J-S35032-17

                                  2017 PA Super 191

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ANWAR RIZVI                                :
                                               :
                      Appellant                :   No. 1751 WDA 2016

                 Appeal from the PCRA Order October 25, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0007762-2008


BEFORE:      LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                               FILED JUNE 19, 2017

        Anwar Rizvi (“Appellant”) appeals from the order entered by the Court

of Common Pleas of Allegheny County dismissing his second petition for

collateral relief filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. § 9541-9546, as untimely. Appellant contends that extraordinary

circumstances required the equitable tolling of the PCRA’s one-year

limitations period in his case, making the PCRA court’s refusal to do so

reversible error. We affirm.

        On August 11, 2009, Appellant was sentenced to 15 to 30 years’

incarceration for criminal attempt-homicide, and he filed a direct appeal to

this Court. On March 1, 2010, prior to our disposition of his direct appeal,

Appellant was transferred to a correctional institution in the Commonwealth

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S35032-17



of Virginia as part of an agreement between the Virginia Department of

Corrections and the Pennsylvania Department of Corrections, whereby

Virginia agreed to house 1,000 Pennsylvania male inmates.

      On January 10, 2011, this Court affirmed Appellant’s judgment of

sentence. Appellant did not file a petition for allowance of appeal with the

Pennsylvania Supreme Court, making February 9, 2011, the date on which

his judgment of sentence became final.         See 42 Pa.C.S. § 9545(b)(3);

Pa.R.A.P. 1113(a) (judgment of sentence becomes final at the conclusion of

direct review or the expiration of the time for seeking the review).

      According to Appellant, it was during this time that he encountered

difficulties with conducting legal research on Pennsylvania rules pertaining to

appellate rights. Specifically, he claims that the Virginia correctional facility

in which he was housed contained an underequipped library that could only

accommodate several inmate researchers at a time, impeding his ability to

conduct meaningful conventional or computer-based research.

      On February 7, 2012, Appellant filed with the PCRA court an

“Application for Notes of Testimony and All Other In-Court Related

Documents.”     In his application, Appellant explained that the requested

documents would enable him to conduct legal research and prepare an

appeal under the PCRA.      Apparently, the PCRA court never responded to

Appellant’s application.

      By late February, 2012, Appellant returned to the PDOC’s custody and

was housed at SCI-Graterford. On March 28, 2012, Appellant filed a Motion

                                      -2-
J-S35032-17



seeking permission to file a first PCRA petition nunc pro tunc.               In this

motion, Appellant requested an order from the PCRA court confirming that it

would apply equitable tolling principles and the PCRA’s government

interference exception to the statutory time-bar to find his petition timely.

In his motion, Appellant attached an affidavit averring that inadequacies

within the VDOC made legal research and preparation of a timely appeal

impossible.

       The PCRA court treated Appellant’s motion as a first PCRA petition and

appointed counsel to represent him. Appointed counsel subsequently filed a

Turner/Finley1 no merit letter and, by its Order of October 23, 2012, the

PCRA Court granted counsel’s motion to withdrawal and issued a notice,

pursuant to Pa.R.Crim.P. 907, of its intent to dismiss Appellant’s petition as

meritless.    On November 13, 2012, the PCRA court dismissed Appellant’s

petition. Appellant appealed to this Court, and we affirmed on grounds that

Appellant’s    motion      was    an    untimely   first   PCRA   petition.     See

Commonwealth v. Rizvi, No. 148 WDA 2103, unpublished memorandum

(Pa.Super. filed June 16, 2014).

       On January 17, 2016, Appellant filed the present, counseled petition,

his second under the PCRA.2            Among other claims, Appellant argued that
____________________________________________


1
   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
2
  Appellant contends that his first petition was not a PCRA petition but simply
a request that the court accept an imminent filing as a PCRA petition nunc
(Footnote Continued Next Page)


                                           -3-
J-S35032-17



both equitable tolling principles as well as statutory exceptions to the time-

bar, infra, applied to except his otherwise patently untimely petition from

the PCRA’s timeliness requirements.              The PCRA court, however, issued a

Rule 907 Notice of its intent to dismiss the petition because it was untimely.

Appellant filed objections to the notice, but the court entered its final

dismissal order on October 26, 2016. This timely appeal followed.

      Appellant presents one question for our review:

      The General Assembly constructed and worded the Post-
      Conviction Relief Act (“PCRA”) with the intention of
      allowing the 1-year limitations period to be equitably
      tolled when extraordinary circumstances prevented the
      petitioner from timely filing his PCRA petition and the
      petitioner diligently pursued his PCRA rights. The facts
      presented in Mr. Rizvi’s PCRA petition should have
      triggered the PCRA’s equitable tolling exception, giving
      the PCRA court jurisdiction to substantively adjudicate his
      trial counsel ineffectiveness claim.     The PCRA court,
      therefore, erred when it dismissed Mr. Rizvi’s PCRA

                       _______________________
(Footnote Continued)

pro tunc. Appellant, however, was asking the PCRA court to do what it could
not do, for it was well-settled at the time, and remains so, that the PCRA
provides the “sole means” for obtaining nunc pro tunc relief, and all claims
seeking reinstatement of appellate rights are subject to the PCRA timeliness
requirements. 42 Pa.C.S. § 9542 (emphasis added); Commonwealth v.
Hall, 771 A.2d 1232, 1236 (Pa. 2001) (holding court has no authority to
entertain request for nunc pro tunc appeal outside time constraints of PCRA,
notwithstanding claim of counsel's ineffectiveness); Commonwealth v.
Eller, 807 A.2d 838, 845 (Pa. 2002) (rejecting claim of entitlement to nunc
pro tunc appeal outside PCRA framework). The PCRA court and this Court
on appeal both correctly deemed Appellant’s self-styled “motion” as a first
PCRA petition and reviewed it under the PCRA’s timeliness provisions.
Accordingly, this petition is Appellant’s second under the PCRA, despite his
protestations to the contrary.



                                            -4-
J-S35032-17


      petition on untimeliness grounds.         U.S. Const. Amnds. 5,
      6, 14; Pa.Const. art. I, §§ 9, 23.

Appellant’s brief at 2.

      This Court's standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

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

Ragan, 923 A.2d 1169, 1170 (Pa. 2007).

      We begin by addressing the timeliness of Appellant's petition, as “[t]he

PCRA's time restrictions are jurisdictional in nature.        Thus, [i]f a PCRA

petition is untimely, neither this Court nor the trial court has jurisdiction

over the petition.    Without jurisdiction, we simply do not have the legal

authority to address the substantive claims.” Commonwealth v. Albrecht,

994 A.2d 1091, 1093 (Pa. 2010).

      The PCRA's time limitations “are mandatory and interpreted literally;

thus, a court has no authority to extend filing periods except as the statute

permits.”   Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999). The

period for filing a PCRA petition “is not subject to the doctrine of equitable

tolling.” Id.

      Instead, the time for filing a PCRA petition can be extended only if the

PCRA permits it to be extended, i.e., by operation of one of the statutorily

enumerated exceptions to the PCRA time-bar.             Id.    There are three

exceptions:

      (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

                                      -5-
J-S35032-17


               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)(i)-(iii).   Any petition attempting to invoke these

exceptions “shall be filed within 60 days of the date the claim could have

been presented.”     42 Pa.C.S. § 9545(b)(2); see Commonwealth v.

Gamboa–Taylor, 753 A.2d 780, 783 (Pa. 2000).

      Since there is no equitable tolling of the PCRA's one-year statute of

limitations, we lack jurisdiction over this case unless Appellant satisfies the

plain language of an exception to the one-year statute of limitations. This,

Appellant has not done. As noted, supra, Appellant’s conviction became final

on February 9, 2011, upon the expiration of the thirty-day period for seeking

allowance of appeal with the Pennsylvania Supreme Court. See 42 Pa.C.S. §

9545(b)(3); Pa.R.A.P. 1113(a) (judgment of sentence becomes final at the

conclusion of direct review or the expiration of the time for seeking the

review). It follows that Appellant’s one-year statute of limitations expired on

February 9, 2012. 42 Pa.C.S. § 9545(b)(1). Therefore, Appellant’s present

petition, filed on January 17, 2016, is patently untimely.




                                     -6-
J-S35032-17



      To the extent Appellant’s argument asserts the “interference by

government officials” exception to the one year statute of limitations in

Section 9545(b)(1)(i), we discern no merit to his claim. Appellant contends

that both limited library resources and his restricted housing status within

the Virginia correctional facility frustrated his efforts to understand and

invoke his appellate rights under Pennsylvania law.           In making this

allegation, Appellant does not allege that the VDOC administered its library

or housing policies in violation of his rights under constitutional or state law

as required under a governmental interference claim.          We addressed a

similar claim in Commonwealth v. Albrecht, 994 A.2d 1091 (Pa. 2010),

where the petitioner raised a Section 9545(b)(1)(i) claim that PDOC rules

impaired his ability to prepare a pro se petition:

      Further, appellant claims the restricted incarceration status of
      capital inmates, including himself, constitutes governmental
      interference because such restricted status limits the ability of
      such inmates to prepare pro se PCRA petitions. Appellant fails to
      show any of the conditions of his incarceration were illegal, as
      required to meet the governmental interference exception to
      PCRA’s timeliness requirement. See 42 Pa.C.S. § 9545(b)(1)(i)
      (governmental interference must violate United States or
      Pennsylvania Constitution or laws). Accordingly, appellant has
      not sufficiently developed his claim of governmental
      interference. See Commonwealth v. Puksar, 951 A.2d 267,
      293-94 (Pa. 2008) (failure to develop claim waives it).




