Com. v. Bates, G. ( 2017 )

J-S38040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
GARY BATES
Appellant No.248 EDA 2017
Appeal from the PCRA Order December 20, 2016
in the Court of Common Pleas of Chester County Criminal Division
at No(s):CP-15-CR-0001532-1976
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 14, 2017
Appellant, Gary Bates, appeals pro se from the order entered in the
Chester County Court of Common Pleas denying his “petition for writ of
habeas corpus” as an untimely seventh petition pursuant to the Post
Conviction Relief Act1 (“PCRA”). Appellant contends the PCRA court erred in
dismissing his habeas corpus petition as an untimely PCRA petition. We
affirm.
The PCRA court summarized the facts and procedural posture of this
case as follows:
[Appellant] was found guilty of first degree murder,
robbery, burglary, criminal conspiracy and weapons
offenses by a jury on March 17, 1977. On direct appeal in
1981, the Supreme Court of Pennsylvania affirmed without
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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opinion.[2] [Appellant] filed his first PCRA Petition on May
28, 1982, which was denied on October 26, 1984.
[Appellant] appealed and the Superior Court affirmed on
November 16, 1989.[3] A Petition for Allowance of Appeal
to the Supreme Court of Pennsylvania was denied on May
21, 1990. On April 5, 1993, [Appellant] filed his second
PCRA Petition. An amended petition was filed on his behalf
on July 9, 1997. This Petition was denied by Order dated
May 21, 1998. [Appellant appealed and the Superior Court
affirmed on May 11, 1999.4] Over six years later on July
16, 2004, [Appellant] filed his third PCRA petition, which
was dismissed on December 30, 2005. [Appellant]
appealed and the Pennsylvania Superior Court affirmed on
July 13, 2006.[5] On August 13, 2007, [Appellant] filed his
fourth PCRA Petition, which was dismissed as untimely on
October 8, 2007. He again appealed and the Pennsylvania
Superior Court affirmed the dismissal on March 19,
2009.[6] He then filed a Petition for Writ of Habeas Corpus
on May 10, 2010, in which he raised the same issues he
raised in his fourth PCRA Petition. The court properly
treated it as a fifth PCRA Petition and dismissed it without
a hearing on September 1, 2010. [Appellant] appealed
and the Superior Court affirmed the dismissal on February
17, 2011.[7] On May 31, 2011, [Appellant] filed his sixth
PCRA Petition, which was dismissed on September 20,
2
Commonwealth v. Bates, 428 A.2d 975 (Pa. 1981).
3
Commonwealth v. Bates, 163 Phila. 1985 (unpublished memorandum)
(Pa. Super. Nov. 16, 1989).
4
Commonwealth v. Bates, 1939 Phila. 1998 (unpublished memorandum)
(Pa. Super. May 11, 1999).
5
Commonwealth v. Bates, 401 EDA 2006 (unpublished memorandum)
(Pa. Super. July 13, 2006).
6
Commonwealth v. Bates, 634 EDA 2008 (unpublished memorandum)
(Pa. Super. Mar. 19, 2009).
7
Commonwealth v. Bates, 2637 EDA 2010 (unpublished memorandum)
(Pa. Super. Feb. 17, 2011).
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2011. He did not appeal that decision, so it became final
thirty days later.
Notice of Intent to Dismiss PCRA Pet. Pursuant to Pa.R.Crim.P. 907(1),
11/9/16, at 2 n.1.8
Appellant filed the instant petition for writ of habeas corpus, which the
PCRA court received on July 25, 2016.9 Appellant’s petition raised Batson10
and ineffective assistance of counsel claims. The PCRA court considered the
petition for writ of habeas corpus as a seventh PCRA petition and dismissed
it for being untimely and for raising previously litigated or waived claims.
This timely appeal followed. Appellant filed a court-ordered Pa.R.A.P.
1925(b) statement of errors complained of on appeal.
Appellant raises the following issues for our review:
I. WHETHER THE COURT COMMITTED AN ERROR OF LAW
AND FACT WHEN IT CONVERTED PETITIONER’S HABEAS
PETITION, RECOGNIZED BY ARTICLE I, SECTION 9 OF THE
UNITED STATES CONSTITUTION, ARTICLE I, SECTION 14
OF THE PENNSYLVANIA, CODIFIED BY 42 PA.C.S. § 6501
ET SEQ. WHEN HIS HABEAS PETITION RENEWED HIS
PREVIOUSLY LITIGATED BATSON AND INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIMS?
8
The PCRA court’s Pa.R.A.P. 1925(a) opinion incorporated its Rule 907
notice.
9
Appellant dated the petition July 20, 2016; however, the record does not
contain a stamped mailing envelope. See Commonwealth v. Chambers,
35 A.3d 34, 38 (Pa. Super. 2011) (“[A] pro se prisoner's document is
deemed filed on the date he delivers it to prison authorities for mailing.”)
