McMullen, K. v. Superintendent, SCI Somerset

J-S47006-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KIM MCMULLEN IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
SUPERINTENDENT, SCI SOMERSET
Appellant No. 690 MDA 2020
Appeal from the Order Entered January 30, 2020
In the Court of Common Pleas of Huntingdon County
Civil Division at No: 2019-00759, CP-31-CR-0000150-1990
BEFORE: STABILE, J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY STABILE, J.: FILED MARCH 01, 2021
Appellant, Kim McMullen, appeals pro se from the January 30, 2020
order dismissing his petition for a writ of habeas corpus. We affirm.
On February 19, 1999, Appellant was sentenced to life in prison for
second-degree murder (18 Pa.C.S.A. § 2502(b)) after a retrial.1 This Court
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* Retired Senior Judge assigned to the Superior Court.
1 This case has a lengthy procedural history, including two trials and several
published opinions listed here in chronological order. Commonwealth v.
McMullen, 681 A.2d 717 (Pa. 1996); Commonwealth v. McMullen, 721
A.2d 370 (Pa. Super. 1998) (appeal after remand); Commonwealth v.
McMullen, 745 A.2d 683 (Pa. Super. 2000), appeal denied, 761 A.2d 549(Pa. 2000). Appellant’s petition for a writ of habeas corpus in federal court
did not succeed. McMullen v. Tennis, 2006 WL 3437314 (M.D.Pa. November
29, 2006), affirmed, 562 F.3d 231 (3d Cr. 2009), cert. denied, 558 U.S.
833 (2009).
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affirmed the judgment of sentence on February 14, 2000. The PCRA2 court
denied relief on Appellant’s timely first PCRA petition on February 20, 2004.
This Court affirmed the PCRA court’s order on January 13, 2005.
The instant appeal arises from the trial court’s denial of Appellant’s May
17, 2019 petition for a writ of habeas corpus, later withdrawn and amended
with leave of court as of November 7, 2019. The trial court denied relief,
finding that PCRA subsumed both of Appellant’s claims, those being ineffective
assistance of counsel and a double jeopardy violation. Memorandum and
Order, 2/3/20, at 1-2. Appellant claims the PCRA did not provide him a
meaningful opportunity for review of his claims, and that the trial court erred
in dismissing his petition as a time-barred PCRA petition. He does not assert
any basis upon which his petition could overcome the PCRA’s jurisdictional
time bar.3
Appellant’s argument presents a question of law for which we review the
court’s legal conclusions de novo. Commonwealth v. Mason, 130 A.3d 601,
617 (Pa. 2015). Unless the PCRA cannot provide a remedy, it subsumes the
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2 Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-45.
3 A petitioner must file a PCRA petition within one year of the finality of the
judgment of sentence, or else plead and prove the applicability of an exception
to the one-year time bar. 42 Pa.C.S.A. § 9545(a), (b). On September 27,
2000, the Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal from his current judgment of sentence. Appellant does
not contend that the instant petition, if construed as a PCRA petition, meets
the one-year time bar or any exception thereto.
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writ of habeas corpus. Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa.
Super. 2013). Appellant, in his short, handwritten pro se4 brief, relies on
Boumediene v. Bush, 553 U.S. 723 (2008), in which the United States
Supreme Court considered the constitutionality of a law denying the writ of
habeas corpus to aliens, deemed to be enemy combatants, who were detained
in Guantanamo Bay, Cuba. Under the circumstances there involved, the
Supreme Court concluded that the Suspension Clause of the United States
Constitution5 did not permit suspension of the writ without an adequate
substitute.
Boumediene has no application here. Nothing in the PCRA deprived
Appellant of the opportunity to present the claims he seeks to raise here. The
PCRA does not suspend the writ of habeas corpus, it simply subsumes the writ
to the extent that the relief sought under a writ is available under the PCRA,
as it is for ineffective assistance of counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii). To
the extent the PCRA precludes Appellant’s double jeopardy claim, it does so
only because Appellant litigated that issue on direct review both before and
after his second trial.6 See 42 Pa.C.S.A. §§ 9543(a)(3)(prohibiting PCRA relief
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4 Appellant litigated a prior PCRA petition and therefore had no statutory right
to counsel under Pa.R.Crim.P. 904(C).
5 “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety may require it.”
U.S. CONST. art. I, § 9, cl. 2.
6 Appellant’s Brief does not address the particulars of his double jeopardy
argument.
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for previously litigated claims) and 9544(a)(2) (explaining that a claim is
previously litigated if it has been decided by the highest court in which the
petitioner could have had review as of right); see also McMullen, 721 A.2d
at 371-72; McMullen, 745 A.2d at 688-89. Indeed, this Court rejected
Appellant’s double jeopardy argument pursuant to § 9543(a)(3) and
§ 9544(a)(2) on review of Appellant’s previous PCRA petition. See
Commonwealth v. McMullen, 389 MDA 2005 (Pa. Super. January 13, 2005)
(unpublished memorandum at 6).
In summary, Appellant has had a full opportunity to litigate his claims,
and he has failed to establish that the PCRA deprived him of any relief
otherwise available under writ of habeas corpus. Furthermore, a petitioner
cannot rely on a writ of habeas corpus to revive a claim that is otherwise time-
barred under the PCRA. Commonwealth v. Dickerson, 900 A.2d 407, 412
(Pa. Super. 2006), appeal denied, 911 A.2d 933 (Pa. 2006).
Based on the foregoing, we affirm the trial court’s order.
Order affirmed.
Judge Strassburger joins the memorandum.
Judge Nichols concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/01/2021
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