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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EUGENE JACOBS,

                            Appellant                No. 250 EDA 2016


                 Appeal from the PCRA Order of January 5, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1003721-1995


BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                         FILED DECEMBER 02, 2016

        Appellant, Eugene Jacobs, appeals pro se from the order entered on

January 5, 2016, which dismissed his second petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        On October 2, 1996, a jury found Appellant guilty of first-degree

murder, robbery, theft, and possessing an instrument of crime.1 On October

4, 1996, the trial court sentenced Appellant to serve a term of life in prison

for the murder conviction and various other terms of imprisonment for the

remaining convictions.       We affirmed Appellant’s judgment of sentence on

December 1, 1999; Appellant did not file a petition for allowance of appeal



____________________________________________


1
    18 Pa.C.S.A. §§ 2502, 3701, 3921, and 907, respectively.
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with the Pennsylvania Supreme Court.        Commonwealth v. Jacobs, 750

A.2d 369 (Pa. Super. 1999) (unpublished memorandum) at 1-16.

         On November 30, 2000, Appellant filed his first PCRA petition and the

PCRA court appointed counsel to represent Appellant. On October 2, 2002,

the PCRA court dismissed Appellant’s petition and, after a lengthy appeal,

this Court affirmed the dismissal on April 8, 2009.          The Pennsylvania

Supreme Court denied Appellant’s petition for allowance of appeal on

December 9, 2009. Commonwealth v. Jacobs, 974 A.2d 1184 (Pa. Super.

2009) (unpublished memorandum) at 1-16, appeal denied, 985 A.2d 970

(Pa. 2009).

         On May 14, 2012, Appellant filed the current petition, which

constitutes Appellant’s second petition for post-conviction collateral relief

under the PCRA. Within Appellant’s petition, Appellant acknowledged that he

filed his petition more than one year after his judgment of sentence became

final.    However, Appellant claimed that his petition was timely under the

“newly recognized constitutional right” exception to the PCRA’s time-bar.

Specifically, Appellant claimed that he filed his petition within 60 days of the

United States Supreme Court’s decision in Martinez v. Ryan.                See

Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012); Appellant’s




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Second PCRA Petition, 5/14/12, at Supplemental 1. 2            In Martinez, the

United States Supreme Court held:

          Where, under state law, claims of ineffective assistance of
          trial counsel must be raised in an initial-review collateral
          proceeding, a procedural default will not bar a federal
          habeas court from hearing a substantial claim of ineffective
          assistance at trial if, in the initial-review collateral
          proceeding, there was no counsel or counsel in that
          proceeding was ineffective.

Martinez, ___ U.S. at ___, 132 S.Ct. at 1320.               In other words, the

Martinez Court held that, where counsel is ineffective in an initial state

collateral review proceeding, and where the ineffectiveness caused the

petitioner to procedurally default on a “substantial” substantive claim, the

ineffectiveness “may provide cause [to excuse a] procedural default in a

[later] federal habeas proceeding.”              Martinez, ___ U.S. at ___, 132

S.Ct. at 1315 (emphasis added).

        On January 5, 2016, the PCRA court dismissed Appellant’s petition

without a hearing and, on January 12, 2016, Appellant filed a timely notice

of appeal.    We now affirm the dismissal of Appellant’s patently untimely,

serial PCRA petition.

        As our Supreme Court held, we “review an order granting or denying

PCRA relief to determine whether the PCRA court’s decision is supported by




____________________________________________


2
    The United States Supreme Court decided Martinez on March 20, 2012.



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evidence of record and whether its decision is free from legal error.”

Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003).

     The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.   This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b).           Further,

since the time-bar implicates the subject matter jurisdiction of our courts,

we are required to first determine the timeliness of a petition before we

consider the underlying claims. Commonwealth v. Yarris, 731 A.2d 581,

586 (Pa. 1999). Our Supreme Court has explained:

        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from
        considering untimely PCRA petitions.            See, e.g.,
        Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
        (stating that “given the fact that the PCRA's timeliness
        requirements are mandatory and jurisdictional in nature, no
        court may properly disregard or alter them in order to reach
        the merits of the claims raised in a PCRA petition that is
        filed in an untimely manner”); Commonwealth v. Fahy,
        737 A.2d 214, 220 (Pa. 1999) (holding that where a
        petitioner fails to satisfy the PCRA time requirements, this
        Court has no jurisdiction to entertain the petition). [The
        Pennsylvania Supreme Court has] also held that even where
        the PCRA court does not address the applicability of the
        PCRA timing mandate, th[e court would] consider the issue
        sua sponte, as it is a threshold question implicating our



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        subject matter jurisdiction and ability to grant the requested
        relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).

