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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                         :
LAMONT G. HENDERSON,                     :         No. 2986 EDA 2015
                                         :
                        Appellant        :


               Appeal from the PCRA Order, September 4, 2015,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0710351-1981


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED FEBRUARY 22, 2017

      Lamont G. Henderson appeals from the September 4, 2015 order

dismissing his petition for relief filed pursuant to the Post-Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely. After careful review,

we affirm.

      The underlying facts and procedural history of this case were

summarized by the PCRA court and need not be reiterated here. (See PCRA

court opinion, 4/25/16 at 1-4.)     In sum, appellant filed the instant PCRA

petition, his fifth, on August 5, 2013, alleging that he was entitled to relief

with respect to his December 20, 1981 conviction for the shooting death of
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Philadelphia Police Officer Jack E. Holcomb, Jr.1         Appellant is currently

serving a sentence of life imprisonment that was imposed by the trial court

on March 2, 1982. On July 31, 2015, the PCRA court provided appellant with

notice, pursuant to Pa.R.Crim.P. 907(1), of its intention to dismiss his

petition without a hearing.       Thereafter, on September 4, 2015, the PCRA

court dismissed appellant’s petition as untimely.            This timely appeal

followed.

      On appeal, appellant presents the following issue for our review:

              WHETHER THE [PCRA] COURT ERRED IN FINDING
              APPELLANT’S PCRA PETITION TO BE UNTIMELY?

Appellant’s brief at 10.

      The timeliness of appellant’s PCRA petition implicates the jurisdiction

of this court and the PCRA court. Commonwealth v. Davis, 86 A.3d 883,

887 (Pa.Super. 2014) (citation omitted).           All PCRA petitions, including

second and subsequent petitions, must be filed within one year of when a

defendant’s    judgment      of   sentence     becomes   final.    42   Pa.C.S.A.

§ 9545(b)(1). “A judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of the time for

seeking the review.”       Id. § 9545(b)(3).    If a PCRA petition is untimely, a



1
  Appellant was found guilty of first-degree murder, robbery, and possessing
instruments of crime in connection with this incident. See 18 Pa.C.S.A.
§§ 2502, 3701, and 907, respectively.


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court lacks jurisdiction over the petition. Commonwealth v. Callahan, 101

A.3d 118, 120-121 (Pa.Super. 2014).

     Here, it is undisputed that appellant’s August 5, 2013 PCRA petition is

patently untimely. As noted, appellant was sentenced to an aggregate term

of life imprisonment on March 2, 1982. On March 6, 1984, a panel of this

court affirmed the judgment of sentence, and our supreme court denied

appellant’s petition for allowance of appeal on October 15, 1984.             See

Commonwealth v. Henderson, 472 A.2d 211 (Pa.Super. 1984), appeal

denied,        A.2d       (Pa. 1984).    Appellant did not seek certiorari with

the United States Supreme Court. Thus, appellant’s judgment of sentence

became final on December 14, 1984, 60 days after the time for filing a

petition for certiorari with the United States Supreme Court expired. See

(former) U.S.Sup.Ct.R. 20.1; 42 Pa.C.S.A. § 9545(b) (providing “a judgment

becomes final at the conclusion of direct review, including 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[]”). As a

result, the PCRA court lacked jurisdiction to review appellant’s petition,

unless appellant alleged and proved one of the statutory exceptions to the

time bar, as set forth in Section 9545(b)(1).          See Commonwealth v.

Lawson, 90 A.3d 1, 5 (Pa.Super. 2014).

     The   three      exceptions   to   the   PCRA   time-bar   are   as   follows:

“(1) interference by government officials in the presentation of the claim;



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(2) newly discovered facts; and (3) an after-recognized constitutional right.”

Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012),

citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii).     Appellant bears the burden of

pleading and proving the applicability of any exception.         42 Pa.C.S.A.

§ 9545(b)(1).     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. Id. § 9545(b)(2).

        Instantly, appellant contends he satisfied Section 9545(b)(1)(ii)

because his claims are predicated on a “fact” of which he was previously

unaware; namely, the United States Supreme Court’s decision in McQuiggin

v. Perkins, 133 S.Ct. 1924 (2013).      (Appellant’s brief at 14, 38-39.)    In

McQuiggin, the Supreme Court held that in federal habeas corpus

proceedings, strict compliance with the one-year statute of limitations

imposed by 28 U.S.C. § 2244(d) will not be required when the petitioner

advances a convincing claim of actual innocence. McQuiggin, 133 S.Ct. at

1928.     Under McQuiggin, petitioners who assert a convincing actual

innocence claim may invoke the miscarriage of justice exception to

overcome the federal habeas corpus statute of limitations. Id. Appellant

contends it is unconstitutional to apply the PCRA timeliness provisions to his

instant petition in light of the McQuiggin holding. (Appellant’s brief at 14.)

        Upon review, we discern no error on the part of the PCRA court in

dismissing appellant’s petition as untimely.   Contrary to appellant’s claim,



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the record reflects that appellant failed to file his August 5, 2013 petition

within 60 days of the date McQuiggin was decided, May 28, 2013, as

required by Section 9545(b)(2).

       Moreover, we have recognized that McQuiggin is inapplicable to the

instant matter because that decision pertained to timeliness requirements

for   federal    habeas    corpus    review,   and   not   PCRA   petitions.   In

Commonwealth v. Brown, 143 A.3d 418 (Pa.Super. 2016), a panel of this

court recently addressed the applicability of McQuiggin to the timeliness

provisions set forth in the PCRA.        The Brown court declined to follow

McQuiggin on state-law grounds, reasoning as follows:

                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
                Commonwealth v. Saunders, 60 A.3d 162, 165
                (Pa.Super. 2013) (“While Martinez [v. Ryan,
                U.S.      , 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012)]
                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.

Brown, 143 A.3d at 420-421 (citations and brackets in original).

       Lastly, we note that our supreme court has held that “subsequent

decisional law does not amount to a new ‘fact’ under section 9545(b)(1)(ii)




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of the PCRA.”   Commonwealth v. Whitehawk, 146 A.3d 266, 271 (Pa.

2016), citing Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011).

     For all of the foregoing reasons, we find the PCRA court lacked

jurisdiction to consider the merits of appellant’s fifth PCRA petition and

properly dismissed it as untimely filed.     Accordingly, we affirm the

September 4, 2015 order of the PCRA court.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/22/2017




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