           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Steven Gardner,                      :
                         Appellant   :
                                     :
            v.                       :
                                     :
Warden Mark Capozza, SCI Pittsburgh, :            No. 2282 C.D. 2015
Secretary John E. Wetzel             :            Submitted: April 15, 2016


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                           FILED: May 6, 2016


              Steven Gardner (Gardner), acting pro se, appeals from an order of the
Court of Common Pleas of Butler County (trial court) affirming the dismissal of
his petition for writ of habeas corpus ad subjiciendum1 (petition) because it was, in
actuality, an untimely petition for post-conviction relief. For the reasons discussed
below, we affirm.




       1
          “A writ of habeas corpus ad subjiciendum is defined as ‘[a] writ directed to someone
detaining another person and commanding that the detainee be brought to court.’” Pew v.
Mechling, 929 A.2d 1214, 1216 n.1 (Pa. Cmwlth. 2007) (quoting Black’s Law Dictionary 715
(7th ed. 1999)).
                Gardner is an inmate currently incarcerated at the State Correctional
Institution at Pittsburgh (SCI-Pittsburgh). He was charged with criminal homicide2
in the January 10, 1995 death of Robert Stewart (Stewart), his roommate at the
time. At trial, Gardner maintained that he shot Stewart in self-defense. The jury
found Gardner guilty of murder in the first degree3 and he was sentenced to life
imprisonment.


                After exhausting all of his direct appeals and Post-Conviction Relief
Act (PCRA)4 petitions, Gardner filed the instant petition with the trial court against
Mark Capozza, Superintendent of SCI-Pittsburgh, and John Wetzel, Secretary of
the Department of Corrections (together, Appellees). In essence, Gardner argued
that his conviction, sentencing and imprisonment were illegal. Specifically, he
claimed he was being held as the result of an illegal court procedure because his
case was not brought before a grand jury.               In addition, he claimed he was
wrongfully convicted of murder in the first degree because he acted in self-defense.
On these grounds, he sought relief from the alleged unlawful restraint of his liberty
and requested that the trial court hold a hearing on these issues.



       2
         “A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or
negligently causes the death of another human being.” 18 Pa. C.S. §2501(a). “Criminal
homicide shall be classified as murder, voluntary manslaughter, or involuntary manslaughter.”
18 Pa. C.S. §2501(b).

       3
         “A criminal homicide constitutes murder of the first degree when it is committed by an
intentional killing.” 18 Pa. C.S. §2502(a).

       4
           42 Pa. C.S. §§9541-46.




                                              2
             On October 15, 2015, the trial court entered an order denying the
petition, explaining that Gardner’s claim that he was illegally tried and sentenced
was not a writ of habeas corpus but yet another PCRA petition. The trial court
denied Gardner’s petition as untimely without conducting a hearing. Gardner filed
a motion for reconsideration which was denied, and he then appealed to this Court
from the order denying his petition as untimely.


             On appeal,5 Gardner argues that the trial court erred in determining
that his petition was actually a PCRA petition and that a hearing on the merits
should have been conducted prior to this ruling. These arguments are without
merit. Section 6503(a) of the Judicial Code states that “[e]xcept as provided in
subsection (b), an application for habeas corpus to inquire into the cause of
detention may be brought by or on behalf of any person restrained of his liberty
within this Commonwealth under any pretense whatsoever.” 42 Pa. C.S. §6503(a).
The exception provided in subsection (b) specifies that “[w]here a person is
restrained by virtue of sentence after conviction for a criminal offense, the writ of
habeas corpus shall not be available if a remedy may be had by post-conviction
hearing proceedings authorized by law.” 42 Pa. C.S. §6503(b).


             Gardner’s petition claiming that he was illegally tried and sentenced
falls squarely within the PCRA, regardless of how it is captioned. The PCRA
addresses this very issue:



      5
         Because the issues for review present questions of law, our review is plenary.
Skipworth by Williams v. Lead Indus. Ass’n, Inc., 690 A.2d 169 (Pa. 1997).



                                          3
             This subchapter provides for an action by which persons
             convicted of crimes they did not commit and persons
             serving illegal sentences may obtain collateral relief. The
             action established in this subchapter shall be the sole
             means of obtaining collateral relief and encompasses all
             other common law and statutory remedies for the same
             purpose that exist when this subchapter takes effect,
             including habeas corpus and coram nobis.


42 Pa. C.S. §9542. In this case, Gardner alleges that he did not commit the crime
of first degree murder because he allegedly acted in self-defense, and that he is
serving an illegal sentence because a grand jury was not convened. It is clear that
the PCRA subsumes the writ of habeas corpus in circumstances such as this where
the PCRA provides a remedy for the petitioner’s claim. See Commonwealth v.
Hackett, 956 A.2d 978, 985-86 (Pa. 2008) (collecting cases); Commonwealth v.
Peterkin, 722 A.2d 638, 640 (Pa. 1998); Commonwealth v. Taylor, 65 A.3d 462,
465-66 (Pa. Super. 2013). Therefore, the trial court correctly determined that
Gardner’s petition was, in actuality, a PCRA petition rather than a writ of habeas
corpus.


             Because Gardner’s petition is properly classified as a PCRA petition,
the PCRA’s time limits apply. Taylor, 65 A.3d at 466 (“a [petitioner] cannot
escape the PCRA time-bar by titling his petition or motion as a writ of habeas
corpus.”).   Any petition for relief under the PCRA “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final,” unless the petitioner alleges and proves that an exception to the
one-year time-bar is met. 42 Pa. C.S. §9545(b)(1). It is clearly established that the




                                         4
PCRA’s time requirement is jurisdictional. See Commonwealth v. Fahy, 737 A.2d
214, 220 (Pa. 1999); Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998).


            Gardner’s conviction became final on or about June 20, 2002, when
he terminated his attempt to obtain a writ of certiorari from the United States
Supreme Court. His petition was not filed in the trial court until July 21, 2015,
twelve years beyond the PCRA’s one-year time-bar. Gardner failed to allege
below or in this appeal that any exceptions to the PCRA’s time-bar apply.
Therefore, the trial court correctly determined that Gardner’s PCRA petition was
untimely. See Taylor, 65 A.3d at 468. Because the petition was untimely, the trial
court lacked jurisdiction to review the merits of Gardner’s petition, and his claim
that he was entitled to a hearing is without merit. See Fahy, 737 A.2d at 224.


            Accordingly, the order of the trial court is affirmed.




                                         DAN PELLEGRINI, Senior Judge




                                         5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Steven Gardner,                      :
                         Appellant   :
                                     :
            v.                       :
                                     :
Warden Mark Capozza, SCI Pittsburgh, :
Secretary John E. Wetzel             :    No. 2282 C.D. 2015




                                 ORDER


            AND NOW, this 6th day of May, 2016, the order of the Court of
Common Pleas of Butler County is hereby affirmed.




                                      DAN PELLEGRINI, Senior Judge
