J-S59031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

KERRY MCNEIL

                             Appellant                  No. 982 EDA 2015


                  Appeal from the PCRA Order March 20, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0114201-1980

BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD,* J.

JUDGMENT ORDER BY FITZGERALD, J.:                FILED SEPTEMBER 09, 2016

        Appellant, Kerry McNeil, appeals from the order entered in the

Philadelphia County Court of Common Pleas dismissing his Post Conviction

Relief Act1 (“PCRA”) petition based upon untimeliness. We affirm.

        We adopt the facts and procedural history set forth in the PCRA court’s

opinion.     See PCRA Ct. Op., 9/9/15, at 1-5.         Appellant argues that a

manifest injustice occurred when the court denied him an evidentiary

hearing with regard to his Batson v. Kentucky, 476 U.S. 79 (1986) claim.

Appellant’s Brief at 30.       Appellant avers his PCRA petition was timely

following the decision of the United States Supreme Court in McQuiggin v.

Perkins, 133 S. Ct. 1924 (2013).         Id. at 29.   He notes that he filed the


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J-S59031-16


instant Petition for Habeas Corpus/Post Conviction Relief within sixty days of

May 28, 2013, the date the Supreme Court rendered its decision in

McQuiggin.      Id.     Appellant contends “that three recent cases further

support his long standing argument that his case was wrongly decided[,]”

citing McQuiggin, Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino

v. Thaler, 133 S. Ct. 1911 (2013). Id. at 32.

      As a prefatory matter, we note that “the PCRA subsumes the remedy

of habeas corpus with respect to remedies offered under the PCRA and that

any petition seeking relief under the PCRA must be filed within one year of

final judgment.”      Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa.

1998).   Furthermore, “the timeliness of a PCRA petition is a jurisdictional

requisite.”   Commonwealth v. Turner, 73 A.3d 1283, 1285 (Pa. Super.

2013) (citation omitted).

      After careful review of the record, the parties’ briefs, and the decision

by the Honorable Steven R. Geroff, we affirm on the basis of the PCRA

court’s opinion. See PCRA Ct. Op. at 5-10 (holding (1) Martinez, Trevino,

and McQuiggin are inapplicable to the case at bar as they are limited to

federal habeas review, (2) they do not render Appellant’s PCRA petition

timely, and (3) Martinez does not affect the PCRA time bar, citing

Commonwealth v. Saunders, 60 A.3d 162 (Pa. Super. 2013)).

      Moreoever, in Commonwealth v. Brown, ___ A.3d ___, 2016 WL

3690602 (Pa. Super. July 11, 2016), this Court recently addressed the



                                     -2-
J-S59031-16


applicability of McQuiggin to the timeliness provisions set forth in the PCRA.

The Brown Court opined:

         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 [Saunders, 60 A.3d at 165] (“While
         Martinez . . . 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.

Id. at ___, 2016 WL 3690602 at *3. Accordingly, we affirm the order of the

PCRA court dismissing Appellant’s petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/9/2016




                                     -3-
J-S59031-16




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                                                                                               Circulated 08/31/2016 04:19 PM


                                                                                                    FILED
                                                                                                     SEP O 9 2015
                                                                                               Criminal Appeals Unit
                              IN THE COURT OF COMMON PLEAS     First Judicial                             District of PA
                         FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                             TRIAL DIVISION - CRIMINAL SECTION



COMMONWEALTH OF                                                                    CP- 51-CR-0114201-1980
PENNSYLVANIA

             vs.

KERRY McNEIL
                                                                                   SUPERIOR COURT
                                                                                   NO. 982 EDA 2015




                                                     OPINION


GEROFF,J.                                                                          SEPTEMBER 9, 2015




         Petitioner; Kerry Mcl-Ieil, has filed an appeal of this court's order denying his petition

pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §9541 et seq ..




