Com. v. Curry, R.

• Court: Superior Court of Pennsylvania
• Decided: March 7, 2024
• Docket: 1662 EDA 2023
• Status: Unpublished

Opinion

J-S47030-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : REGINALD CURRY : : Appellant : No. 1662 EDA 2023

Appeal from the PCRA Order Entered May 31, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0609751-2003

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : REGINALD CURRY : : Appellant : No. 1663 EDA 2023

Appeal from the PCRA Order Entered May 31, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0609771-2003

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : REGINALD CURRY : : Appellant : No. 1664 EDA 2023

Appeal from the PCRA Order Entered May 31, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0810361-2003 J-S47030-23

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : REGINALD CURRY : : Appellant : No. 1665 EDA 2023

Appeal from the PCRA Order Entered May 31, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0810371-2003

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : REGINALD CURRY : : Appellant : No. 1666 EDA 2023

Appeal from the PCRA Order Entered May 31, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0810381-2003

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : REGINALD CURRY : : Appellant : No. 1667 EDA 2023

Appeal from the PCRA Order Entered May 31, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0900731-2003

-2- J-S47030-23

BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 07, 2024

Reginald Curry appeals pro se from the order denying petition for habeas

corpus relief. The lower court treated this as a serial petition under the Post

Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. For the reasons

that follow, we affirm.

The pertinent facts and procedural history are as follows: In 2004, Curry

pled guilty to six counts of robbery. On January 3, 2004, the trial court

sentenced him to an aggregate term of 25-50 years in prison. He filed neither

post-sentence motions nor a direct appeal. On August 12, 2004, Curry filed

a timely pro se PCRA petition and the PCRA court appointed counsel.

Thereafter, PCRA counsel filed a “no-merit” letter and a motion to withdraw,

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On

April 25, 2005, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent

to dismiss the petition without a hearing. Curry did not file a response. By

order entered May 31, 2005, the PCRA court dismissed Curry’s petition.

Curry appealed. “Following several snafus and years of delay,” in

February 2018, counsel was appointed to represent Curry on appeal.

Commonwealth v. Curry, 216 A.3d 390 (Pa. Super. 2019) (non-precedential

decision at 4). On May 7, 2018, appellate PCRA counsel filed a petition to

withdraw and a Turner/Finley brief. On April 16, 2019, this Court affirmed ____________________________________________

* Former Justice specially assigned to the Superior Court.

-3- J-S47030-23

the denial of post-conviction relief and granted counsel’s petition to withdraw.

Id.

On December 5, 2022, Curry filed the instant pro se “Petition for Writ of

Habeas Corpus Pursuant to Article I, § 14 of the Pennsylvania Constitution.”

The PCRA court treated Curry’s 2022 petition as a serial PCRA petition. On

April 26, 2023, the PCRA court issued a Rule 907 notice of its intent to dismiss

the petition without a hearing because it was untimely-filed, and Curry failed

to establish an exception to the PCRA’s time bar. Curry filed a pro se response.

By order entered May 31, 2022, the PCRA court dismissed Curry’s petition.

This appeal followed. The PCRA court did not require Pa.R.A.P. 1925

compliance.

Curry raises the following issue on appeal:

[Whether] the [PCRA] Court abused its discretion in dismissing [Curry’s] Petition for Habeas Corpus Relief alleging he is illegally confined on the basis of multiple Robbery convictions that violated due process of law in that there was insufficient evidence of guilt[?]

Curry’s Brief at 3.

Before addressing this issue, however, we must address whether the

PCRA court properly considered Curry’s latest filing for post-conviction relief

as a serial PCRA petition. See 42 Pa.C.S.A. § 9542 (providing that the PCRA

“shall be the sole means of obtaining collateral relief and encompasses all

other common law and statutory remedies for the same purpose . . . including

habeas corpus”); Commonwealth v. Descardes, 136 A.3d 493, 499 (Pa.

-4- J-S47030-23

2016) (explaining that “claims that could be brought under the PCRA must be

brought under that Act. . . . A claim is cognizable under the PCRA if the . . .

conviction resulted from one of seven enumerated errors set forth in 42

Pa.C.S. § 9543(a)(2)”).