                                     -7-
J-S35032-17



Albrecht, 994 A.2d at 1095. For the same reasons expressed in Albrecht,

we reject Appellant’s governmental interference claim. 3

       We note, additionally, that even if Appellant’s claim possessed

substantive merit, he fails to offer a reasonable explanation why, with the

exercise of due diligence, he did not ascertain this alleged interference of

government officials earlier and seek redress.     See Commonwealth v.

Breakiron, 781 A.2d 94 (Pa. 2001) (rejecting governmental interference
____________________________________________


3
  Appellant contends he had access to the prison library, but the four
computers enabling online research were always occupied except for one
time, when his research yielded no useful information. The bound “material
relat[ing] to Pennsylvania law was insufficient at best,” Appellant continues.
Appellant’s brief at 16. At some point during the course of his two year
incarceration there, Appellant was moved to restricted quarters in the
Transitional Housing Unit, which precluded visitations to the library. He was
able to request information and materials from the library, but the library
was unable to meet his requests, he says. Id. at 17.

Notably, Appellant does not indicate what the purpose of his legal research
was or whether it pertained to filing a timely pro se collateral appeal.
Indeed, his direct appeal was still pending for the first ten months of his
Virginia incarceration. Even assuming such a purpose, we would reject his
claim that the conditions at VDOC amounted to governmental interference
with the filing of a timely PCRA petition. In Commonwealth v. Barrett,
761 A.2d 145 (Pa.Super. 2000), a prison’s restrictive housing unit policy
permitted petitioner to obtain library materials only by request slips and
prohibited him from seeking legal assistance from other inmates. This Court
affirmed the PCRA court’s rejection of petitioner’s governmental interference
claim based on these restrictions. We stated “although [petitioner] may not
have been permitted to prepare his PCRA petition in the manner he would
have wished, prison officials did not prevent him from filing his petition in
accordance with the timing requirements by reason of his confinement in the
RHU.” Similarly, Appellant’s bald allegations of an inadequate library do not
permit the inference that the VDOC prevented him from filing a timely PCRA
petition.



                                           -8-
J-S35032-17



exception where petitioner failed to offer reasonable explanation why, with

the exercise of due diligence, alleged interference of government officials

could not have been ascertained earlier).         Appellant was presumptively

aware that this Court had denied his direct appeal, yet it appears he allowed

a year to lapse before he attempted to inquire seriously about his collateral

appeal rights.     To this point, there is no indication of record that he ever

informed VDOC or PDOC personnel about his problems or attempted to

contact family, friends, or a lawyer asking what, if any, appellate rights

remained at his disposal. Indeed, by his own account, he attempted in vain

to conduct legal research in Virginia for the better part of a year without

ever lodging a complaint about the alleged interference he was experiencing.

Appellant’s conduct, therefore, fails to satisfy the due diligence requirement

of Section 9545(b)(2).4

       The remainder of Appellant’s claim does not plead or prove time bar

exceptions, but, instead, recounts alleged oversights of both prior PCRA

____________________________________________


4
  Aside from Appellant’s failure to adhere to the 60-day requirement of
Section 9545(b)(2), we note that he had the opportunity in his first PCRA
petition to raise the underlying governmental interference exception to the
time-bar, but he failed to do so. This claim is, therefore, also waived. See
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa. Super. 2007)
(holding claim waived where “it could have been raised prior to the filing of
the PCRA petition, but was not.”). (citation omitted); see also 42 Pa.C.S.A.
§ 9544(b) (stating, “an issue is waived if the petitioner could have raised it
but failed to do so before trial, at trial, during unitary review, on appeal or in
a prior state post conviction proceeding.”).




                                           -9-
J-S35032-17



counsel and the PCRA court that occurred after the PCRA time-bar had

already applied to his case. As we lack jurisdiction to entertain such claims,

they can offer him no relief.

      Accordingly, we discern no error with the PCRA court’s dismissal of

Appellant’s petition as untimely, as the court was without jurisdiction to

review the merits of Appellant’s claim.

     Order is AFFIRMED.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/19/2017




                                    - 10 -