I. PROCEDURAL HISTORY

         On May 16, 1980, following a jury trial before Judge Albert Sabo, Petitioner was found

guilty of murder of the first degree and criminal conspiracy.1                 Petitioner's   post-verdict motions

were denied, and on December 18, 1980, Judge Sabo sentenced Petitioner to a mandatory term of

life imprisonment for murder of the first degree and a consecutive term of five (5) to ten (] 0)


         I
              Petitioner's convictions stemmed from the December   18, 1979 shooting death of Charles Vincent Wright,
Jr., his girlfriend's ex-boyfriend, in Philadelphia.
  years of imprisonment for conspiracy.        Lewis Smalls, Esquire, represented Petitioner at trial and

 sentencing. A timely direct appeal was not filed.

            Petitioner subsequently filed a pro se direct appeal to the Superior Court; because he

 placed an incorrect bill of information number on the appeal, Petitioner's appeal was quashed by

 the Superior Court.

            Petitioner's direct appellate rights were reinstated in 1986 nunc pro tune after he filed his

 first petition pursuant to the Post Conviction Hearing Act (PCHA).                  Counsel was subsequently

 appointed and filed a nunc pro tune direct appeal to the Superior Court on July 16, 1987. On

 May    19, 1988,      the Pennsylvania      Superior       Court affirmed    the judgments        of sentence.

 Commonwealth v. McNeil, 3 79 Pa. Super. 662, 545 A.2d 386 ( 1988). On October 31, 1988, the

 Pennsylvania       Supreme     Cami     denied    Petitioner's    petition    for     allowance    of appeal.

 Commonwealth v. A1cNe;f,520 Pa. 596, 552 A.2d 251 (1988).

            Petitioner's judgment of sentence became final on December 31, 1988, sixty days after

our Supreme Court denied allowance of appeal and the time then allowed for filing a petition for

writ of certiorari to the U.S. Supreme Court had expired. See 42 Pa.C.S. § 9545(b)(3); Former

U.S. Sup. Ct. Rule 20. I (petition for writ of certiorari is considered timely when filed within

sixty days after the denial of allowance of appeal). 2

         On or about December 28, 1990, Petitioner filed a petition for writ of habeas corpus in

the U.S. District Court for the Eastern District of Pennsylvania; his counsel later withdrew the


        2
           See also Commonwealth v. Thomas, 718 A.2d 326, 329 (Pa.Super.1998) (en bane) ("[W]e hold that it was
the intention of the legislature to permit an otherwise untimely first PCRA petition to be filed within one year
following the effective date of the l 995 PCRA amendments, but that exception was not intended to apply to
subsequent petitions regardless of when a first petition was filed.").




                                                        2
 petition without prejudice to allow Petitioner pursue a state collateral remedy.

         On April l , 1991, Petitioner filed a petition pursuant to the Post Conviction Relief Act

 (PCRA), 42 Pa.C.S. § 9541 et seq. (PCRA) in which he raised 20 claims, including an allegation

 that the prosecution improperly struck African-American members of his jury venire in violation

 of the U.S. Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.

Ed. 2d 69 (1986) holding modified by Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed.

2d 411 (1991) (racially discriminatory jury selection is constitutionally impermissible).   On June

28, 1991, Judge Sabo dismissed the petition without a hearing.

        Petitioner appealed to the Superior Court, arguing ineffective assistance of counsel for

failure to assert Petitioner's Batson claim on direct appeal.     The Superior Court affirmed the

dismissal on August 22, 1992 on the basis that Petitioner's Batson claim had no arguable merit

because Petitioner failed to establish the racial composition of the entire venire, his jury, and the

prospective jurors whom the defense struck. Commonwealth v. McNeil, 424 Pa. Super. 647, 617

A.2d 391 (1992).    On February 17, 1993, our Supreme Court denied Petitioner's petition for

allowance of appeal. Commonwealth v. McNeil, 533 Pa. 643, 622 A.2d 1375 (1993).

        Petitioner's second habeas corpus petition filed in federal court on April 13, 1993 was

denied without a hearing on October 29, 1993. Petitioner appealed, and the Court of Appeals for

the Third Circuit affirmed. Petitioner's petition for certiorari with the U.S. Supreme Court was

denied on May 15, 1995.

