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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                     :
                                          :
DENNIS A. HOWARD,                         :
                                          :           No. 558 EDA 2015
                          Appellant       :


               Appeal from the PCRA Order, January 30, 2015,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0000672-2007


BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.


JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.:            FILED FEBRUARY 19, 2016

     This appeal by pro se appellant is from the dismissal of his second

PCRA petition as untimely. Petitioner was convicted of first degree murder

and weapons offenses on January 29, 2008, and sentenced the following day

to life without parole.     This court affirmed the judgment of sentence on

September    4,   2009,     and   our   supreme    court   denied   allocator   on

December 29, 2009.

     Appellant filed his first timely petition on July 15, 2010, counsel was

appointed, and a full hearing was held. The issue addressed at the hearing,

whether trial counsel was ineffective for failing to investigate and assert a

defense of diminished capacity at trial, was based on the counselled

amended PCRA petition that incorporated the failure to investigate claims in
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appellant’s pro se petition. The petition was denied, and this court affirmed

on March 19, 2014. PCRA counsel represented appellant on appeal.

       On April 7, 2014, appellant filed this second PCRA petition more than

four years after his judgment of sentence became final. The issue presented

below and on appeal is whether appellant is entitled to relief pursuant to

Martinez v. Ryan, 132 S.Ct. 1309 (2012).            He alleges that his PCRA

counsel was ineffective for failing to argue all of the ineffectiveness and trial

errors he listed in his pro se PCRA petition.

       The PCRA court determined that Martinez does not apply as an

exception to the timeliness requirements of the PCRA.         Martinez affords

petitioners potential relief within the context of a federal habeas proceeding

for a procedural default occurring in a state’s collateral practice. This may

include substantial ineffectiveness of counsel during collateral proceedings.

Moreover, as determined by the PCRA court, appellant has failed to allege

any facts to establish ineffectiveness pursuant to the Strickland standard.1

       We agree with PCRA court that appellant’s petition was properly

dismissed as untimely.

       Order affirmed.




1
    Strickland v. Washington, 466 U.S. 668 (1984).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/19/2016




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