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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
EUGENE JACOBS,
Appellant No. 250 EDA 2016
Appeal from the PCRA Order of January 5, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1003721-1995
BEFORE: OLSON, OTT and MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 02, 2016
Appellant, Eugene Jacobs, appeals pro se from the order entered on
January 5, 2016, which dismissed his second petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On October 2, 1996, a jury found Appellant guilty of first-degree
murder, robbery, theft, and possessing an instrument of crime.1 On October
4, 1996, the trial court sentenced Appellant to serve a term of life in prison
for the murder conviction and various other terms of imprisonment for the
remaining convictions. We affirmed Appellant’s judgment of sentence on
December 1, 1999; Appellant did not file a petition for allowance of appeal
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1
18 Pa.C.S.A. §§ 2502, 3701, 3921, and 907, respectively.
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with the Pennsylvania Supreme Court. Commonwealth v. Jacobs, 750
A.2d 369 (Pa. Super. 1999) (unpublished memorandum) at 1-16.
On November 30, 2000, Appellant filed his first PCRA petition and the
PCRA court appointed counsel to represent Appellant. On October 2, 2002,
the PCRA court dismissed Appellant’s petition and, after a lengthy appeal,
this Court affirmed the dismissal on April 8, 2009. The Pennsylvania
Supreme Court denied Appellant’s petition for allowance of appeal on
December 9, 2009. Commonwealth v. Jacobs, 974 A.2d 1184 (Pa. Super.
2009) (unpublished memorandum) at 1-16, appeal denied, 985 A.2d 970
(Pa. 2009).
On May 14, 2012, Appellant filed the current petition, which
constitutes Appellant’s second petition for post-conviction collateral relief
under the PCRA. Within Appellant’s petition, Appellant acknowledged that he
filed his petition more than one year after his judgment of sentence became
final. However, Appellant claimed that his petition was timely under the
“newly recognized constitutional right” exception to the PCRA’s time-bar.
Specifically, Appellant claimed that he filed his petition within 60 days of the
United States Supreme Court’s decision in Martinez v. Ryan. See
Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012); Appellant’s
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Second PCRA Petition, 5/14/12, at Supplemental 1. 2 In Martinez, the
United States Supreme Court held:
Where, under state law, claims of ineffective assistance of
trial counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective.
Martinez, ___ U.S. at ___, 132 S.Ct. at 1320. In other words, the
Martinez Court held that, where counsel is ineffective in an initial state
collateral review proceeding, and where the ineffectiveness caused the
petitioner to procedurally default on a “substantial” substantive claim, the
ineffectiveness “may provide cause [to excuse a] procedural default in a
[later] federal habeas proceeding.” Martinez, ___ U.S. at ___, 132
S.Ct. at 1315 (emphasis added).
On January 5, 2016, the PCRA court dismissed Appellant’s petition
without a hearing and, on January 12, 2016, Appellant filed a timely notice
of appeal. We now affirm the dismissal of Appellant’s patently untimely,
serial PCRA petition.
As our Supreme Court held, we “review an order granting or denying
PCRA relief to determine whether the PCRA court’s decision is supported by
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2
The United States Supreme Court decided Martinez on March 20, 2012.
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evidence of record and whether its decision is free from legal error.”
Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003).
The PCRA contains a jurisdictional time-bar, which is subject to limited
statutory exceptions. This time-bar demands that “any PCRA petition,
including a second or subsequent petition, [] be filed within one year of the
date that the petitioner’s judgment of sentence becomes final, unless [the]
petitioner pleads [and] proves that one of the [three] exceptions to the
timeliness requirement . . . is applicable.” Commonwealth v. McKeever,
947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further,
since the time-bar implicates the subject matter jurisdiction of our courts,
we are required to first determine the timeliness of a petition before we
consider the underlying claims. Commonwealth v. Yarris, 731 A.2d 581,
586 (Pa. 1999). Our Supreme Court has explained:
the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. See, e.g.,
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
(stating that “given the fact that the PCRA's timeliness
requirements are mandatory and jurisdictional in nature, no
court may properly disregard or alter them in order to reach
the merits of the claims raised in a PCRA petition that is
filed in an untimely manner”); Commonwealth v. Fahy,
737 A.2d 214, 220 (Pa. 1999) (holding that where a
petitioner fails to satisfy the PCRA time requirements, this
Court has no jurisdiction to entertain the petition). [The
Pennsylvania Supreme Court has] also held that even where
the PCRA court does not address the applicability of the
PCRA timing mandate, th[e court would] consider the issue
sua sponte, as it is a threshold question implicating our
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subject matter jurisdiction and ability to grant the requested
relief.
Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).
In the case at bar, Appellant’s judgment of sentence became final in
1999. As Appellant did not file his current petition until May 14, 2012, the
current petition is manifestly untimely and the burden thus fell upon
Appellant to plead and prove that one of the enumerated exceptions to the
one-year time-bar applied to his case. See 42 Pa.C.S.A. § 9545(b)(1);
Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to
properly invoke a statutory exception to the one-year time-bar, the PCRA
demands that the petitioner properly plead and prove all required elements
of the relied-upon exception).
Here, Appellant purports to invoke the “newly recognized constitutional
right” exception to the time-bar. This statutory exception provides:
(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:
...
(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.A. § 9545(b).
According to Appellant, in Martinez v. Ryan, the United States
Supreme Court recognized a new constitutional right and, in accordance with
this new constitutional right, Appellant is now entitled to raise claims that his
trial counsel and direct appellate counsel were ineffective. This claim fails.
The “newly recognized constitutional right” exception to the PCRA’s
time-bar is codified in 42 Pa.C.S.A. § 9545(b)(1)(iii). As our Supreme Court
has explained:
Subsection (iii) of Section 9545(b)(1) has two requirements.
First, it provides that 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 provided in this section. Second, it provides that
the right “has been held” by “that court” to apply
retroactively. Thus, a petitioner must prove that there is a
“new” constitutional right and that the right “has been held”
by that court to apply retroactively. The language “has
been held” is in the past tense. These words mean that the
action has already occurred, i.e., “that court” has already
held the new constitutional right to be retroactive to cases
on collateral review. By employing the past tense in writing
this provision, the legislature clearly intended that the right
was already recognized at the time the petition was filed.
Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007),
quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002)
(internal corrections omitted). Moreover, since the plain statutory language
of section 9545 demands that the PCRA petition “allege” all elements of the
statutory exception, it is clear that – to properly invoke the “newly
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recognized constitutional right” exception – the petitioner must plead each of
the above-stated elements in the petition. 42 Pa.C.S.A. § 9545(b)(1).
As stated above, in Martinez, the Supreme Court held that, where
counsel is ineffective in a prior, initial state collateral review proceeding, and
where the ineffectiveness caused the petitioner to procedurally default on a
substantive claim, counsel’s ineffectiveness “may provide cause [to excuse
a] procedural default in a federal habeas proceeding.” Martinez, ___ U.S.
at ___, 132 S.Ct. at 1315. Yet, as the Martinez Court explicitly declared, it
was not handing down a “constitutional ruling” and it was not recognizing a
new constitutional right. Martinez, ___ U.S. at ___, 132 S.Ct. at 1319-
1320. Rather, the Martinez Court based its holding upon an “equitable”
exception to a court-created doctrine that is applicable only in the federal
courts. Id.; see also Coleman v. Thompson, 501 U.S. 722, 730-731
(1991) (in habeas proceedings, the doctrine of “procedural default” arises
from the “independent and adequate state ground doctrine” – which, in turn,
“is grounded in concerns of comity and federalism”); Martinez, ___ U.S. at
___, 132 S.Ct. at 1315.
Since Martinez did not recognize a new constitutional right,
Appellant’s attempt to invoke the “newly recognized constitutional right”
exception to the PCRA’s one-year time-bar immediately fails. Further, since
Appellant has not attempted to plead any other exception to the time-bar,
we conclude that Appellant’s petition is time-barred and that our “courts are
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without jurisdiction to offer [Appellant] any form of relief.” Commonwealth
v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). Therefore, we affirm the
PCRA court’s order dismissing Appellant’s second PCRA petition without a
hearing.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2016
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Com. v. Jacobs, E.
Combined Opinion