J-S59031-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v.
KERRY MCNEIL
Appellant No. 982 EDA 2015
Appeal from the PCRA Order March 20, 2015 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0114201-1980
BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD,* J.
JUDGMENT ORDER BY FITZGERALD, J.: FILED SEPTEMBER 09, 2016
Appellant, Kerry McNeil, appeals from the order entered in the
Philadelphia County Court of Common Pleas dismissing his Post Conviction
Relief Act1 (“PCRA”) petition based upon untimeliness. We affirm.
We adopt the facts and procedural history set forth in the PCRA court’s
opinion. See PCRA Ct. Op., 9/9/15, at 1-5. Appellant argues that a
manifest injustice occurred when the court denied him an evidentiary
hearing with regard to his Batson v. Kentucky, 476 U.S. 79 (1986) claim.
Appellant’s Brief at 30. Appellant avers his PCRA petition was timely
following the decision of the United States Supreme Court in McQuiggin v.
Perkins, 133 S. Ct. 1924 (2013). Id. at 29. He notes that he filed the
* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. J-S59031-16
instant Petition for Habeas Corpus/Post Conviction Relief within sixty days of
May 28, 2013, the date the Supreme Court rendered its decision in
McQuiggin. Id. Appellant contends “that three recent cases further
support his long standing argument that his case was wrongly decided[,]”
citing McQuiggin, Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino
v. Thaler, 133 S. Ct. 1911 (2013). Id. at 32.
As a prefatory matter, we note that “the PCRA subsumes the remedy
of habeas corpus with respect to remedies offered under the PCRA and that
any petition seeking relief under the PCRA must be filed within one year of
final judgment.” Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa.
1998). Furthermore, “the timeliness of a PCRA petition is a jurisdictional
requisite.” Commonwealth v. Turner, 73 A.3d 1283, 1285 (Pa. Super.
2013) (citation omitted).
After careful review of the record, the parties’ briefs, and the decision
by the Honorable Steven R. Geroff, we affirm on the basis of the PCRA
court’s opinion. See PCRA Ct. Op. at 5-10 (holding (1) Martinez, Trevino,
and McQuiggin are inapplicable to the case at bar as they are limited to
federal habeas review, (2) they do not render Appellant’s PCRA petition
timely, and (3) Martinez does not affect the PCRA time bar, citing
Commonwealth v. Saunders, 60 A.3d 162 (Pa. Super. 2013)).
Moreoever, in Commonwealth v. Brown, ___ A.3d ___, 2016 WL
3690602 (Pa. Super. July 11, 2016), this Court recently addressed the
-2- J-S59031-16
applicability of McQuiggin to the timeliness provisions set forth in the PCRA.
The Brown Court opined:
Our jurisprudence, however, has already deemed such decisions pertaining to federal habeas corpus law irrelevant to our construction of the timeliness provisions set forth in the PCRA. See [Saunders, 60 A.3d at 165] (“While Martinez . . . represents a significant development in federal habeas corpus law, it is of no moment with respect to the way Pennsylvania courts apply the plain language of the time bar set forth in section 9545(b)(1) of the PCRA.”). While McQuiggin represents a further development in federal habeas corpus law, as was the case in Saunders, this change in federal law is irrelevant to the time restrictions of our PCRA.
Id. at ___, 2016 WL 3690602 at *3. Accordingly, we affirm the order of the
PCRA court dismissing Appellant’s petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/9/2016
-3- J-S59031-16
-4- Circulated 08/31/2016 04:19 PM
FILED SEP O 9 2015 Criminal Appeals Unit IN THE COURT OF COMMON PLEAS First Judicial District of PA FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CRIMINAL SECTION
COMMONWEALTH OF CP- 51-CR-0114201-1980 PENNSYLVANIA
vs.
KERRY McNEIL SUPERIOR COURT NO. 982 EDA 2015
OPINION
GEROFF,J. SEPTEMBER 9, 2015
Petitioner; Kerry Mcl-Ieil, has filed an appeal of this court's order denying his petition
pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §9541 et seq ..
