Com. v. Murray, B ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRAY JIBRIL MURRAY :
:
Appellant : No. 631 EDA 2021
Appeal from the PCRA Order Entered March 1, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0402931-1982
BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 24, 2021
Bray Jibril Murray appeals pro se from the order that dismissed as
untimely his serial petition filed pursuant to the Post Conviction Relief Act
(“PCRA”). We affirm.
Appellant is serving a sentence of life imprisonment without parole for
first-degree murder. After his judgment of sentence became final in 1985,
Appellant engaged in repeated prior efforts to obtain post-conviction relief,
through the PCRA and its predecessor the Post Conviction Hearing Act
(“PCHA”). None was successful. Appellant filed the instant PCRA petition on
November 19, 2018, raising multiple claims of ineffective assistance of trial
counsel. See PCRA Petition, 11/19/18, at Attachment to Page 3. He alleged
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* Retired Senior Judge assigned to the Superior Court.
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that the PCRA court had jurisdiction to entertain the petition pursuant to 42
Pa.C.S. § 9545(b)(1)(ii) and (iii) and our Supreme Court’s decision in
Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018). See id. at 7;
Memorandum of Law, 11/19/18, at 1.
On December 23, 2020, the PCRA court issued notice of its intent to
dismiss the petition as untimely pursuant to Pa.R.Crim.P. 907, and ultimately
followed through on dismissal by order dated March 1, 2021. Appellant filed
a timely notice of appeal. The PCRA court did not order Appellant to file a
Pa.R.A.P. 1925(b) statement, but it did supply an opinion in accordance with
Pa.R.A.P. 1925(a).
Appellant states the following questions for our consideration:
1. Whether pursuant to 42 Pa. C.S. § 9545(b)(1) Appellant’s
first petition was required to filed within one-year his judgment of
sentence became final and under [Peterson, supra] should he
be permitted to file a second petition beyond the one-year time
bar pursuant to section 9545(b)(1)(ii), if ineffectiveness per se
completely foreclosed review of collateral claims regarding
abandonment on direct appeal and also the untimely filing of first
petition by same counsel?
2. Whether the non-constitutional/watershed decision of
[Peterson, supra] triggers the retroactive provision of 42 Pa.C.S.
§ 9545(b)(1)(iii) to the PCRA, requiring that it be applied to long-
ago cases of ineffectiveness per se, where unbeknownst to
Appellant court appointed counsel that had failed to file direct
appeal, instead filed an untimely and unauthorized PCHA petition,
that completely foreclosed review of collateral claims?
3. Whether prior to Commonwealth v. Peterkin, 722 A2d
638 (Pa. 1998), and/or [Peterson, supra] the PCRA filed by
Appellant pro se on January 10, 1997, qualify as the first validly
filed postconviction collateral petition, if the PCHA court lacked
any statutory and/or judicial authority to entertain and determine
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the PCHA petition filed by counsel as defective and untimely, if it
was neither signed or verified by affidavit from Appellant nor
authorized for counsel to file it on his behalf?
Appellant’s brief at 4 (unnecessary capitalization and quotation marks
omitted).
We begin our assessment with a review of the pertinent legal principles.
“This Court’s standard of review regarding an order denying a petition under
the PCRA is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error.” Commonwealth v. Rizvi, 166
A.3d 344, 347 (Pa.Super. 2017). “It is an appellant’s burden to persuade us
that the PCRA court erred and that relief is due.” Commonwealth v.
Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019) (cleaned up).
It is well-established that, “[b]ecause the PCRA time limitations
implicate our jurisdiction and may not be altered or disregarded in order to
address the merits of a petition, we must start by examining the timeliness of
Appellant’s petition.” Commonwealth v. Davis, 86 A.3d 883, 887
(Pa.Super. 2014). Indeed, “no court has jurisdiction to hear an untimely PCRA
petition.” Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa.Super.
2019). The PCRA provides as follows regarding the time for filing a petition:
Any petition [filed pursuant to the PCRA], 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
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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). Further, any petition invoking an exception to the
one-year time bar “shall be filed within one year of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Appellant acknowledges that his judgment of sentence became final in
1985 when no direct appeal was filed. See Appellant’s brief at 11.1 Appellant
filed the PCRA petition that is the subject of the instant appeal decades later.
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1 The certified record does not include all filings in this case dating back to its
inception, but rather contains only documents filed in 2012 and later.
Appellant filed an objection to the abridged nature of the certified record in
which Appellant claimed that he had not earlier received the record inventory
list to enable him to comply with his duty to ensure that the record was
complete. Prior to the assignment of the appeal to this panel, this Court
construed Appellant’s objection as an application to correct the certified record
and declined to grant Appellant relief, suggesting without expressly stating
that the omitted filings are not pertinent to the question of the timeliness of
the instant PCRA petition. See Order, 6/14/21 (citing Commonwealth v.
