for writ of habeas corpus as an untimely petition pursuant to the
Post Conviction Relief Act (“PCRA”). We conclude that the trial court
correctly treated Holmes’s petition as a PCRA petition, and further, that the
petition was untimely. We therefore affirm.
On March 28, 1980, a jury found Holmes guilty of second degree
murder, robbery, and criminal conspiracy, and he was subsequently
sentenced to an aggregate sentence of life in prison. The judgments of
sentence were affirmed by the Supreme Court of Pennsylvania on July 5,
1983. In the following decades, Holmes filed multiple collateral attacks on
his judgments of sentence, all of which were denied.
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On December 18, 2007, he filed the instant petition, which he later
supplemented. In his petition, Holmes raised ten explicit issues: (1) that
his confession was the result of coercive police tactics; (2) that he was
denied his right to a fair and impartial preliminary hearing; (3) that he was
denied his right to confront his accuser; (4) that the trial court lacked
subject matter jurisdiction over his prosecution; (5) that trial counsel, the
prosecutor, and the trial court conspired to deny his right to a fair and
impartial trial by jury; (6) prosecutorial misconduct and trial counsel
ineffectiveness regarding discovery; (7) that a previous PCRA court had
acted in manner to deprive him of his right to a fair collateral proceeding;
(8) that former PCRA counsel provided ineffective assistance of counsel on
appeal; (9) that he was denied a fair and impartial trial due to trial counsel’s
conflict of interest in allegedly concurrently representing the Fraternal Order
of Police; and (10) a summary allegation that his trial violated the 4th, 5th,
6th, 13th, and 14th amendments to the Constitution of the United States.
After the Supreme Court of Pennsylvania ordered that the case be
reassigned due to inaction, the trial court entered an order dismissing the
petition as an untimely PCRA petition on May 30, 2013. This timely appeal
followed.
On appeal, Holmes first argues that the trial court erred in concluding
that his petition was subject to the jurisdictional requirements of the PCRA.
The scope of the PCRA’s eligibility requirements is to be construed broadly in
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accordance with the legislature’s intent to provide a unitary system for
collateral relief. See Commonwealth v. Hackett, 598 Pa. 350, 363, 956
A.2d 978, 986 (Pa. 2008). As such, the PCRA subsumes state habeas
corpus claims so long as the PCRA provides a possible remedy for the claim.
See id., at 985-986. All of the alleged errors contained in Holmes’s petition
are cognizable claims under the PCRA. See, e.g., Hackett. See also
Commonwealth v. Dickerson, 900 A.2d 407 (Pa. Super. 2006).
Therefore, the trial court properly concluded that the petition was subject to
the requirements of the PCRA. Holmes’s first issue on appeal merits no
relief.
In his second and third issues, Holmes argues that the PCRA court1
erred in concluding that he had not established the after-discovered
evidence exception to the time-bar. A PCRA petition must be filed within
one year of the date that the judgment of sentence becomes final. See 42
Pa.C.S.A. § 9545(b)(1). “The PCRA timeliness requirements are
jurisdictional in nature and, accordingly, a court cannot hear untimely PCRA
petitions.” Commonwealth v. Flanagan, 854 A.2d 489, 509 (Pa. 2004)
(citation omitted). As Holmes’s PCRA petition was filed over 20 years after
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1
Having established that the petition was properly addressed under the
PCRA, we adjust our reference from “trial court” to “PCRA court.”
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the Supreme Court of Pennsylvania affirmed his judgments of sentence,2 it
was not timely, and “the courts have no jurisdiction to grant [Holmes] relief
unless he can plead and prove that one of the exceptions to the time bar
provided in 42 [Pa.C.S.A.] § 9545(b)(1)(i)-(iii) applies.” Commonwealth
v. Pursell, 749 A.2d 911, 914-915 (Pa. 2000). See also Commonwealth
v. Wilson, 824 A.2d 331, 335 (Pa. Super. 2003) (en banc) (“Since
Appellant’s PCRA petition is untimely, our review focuses on whether
Appellant has pled and proven that one of the three limited exceptions to the
timeliness requirements of the PCRA apply.”).
The PCRA provides for three general exceptions to the timeliness
requirements.
(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
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2
There is no indication that Holmes filed an appeal to the Supreme Court of
the United States.
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(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.
42 Pa.C.S.A. § 9545(b)(1)-(2). “[T]o establish jurisdiction under Section
9545(b)(1)(ii), a petitioner must allege and prove … his exercise of due
diligence in discovering” the newly discovered facts. Commonwealth v.
Brown, 111 A.3d 171, 179 (Pa. Super. 2015) (emphasis supplied).
Holmes contends that he has met the exception contained in
subsection (b)(1)(ii), commonly called the newly discovered evidence
exception. Specifically, Holmes has attached several statements by various
third parties that he argues are exculpatory. However, Holmes never pled
that he could not have discovered these statements earlier, let alone a
reason why he could not have discovered them earlier. Therefore, the PCRA
court correctly concluded that Holmes had failed to allege sufficient facts to
allow for the application of the newly-discovered evidence exception to the
time-bar. Holmes’s final two issues on appeal merit no relief.
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/5/2015
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