I. PROCEDURAL HISTORY
On May 16, 1980, following a jury trial before Judge Albert Sabo, Petitioner was found
guilty of murder of the first degree and criminal conspiracy.1 Petitioner's post-verdict motions
were denied, and on December 18, 1980, Judge Sabo sentenced Petitioner to a mandatory term of
life imprisonment for murder of the first degree and a consecutive term of five (5) to ten (] 0)
I Petitioner's convictions stemmed from the December 18, 1979 shooting death of Charles Vincent Wright, Jr., his girlfriend's ex-boyfriend, in Philadelphia. years of imprisonment for conspiracy. Lewis Smalls, Esquire, represented Petitioner at trial and
sentencing. A timely direct appeal was not filed.
Petitioner subsequently filed a pro se direct appeal to the Superior Court; because he
placed an incorrect bill of information number on the appeal, Petitioner's appeal was quashed by
the Superior Court.
Petitioner's direct appellate rights were reinstated in 1986 nunc pro tune after he filed his
first petition pursuant to the Post Conviction Hearing Act (PCHA). Counsel was subsequently
appointed and filed a nunc pro tune direct appeal to the Superior Court on July 16, 1987. On
May 19, 1988, the Pennsylvania Superior Court affirmed the judgments of sentence.
Commonwealth v. McNeil, 3 79 Pa. Super. 662, 545 A.2d 386 ( 1988). On October 31, 1988, the
Pennsylvania Supreme Cami denied Petitioner's petition for allowance of appeal.
Commonwealth v. A1cNe;f,520 Pa. 596, 552 A.2d 251 (1988).
Petitioner's judgment of sentence became final on December 31, 1988, sixty days after
our Supreme Court denied allowance of appeal and the time then allowed for filing a petition for
writ of certiorari to the U.S. Supreme Court had expired. See 42 Pa.C.S. § 9545(b)(3); Former
U.S. Sup. Ct. Rule 20. I (petition for writ of certiorari is considered timely when filed within
sixty days after the denial of allowance of appeal). 2
On or about December 28, 1990, Petitioner filed a petition for writ of habeas corpus in
the U.S. District Court for the Eastern District of Pennsylvania; his counsel later withdrew the
2 See also Commonwealth v. Thomas, 718 A.2d 326, 329 (Pa.Super.1998) (en bane) ("[W]e hold that it was the intention of the legislature to permit an otherwise untimely first PCRA petition to be filed within one year following the effective date of the l 995 PCRA amendments, but that exception was not intended to apply to subsequent petitions regardless of when a first petition was filed.").
2 petition without prejudice to allow Petitioner pursue a state collateral remedy.
On April l , 1991, Petitioner filed a petition pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. § 9541 et seq. (PCRA) in which he raised 20 claims, including an allegation
that the prosecution improperly struck African-American members of his jury venire in violation
of the U.S. Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.
Ed. 2d 69 (1986) holding modified by Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed.
2d 411 (1991) (racially discriminatory jury selection is constitutionally impermissible). On June
28, 1991, Judge Sabo dismissed the petition without a hearing.
Petitioner appealed to the Superior Court, arguing ineffective assistance of counsel for
failure to assert Petitioner's Batson claim on direct appeal. The Superior Court affirmed the
dismissal on August 22, 1992 on the basis that Petitioner's Batson claim had no arguable merit
because Petitioner failed to establish the racial composition of the entire venire, his jury, and the
prospective jurors whom the defense struck. Commonwealth v. McNeil, 424 Pa. Super. 647, 617
A.2d 391 (1992). On February 17, 1993, our Supreme Court denied Petitioner's petition for
allowance of appeal. Commonwealth v. McNeil, 533 Pa. 643, 622 A.2d 1375 (1993).
Petitioner's second habeas corpus petition filed in federal court on April 13, 1993 was
denied without a hearing on October 29, 1993. Petitioner appealed, and the Court of Appeals for
the Third Circuit affirmed. Petitioner's petition for certiorari with the U.S. Supreme Court was
denied on May 15, 1995.