(citations omitted). For the reasons that follow, we need not determine
precisely which date Appellant filed his petition.
10
Batson v. Kentucky, 476 U.S. 79 (1986).
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II. WHETHER THE STATUTORY REQUIREMENT THAT THE
CLAIM PRESENTED IN THE HABEAS CANNOT BE RAISED
UNDER PCRA WAS MET WHEN THE PCRA PROHIBITS
PREVIOUSLY LITIGATED CLAIMS, PETITIONER’S BATSON
AND INEFFECTIVE ASSISTANCE CLAIMS WERE
PREVIOUSLY LITIGATED, AND ARE RENEWED CLAIMS
WITH SUPPORTING BATSON AND INEFFECTIVE
ASSISTANCE EVIDENCE THAT WAS NOT PREVIOUSLY
AVAILABLE, WAS WITHHELD BY THE CLERK OF CHESTER
COUNTY OFFICE UNTIL 24 YEARS AFTER TRIAL, AND
PRODUCED UPON PETITIONER?
III. WHETHER PETITIONER’S . . . HABEAS PETITION[11]
CONVERTED BY THE COURT INTO A PCRA PETITION, OVER
THE OBJECTIONS OF PETITIONER, WAS FILED WITHIN 60
DAYS OF THE U.S. SUPREME COURT’S ANNOUNCEMENT OF
FOSTER-V-CHATMAN, SUPRA (MAY 23, 2016) AND
PROPERLY PLEADS THE GOVERNMENTAL INTERFERENCE,
PREDICATED ON PREVIOUSLY UNKNOWN INFORMATION
AND ANNOUNCEMENT OF A NEW CONSTITUTIONAL RULE
OF LAW (FOSTER, PERTAINING TO PREVIOUSLY
LITIGATED CLAIMS) EXCEPTIONS SATISFYING THE FILING
REQUIREMENTS OF 42 PAC’S. § 9545(B)(1)(i-iii)(2),
MAKING PETITIONER’S . . . PETITION TIMELY FILED
UNDER BOTH 42 PA.C.S. § 6501 ET SEQ. AND 42 PA.C.S.
§ 9542 ET. SEQ.?
IV. WHETHER THE COURT AND COMMONWEALTH ERRED
IN FAILING TO ABIDE BY THE PROCESS ANNOUNCED BY
THE LEGISLATURE AT 42 PA.C.S. § 6501 ET SEQ.?
V. WHETHER THE COURT AND COMMONWEALTH HAVE
DEPRIVED PETITIONER OF THE RIGHT TO PETITION, BE
HEARD, DUE PROCESS AND EQUAL PROTECTION OF THE
LAW CLAUSE GUARANTEES WHEN IT FAILED TO
ACKNOWLEDGE, ACCEPT PETITIONER’S INVOKING OF HIS
RIGHT TO HABEAS CORPUS, AND FAILED TO FOLLOW THE
PROCESS PROVIDED BY THE LEGISLATURE FOR HABEAS
CORPUS PROCEEDINGS AT 42 PA.C.S. § 6501 ET SEQ.?
11
See R.R. at Exhibit “F” at 5 (unpaginated).
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Appellant’s Brief at v-vi (some citations omitted).
“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the evidence of record and free of legal error.” Commonwealth v.
Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).
As a prefatory matter, we consider whether the PCRA court erred in
considering Appellant’s habeas corpus petition as a PCRA petition. “The
PCRA at Section 9542 subsumes the remed[y] of habeas corpus . . . .”
Commonwealth v. Turner, 80 A.3d 754, 770 (Pa. 2013). “Issues that are
cognizable under the PCRA must be raised in a timely PCRA petition and
cannot be raised in a habeas corpus petition.” Commonwealth v. Taylor,
65 A.3d 462, 466 (Pa. Super. 2013). In Commonwealth v. Hackett, 956
A.2d 978 (Pa. 2008), our Pennsylvania Supreme Court held that a Batson
claim, “which essentially attack[ed] [the] underlying murder conviction[,]”
was cognizable under the PCRA. Id. at 986. Claims of ineffective assistance
of counsel are cognizable under the PCRA. Turner, 80 A.3d at 770. “Simply
because a petition is not considered because of previous litigation or waiver
does not alter the PCRA's coverage of such claims or make habeas corpus an
alternative basis for relief.” Commonwealth v. Fahy, 737 A.2d 214, 224
(Pa. 1999).
Instantly, Appellant raises Batson and ineffective assistance of
counsel claims, which are cognizable under the PCRA. See Hackett, 956
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A.2d at 986; Turner, 80 A.3d at 770. Therefore, the PCRA court did not err
in considering his habeas corpus petition as a PCRA petition. See Taylor,
65 A.3d at 466; Wilson, 824 A.2d at 333.
Before examining the merits of Appellant’s claims, we consider
whether the PCRA court had jurisdiction to entertain the PCRA petition.
