J-S29006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROY ROBINSON                               :
                                               :
                       Appellant               :   No. 1875 EDA 2017

                   Appeal from the PCRA Order May 25, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0837291-1988


BEFORE:      PANELLA, J., MURRAY, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, J.                          FILED SEPTEMBER 26, 2018

        Roy Robinson appeals pro se from the order dismissing his petition for

writ of habeas corpus as an untimely Post Conviction Relief Act (“PCRA”)

petition. We conclude the PCRA court properly treated the petition as a PCRA

petition, with the exception of Robinson’s claim that the Department of

Corrections (“DOC”) does not possess a copy of his judgment of sentence. As

the court noted, that claim is frivolous. And we conclude the remaining claims

in the petition are untimely under the PCRA. We therefore affirm the order.

        A jury convicted Robinson on one count of first degree murder for

shooting and killing Christopher Washington. The court sentenced Robinson




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   Former Justice specially assigned to the Superior Court.
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to life in prison. This Court affirmed Robinson’s judgment of sentence on May

9, 1991. He did not file an appeal to the Supreme Court of Pennsylvania.

        In the following years, Robinson became a prolific filer of collateral

petitions. In 2011, this Court affirmed the dismissal of Robinson’s sixth PCRA

petition as untimely. See Commonwealth v. Robinson, 12 A.3d 477 (Pa.

Super. 2011).

        Perhaps sensing a theme in the recent dismissals of his PCRA petitions,

Robinson switched gears. On December 3, 2014, Robinson filed a petition for

writ of habeas corpus. This Court affirmed the dismissal of the petition as an

untimely PCRA petition. See Commonwealth v. Robinson, No. 3366 EDA

2005,    at   2-7   (Pa.    Super.,    filed   September   7,   2016)   (unpublished

memorandum).

        Currently before us is Robinson’s next petition for writ of habeas corpus,

which he filed on June 14, 2016. The court dismissed the entire petition by

order entered May 25, 2017. This timely appeal followed.

        Robinson’s first issue on appeal arises from the portion of his petition

the court treated as an untimely PCRA petition.1 “On appeal from the denial

of PCRA relief, our standard and scope of review is limited to determining

whether the PCRA court’s findings are supported by the record and without

legal error.” Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013)


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1On appeal, Robinson has not challenged the court’s classification of these
portions of his petition as claims under the PCRA.

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(citation omitted). On questions of law, our scope of review is de novo. See

id.

      Before we can reach the merits of Robinson’s first arguments, we must

determine whether the PCRA grants jurisdiction to entertain his claim.

Generally, the PCRA grants jurisdiction to hear a collateral attack on a

conviction only if a petition is filed in the year after the judgment of sentence

becomes final. See Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012).

The judgment of sentence is final when the petitioner’s direct appeal rights

have been exhausted. See id., at 17. After the expiration of the one-year

period, a petitioner must plead and prove one of three enumerated exceptions

to the time-bar to establish jurisdiction under the PCRA. See id.

      A panel of this Court found Robinson’s sixth PCRA petition, filed February

11, 2009, untimely. See Robinson, 12 A.3d at 481. Thus, unless Robinson

can establish an exception to the timeliness requirement, the court had no

jurisdiction to entertain those portions of his petition it determined were

subject to the dictates of the PCRA.

      First, Robinson argues that Johnson v. United States, 135 S.Ct. 2551

(2015), recognized a new Constitutional right and therefore qualifies for the

newly-recognized right exception set forth in 42 Pa.C.S.A. § 9545(b)(1)(iii).

He further argues Welch v. United States, 136 S.Ct. 1257 (2016)

announced that Johnson would be applied retroactively.




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      However, Robinson fails to establish that Johnson has anything to do

with his case. There, the Supreme Court ruled that the federal Armed Career

Criminal Act’s residual clause was so vague as to violate the Constitutional

guarantee of due process. See 136 S.Ct. at 2557.

      Robinson concedes the Armed Career Criminal Act was not a factor in

either in his conviction or his sentence. See Appellant’s Brief, at 12. He merely

argues Pennsylvania’s definition of first-degree murder is likewise too vague

to comply with due process requirements. See id., at 14. While it is remotely

possible there is a colorable due process argument within Robinson’s brief, he

fails to identify any case that has recognized his argument as valid.