At the time Petitioner's petition for certiorari was pending before the U.S. Supreme
Court, he filed his second pro se PCRA petition, which was dismissed as untimely on March 6,
1996. The Pennsylvania Superior Court affirmed the dismissal on May 28, 1997, and the
Pennsylvania Supreme Cami declined review on September 30, 1997.
3 On May 6, 1998, Petitioner filed a third habeas corpus petition in federal court, asserting
a claim pursuant to the U.S. Supreme Court's decision in Batson. The petition was denied; the
decision was affirmed on appeal. On October 4, 1999, the U.S. Supreme Court denied
certiorari.
On March 11, 2004, Petitioner filed his third pro se PCRA petition. On September 9,
2005, he filed an amended, counseled PCRA petition, which was dismissed by this court on July
13, 2007.3 On June 23, 2008, the Superior Court affirmed the PCRA court's dismissal.
Commonwealth v. McNeil, 959 A.2d 464 (Pa. Super. 2008). On February 20, 2009, the
Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal.
Commonwealth v. lvlcNeil, 600 Pa. 376, 966 A.2d 550 (2009).
On September 6, 2011, Petitioner filed his fourth PCRA petition, which was denied as
untimely on October 19, 2012.
On July 8, 2013, Petitioner filed a counseled PCRA Petition (his fifth) arguing ineffective
assistance of counsel and requesting that this court provide "relief consistent with removing the
procedural default so that [Petitioner's] claim can be considered on the merits." Petition for
Habeas Corpus/Post Conviction Relief, 07/08/2013, p. 13.
The Commonwealth filed a Motion to Dismiss on December 29, 2014; on January 8,
2015, the Commonwealth filed an Amended Motion to Dismiss. On January 21, 2015, Petitioner
filed a Response to the Commonwealth' s Motion to Dismiss. On February 12, 2015, following a
3 On February 6, 2006, this court granted Petitioner an evidentiary hearing on his Batson claim. This court also granted the Commonwealth's request to file an interlocutory appeal. On February 16, 2006, the Commonwealth filed a Motion for Reconsideration. After argument, on June 30, 2006, this court reimposed the Order of February 6, 2006 granting the evidentiary hearing. The Commonwealth filed a Notice of Appeal, and on September 5, 2006, the Superior Court denied the Commonwealth's Petition for Permission to Appeal. On October 4, 2006, this court filed an opinion addressing its decision to grant Petitioner an evidentiary hearing. On November 17, 2006, the Commonwealth filed a Motion to Vacate the Order Granting the hearing, and the Petitioner filed a response. After conducting a review of the record and Petitioner's response to the court's notice of dismissal pursuant to Rule 907, this court dismissed Petitioner's motion on July 13, 2007.
4 hearing held in this matter, this court issued a notice of intent to dismiss Petitioner's petition as
untimely, pursuant to Pennsylvania Rule of Criminal Procedure 907. On March 1, 2015,
Petitioner, through his counsel Raymond D. Roberts, filed a Response to the 907 Notice of
Intention to Dismiss. On March 20, 2015, after conducting a review of the record, this court
dismissed Petitioner's PCRA petition as untimely. On March 31, 2015, Petitioner filed a timely
Notice of Appeal.
II. STANDARD OF REVIEW
The Post Conviction Relief Act requires that a post-conviction petition be filed within
one year of the date the judgment becomes final. 42 Pa.C.S. § 9545 (b)(l). A judgment
becomes final at the conclusion of direct review, including time to seek discretionary review
before the Pennsylvania Supreme Court and the United States Supreme Court. 42 Pa.C.S. §
9545 (b)(3). The one-year limitation is exempted if a petitioner pleads and 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 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 )(l )(i)-(iii).
Any petition invoking an exception to the one-year limitation must be filed within sixty
days of the date the claim could be presented. 42 Pa.C.S. § 9545 (b)(2).