        At the time Petitioner's petition for certiorari was pending before the U.S. Supreme

Court, he filed his second pro se PCRA petition, which was dismissed as untimely on March 6,

1996.   The Pennsylvania    Superior Court affirmed the dismissal on May 28, 1997, and the

Pennsylvania Supreme Cami declined review on September 30, 1997.



                                                 3
            On May 6, 1998, Petitioner filed a third habeas corpus petition in federal court, asserting

 a claim pursuant to the U.S. Supreme Court's decision in Batson. The petition was denied; the

 decision was affirmed on appeal.              On October 4, 1999, the U.S. Supreme Court denied

 certiorari.

            On March 11, 2004, Petitioner filed his third pro se PCRA petition. On September 9,

 2005, he filed an amended, counseled PCRA petition, which was dismissed by this court on July

 13, 2007.3      On June 23, 2008, the Superior Court affirmed the PCRA court's dismissal.

 Commonwealth v. McNeil, 959 A.2d 464 (Pa. Super. 2008).                          On February 20, 2009, the

Pennsylvania Supreme Court denied Petitioner's                       petition for allowance of appeal.

Commonwealth v. lvlcNeil, 600 Pa. 376, 966 A.2d 550 (2009).

            On September 6, 2011, Petitioner filed his fourth PCRA petition, which was denied as

untimely on October 19, 2012.

         On July 8, 2013, Petitioner filed a counseled PCRA Petition (his fifth) arguing ineffective

assistance of counsel and requesting that this court provide "relief consistent with removing the

procedural default so that [Petitioner's] claim can be considered on the merits." Petition for

Habeas Corpus/Post Conviction Relief, 07/08/2013, p. 13.

         The Commonwealth filed a Motion to Dismiss on December 29, 2014; on January 8,

2015, the Commonwealth filed an Amended Motion to Dismiss. On January 21, 2015, Petitioner

filed a Response to the Commonwealth' s Motion to Dismiss. On February 12, 2015, following a


        3
           On February 6, 2006, this court granted Petitioner an evidentiary hearing on his Batson claim. This court
also granted the Commonwealth's request to file an interlocutory appeal.                 On February 16, 2006, the
Commonwealth filed a Motion for Reconsideration. After argument, on June 30, 2006, this court reimposed the
Order of February 6, 2006 granting the evidentiary hearing. The Commonwealth filed a Notice of Appeal, and on
September 5, 2006, the Superior Court denied the Commonwealth's Petition for Permission to Appeal. On October
4, 2006, this court filed an opinion addressing its decision to grant Petitioner an evidentiary hearing. On November
17, 2006, the Commonwealth filed a Motion to Vacate the Order Granting the hearing, and the Petitioner filed a
response. After conducting a review of the record and Petitioner's response to the court's notice of dismissal
pursuant to Rule 907, this court dismissed Petitioner's motion on July 13, 2007.

                                                         4
 hearing held in this matter, this court issued a notice of intent to dismiss        Petitioner's petition as

 untimely,     pursuant      to Pennsylvania   Rule of Criminal   Procedure   907.     On March      1, 2015,

 Petitioner,    through      his counsel   Raymond   D. Roberts, filed a Response     to the 907 Notice    of

 Intention     to Dismiss.       On March 20, 2015, after conducting   a review     of the record, this court

 dismissed     Petitioner's PCRA petition as untimely.       On March 31, 2015, Petitioner     filed a timely

 Notice of Appeal.




II. STANDARD OF REVIEW

         The Post Conviction Relief Act requires that a post-conviction petition be filed within

one year of the date the judgment becomes final.               42 Pa.C.S. § 9545 (b)(l).        A judgment

becomes final at the conclusion of direct review, including time to seek discretionary review

before the Pennsylvania Supreme Court and the United States Supreme Court.                     42 Pa.C.S. §

9545 (b)(3). The one-year limitation is exempted if a petitioner pleads and proves that:

         (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. § 9545 (b )(l )(i)-(iii).

        Any petition invoking an exception to the one-year limitation must be filed within sixty

days of the date the claim could be presented. 42 Pa.C.S. § 9545 (b)(2).