Appellant contends his “habeas petition, converted into a PCRA petition by
the lower Court, shows that his petition has pled all three . . . statutory
exceptions.” Appellant’s Brief at 26. He avers that the United States
Supreme Court’s decision in Foster v. Chatman, 136 S. Ct. 1737 (2016)
announced a new rule of law that permits the renewal of
previously litigated claims, when new evidence supporting
those previously litigated claims has been discovered or as
in this particular case, provided by the Chester County
Clerk’s Office, 24 years after trial, direct appeal and the
complete litigation of four prior PCRA/habeas petitions
involving his previously litigated Batson and ineffective
assistance claims. . . . [T]he Chester County Clerk [sic]
Office who only provided these documents to Appellant on
June 8, 2000 by the Chester County Clerk’s Office (rec’d
June 20, 2000 by Appellant.)
Appellant’s Brief at 26-27 (emphasis added).
In Commonwealth v. Marshall, 947 A.2d 714 (Pa. 2008), our
Pennsylvania Supreme Court opined that
the time limits imposed by the PCRA . . . implicate our
jurisdiction to address any and all of [an a]ppellant's
claims. To be timely, a PCRA petition must be filed within
one year of the date that the petitioner’s judgment of
sentence became final, unless the petition alleges and the
petitioner proves one or more of the following statutory
exceptions:
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(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).
We emphasize that it is the petitioner who bears the
burden to allege and prove that one of the timeliness
exceptions applies. In addition, a petition invoking any of
the timeliness exceptions must be filed within 60 days of
the date the claim first could have been presented. 42
Pa.C.S. § 9545(b)(2). A petitioner fails to satisfy the 60–
day requirement of Section 9545(b) if he or she fails to
explain why, with the exercise of due diligence, the claim
could not have been filed earlier.
Id. at 719-20 (some citations omitted). “Th[e] time requirement is
mandatory and jurisdictional in nature, and the court may not ignore it in
order to reach the merits of the petition.” Commonwealth v. Brown, 143
A.3d 418, 420 (Pa. Super. 2016) (citation omitted).
There is no dispute that Appellant’s PCRA petition is facially untimely.
Appellant’s conviction became final in 1981. Appellant filed the instant
petition thirty-five years later, in July 2016. See 42 Pa.C.S. § 9545(b)(3)
(“[A] judgment becomes final at the conclusion of direct review, including
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discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.”); Marshall, 947 A.2d at 719. Therefore, Appellant bore the burden
of demonstrating a timeliness exception.
Here, Appellant concedes he discovered new evidence in 2000, sixteen
years before filing the instant petition. See 42 Pa.C.S. § 9545(b)(2).
Although it is unclear whether Appellant filed within sixty days of the
decision in Foster, no relief is due. Foster did not recognize a new
constitutional right or hold that it applies retroactively.12 See 42 Pa.C.S. §
12
In Foster, the defendant raised a Batson claim at his 1987 trial and in
his direct appeals, which ended in 1989. He thereafter sought a writ of
habeas corpus in Georgia state court. While the habeas proceeding was
pending, the defendant received new documents related to jury selection at
trial. The state habeas court concluded that the defendant’s renewed
Batson claim “lacked merit” because the state law doctrine of res judicata
barred his claim and he failed to establish a change in the facts. The
Georgia Supreme Court summarily denied the defendant the certificate of
probable cause necessary to pursue an appeal in that Court. The United
States Supreme Court granted certiorari.
The United States Supreme Court, in Foster, first addressed its
jurisdiction. See Foster, 136 S. Ct. at 1746 (noting “This Court lacks
jurisdiction to entertain a federal claim on review of a state court judgment if
that judgment rests on a state law ground that is both independent of the
merits of the federal claim and an adequate basis for the court’s decision.”
(citation and quotation marks omitted). The Foster Court held that it was
not precluded from exercising jurisdiction over the federal issue in that
appeal because the state courts’ application of res judicata depended on the
merits of the defendant’s Batson claim. See id. Put differently, the Court
concluded that “the Georgia Supreme Court’s order—the judgment from
which [the defendant] sought certiorari—” did not rest “on an adequate and
independent state law ground so as to preclude our jurisdiction over [the
defendant’s] federal claim.” Id. at 1745-46 (footnote omitted). While the
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9545(b)(1)(iii). Therefore, Appellant did not plead and prove any exception
to the PCRA’s timeliness requirement. See Marshall, 947 A.2d at 719-20.
Thus, the PCRA court did not err in dismissing his PCRA petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2017
Foster Court ultimately granted the defendant relief on the merits of his
underlying Batson claim and the newly discovered evidence, the Court did
not create a new constitutional right regarding the presentation of new
evidence regarding a Batson claim. See Foster, 136 S. Ct. at 1743, 1745-
46.
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