     In the case at bar, Appellant’s judgment of sentence became final in

1999. As Appellant did not file his current petition until May 14, 2012, the

current petition is manifestly untimely and the burden thus fell upon

Appellant to plead and prove that one of the enumerated exceptions to the

one-year time-bar applied to his case.     See 42 Pa.C.S.A. § 9545(b)(1);

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to

properly invoke a statutory exception to the one-year time-bar, the PCRA

demands that the petitioner properly plead and prove all required elements

of the relied-upon exception).

     Here, Appellant purports to invoke the “newly recognized constitutional

right” exception to the time-bar. This statutory exception provides:

        (1) Any petition under this subchapter, including a second
        or subsequent petition, shall be filed within one year of the
        date the judgment becomes final, unless the petition alleges
        and the petitioner proves that:

                                     ...

           (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.

                                     ...

        (2) Any petition invoking an exception provided in
        paragraph (1) shall be filed within 60 days of the date the
        claim could have been presented.


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42 Pa.C.S.A. § 9545(b).

      According to Appellant, in Martinez v. Ryan, the United States

Supreme Court recognized a new constitutional right and, in accordance with

this new constitutional right, Appellant is now entitled to raise claims that his

trial counsel and direct appellate counsel were ineffective. This claim fails.

      The “newly recognized constitutional right” exception to the PCRA’s

time-bar is codified in 42 Pa.C.S.A. § 9545(b)(1)(iii). As our Supreme Court

has explained:

        Subsection (iii) of Section 9545(b)(1) has two requirements.
        First, it provides that 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 provided in this section. Second, it provides that
        the right “has been held” by “that court” to apply
        retroactively. Thus, a petitioner must prove that there is a
        “new” constitutional right and that the right “has been held”
        by that court to apply retroactively. The language “has
        been held” is in the past tense. These words mean that the
        action has already occurred, i.e., “that court” has already
        held the new constitutional right to be retroactive to cases
        on collateral review. By employing the past tense in writing
        this provision, the legislature clearly intended that the right
        was already recognized at the time the petition was filed.

Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007),

quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002)

(internal corrections omitted). Moreover, since the plain statutory language

of section 9545 demands that the PCRA petition “allege” all elements of the

statutory exception, it is clear that – to properly invoke the “newly




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recognized constitutional right” exception – the petitioner must plead each of

the above-stated elements in the petition. 42 Pa.C.S.A. § 9545(b)(1).

        As stated above, in Martinez, the Supreme Court held that, where

counsel is ineffective in a prior, initial state collateral review proceeding, and

where the ineffectiveness caused the petitioner to procedurally default on a

substantive claim, counsel’s ineffectiveness “may provide cause [to excuse

a] procedural default in a federal habeas proceeding.” Martinez, ___ U.S.

at ___, 132 S.Ct. at 1315. Yet, as the Martinez Court explicitly declared, it

was not handing down a “constitutional ruling” and it was not recognizing a

new constitutional right.     Martinez, ___ U.S. at ___, 132 S.Ct. at 1319-

1320.     Rather, the Martinez Court based its holding upon an “equitable”

exception to a court-created doctrine that is applicable only in the federal

courts.    Id.; see also Coleman v. Thompson, 501 U.S. 722, 730-731

(1991) (in habeas proceedings, the doctrine of “procedural default” arises

from the “independent and adequate state ground doctrine” – which, in turn,

“is grounded in concerns of comity and federalism”); Martinez, ___ U.S. at

___, 132 S.Ct. at 1315.

        Since   Martinez    did   not   recognize   a   new   constitutional   right,

Appellant’s attempt to invoke the “newly recognized constitutional right”

exception to the PCRA’s one-year time-bar immediately fails. Further, since

Appellant has not attempted to plead any other exception to the time-bar,

we conclude that Appellant’s petition is time-barred and that our “courts are


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without jurisdiction to offer [Appellant] any form of relief.” Commonwealth

v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). Therefore, we affirm the

PCRA court’s order dismissing Appellant’s second PCRA petition without a

hearing.

     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2016




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