J-S71042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HOWARD MILLER                              :
                                               :
                       Appellant               :   No. 1496 EDA 2019

               Appeal from the PCRA Order Entered May 7, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0904411-2004


BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED APRIL 7, 2020

        Howard Miller appeals from the denial of his request for relief under the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The PCRA

court denied Miller’s PCRA petition as untimely. We affirm.

        A jury found Miller guilty of robbery of motor vehicle and possessing

instruments of crime.1 The trial court sentenced Miller to 10 to 20 years’

imprisonment followed by five years’ reporting probation, and we affirmed the

judgment of sentence. Commonwealth v. Miller, 938 A.2d 1117 (Table)

(Pa.Super. 2007). The Pennsylvania Supreme Court denied allowance of

appeal on March 12, 2008. Commonwealth v. Miller, 945 A.2d 168 (Table)

(Pa. filed March 12, 2008).




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1   18 Pa.C.S.A. §§ 3702(a) and 907(a), respectively.
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      Miller filed his first timely petition in October 2007. The PCRA court

denied it and we affirmed. Commonwealth v. Miller, 986 A.2d 1260 (Table)

(Pa.Super. 2009), appeal denied, 5 A.3d 819 (Table) (Pa. filed September 8,

2010).

      Miller filed the instant PCRA petition on September 5, 2017, claiming

trial counsel was ineffective. He also asserted the governmental interference

exception to the PCRA’s time-bar. He argued “not being able to adequately

have access to the law library, and when [Miller was] able [to have access],

new cases [sic] not updated until months later, falling outside the 60 day

requirement.” PCRA Petition, filed 9/5/17, at ¶ 15.

      The PCRA court issued notice of its intent to dismiss the petition without

a hearing and Miller replied to the notice. See Pa.R.Crim.P. 907; 907 Notice,

filed 1/3/19; Objection to 907 W/ Appearance of Judicial Corruption, filed

1/14/19. The PCRA court denied the PCRA petition and this timely appeal

followed.

      Miller raises the following issues:

          1. Whether Fraud upon the [c]ourt exists?

          2. Whether the State and Federal Courts actions in similar
             cases have created a precedent that the State Courts
             should follow when Fraud upon the [c]ourt occurs. 42 Pa.
             C.S. 5505[?]

Miller’s Br. at 3.

      We do not address the merits of Miller’s claims because his PCRA petition

is untimely. A petitioner has one year after the judgment of sentence becomes


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final to file a PCRA petition. When a petitioner files a PCRA petition after that

deadline, the petitioner bears the burden of pleading and proving at least one

of the PCRA’s time-bar exceptions. These 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)(i)-(iii). A petitioner must raise the exception within

60 days that the claim could have been raised. Id. at § 9545(b)(2).2

       Here, Miller’s judgment of sentence became final on June 10, 2008,

when the time to file a writ of certiorari with the United States Supreme Court

expired. U.S.Sup.Ct. Rule 13. Therefore, the one-year deadline expired on

June 10, 2009. Thus, his petition filed eight years later is patently untimely.




____________________________________________


2 This subsection has been amended and now reads that the exception shall
be invoked “within one year of the date the claim could have been presented.”
42 Pa.C.S.A. § 9545(b)(2). The amendment applies only to claims arising on
or after December 24, 2017. It is unclear when the claim here arose, but we
need not reach that question because Miller’s allegations do not suffice to raise
the governmental interference exception.

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      Acknowledging this fact, Miller claims the governmental interference

exception. Miller thus was required to plead and prove that his failure to raise

the claim of ineffective assistance of counsel “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 . . . .” Commonwealth v. Chester, 895 A.2d

520, 523 (Pa. 2006) (quoting 42 Pa.C.S.A. § 9545(b)(1)(i)) (emphasis

removed). Miller maintains that the interference here was his limited access

to the prison library. However, such a claim does not constitute as a

governmental interference. See Commonwealth v. Rivzi, 166 A.3d 344, 348

(Pa.Super. 2017) (affirming denial of PCRA petition where petitioner raised

governmental interference exception for untimely PCRA petition for limited

time in prison library). As such, because Miller failed to plead and prove a time

bar exception, no relief is due. Therefore, we affirm the denial of Miller’s PCRA

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2020




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