J-S38040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

GARY BATES

                             Appellant                 No.248 EDA 2017


                Appeal from the PCRA Order December 20, 2016
       in the Court of Common Pleas of Chester County Criminal Division
                       at No(s):CP-15-CR-0001532-1976

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 14, 2017

        Appellant, Gary Bates, appeals pro se from the order entered in the

Chester County Court of Common Pleas denying his “petition for writ of

habeas corpus” as an untimely seventh petition pursuant to the Post

Conviction Relief Act1 (“PCRA”). Appellant contends the PCRA court erred in

dismissing his habeas corpus petition as an untimely PCRA petition.       We

affirm.

        The PCRA court summarized the facts and procedural posture of this

case as follows:

              [Appellant] was found guilty of first degree murder,
           robbery, burglary, criminal conspiracy and weapons
           offenses by a jury on March 17, 1977. On direct appeal in
           1981, the Supreme Court of Pennsylvania affirmed without


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J-S38040-17


          opinion.[2] [Appellant] filed his first PCRA Petition on May
          28, 1982, which was denied on October 26, 1984.
          [Appellant] appealed and the Superior Court affirmed on
          November 16, 1989.[3] A Petition for Allowance of Appeal
          to the Supreme Court of Pennsylvania was denied on May
          21, 1990. On April 5, 1993, [Appellant] filed his second
          PCRA Petition. An amended petition was filed on his behalf
          on July 9, 1997. This Petition was denied by Order dated
          May 21, 1998. [Appellant appealed and the Superior Court
          affirmed on May 11, 1999.4] Over six years later on July
          16, 2004, [Appellant] filed his third PCRA petition, which
          was dismissed on December 30, 2005.               [Appellant]
          appealed and the Pennsylvania Superior Court affirmed on
          July 13, 2006.[5] On August 13, 2007, [Appellant] filed his
          fourth PCRA Petition, which was dismissed as untimely on
          October 8, 2007. He again appealed and the Pennsylvania
          Superior Court affirmed the dismissal on March 19,
          2009.[6] He then filed a Petition for Writ of Habeas Corpus
          on May 10, 2010, in which he raised the same issues he
          raised in his fourth PCRA Petition. The court properly
          treated it as a fifth PCRA Petition and dismissed it without
          a hearing on September 1, 2010. [Appellant] appealed
          and the Superior Court affirmed the dismissal on February
          17, 2011.[7] On May 31, 2011, [Appellant] filed his sixth
          PCRA Petition, which was dismissed on September 20,


2
    Commonwealth v. Bates, 428 A.2d 975 (Pa. 1981).
3
  Commonwealth v. Bates, 163 Phila. 1985 (unpublished memorandum)
(Pa. Super. Nov. 16, 1989).
4
  Commonwealth v. Bates, 1939 Phila. 1998 (unpublished memorandum)
(Pa. Super. May 11, 1999).
5
  Commonwealth v. Bates, 401 EDA 2006 (unpublished memorandum)
(Pa. Super. July 13, 2006).
6
  Commonwealth v. Bates, 634 EDA 2008 (unpublished memorandum)
(Pa. Super. Mar. 19, 2009).
7
  Commonwealth v. Bates, 2637 EDA 2010 (unpublished memorandum)
(Pa. Super. Feb. 17, 2011).



                                      -2-
J-S38040-17


           2011. He did not appeal that decision, so it became final
           thirty days later.

Notice of Intent to Dismiss PCRA Pet. Pursuant to Pa.R.Crim.P. 907(1),

11/9/16, at 2 n.1.8

        Appellant filed the instant petition for writ of habeas corpus, which the

PCRA court received on July 25, 2016.9 Appellant’s petition raised Batson10

and ineffective assistance of counsel claims. The PCRA court considered the

petition for writ of habeas corpus as a seventh PCRA petition and dismissed

it for being untimely and for raising previously litigated or waived claims.

This timely appeal followed.        Appellant filed a court-ordered Pa.R.A.P.

1925(b) statement of errors complained of on appeal.

        Appellant raises the following issues for our review:

           I. WHETHER THE COURT COMMITTED AN ERROR OF LAW
           AND FACT WHEN IT CONVERTED PETITIONER’S HABEAS
           PETITION, RECOGNIZED BY ARTICLE I, SECTION 9 OF THE
           UNITED STATES CONSTITUTION, ARTICLE I, SECTION 14
           OF THE PENNSYLVANIA, CODIFIED BY 42 PA.C.S. § 6501
           ET SEQ. WHEN HIS HABEAS PETITION RENEWED HIS
           PREVIOUSLY LITIGATED BATSON AND INEFFECTIVE
           ASSISTANCE OF COUNSEL CLAIMS?

8
  The PCRA court’s Pa.R.A.P. 1925(a) opinion incorporated its Rule 907
notice.
9
  Appellant dated the petition July 20, 2016; however, the record does not
contain a stamped mailing envelope. See Commonwealth v. Chambers,
35 A.3d 34, 38 (Pa. Super. 2011) (“[A] pro se prisoner's document is
deemed filed on the date he delivers it to prison authorities for mailing.”)
(citations omitted). For the reasons that follow, we need not determine
precisely which date Appellant filed his petition.
10
     Batson v. Kentucky, 476 U.S. 79 (1986).



                                       -3-
J-S38040-17



           II. WHETHER THE STATUTORY REQUIREMENT THAT THE
           CLAIM PRESENTED IN THE HABEAS CANNOT BE RAISED
           UNDER PCRA WAS MET WHEN THE PCRA PROHIBITS
           PREVIOUSLY LITIGATED CLAIMS, PETITIONER’S BATSON
           AND    INEFFECTIVE   ASSISTANCE    CLAIMS    WERE
           PREVIOUSLY LITIGATED, AND ARE RENEWED CLAIMS
           WITH    SUPPORTING   BATSON     AND    INEFFECTIVE
           ASSISTANCE EVIDENCE THAT WAS NOT PREVIOUSLY
           AVAILABLE, WAS WITHHELD BY THE CLERK OF CHESTER
           COUNTY OFFICE UNTIL 24 YEARS AFTER TRIAL, AND
           PRODUCED UPON PETITIONER?

           III. WHETHER PETITIONER’S . . . HABEAS PETITION[11]
           CONVERTED BY THE COURT INTO A PCRA PETITION, OVER
           THE OBJECTIONS OF PETITIONER, WAS FILED WITHIN 60
           DAYS OF THE U.S. SUPREME COURT’S ANNOUNCEMENT OF
           FOSTER-V-CHATMAN, SUPRA (MAY 23, 2016) AND
           PROPERLY PLEADS THE GOVERNMENTAL INTERFERENCE,
           PREDICATED ON PREVIOUSLY UNKNOWN INFORMATION
           AND ANNOUNCEMENT OF A NEW CONSTITUTIONAL RULE
           OF LAW (FOSTER, PERTAINING TO PREVIOUSLY
           LITIGATED CLAIMS) EXCEPTIONS SATISFYING THE FILING
           REQUIREMENTS OF 42 PAC’S. § 9545(B)(1)(i-iii)(2),
           MAKING PETITIONER’S . . . PETITION TIMELY FILED
           UNDER BOTH 42 PA.C.S. § 6501 ET SEQ. AND 42 PA.C.S.
           § 9542 ET. SEQ.?

           IV. WHETHER THE COURT AND COMMONWEALTH ERRED
           IN FAILING TO ABIDE BY THE PROCESS ANNOUNCED BY
           THE LEGISLATURE AT 42 PA.C.S. § 6501 ET SEQ.?

           V. WHETHER THE COURT AND COMMONWEALTH HAVE
           DEPRIVED PETITIONER OF THE RIGHT TO PETITION, BE
           HEARD, DUE PROCESS AND EQUAL PROTECTION OF THE
           LAW CLAUSE GUARANTEES WHEN IT FAILED TO
           ACKNOWLEDGE, ACCEPT PETITIONER’S INVOKING OF HIS
           RIGHT TO HABEAS CORPUS, AND FAILED TO FOLLOW THE
           PROCESS PROVIDED BY THE LEGISLATURE FOR HABEAS
           CORPUS PROCEEDINGS AT 42 PA.C.S. § 6501 ET SEQ.?


11
     See R.R. at Exhibit “F” at 5 (unpaginated).



                                       -4-
J-S38040-17


Appellant’s Brief at v-vi (some citations omitted).

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”     Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

      As a prefatory matter, we consider whether the PCRA court erred in

considering Appellant’s habeas corpus petition as a PCRA petition.      “The

PCRA at Section 9542 subsumes the remed[y] of habeas corpus . . . .”

Commonwealth v. Turner, 80 A.3d 754, 770 (Pa. 2013). “Issues that are

cognizable under the PCRA must be raised in a timely PCRA petition and

cannot be raised in a habeas corpus petition.” Commonwealth v. Taylor,

65 A.3d 462, 466 (Pa. Super. 2013). In Commonwealth v. Hackett, 956

A.2d 978 (Pa. 2008), our Pennsylvania Supreme Court held that a Batson

claim, “which essentially attack[ed] [the] underlying murder conviction[,]”

was cognizable under the PCRA. Id. at 986. Claims of ineffective assistance

of counsel are cognizable under the PCRA. Turner, 80 A.3d at 770. “Simply

because a petition is not considered because of previous litigation or waiver

does not alter the PCRA's coverage of such claims or make habeas corpus an

alternative basis for relief.” Commonwealth v. Fahy, 737 A.2d 214, 224

(Pa. 1999).

      Instantly, Appellant raises Batson and ineffective assistance of

counsel claims, which are cognizable under the PCRA.     See Hackett, 956



                                     -5-
J-S38040-17


A.2d at 986; Turner, 80 A.3d at 770. Therefore, the PCRA court did not err

in considering his habeas corpus petition as a PCRA petition. See Taylor,

65 A.3d at 466; Wilson, 824 A.2d at 333.

     Before examining the merits of Appellant’s claims, we consider

whether the PCRA court had jurisdiction to entertain the PCRA petition.

Appellant contends his “habeas petition, converted into a PCRA petition by

the lower Court, shows that his petition has pled all three . . . statutory

exceptions.”   Appellant’s Brief at 26.   He avers that the United States

Supreme Court’s decision in Foster v. Chatman, 136 S. Ct. 1737 (2016)

        announced a new rule of law that permits the renewal of
        previously litigated claims, when new evidence supporting
        those previously litigated claims has been discovered or as
        in this particular case, provided by the Chester County
        Clerk’s Office, 24 years after trial, direct appeal and the
        complete litigation of four prior PCRA/habeas petitions
        involving his previously litigated Batson and ineffective
        assistance claims. . . . [T]he Chester County Clerk [sic]
        Office who only provided these documents to Appellant on
        June 8, 2000 by the Chester County Clerk’s Office (rec’d
        June 20, 2000 by Appellant.)

Appellant’s Brief at 26-27 (emphasis added).

     In Commonwealth v. Marshall, 947 A.2d 714 (Pa. 2008), our

Pennsylvania Supreme Court opined that

        the time limits imposed by the PCRA . . . implicate our
        jurisdiction to address any and all of [an a]ppellant's
        claims. To be timely, a PCRA petition must be filed within
        one year of the date that the petitioner’s judgment of
        sentence became final, unless the petition alleges and the
        petitioner proves one or more of the following statutory
        exceptions:



                                   -6-
J-S38040-17


           (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)(1).

        We emphasize that it is the petitioner who bears the
        burden to allege and prove that one of the timeliness
        exceptions applies. In addition, a petition invoking any of
        the timeliness exceptions must be filed within 60 days of
        the date the claim first could have been presented. 42
        Pa.C.S. § 9545(b)(2). A petitioner fails to satisfy the 60–
        day requirement of Section 9545(b) if he or she fails to
        explain why, with the exercise of due diligence, the claim
        could not have been filed earlier.

Id. at 719-20 (some citations omitted).        “Th[e] time requirement is

mandatory and jurisdictional in nature, and the court may not ignore it in

order to reach the merits of the petition.” Commonwealth v. Brown, 143

A.3d 418, 420 (Pa. Super. 2016) (citation omitted).

     There is no dispute that Appellant’s PCRA petition is facially untimely.

Appellant’s conviction became final in 1981.     Appellant filed the instant

petition thirty-five years later, in July 2016. See 42 Pa.C.S. § 9545(b)(3)

(“[A] judgment becomes final at the conclusion of direct review, including



                                    -7-
J-S38040-17


discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.”); Marshall, 947 A.2d at 719. Therefore, Appellant bore the burden

of demonstrating a timeliness exception.

      Here, Appellant concedes he discovered new evidence in 2000, sixteen

years before filing the instant petition.     See 42 Pa.C.S. § 9545(b)(2).

Although it is unclear whether Appellant filed within sixty days of the

decision in Foster, no relief is due.       Foster did not recognize a new

constitutional right or hold that it applies retroactively.12 See 42 Pa.C.S. §


12
   In Foster, the defendant raised a Batson claim at his 1987 trial and in
his direct appeals, which ended in 1989. He thereafter sought a writ of
habeas corpus in Georgia state court. While the habeas proceeding was
pending, the defendant received new documents related to jury selection at
trial. The state habeas court concluded that the defendant’s renewed
Batson claim “lacked merit” because the state law doctrine of res judicata
barred his claim and he failed to establish a change in the facts. The
Georgia Supreme Court summarily denied the defendant the certificate of
probable cause necessary to pursue an appeal in that Court. The United
States Supreme Court granted certiorari.

       The United States Supreme Court, in Foster, first addressed its
jurisdiction. See Foster, 136 S. Ct. at 1746 (noting “This Court lacks
jurisdiction to entertain a federal claim on review of a state court judgment if
that judgment rests on a state law ground that is both independent of the
merits of the federal claim and an adequate basis for the court’s decision.”
(citation and quotation marks omitted). The Foster Court held that it was
not precluded from exercising jurisdiction over the federal issue in that
appeal because the state courts’ application of res judicata depended on the
merits of the defendant’s Batson claim. See id. Put differently, the Court
concluded that “the Georgia Supreme Court’s order—the judgment from
which [the defendant] sought certiorari—” did not rest “on an adequate and
independent state law ground so as to preclude our jurisdiction over [the
defendant’s] federal claim.” Id. at 1745-46 (footnote omitted). While the



                                     -8-
J-S38040-17


9545(b)(1)(iii). Therefore, Appellant did not plead and prove any exception

to the PCRA’s timeliness requirement. See Marshall, 947 A.2d at 719-20.

Thus, the PCRA court did not err in dismissing his PCRA petition as untimely.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/14/2017




Foster Court ultimately granted the defendant relief on the merits of his
underlying Batson claim and the newly discovered evidence, the Court did
not create a new constitutional right regarding the presentation of new
evidence regarding a Batson claim. See Foster, 136 S. Ct. at 1743, 1745-
46.



                                    -9-