        The Pennsylvania Supreme Court has ruled that Pennsylvania courts have no jurisdiction



                                                       5
to hear untimely Post Conviction Relief Act petitions.     Commonwealth v. Hall, 565 Pa. 92, 95,

771 A.2d 1232, 1234 (2001). Where the Post Conviction Relief Act petition is untimely, a

petitioner must plead and prove that a one-year filing exception applies. See Commonwealth v.

Yarris, 557 Pa. 12, 24, 731 A.2d 581, 587 (1999) (stating that all PCRA petitions, "including

second and subsequent ones, must be filed within one year of the date on which the judgment

became final, unless one of the three statutory exceptions ... applies").

       Pursuant to Pennsylvania law, the Post Conviction Relief Act subsumes the remedy of

habeas corpus unless the claim does not fall within the ambit of the PCRA statute.

Commonwealth v. Burkett, 2010 PA Super 182, 5 A.3d 1260, 1274 (Pa. Super. 2010). See also

Commonwealth v. Taylor, 2013 PA Super 89, 65 A.3d 462, 466 (2013) ("[A) defendant cannot

escape the PCRA time-bar by titling his Petition or motion as a writ of habeas corpus.ry;

Commonwealth v. Deaner, 2001 PA Super 191, 779 A.2d 578, 580 (2001) (a collateral petition

raising an issue which the PCRA statute could remedy will be considered a PCRA petition);

Commonwealth v. Lusch, 759 A.2d 6, 9 (Pa. Super. 2000) (a habeas corpus petition raising a

claim cognizable under the PCRA must comply with the PCRA timeliness requirements).

       Claims of PCRA counsel's ineffectiveness do not save an otherwise untimely PCRA

petition for review on the merits. See Commonwealth v. Morris, 573 Pa. 157, 822 A.2d 684,

694-95 (2003); Commonwealth v. Fahy, 558 Pa. 313, 330, 737 A.2d 214, 223 (1999).        See also

Commonwealth v. Breakiron, 566 Pa. 323, 334, 781 A.2d 94, 100 (2001) ("[O)ur Court has

expressly rejected attempts to utilize ineffective assistance of counsel claims as a means of

escaping the jurisdictional time requirements for filing a PCRA petition.").




                                                 6
 III. DISCUSSION

        Petitioner captions his petition as a Petition for Habeas Corpuslvoei Conviction Relief.

However, the PCRA subsumes habeas relief as Petitioner's claims of ineffective assistance of

counsel are cognizable under the PCRA. Petitioner, therefore, is bound by the requirements of

the PCRA, including the timeliness requirements.

        As a preliminary matter, the Petitioner's petition is untimely on its face. Petitioner's

judgment of sentence became final on December 31, 1988, after our Supreme Court denied

allowance of appeal and when the period to file a petition for writ of certiorari with the U.S.

Supreme Court had expired. Petitioner's current PCRA petition was filed on July 8, 2013, over

twenty-four years after his judgment of sentence became final; it is, therefore, time-barred under

§ 9545(b), unless one of the enumerated exceptions is satisfied.

        Petitioner avers that his direct appeal counsel and his PCRA counsel were ineffective and

argues that because of his counsels' ineffectiveness, his "collateral proceeding was not sufficient

to ensure that proper consideration was given to his substantial claim." Petition for Habeas

C01pus/Post Conviction Relief, 07/08/2013, pp. 11-12. He argues that although he first raised

his underlying Batson claim in 1991, he has been "consistently, through improper interpretations

of the law, ... denied an evidentiary hearing on the merits of the claim." Petitioner's Response

to the 907 Notice of Intention to Dismiss, 03/01/2015, p. 1 (unnumbered). Petitioner claims,

therefore, that his otherwise untimely petition is timely because he is raising a claim which has

never been fully litigated.

       To excuse his failure to file a timely petition, Petitioner relies, inter alia, on the U.S.

