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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WILLIAM H. MAYBERRY, JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JACK SOMMERS, SUPERINTENDENT - : No. 255 WDA 2018
SCI WAYMART :
Appeal from the Order Entered February 6, 2018
In the Court of Common Pleas of Lawrence County Civil Division at
No(s): 11231 of 2017 C.A.
BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 14, 2018
Appellant William H. Mayberry, Jr. appeals from the order dismissing his
post-conviction petition for writ of habeas corpus. Appellant asserts that the
trial court improperly considered the writ of habeas corpus to be a petition
pursuant to the Post Conviction Relief Act1 (PCRA). Appellant contends that
the trial court lacked the authority to dismiss his writ of habeas corpus without
a hearing, improperly dismissed the writ of habeas corpus prior to the deadline
to respond to the notice of intent to dismiss, and erred in dismissing his motion
to compel documents from the Lawrence County Sheriff. We affirm.
Based upon allegations that Appellant sexually assaulted his minor
daughter from the time she was nine until she was thirteen, Appellant was
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1 42 Pa.C.S. §§ 9541-9546.
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convicted by a jury of rape by forcible compulsion, rape of a person less than
13 years old, statutory sexual assault, aggravated indecent assault, incest,
and corruption of minors.2 The trial court sentenced Appellant to an aggregate
sentence of 8½ to 17 years of incarceration, to be followed by a five-year
period of probation.
Appellant filed a direct appeal, and this Court affirmed Appellant’s
judgment of sentence in a published opinion on August 22, 2007. See
Commonwealth v. W.H.M., Jr., 932 A.2d 155 (Pa. Super. 2007). Appellant
filed a first pro se PCRA petition, docketed on January 2, 2008, in which he
claimed that his trial counsel was ineffective. The PCRA court appointed
counsel, held a hearing, and denied Appellant’s first PCRA petition. Appellant
filed an appeal. This Court affirmed the PCRA court’s order denying the first
PCRA petition. See Commonwealth v. W.H.M., 15 A.3d 517 (Pa. Super.
2010) (unpublished mem.).
Appellant filed a second pro se PCRA petition, docketed on May 6, 2011,
and new counsel was appointed. Appellant raised issues previously raised in
his first PCRA petition, as well as a contention that his first PCRA counsel
abandoned him. The trial court issued a notice of intent to dismiss pursuant
to Pa.R.Crim.P. 907, but based upon pro se correspondence from Appellant,
the PCRA court held a hearing to address timeliness and jurisdictional issues.
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2 18 Pa.C.S. §§ 3121(a)(1), (c), 3122.1, 3125(a)(8), 4302, and 6301(a),
respectively.
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Appellant attempted to amend the second PCRA petition pro se, and,
thereafter, counsel withdrew pursuant to Turner/Finley.3 On August 14,
2012, the PCRA court issued an order and opinion dismissing the second PCRA
petition. Following an appeal, this Court affirmed the order dismissing
Appellant’s second PCRA petition. See Commonwealth v. W.H.M., Jr., 81
A.3d 987 (Pa. Super. 2013).
Thereafter, Appellant filed a pro se petition for writ of habeas corpus in
the United States District Court for the Western District of Pennsylvania, which
was denied on January 7, 2016. Appellant’s appeal to the Court of Appeals
for the Third Circuit was denied on June 24, 2016. The Supreme Court of the
United States denied Appellant’s petition for writ of certiorari on April 17,
2017.
Appellant filed the petition for writ of habeas corpus that gives rise to
this appeal on November 30, 2017. In his petition, Appellant sought release
from incarceration on the basis that his due process rights were violated when
he was convicted without corroborating physical evidence and that all of his
counsel were ineffective. Pet. for Writ of Habeas Corpus, 11/30/17, at 5. The
PCRA court considered the petition for writ of habeas corpus to be a petition
for collateral relief under the PCRA, Appellant’s third. See Op. and Order,
12/15/17, at 8.
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3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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The PCRA court issued a notice of intent to dismiss the third PCRA
petition pursuant to Pa.R.Crim.P. 907 and provided Appellant with twenty days
to file a response. Id. at 10-11. Prior to the deadline, Appellant filed a motion
for extension of time, which the PCRA court granted on January 5, 2018. The
PCRA court ordered Appellant to file a response by February 28, 2018.
Appellant filed a motion to compel production of documents, which was
docketed on February 2, 2018, in which he sought documents relating to the
return of service of his petition for writ of habeas corpus from the Lawrence
County Sheriff.