The Pennsylvania Supreme Court has ruled that Pennsylvania courts have no jurisdiction
5 to hear untimely Post Conviction Relief Act petitions. Commonwealth v. Hall, 565 Pa. 92, 95,
771 A.2d 1232, 1234 (2001). Where the Post Conviction Relief Act petition is untimely, a
petitioner must plead and prove that a one-year filing exception applies. See Commonwealth v.
Yarris, 557 Pa. 12, 24, 731 A.2d 581, 587 (1999) (stating that all PCRA petitions, "including
second and subsequent ones, must be filed within one year of the date on which the judgment
became final, unless one of the three statutory exceptions ... applies").
Pursuant to Pennsylvania law, the Post Conviction Relief Act subsumes the remedy of
habeas corpus unless the claim does not fall within the ambit of the PCRA statute.
Commonwealth v. Burkett, 2010 PA Super 182, 5 A.3d 1260, 1274 (Pa. Super. 2010). See also
Commonwealth v. Taylor, 2013 PA Super 89, 65 A.3d 462, 466 (2013) ("[A) defendant cannot
escape the PCRA time-bar by titling his Petition or motion as a writ of habeas corpus.ry;
Commonwealth v. Deaner, 2001 PA Super 191, 779 A.2d 578, 580 (2001) (a collateral petition
raising an issue which the PCRA statute could remedy will be considered a PCRA petition);
Commonwealth v. Lusch, 759 A.2d 6, 9 (Pa. Super. 2000) (a habeas corpus petition raising a
claim cognizable under the PCRA must comply with the PCRA timeliness requirements).
Claims of PCRA counsel's ineffectiveness do not save an otherwise untimely PCRA
petition for review on the merits. See Commonwealth v. Morris, 573 Pa. 157, 822 A.2d 684,
694-95 (2003); Commonwealth v. Fahy, 558 Pa. 313, 330, 737 A.2d 214, 223 (1999). See also
Commonwealth v. Breakiron, 566 Pa. 323, 334, 781 A.2d 94, 100 (2001) ("[O)ur Court has
expressly rejected attempts to utilize ineffective assistance of counsel claims as a means of
escaping the jurisdictional time requirements for filing a PCRA petition.").
6 III. DISCUSSION
Petitioner captions his petition as a Petition for Habeas Corpuslvoei Conviction Relief.
However, the PCRA subsumes habeas relief as Petitioner's claims of ineffective assistance of
counsel are cognizable under the PCRA. Petitioner, therefore, is bound by the requirements of
the PCRA, including the timeliness requirements.
As a preliminary matter, the Petitioner's petition is untimely on its face. Petitioner's
judgment of sentence became final on December 31, 1988, after our Supreme Court denied
allowance of appeal and when the period to file a petition for writ of certiorari with the U.S.
Supreme Court had expired. Petitioner's current PCRA petition was filed on July 8, 2013, over
twenty-four years after his judgment of sentence became final; it is, therefore, time-barred under
§ 9545(b), unless one of the enumerated exceptions is satisfied.
Petitioner avers that his direct appeal counsel and his PCRA counsel were ineffective and
argues that because of his counsels' ineffectiveness, his "collateral proceeding was not sufficient
to ensure that proper consideration was given to his substantial claim." Petition for Habeas
C01pus/Post Conviction Relief, 07/08/2013, pp. 11-12. He argues that although he first raised
his underlying Batson claim in 1991, he has been "consistently, through improper interpretations
of the law, ... denied an evidentiary hearing on the merits of the claim." Petitioner's Response
to the 907 Notice of Intention to Dismiss, 03/01/2015, p. 1 (unnumbered). Petitioner claims,
therefore, that his otherwise untimely petition is timely because he is raising a claim which has
never been fully litigated.
To excuse his failure to file a timely petition, Petitioner relies, inter alia, on the U.S.