Alcorn, 703 A.2d 1054, 1057 (Pa.Super. 1997) (concerning the jurisdictional
nature of the PCRA’s timeliness requirements)). Since we conclude that the
certified record contains all filings necessary to dispose of the appeal, we need
not order supplementation of the record pursuant to Pa.R.A.P. 1926(b)(1)
(providing, inter alia, that this Court may order the correction of omissions
from the certified record sua sponte at any time).
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Thus, it was facially untimely. As noted above, Appellant attempted to invoke
the PCRA court’s jurisdiction by referencing our Supreme Court’s decision in
Peterson both in the context of the newly-discovered facts exception and the
newly-recognized, retroactive constitutional right exception. The PCRA court
concluded that Peterson was unavailing to establish jurisdiction, as judicial
decisions are not “facts” for purposes of § 9545(b)(1)(ii), and Peterson did
not recognize a new constitutional right that the Court held was retroactively
applicable. See PCRA Court Opinion, 3/11/21, at 1.
Before addressing Appellant’s claims of error, we examine our High
Court’s Peterson decision. In that case, counsel for a defendant who was,
like Appellant, serving a pre-PCRA sentence, filed a PCRA petition in 1997 one
day beyond the deadline established by the new statutory scheme. After some
preliminary activity, the case sat dormant until 2012 when the defendant
wrote to the court asking about the status of his case. The PCRA court
addressed the merits of the petition but denied relief. On appeal, this Court
affirmed the denial of relief not on the merits, but on the basis that the petition
was untimely and the PCRA court lacked jurisdiction to grant relief.
The defendant promptly filed a second PCRA petition, seeking
reinstatement of his right to appeal the denial of his first PCRA petition, on the
basis that PCRA counsel had been ineffective in filing the petition late. The
PCRA court held that the fact that the prior petition was late was a fact that
the defendant first discovered at the time that this Court decided the appeal,
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and that he exercised due diligence in making that discovery. Although
concluding that the merits of the petition were thus properly before it, the
PCRA court again denied relief for the reasons it initially identified. On appeal,
this Court held that the exception did not apply because, unlike the defendant
in Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa. 2007), counsel
took some, albeit necessarily fruitless, actions on his client’s behalf, and thus
did not completely deprive the defendant of PCRA review through
abandonment.2 Our Supreme Court reversed, explaining as follows:
In the present case, counsel’s untimely filing of Peterson’s
first PCRA petition constituted ineffectiveness per se, as it
completely deprived Peterson of any consideration of his collateral
claims under the PCRA. As a result, pursuant to Bennett, the
Superior Court erred in reversing the PCRA court’s ruling that
Peterson, when filing his second PCRA petition, had successfully
invoked the subsection 9545(b)(1)(ii) exception to the time bar.
Counsel’s ineffectiveness per se in connection with Peterson’s first
PCRA petition was a newly discovered “fact” and the PCRA court
made factual findings that Peterson did not know about the
untimely filing and could not have ascertained this fact through
the exercise of due diligence. Peterson filed his second PCRA
petition within sixty days after he learned of the untimely-filed
petition.
We agree with the Superior Court that the present case does
not involve abandonment, as counsel took actions on Peterson’s
behalf to effectuate an appeal from the denial of relief on his first
PCRA petition, including the filing of the first petition (albeit
untimely) and an appellate brief. Abandonment, however, is only
one form of ineffectiveness per se, and our decision in Bennett
did not limit its application to instances of attorney abandonment.
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2 In Bennett, the Court held that discovery upon due diligence of the fact that
PCRA counsel had abandoned his client by failing to file a brief, causing the
appeal to be summarily dismissed, could serve to meet the newly-discovered
facts timeliness exception.
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To the contrary, in Bennett we emphasized that the important
distinction for purposes of application of the subsection
9545(b)(1)(ii) exception is whether counsel’s alleged
ineffectiveness results in a partial deprivation of review . . . or
instead completely deprives his client of review.
....
For these reasons, we conclude that counsel’s untimely filing
of Peterson’s first PCRA petition constituted ineffectiveness per se,
as it completely foreclosed Peterson from obtaining review of the
collateral claims set forth in his first PCRA petition. Accordingly,
as the PCRA court has made the necessary factual findings,
Peterson has plead and proven an entitlement to invoke the
subsection 9545(b)(1)(ii) exception to permit the filing of his
second PCRA petition beyond the one-year time bar.
Commonwealth v. Peterson, 192 A.3d 1123, 1130–32 (Pa. 2018) (cleaned
up).
Appellant maintains that the Peterson holding serves to render the
instant PCRA petition timely pursuant to § 9545(b)(1)(ii). He contends that,
like Mr. Peterson, he has been completely denied collateral review.
Specifically, his initial PCHA petition was filed by counsel without his consent
and was dismissed as untimely in 1988, and his prior pro se PCRA petitions in
which he sought reinstatement of his direct appeal rights were likewise
dismissed as untimely. Hence, because he filed this decision within one year
of the Peterson decision, he is entitled to substantive review of his claims of
ineffectiveness of counsel. See Appellant’s brief at 12-14.
Appellant misapprehends the import of Peterson. The fact that
underpinned the timeliness exception in that case was that Mr. Peterson had
been completely deprived of collateral review due to his counsel’s error. Mr.
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Peterson’s subsequent PCRA petition was filed within the requisite time
following his discovery of that fact, made with the exercise of due
diligence.
The fact upon which Appellant bases his claim, on the other hand, is not
the fact that counsel’s ineffectiveness deprived him of collateral review.
Appellant has known that fact for decades. Instead, Appellant seeks to use
the fact that our Supreme Court ruled in favor of Mr. Peterson as his
underpinning for the timeliness exception. This is not permitted under the
law. As our Supreme Court has succinctly explained,
under appropriate circumstances, a judicial opinion can provide an
independent basis for a new PCRA claim pursuant to 42 Pa.C.S.
§ 9545(b)(1)(iii), which creates a limited exception for new
constitutional rights that have been held to apply retroactively.
But a judicial opinion — even one which may establish a
new theory or method of obtaining relief — does not
amount to a new “fact” under Section 9545(b)(1)(ii) of the
PCRA.
Commonwealth v. Reid, 235 A.3d 1124, 1148 (Pa. 2020) (cleaned up,
emphasis added).
Thus, Appellant cannot evoke the Peterson decision to avoid the reality
that the factual predicate for his claim, namely his counsel’s ineffectiveness,
was discovered by Appellant far beyond one year before he filed the instant
petition. See Commonwealth v. Hackett, 956 A.2d 978, 984 (Pa. 2008)
(“A PCRA petitioner cannot avoid the one-year time bar by tailoring the factual
predicate of the claim pled in his PCRA petition in a way that unmistakably
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misrepresents the actual nature of the claim raised.”). Stated plainly, the
Peterson ruling is not a fact that can satisfy the § 9545(b)(1)(ii) exception.
Moreover, Appellant may not utilize Peterson to satisfy the new
constitutional right exception codified at § 9545(b)(1)(iii). Appellant offers
extensive argument why he believes Peterson is a watershed procedural rule
that abrogates prior precedent, and why the rule should apply retroactively.
See Appellant’s brief at 20-32. However, the plain language of the statute
allows a timeliness exception where “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)(iii) (emphases added). As our Supreme Court summarized:
Subsection (iii) of Section 9545 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 this court
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.
Reid, supra at 1154 (quoting Commonwealth v. Abdul-Salaam, 812 A.2d
497, 501 (Pa. 2002)).
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Since Appellant points to no decision from our High Court indicating both
that Peterson recognized a new constitutional right and that it applies
retroactively, he cannot use that decision to meet the § 9545(b)(1)(iii)
exception. See Commonwealth v. Hill, 236 A.3d 1113, 2020 WL 1922517at *4 (Pa.Super. 2020) (non-precedential decision) (explaining that Peterson
cannot serve as the basis for satisfying § 9545(b)(1)(iii) because the right at
issue in Peterson was “not a new substantive constitutional claim, and it has
not been held by that court to apply retroactively”).3
Appellant also argues that his inability to secure the ruling that Mr.
Peterson was able to obtain, due to the timing of his counsel’s error, results
in an “absolute miscarriage of justice,” and that “fundamental fairness
behoove[s] that PCRA relief be granted on the basis of Peterson.” Appellant’s
brief at 19. However, our Supreme Court has made it clear that “the PCRA
confers no authority upon this Court to fashion ad hoc equitable exceptions to
the PCRA time-bar in addition to those exceptions expressly delineated in the
Act.” Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)
(cleaned up). As such, “the courts of Pennsylvania will only entertain a
‘miscarriage of justice’ claim when the initial timeliness requirement is met.”
Commonwealth v. Burton, 936 A.2d 521, 527 (Pa.Super. 2007).
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3 Although this non-precedential decision is not binding, we may cite it for its
persuasive value. See Pa.R.A.P. 1926(b).
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Finally, Appellant’s third question posits that, since his initial post-
collateral petition filed under the PCHA was defective in that it was not
authorized, signed, or verified by Appellant, his pro se PCRA petition filed in
1997 must “qualify as the first validly filed postconviction collateral petition[.]”
Appellant’s brief at 4. See also id. at 33-41. We fail to see the import of this
question to the issue before us in this appeal, namely, whether the PCRA court
erred in finding that Appellant’s 2018 PCRA petition was subject to any of the
statutory timeliness exceptions. An argument that the 2018 petition is really
Appellant’s third rather than his fourth has no bearing on that discussion. The
2018 petition is untimely either way, and no court has jurisdiction to address
its substance.
In sum, if Appellant’s instant petition had been filed within the requisite
time following the discovery of counsel’s error that wholly deprived him of
review, Appellant may have properly invoked the PCRA court’s jurisdiction
pursuant to § 9545(b)(1)(ii) for the reasons explained in Bennett and
Peterson. That did not happen. Rather, Appellant failed to plead and prove
an applicable timeliness exception to the PCRA’s one-year rule. Therefore,
Appellant has not met his burden of establishing that the PCRA court erred
dismissing his petition as untimely, and no relief is due.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2021
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