Supreme Court's decisions in Martinez v. Ryan, 132 S. Ct. 1309, 1320, 182 L. Ed. 2d 272 (2012)

("[A] procedural default will not bar a federal habeas court from hearing a substantial claim of



                                                7
 ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel

or counsel in that proceeding was ineffective."),                 Trevino v. Thaler, 133 S. Ct. 1911, 185 L. Ed.

2d 1044 (2013) ("[W]here, as here, state procedural framework, by reason of its design and

operation, makes it highly unlikely in a typical case that a defendant will have a meaningful

opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal, our holding

in Martinez applies")", and JvfcQuiggin v. Perkins, 133 S. Ct. 1924, 185 L. Ed. 2d 1019 (2013)

(discussing the "actual innocence" gateway to federal habeas review).

             Petitioner appears to ignore the fact that he is not in federal court and that Martinez,

Trevino, and McQuiggin are thereby inapplicable to the case at bar as they are limited to federal

habeas review. As noted by the Commonwealth, these cases do not excuse Petitioner's failure to

file a timely petition. See Commonwealth's Amended Motion to Dismiss, 01/08/2015, pp. 8-9.

         Moreover, in Commonwealth v. Saunders, 2013 PA Super 9, 60 A.3d 162, 165, appeal

denied, 621 Pa. 657, 72 A.3d 603 (2013) and cert. denied sub nom. Saunders v. Pennsylvania,

134 S. Ct. 944, 187 L. Ed. 2d 811 (2014), our Superior Court specifically stressed that Martinez

does not affect the PCRA time-bar:

         Martinez       recognizes that for purposes of federal habeas corpus relief, "[i]nadequate
         assistance      of counsel at initial-review collateral proceedings may establish cause for a
         prisoner's       procedural default of a claim of ineffective assistance of trial counsel."
         Martinez,       supra at 1315. While Martinez 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)(l) of the
         PCRA.

Id. at 165 (emphasis added).

         Petitioner also relies on Judge Bender's dissenting opinion in Commonwealth v. Henkel,

2014 PA Super 75, 90 A.3d 16, appeal denied, 101 A.3d 785 (Pa. 2014), for the proposition that


         4
             Petitioner asserts that his Petition is timely because it was filed on July 8, 2013, within 60 days of the
Trevino decision. Petitioner's Response to the 907 Notice of Intention to Dismiss, 03/01/2015,         p. 3 (unnumbered).

                                                              8
 this court is "a proper initial forum to decide whether [Petitioner] is entitled to the relief he

 seeks."     Petitioner's    Response to the 907 Notice of Intention to Dismiss, 03/01/2015, p. 11

 (unnumbered).

           Petitioner's     reliance on Judge Bender's dissenting opinion m Henkel is misplaced.

 Although in his dissenting opinion, Judge Bender posits that there has been no binding,

 precedential decision by the Pennsylvania        Supreme Cami prohibiting review of claims of

 ineffective assistance of PCRA counsel for the first time on appeal from the denial of PCRA

 relief, his dissenting opinion is not binding on this court. See Commonwealth v. Thompson, 604

 Pa. 198, 221, 985 A.2d 928, 942 (2009)("0f course, persuasive as they are, neither the dissent of

 the Chief Justice nor the dissent by Mr. Justice Eakin is binding precedent. ... ").

           Furthermore, Petitioner's claim of ineffective assistance of counsel does not place his

petition within any of the enumerated exceptions to the one-year limitation. Petitioner cannot

escape the jurisdictional time requirements for filing a PCRA Petition by raising an ineffective-

assistance-of-counsel claim.

        The instant petition was filed over twenty-four years after the judgment of sentence in

this case became final. It was time-barred from review, and Petitioner has not demonstrated that

any of the statutory exceptions to the PCRA's timeliness requirement applied.



IV. CONCLUSION

        Petitioner has failed to demonstrate any basis for relief. In the absence of any meritorious

challenge that can be found in the reviewable record, Petitioner has failed to articulate his

allegations in accordance with the requisites of a claim predicated upon the timeliness of his

petition. No relief is due.



                                                   9
       For the foregoing reasons, Petitioner's petition for post-conviction collateral relief was

properly dismissed.




                                                   BY THE COURT:




                                             10