Supreme Court's decisions in Martinez v. Ryan, 132 S. Ct. 1309, 1320, 182 L. Ed. 2d 272 (2012)
("[A] procedural default will not bar a federal habeas court from hearing a substantial claim of
7 ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel
or counsel in that proceeding was ineffective."), Trevino v. Thaler, 133 S. Ct. 1911, 185 L. Ed.
2d 1044 (2013) ("[W]here, as here, state procedural framework, by reason of its design and
operation, makes it highly unlikely in a typical case that a defendant will have a meaningful
opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal, our holding
in Martinez applies")", and JvfcQuiggin v. Perkins, 133 S. Ct. 1924, 185 L. Ed. 2d 1019 (2013)
(discussing the "actual innocence" gateway to federal habeas review).
Petitioner appears to ignore the fact that he is not in federal court and that Martinez,
Trevino, and McQuiggin are thereby inapplicable to the case at bar as they are limited to federal
habeas review. As noted by the Commonwealth, these cases do not excuse Petitioner's failure to
file a timely petition. See Commonwealth's Amended Motion to Dismiss, 01/08/2015, pp. 8-9.
Moreover, in Commonwealth v. Saunders, 2013 PA Super 9, 60 A.3d 162, 165, appeal
denied, 621 Pa. 657, 72 A.3d 603 (2013) and cert. denied sub nom. Saunders v. Pennsylvania,
134 S. Ct. 944, 187 L. Ed. 2d 811 (2014), our Superior Court specifically stressed that Martinez
does not affect the PCRA time-bar:
Martinez recognizes that for purposes of federal habeas corpus relief, "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance of trial counsel." Martinez, supra at 1315. While Martinez represents a significant development in federal habeas corpus law, it is of no moment with respect to the way Pennsylvania courts apply the plain language of the time bar set forth in section 9545(b)(l) of the PCRA.
Id. at 165 (emphasis added).
Petitioner also relies on Judge Bender's dissenting opinion in Commonwealth v. Henkel,
2014 PA Super 75, 90 A.3d 16, appeal denied, 101 A.3d 785 (Pa. 2014), for the proposition that
4 Petitioner asserts that his Petition is timely because it was filed on July 8, 2013, within 60 days of the Trevino decision. Petitioner's Response to the 907 Notice of Intention to Dismiss, 03/01/2015, p. 3 (unnumbered).
8 this court is "a proper initial forum to decide whether [Petitioner] is entitled to the relief he
seeks." Petitioner's Response to the 907 Notice of Intention to Dismiss, 03/01/2015, p. 11
(unnumbered).
Petitioner's reliance on Judge Bender's dissenting opinion m Henkel is misplaced.
Although in his dissenting opinion, Judge Bender posits that there has been no binding,
precedential decision by the Pennsylvania Supreme Cami prohibiting review of claims of
ineffective assistance of PCRA counsel for the first time on appeal from the denial of PCRA
relief, his dissenting opinion is not binding on this court. See Commonwealth v. Thompson, 604
Pa. 198, 221, 985 A.2d 928, 942 (2009)("0f course, persuasive as they are, neither the dissent of
the Chief Justice nor the dissent by Mr. Justice Eakin is binding precedent. ... ").
Furthermore, Petitioner's claim of ineffective assistance of counsel does not place his
petition within any of the enumerated exceptions to the one-year limitation. Petitioner cannot
escape the jurisdictional time requirements for filing a PCRA Petition by raising an ineffective-
assistance-of-counsel claim.
The instant petition was filed over twenty-four years after the judgment of sentence in
this case became final. It was time-barred from review, and Petitioner has not demonstrated that
any of the statutory exceptions to the PCRA's timeliness requirement applied.
IV. CONCLUSION
Petitioner has failed to demonstrate any basis for relief. In the absence of any meritorious
challenge that can be found in the reviewable record, Petitioner has failed to articulate his
allegations in accordance with the requisites of a claim predicated upon the timeliness of his
petition. No relief is due.
9 For the foregoing reasons, Petitioner's petition for post-conviction collateral relief was
properly dismissed.
BY THE COURT: