J-S48034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                     Appellee               :
                                            :
              v.                            :
                                            :
 CLIFTON PARKER                             :
                                            :
                     Appellant              :       No. 4059 EDA 2017


               Appeal from the PCRA Order November 21, 2017
             in the Court of Common Pleas of Philadelphia County
              Criminal Division at No.: CP-51-CR-0608821-2001


BEFORE:    DUBOW, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                            FILED OCTOBER 25, 2018

      Appellant, Clifton Parker, appeals pro se from the order dismissing his

third petition (styled as a petition for writ of habeas corpus) for relief pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as

untimely. We affirm.

      During a one-hour crime spree, Appellant and a cohort killed one man,

attempted to kill another man, and robbed a third man. On March 11, 2004,

a jury convicted Appellant of one count each of second-degree murder,

attempted murder, aggravated assault, robbery, and theft by unlawful taking,

and three counts of criminal conspiracy.        The court sentenced him to life

imprisonment, and a consecutive aggregate term of not less than twenty nor

more than forty years of imprisonment.



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       On May 5, 2005, this Court affirmed the judgment of sentence on direct

appeal. (See Commonwealth v. Parker, 880 A.2d 10 (Pa. Super. 2005)).

On December 29, 2005, the Pennsylvania Supreme Court denied allowance of

appeal. (See Commonwealth v. Parker, 892 A.2d 822 (Pa. 2005)). On

August 31, 2006, Appellant filed his first PCRA petition. The court appointed

counsel, who filed an amended petition. On November 1, 2007, the PCRA

court dismissed his petition as meritless.       This Court affirmed on April 14,

2010. A second petition also failed.

       On March 23, 2016, Appellant filed the instant third PCRA petition, pro

se. On November 21, 2017, the PCRA court dismissed Appellant’s petition as

untimely. This appeal followed.

       Appellant presents one question for our review:

            Whether Appellant is entitled to Post Conviction Relief based
       on newly discovered mitigating evidence regarding brain science
       and social science study?

(Appellant’s Brief, at 3).

       On appeal, Appellant does not deny that he is guilty of the charges for

which he was convicted in 2004. (See, e.g., id. at 5). Instead, he maintains

that “he is innocent of first degree murder due to an undeveloped brain.”1

(Id. at 15) (emphasis added).             He argues that because of the studies



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1Elsewhere in the brief Appellant recognizes, correctly, that he was convicted
of second-degree murder. (See e.g., id. at 5).


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discussing an undeveloped brain, as cited in United State Supreme Court

cases, the PCRA court order should be reversed.         (See id. at 17).    We

disagree.

      Our standard of review is sell-settled.

            When reviewing the denial of a PCRA petition, we must
      determine whether the PCRA court’s order is supported by the
      record and free of legal error. Generally, we are bound by a PCRA
      court’s credibility determinations. However, with regard to a
      court’s legal conclusions, we apply a de novo standard.

Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa. Super. 2018) (citation

omitted).

      Before considering the merits of Appellant’s claims, we must first

determine whether the PCRA court correctly concluded that because

Appellant’s third PCRA petition was not filed within the time limits required by

the PCRA, or pleaded and proved one of the three statutory exceptions to the

PCRA time bar, the court lacked jurisdiction to consider the petition.

      The timeliness of a post conviction petition is jurisdictional.      See

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

is final unless the petition alleges and the petitioner proves one of the three

exceptions to the time limitations for filing the petition set forth in Section

9545(b)(1) of the statute. A PCRA petition invoking one of these statutory




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exceptions must “be filed within 60 days of the date the claim could have been

presented.” See 42 Pa.C.S.A. § 9545(b)(2).

       Here, although Appellant’s brief is often meandering and unfocussed, it

is apparent that he claims an exception to the PCRA time-bar for newly

discovered facts. (See Appellant’s Brief, at 7).