On February 6, 2018, prior to Appellant filing a response to the Rule 907
notice, the PCRA court issued an order dismissing the petition for writ of
habeas corpus as an untimely third PCRA petition. Order, 2/6/18, at 1
(unpaginated). In the same order, the PCRA court denied Appellant’s motion
to compel production of documents. Id. at 2. Appellant filed a response to
the Rule 907 notice dated February 23, 2018, which was docketed March 2,
2018.4 The PCRA court acknowledged that it had received and considered
Appellant’s Rule 907 response in an order entered March 14, 2018.
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4 We note that Appellant’s response was not docketed until March 2, 2018,
past the extension of time to respond by February 28, 2018. Nevertheless,
the response was dated February 23, 2018, and the envelope the response
was mailed in bore the date of February 27, 2018. If February 27, 2018, was
the date Appellant placed the response with prison authorities for mailing, it
was timely. See Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa.
Super. 2006) (stating that “[p]ursuant to the ‘prisoner mailbox rule,’ a
document is deemed filed when placed in the hands of prison authorities for
mailing”). Instantly, we accept the date of February 27, 2018, as the date of
filing of the response, making it timely.
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Appellant filed a timely notice of appeal that was docketed on February
16, 2018, and a timely court-ordered concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA court complied with
Pa.R.A.P. 1925(a).
Appellant raises the following questions for our review:
1. Does the [PCRA] court have the statutory authority to treat a
properly filed and issued writ of habeas corpus as a post-
conviction relief appeal?
2. Does the [PCRA] court have the statutory authority to dismiss
entirely a properly filed and issued writ of habeas corpus
without a hearing?
3. Does the [PCRA] court have the statutory authority to dismiss
entirely a properly filed and issued writ of habeas corpus within
twenty (20) days when the court granted a motion to extend
time to respond and that time had not yet expired?
4. Did the [PCRA] court err[] in dismissing [Appellant’s] motion
to compel[] documents from the Lawrence County Sheriff,
when Pa.R.Civ.P. 405(a)(2)(g) states otherwise?
Appellant’s Brief at i.
In his first three issues, Appellant asserts that the PCRA court erred in
treating his petition for writ of habeas corpus as an untimely PCRA petition
and in dismissing his petition without permitting him to respond to the court’s
notice of intent to dismiss within the timeframe provided after his request for
an extension of time was granted. Appellant asserts that the PCRA court
has ruled that [Appellant’s] [w]rit of [h]abeas [c]orpus be treated
as a PCRA, subject to the rules governing PCRA petitions. The
[c]ourt was erroneous in [its] ruling, as any such action violates
the Constitution of the Commonwealth of Pennsylvania by
suspending the [w]rit, in violation of Article 1 § 14.
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Id. at 24. Appellant also contends that the PCRA court “attempted to ‘dismiss
entirely’ [his habeas corpus petition on] February 6, 2018[,] for failing to
respond within twenty (20) days of the [c]ourt’s December 15, 2017 order,
when in fact, the [l]ower [c]ourt had ‘granted’ [his m]otion for [e]xtension of
[t]ime to respond until February 28, 2018.” Id. at 31.
Whether a petition should be regarded as a writ of habeas corpus or a
PCRA petition is a question of law for which our standard of review is de novo
and our scope of review is plenary. Commonwealth v. Montgomery, 181
A.3d 359, 367 (Pa. Super. 2018) (en banc).
This Court has explained that the PCRA is intended to be the sole means
of achieving post-conviction relief. See Commonwealth v. Taylor, 65 A.3d
462, 465 (Pa. Super. 2013); see also 42 Pa.C.S. § 9542. The PCRA
“encompasses all other common law and statutory remedies for the same
purpose that exist when this subchapter takes effect, including habeas corpus
and coram nobis.” 42 Pa.C.S. § 9542. While “the common law writ of habeas
corpus has not been eliminated,” a petitioner who wishes to raise an issue
that is cognizable under the PCRA must do so in a timely PCRA petition.
Taylor, 65 A.3d at 466 & n.3.
Our standard of review of the denial of a PCRA petition is well-settled.
We “review[] the PCRA court’s findings of fact to determine whether they are
supported by the record, and review[] its conclusions of law to determine
whether they are free from legal error.” Commonwealth v. Spotz, 84 A.3d
294, 311 (Pa. 2014) (citation omitted).
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Generally, a petition for PCRA relief, including a second or subsequent
petition, must be filed within one year of the date the judgment of sentence
becomes final. See 42 Pa.C.S. § 9545(b)(1). Exceptions to the timeliness
requirement exist, however, as set forth at 42 Pa.C.S. § 9545(b). The
timeliness requirements of the PCRA are jurisdictional in nature, and, thus, a
PCRA court cannot hear untimely petitions. Commonwealth v. Robinson,
837 A.2d 1157, 1161 (Pa. 2003). The petitioner bears “the burden of proving
that an untimely petition fits within one of the three exceptions.”
Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012).
The three statutory exceptions for a facially untimely petition under the
PCRA consist of the following:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, a petition invoking a timeliness
exception must “be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
Upon receipt and review of a PCRA petition, if the trial court
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is satisfied . . . that there are no genuine issues concerning any
material fact and that the [petitioner] is not entitled to post-
conviction collateral relief, and no purpose would be served by any
further proceedings, the judge shall give notice to the parties of
the intention to dismiss the petition and shall state in the notice
the reasons for the dismissal. The defendant may respond to the
proposed dismissal within 20 days of the date of the notice. The
judge thereafter shall order the petition dismissed, grant leave to
file an amended petition, or direct that the proceedings continue.
Pa.R.Crim.P. 907(1). In a situation where a PCRA court evaluates a
petitioner’s 907 response after the court has entered an order dismissing the
petitioner’s PCRA petition, the relevant inquiry is whether the petitioner has
been prejudiced by the court’s failure to consider the response before entering
the order. See Commonwealth v. Feliciano, 69 A.3d 1270, 1277 (Pa.
Super. 2013) (upholding an order dismissing a PCRA petition without a hearing
where the petitioner failed to show he was prejudiced by the court’s failure to
consider his Rule 907 response before entering the order dismissing the PCRA
petition).
In this matter, the PCRA court considered Appellant’s petition to be an
untimely third PCRA petition. Through the writ of habeas corpus, Appellant
attempts to raise issues regarding due process and the effectiveness of
counsel, which are claims that are cognizable under the PCRA. See 42 Pa.C.S.
§ 9543(a)(2). Thus, as a matter of law, the trial court correctly treated
Appellant’s petition as a PCRA petition. See Montgomery, 181 A.3d at 367;
Taylor, 65 A.3d at 466 & n.3. Accordingly, because Appellant’s petition was
properly regarded as a PCRA petition, the trial court had the authority to
dismiss it without a hearing. See Pa.R.Crim.P. 907(1).
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As to the PCRA court dismissing the instant matter prior to the extended
deadline to respond to the Rule 907 notice, we note that Appellant’s petition
was untimely and did not include any argument that his petition fits within
one of the timeliness exceptions set forth in Section 9545(b)(1)(i)-(iii).
Similarly, Appellant did not attempt to invoke a timeliness exception in his
Rule 907 response. Thus, Appellant has not been prejudiced by the trial
court’s failure to consider his response to the Rule 907 notice until after
dismissing Appellant’s petition as untimely. Cf. Feliciano, 69 A.3d at 1277.
Instantly, Appellant’s petition is untimely on its face, and Appellant does
not attempt to invoke any timeliness exception that would provide this Court
with jurisdiction to consider the merits of his claims.5 See Robinson, 837
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5 This includes Appellant’s final issue, regarding whether the trial court erred
in dismissing petitioner’s motion to compel documents from the Lawrence
County Sheriff. Cf. Pa.R.Crim.P. 902(E)(1) (“[N]o discovery shall be
permitted at any stage of [PCRA] proceedings, except upon leave of court
after a showing of exceptional circumstances.”).
Additionally, we note that in his appellate brief, Appellant raises two additional
issues for the first time on appeal. Appellant asserts that his direct appeal
counsel and first PCRA counsel each failed to file a petition for allowance of
appeal in the Pennsylvania Supreme Court following this Court’s decision to
affirm Appellant’s judgment of sentence and the denial of Appellant’s first
PCRA petition. See Appellant’s Brief at 5, 15. In addition to raising these
issues for the first time in his appellate brief, as with the other issues raised
on appeal, Appellant failed to assert an exception under 42 Pa.C.S. §
9545(b)(1)(ii) because he did not establish (1) when he discovered that the
petitions for allowance of appeal were not filed; (2) the exercise of due
diligence; or (3) that he filed his petition within sixty days of the discovery.
See Commonwealth v. Bennett, 930 A.2d 1264, 1272 n.11, 1274 (Pa.
2007).
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A.2d at 1161. Thus, the PCRA court properly dismissed Appellant’s claims
without a hearing. See Spotz, 84 A.3d at 311.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/2018
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