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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    WILLIAM H. MAYBERRY, JR.                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JACK SOMMERS, SUPERINTENDENT -             :   No. 255 WDA 2018
    SCI WAYMART                                :

                Appeal from the Order Entered February 6, 2018
       In the Court of Common Pleas of Lawrence County Civil Division at
                          No(s): 11231 of 2017 C.A.


BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                             FILED AUGUST 14, 2018

        Appellant William H. Mayberry, Jr. appeals from the order dismissing his

post-conviction petition for writ of habeas corpus. Appellant asserts that the

trial court improperly considered the writ of habeas corpus to be a petition

pursuant to the Post Conviction Relief Act1 (PCRA). Appellant contends that

the trial court lacked the authority to dismiss his writ of habeas corpus without

a hearing, improperly dismissed the writ of habeas corpus prior to the deadline

to respond to the notice of intent to dismiss, and erred in dismissing his motion

to compel documents from the Lawrence County Sheriff. We affirm.

        Based upon allegations that Appellant sexually assaulted his minor

daughter from the time she was nine until she was thirteen, Appellant was

____________________________________________


1   42 Pa.C.S. §§ 9541-9546.
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convicted by a jury of rape by forcible compulsion, rape of a person less than

13 years old, statutory sexual assault, aggravated indecent assault, incest,

and corruption of minors.2 The trial court sentenced Appellant to an aggregate

sentence of 8½ to 17 years of incarceration, to be followed by a five-year

period of probation.

       Appellant filed a direct appeal, and this Court affirmed Appellant’s

judgment of sentence in a published opinion on August 22, 2007.           See

Commonwealth v. W.H.M., Jr., 932 A.2d 155 (Pa. Super. 2007). Appellant

filed a first pro se PCRA petition, docketed on January 2, 2008, in which he

claimed that his trial counsel was ineffective.   The PCRA court appointed

counsel, held a hearing, and denied Appellant’s first PCRA petition. Appellant

filed an appeal. This Court affirmed the PCRA court’s order denying the first

PCRA petition. See Commonwealth v. W.H.M., 15 A.3d 517 (Pa. Super.

2010) (unpublished mem.).

       Appellant filed a second pro se PCRA petition, docketed on May 6, 2011,

and new counsel was appointed. Appellant raised issues previously raised in

his first PCRA petition, as well as a contention that his first PCRA counsel

abandoned him. The trial court issued a notice of intent to dismiss pursuant

to Pa.R.Crim.P. 907, but based upon pro se correspondence from Appellant,

the PCRA court held a hearing to address timeliness and jurisdictional issues.

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2 18 Pa.C.S. §§ 3121(a)(1), (c), 3122.1, 3125(a)(8), 4302, and 6301(a),
respectively.



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Appellant attempted to amend the second PCRA petition pro se, and,

thereafter, counsel withdrew pursuant to Turner/Finley.3          On August 14,

2012, the PCRA court issued an order and opinion dismissing the second PCRA

petition.    Following an appeal, this Court affirmed the order dismissing

Appellant’s second PCRA petition. See Commonwealth v. W.H.M., Jr., 81

A.3d 987 (Pa. Super. 2013).

        Thereafter, Appellant filed a pro se petition for writ of habeas corpus in

the United States District Court for the Western District of Pennsylvania, which

was denied on January 7, 2016. Appellant’s appeal to the Court of Appeals

for the Third Circuit was denied on June 24, 2016. The Supreme Court of the

United States denied Appellant’s petition for writ of certiorari on April 17,

2017.

        Appellant filed the petition for writ of habeas corpus that gives rise to

this appeal on November 30, 2017. In his petition, Appellant sought release

from incarceration on the basis that his due process rights were violated when

he was convicted without corroborating physical evidence and that all of his

counsel were ineffective. Pet. for Writ of Habeas Corpus, 11/30/17, at 5. The

PCRA court considered the petition for writ of habeas corpus to be a petition

for collateral relief under the PCRA, Appellant’s third. See Op. and Order,

12/15/17, at 8.

____________________________________________


3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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       The PCRA court issued a notice of intent to dismiss the third PCRA

petition pursuant to Pa.R.Crim.P. 907 and provided Appellant with twenty days

to file a response. Id. at 10-11. Prior to the deadline, Appellant filed a motion

for extension of time, which the PCRA court granted on January 5, 2018. The

PCRA court ordered Appellant to file a response by February 28, 2018.

       Appellant filed a motion to compel production of documents, which was

docketed on February 2, 2018, in which he sought documents relating to the

return of service of his petition for writ of habeas corpus from the Lawrence

County Sheriff.

       On February 6, 2018, prior to Appellant filing a response to the Rule 907

notice, the PCRA court issued an order dismissing the petition for writ of

habeas corpus as an untimely third PCRA petition.          Order, 2/6/18, at 1

(unpaginated). In the same order, the PCRA court denied Appellant’s motion

to compel production of documents. Id. at 2. Appellant filed a response to

the Rule 907 notice dated February 23, 2018, which was docketed March 2,

2018.4 The PCRA court acknowledged that it had received and considered

Appellant’s Rule 907 response in an order entered March 14, 2018.
____________________________________________


4  We note that Appellant’s response was not docketed until March 2, 2018,
past the extension of time to respond by February 28, 2018. Nevertheless,
the response was dated February 23, 2018, and the envelope the response
was mailed in bore the date of February 27, 2018. If February 27, 2018, was
the date Appellant placed the response with prison authorities for mailing, it
was timely. See Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa.
Super. 2006) (stating that “[p]ursuant to the ‘prisoner mailbox rule,’ a
document is deemed filed when placed in the hands of prison authorities for
mailing”). Instantly, we accept the date of February 27, 2018, as the date of
filing of the response, making it timely.

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      Appellant filed a timely notice of appeal that was docketed on February

16, 2018, and a timely court-ordered concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA court complied with

Pa.R.A.P. 1925(a).

      Appellant raises the following questions for our review:

      1. Does the [PCRA] court have the statutory authority to treat a
         properly filed and issued writ of habeas corpus as a post-
         conviction relief appeal?

      2. Does the [PCRA] court have the statutory authority to dismiss
         entirely a properly filed and issued writ of habeas corpus
         without a hearing?

      3. Does the [PCRA] court have the statutory authority to dismiss
         entirely a properly filed and issued writ of habeas corpus within
         twenty (20) days when the court granted a motion to extend
         time to respond and that time had not yet expired?

      4. Did the [PCRA] court err[] in dismissing [Appellant’s] motion
         to compel[] documents from the Lawrence County Sheriff,
         when Pa.R.Civ.P. 405(a)(2)(g) states otherwise?

Appellant’s Brief at i.

      In his first three issues, Appellant asserts that the PCRA court erred in

treating his petition for writ of habeas corpus as an untimely PCRA petition

and in dismissing his petition without permitting him to respond to the court’s

notice of intent to dismiss within the timeframe provided after his request for

an extension of time was granted. Appellant asserts that the PCRA court

      has ruled that [Appellant’s] [w]rit of [h]abeas [c]orpus be treated
      as a PCRA, subject to the rules governing PCRA petitions. The
      [c]ourt was erroneous in [its] ruling, as any such action violates
      the Constitution of the Commonwealth of Pennsylvania by
      suspending the [w]rit, in violation of Article 1 § 14.



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Id. at 24. Appellant also contends that the PCRA court “attempted to ‘dismiss

entirely’ [his habeas corpus petition on] February 6, 2018[,] for failing to

respond within twenty (20) days of the [c]ourt’s December 15, 2017 order,

when in fact, the [l]ower [c]ourt had ‘granted’ [his m]otion for [e]xtension of

[t]ime to respond until February 28, 2018.” Id. at 31.

      Whether a petition should be regarded as a writ of habeas corpus or a

PCRA petition is a question of law for which our standard of review is de novo

and our scope of review is plenary. Commonwealth v. Montgomery, 181

A.3d 359, 367 (Pa. Super. 2018) (en banc).

      This Court has explained that the PCRA is intended to be the sole means

of achieving post-conviction relief. See Commonwealth v. Taylor, 65 A.3d

462, 465 (Pa. Super. 2013); see also 42 Pa.C.S. § 9542.             The PCRA

“encompasses all other common law and statutory remedies for the same

purpose that exist when this subchapter takes effect, including habeas corpus

and coram nobis.” 42 Pa.C.S. § 9542. While “the common law writ of habeas

corpus has not been eliminated,” a petitioner who wishes to raise an issue

that is cognizable under the PCRA must do so in a timely PCRA petition.

Taylor, 65 A.3d at 466 & n.3.

      Our standard of review of the denial of a PCRA petition is well-settled.

We “review[] the PCRA court’s findings of fact to determine whether they are

supported by the record, and review[] its conclusions of law to determine

whether they are free from legal error.” Commonwealth v. Spotz, 84 A.3d

294, 311 (Pa. 2014) (citation omitted).