       Specifically, he argues that “newly discovered mitigating evidence” in

the form of scientific studies concluding that the brain is not fully developed

until the mid-twenties, prove that his brain was not fully developed at the time

of his offense. (Id.). Appellate acknowledges that he was nineteen at the

time of the murder. (See id. at 12; see also PCRA Court Opinion, 11/21/17,

at 1 n.1).       He cites Miller v. Alabama, 567 U.S. 460 (2012) and

Montgomery v. Louisiana, 136 S. Ct. 718 (2016), as revised (Jan. 27, 2016)

in support of his claim that an undeveloped brain mitigates his culpability.2

We disagree.

       Preliminarily, the trial court properly treated Appellant’s claim, although

styled as a “Petition for Habeas Corpus Relief,” as a PCRA petition. The PCRA

is the sole means for obtaining collateral relief and subsumes the writ of

habeas corpus.      See 42 Pa.C.S.A. § 9542 ("The action established in this


____________________________________________


2 Miller held that a juvenile convicted of a homicide offense could not be
sentenced to life in prison without parole absent consideration of the juvenile’s
“special circumstances.” Montgomery, supra at 725. Montgomery also
held that Miller announced a substantive rule that is retroactive in cases on
collateral review.


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subchapter shall be the sole means of obtaining collateral relief and

encompasses all other common law and statutory remedies . . . including

habeas corpus. . . . ").

        Here, Appellant’s judgment of sentence became final on March 29, 2006,

when the ninety day period for filing a petition for writ of certiorari to the

United States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); see

also Rule 13 of the United States Supreme Court. Appellant thus had until

March 29, 2007 to file a timely PCRA petition, but did not file the instant

petition until March 23, 2016, approximately nine years too late. Therefore,

the PCRA court had no jurisdiction to entertain his petition unless he pleaded

and proved one of the three narrow exceptions to the time-bar.3 He failed to

do so.



____________________________________________


3   The three exceptions are:

               (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.A. § 9545(b)(1).

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      Appellant purports to invoke the newly discovered fact exception under

§ 9545(b)(1)(ii), by relying on Montgomery, supra which he claimed

validated the “brain science and social science” cited in Miller, supra.

(Appellant’s Brief, at 7). In effect, he claims that the studies establish that

his brain was underdeveloped at the time of his crimes, preventing him from

forming the requisite intent for second-degree murder.           His claim to an

exception fails.

      First, the record confirms that Appellant has been aware of the research

cited in Miller since at least August 6, 2012, when he filed a pro se amended

petition seeking, inter alia, relief under Miller on an essentially identical basis

to the claims made here. (See Supplemental Amended Petition, dated August

6, 2012, filed August 15, 2012, at 5-7).         Therefore, Appellant’s claim is

previously litigated. See 42 Pa.C.S.A. § 9544(a)(2-3).

      Moreover, the research on which Appellant relies to support this

assertion was not revealed for the first time in Miller. Rather, Miller noted

decades-old research discussed and cited in Roper v. Simmons, 543 U.S.

551 (2005), and Graham v. Florida, 560 U.S. 48 (2010), as expressly

acknowledged by Appellant in his 2012 petition.              (See Supplemental

Amended Petition, 8/06/12, supra at 5-7).

      Furthermore, because Appellant’s petition (filed on March 23, 2016),

was not filed “within 60 days of the date the claim could have been presented,”

42 Pa.C.S.A. § 9545(b)(2), namely within 60 days of Miller, Roper, or even


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earlier, he failed to comply with the time limit to establish the newly-

discovered fact exception to the time-bar.

      In any event, Appellant’s assertion of incomplete brain development

fails to present either an exception to the PCRA time bar, or a basis for PCRA

relief. Rather than seeking relief under Miller, Appellant’s argument seeks an

extension of the Miller decision beyond the stated limits of its holding. See

Commonwealth v. Furgess, 149 A.3d 90, 91–94 (Pa. Super. 2016) (holding

that petitioners who were older than eighteen at the time they committed

murder are not within ambit of Miller decision and therefore may not rely on

that decision to bring themselves within time-bar exception).        See also

Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013), abrogated

on other grounds (concluding contention that newly-recognized constitutional

right should be extended to others does not render petition timely pursuant

to section 9545(b)(1)(iii)). Appellant’s petition is untimely with no exception

to the time-bar proven.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/18



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