In this petition, Curry essentially claims that his sentence is illegal. The

PCRA is the exclusive avenue to collaterally attack the legality of a sentence.

42 Pa.C.S.A. § 9543(a)(2)(vii); see also Commonwealth v. Taylor, 65 A.3d

462, 466 (Pa. Super. 2013) (holding that issues such as the illegality of

sentence that are cognizable under the PCRAA “must be raised in a timely

PCRA petition and cannot be raised in a habeas corpus petition”). Thus, the

PCRA court properly considered Curry’s habeas corpus petition as a serial

PCRA petition.

Treating Curry’s latest filing as a PCRA petition, we next determine

whether the PCRA court correctly concluded that it was untimely filed, and

that Curry failed to establish a time-bar exception. The timeliness of a post-

conviction petition is jurisdictional. Commonwealth v. Hernandez, 79 A.3d

649, 651 (Pa. Super. 2013). Generally, a petition for relief under the PCRA,

including a second or subsequent petition, must be filed within one year of the

date the judgment becomes final unless the petition alleges, and the petitioner

proves, that an exception to the time for filing the petition is met.

The three narrow statutory exceptions to the one-year time bar are as

follows: “(1) interference by government officials in the presentation of the

claim; (2) newly discovered facts; and (3) an after-recognized constitutional

-5- J-S47030-23

right.” Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012)

(citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii)). In addition, exceptions to the PCRA’s

time bar must be pled in the petition and may not be raised for the first time

on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.

2007); see also Pa.R.A.P. 302(a) (providing that issues not raised before the

lower court are waived and cannot be raised for the first time on appeal).

Moreover, a PCRA petitioner must file his petition “within one year of the date

the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

Finally, if a PCRA petition is untimely and the petitioner has not pled and

proven an exception “neither this Court nor the [PCRA] court has jurisdiction

over the petition. Without jurisdiction, we simply do not have the legal

authority to address the substantive claims.” Commonwealth v.

Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (citation omitted).

Here, Curry’s judgment of sentence became final on February 23, 2004,

thirty days after he failed to file a direct appeal to this Court. See 42 Pa.C.S.A.

§ 9545(b)(3).1 Therefore, Curry had until February 22, 2005, to file a timely

PCRA petition. As Curry filed the petition at issue in 2022, it is patently

untimely unless he has satisfied his burden of pleading and proving that one

of the enumerated exceptions applies. See Hernandez, supra.

____________________________________________

1Because the thirtieth day fell on a Sunday, Curry had until the following Monday to file a timely appeal. See generally, 1 Pa.C.S.A. § 1908.

-6- J-S47030-23

Curry has failed to plead and prove any exception to the PCRA’s time

bar. Indeed, in his brief, Curry acknowledges the PCRA’s time-bar restrictions

but argues that pursuant to the Supremacy Clause of the United States

Constitution and McQuiggin v. Perkins, 569 U.S. 383 (2012) his habeas

corpus petition should be considered. In McQuiggin, the United States

Supreme Court held that petitioners who assert a convincing actual innocence

claim may thereby invoke the miscarriage of justice exception to overcome

the federal habeas corpus statute of limitations. According to Curry, this

federal authority “sweeps all state time bar/jurisdiction questions away,” and

allows for consideration of his “actual innocence” claim. See Curry’s Brief at

8. We disagree.

This Court has deemed federal decisions pertaining to federal habeas

corpus law have no effect on the timeliness requirements of the PCRA. See,

e.g., Commonwealth v. Brown, 143 A.3d 418, 421 (Pa. Super. 2016)

(clarifying that “this change in federal [habeas corpus] law is irrelevant to the

time restrictions of our PCRA”); Commonwealth v. Saunders, 60 A.3d 162,

165 (Pa. Super. 2013) (holding that lowering the bar in federal habeas corpus

law is not relevant to the way Pennsylvania courts apply the plain language of

the PCRA’s time-bar exceptions). There is no “actual innocence” exception to

the PCRA’s time restrictions.

In sum, Curry’s motion is cognizable under the PCRA, but it is untimely,

and he has failed to establish a time-bar exception. As such, both the PCRA

-7- J-S47030-23

court and this Court lack jurisdiction to consider his substantive claim.

Derrickson, supra.

Order affirmed.

Date: 3/7/2024

-8-