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      Generally, a petition for PCRA relief, including a second or subsequent

petition, must be filed within one year of the date the judgment of sentence

becomes final. See 42 Pa.C.S. § 9545(b)(1). Exceptions to the timeliness

requirement exist, however, as set forth at 42 Pa.C.S. § 9545(b).              The

timeliness requirements of the PCRA are jurisdictional in nature, and, thus, a

PCRA court cannot hear untimely petitions. Commonwealth v. Robinson,

837 A.2d 1157, 1161 (Pa. 2003). The petitioner bears “the burden of proving

that an untimely petition fits within one of the three exceptions.”

Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012).

      The three statutory exceptions for a facially untimely petition under the

PCRA consist of the following:

      (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)(i)-(iii). Additionally, a petition invoking a timeliness

exception must “be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).

      Upon receipt and review of a PCRA petition, if the trial court



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      is satisfied . . . that there are no genuine issues concerning any
      material fact and that the [petitioner] is not entitled to post-
      conviction collateral relief, and no purpose would be served by any
      further proceedings, the judge shall give notice to the parties of
      the intention to dismiss the petition and shall state in the notice
      the reasons for the dismissal. The defendant may respond to the
      proposed dismissal within 20 days of the date of the notice. The
      judge thereafter shall order the petition dismissed, grant leave to
      file an amended petition, or direct that the proceedings continue.

Pa.R.Crim.P. 907(1).     In a situation where a PCRA court evaluates a

petitioner’s 907 response after the court has entered an order dismissing the

petitioner’s PCRA petition, the relevant inquiry is whether the petitioner has

been prejudiced by the court’s failure to consider the response before entering

the order.   See Commonwealth v. Feliciano, 69 A.3d 1270, 1277 (Pa.

Super. 2013) (upholding an order dismissing a PCRA petition without a hearing

where the petitioner failed to show he was prejudiced by the court’s failure to

consider his Rule 907 response before entering the order dismissing the PCRA

petition).

      In this matter, the PCRA court considered Appellant’s petition to be an

untimely third PCRA petition. Through the writ of habeas corpus, Appellant

attempts to raise issues regarding due process and the effectiveness of

counsel, which are claims that are cognizable under the PCRA. See 42 Pa.C.S.

§ 9543(a)(2).   Thus, as a matter of law, the trial court correctly treated

Appellant’s petition as a PCRA petition. See Montgomery, 181 A.3d at 367;

Taylor, 65 A.3d at 466 & n.3. Accordingly, because Appellant’s petition was

properly regarded as a PCRA petition, the trial court had the authority to

dismiss it without a hearing. See Pa.R.Crim.P. 907(1).


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       As to the PCRA court dismissing the instant matter prior to the extended

deadline to respond to the Rule 907 notice, we note that Appellant’s petition

was untimely and did not include any argument that his petition fits within

one of the timeliness exceptions set forth in Section 9545(b)(1)(i)-(iii).

Similarly, Appellant did not attempt to invoke a timeliness exception in his

Rule 907 response.        Thus, Appellant has not been prejudiced by the trial

court’s failure to consider his response to the Rule 907 notice until after

dismissing Appellant’s petition as untimely. Cf. Feliciano, 69 A.3d at 1277.

       Instantly, Appellant’s petition is untimely on its face, and Appellant does

not attempt to invoke any timeliness exception that would provide this Court

with jurisdiction to consider the merits of his claims.5 See Robinson, 837


____________________________________________


5 This includes Appellant’s final issue, regarding whether the trial court erred
in dismissing petitioner’s motion to compel documents from the Lawrence
County Sheriff.     Cf. Pa.R.Crim.P. 902(E)(1) (“[N]o discovery shall be
permitted at any stage of [PCRA] proceedings, except upon leave of court
after a showing of exceptional circumstances.”).

Additionally, we note that in his appellate brief, Appellant raises two additional
issues for the first time on appeal. Appellant asserts that his direct appeal
counsel and first PCRA counsel each failed to file a petition for allowance of
appeal in the Pennsylvania Supreme Court following this Court’s decision to
affirm Appellant’s judgment of sentence and the denial of Appellant’s first
PCRA petition. See Appellant’s Brief at 5, 15. In addition to raising these
issues for the first time in his appellate brief, as with the other issues raised
on appeal, Appellant failed to assert an exception under 42 Pa.C.S. §
9545(b)(1)(ii) because he did not establish (1) when he discovered that the
petitions for allowance of appeal were not filed; (2) the exercise of due
diligence; or (3) that he filed his petition within sixty days of the discovery.
See Commonwealth v. Bennett, 930 A.2d 1264, 1272 n.11, 1274 (Pa.
2007).


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A.2d at 1161. Thus, the PCRA court properly dismissed Appellant’s claims

without a hearing. See Spotz, 84 A.3d at 311.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2018




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