      This is not sufficient to establish the § 9545(b)(1)(iii) timeliness

exception. Subsection (iii) requires that either the Supreme Court of the

United States or the Supreme Court of Pennsylvania recognize the right at

issue before the petition is filed and that it has been held to apply

retroactively. To allow a petitioner to argue his asserted right will be

recognized through pending litigation would allow this exception to swallow

the timeliness rule whole.

      Robinson also blends arguments supporting his second issue on appeal.

One of these arguments  that 18 Pa.C.S.A. § 1102 is void ab initio as it was

allegedly never properly enacted  is a claim covered by the PCRA. See

Commonwealth v. Woods, 179 A.3d 37, 43 (Pa.Super. 2017). And the claim




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does not automatically provide an exception to the PCRA’s time bar provisions.

See id.

       Thus, the PCRA court properly ruled that those portions of Robinson’s

petition subject to the PCRA are untimely. Robinson’s first argument on appeal

merits no relief.

       In his next three arguments, Robinson claims he is serving a sentence

that the trial court never imposed. See, e.g., Appellant’s Brief, at 27 (“The

core of Appellant’s argument is that his detention … is illegal because the trial

court never imposed a sentence authorized at 18 Pa.C.S. § 1102(a)”); see

also Appellant’s Brief, at 38 (“There is no presumption of guilt or sentence

found in record at hearing on April 30, 1990”). If there is truth to this claim,

it is arguable that it may be raised in a petition for writ of habeas corpus. See

Joseph v. Glunt, 96 A.3d 365, 368-369 (Pa. Super. 2014).

       However, there is no truth to this claim. Robinson’s brief contains a copy

of the sentencing order,2 imposing a life sentence, entered after the court

denied Robinson’s post-sentence motions. The same document shows that a

life sentence had previously been imposed on October 17, 1989. And the



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2 Clearly, Robinson’s attachment of the document to his brief does not make
this document a part of the certified record. See Roth Cash Register
Company, Inc. v. Micro Systems, Inc., 868 A.2d 1222, 1223 (Pa. Super.
2005). However, this document is in the certified record as exhibit “N” to
Robinson’s amended petition filed October 17, 2016. The transcript for the
April 30, 1990 sentencing hearing is attached to the same amended petition
as exhibit “M”.

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transcript from the April 30, 1990 hearing on Robinson’s post-sentence

motions reveals the court imposing a life sentence at page 29.

       Clearly, the court imposed a sentence of life in prison. Just as clearly,

the mere fact that the DOC does not currently possess a copy of the order

imposing sentence does not render Robinson’s detention illegal. See id., at

370.

       Finally, Robinson contends that Glunt itself violates the prohibition of

ex post facto punishment. However, Robinson misreads Glunt. Robinson

argues that Glunt’s construction of 42 Pa.C.S.A. § 9764 relieved the DOC of

a duty previously imposed upon it. See Appellant’s Brief, at 44. This is not

true. “The language and structure of section 9764, viewed in context, make

clear that the statute pertains not to the DOC’s authority to detain a duly-

sentenced prisoner, but, rather, sets forth the procedures and prerogatives

associated with the transfer of an inmate from county to state detention.”

Glunt, 96 A.30 at 371. Thus, Glunt merely recognized that § 9764 did not

create “a cause of action for a prisoner based upon the failure to provide a

copy [of a sentencing order] to the DOC.” Id., at 370.

       Robinson contends such a cause of action existed prior to the enactment

of § 9764. In support of this novel argument, he cites to 37 Pa.Code §§ 91.3

and    95.222.   However,   both   of   these   regulations   are   classified   as

administrative. For the same reasons § 9764 is clearly not intended to create

a remedy for prisoners, we conclude that these two regulations are similarly


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not intended to create enforceable rights in prisoners. The regulations are

merely procedures established for the efficient administration of prisoners

supervised by the DOC. Robinson’s claim fails.

      As none of Robinson’s arguments on appeal merit relief, we affirm the

order dismissing his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/18




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