J-S35030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

 ILYAS ABDUL HADI

                             Appellant               No. 3395 EDA 2018


           Appeal from the PCRA Order entered September 28, 2018
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0808601-2006


BEFORE: OLSON, J., STABILE, J. and STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.:                     FILED SEPTEMBER 19, 2019

       Appellant, Ilyas Abdul Hadi, appeals from the September 28, 2018 order

of the Court of Common Pleas of Philadelphia County, which denied his request

for collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-46. Upon review, we affirm.

       The factual and procedural background of the instant appeal is not at

issue here. Briefly, on November 16, 2007, following a jury trial, the trial

court sentenced Appellant to, inter alia, a mandatory life sentence without

parole for the murder of Tito Lomax. We affirmed the judgment of sentence

on July 14, 2009.         See Commonwealth v. Hadi, No. 186 EDA 2008,

unpublished memorandum (Pa. Super. filed July 14, 2009).         The Supreme


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* Retired Senior Judge assigned to the Superior Court.
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Court denied Appellant’s petition for allowance of appeal on March 10, 2010.

See Commonwealth v. Hadi, 454 EAL 2009 (Pa. 2010).

       On November 16, 2017, Appellant pro se filed the underlying PCRA

petition.   He subsequently retained counsel, who filed an amended PCRA

petition titled “Habeas Corpus Motion for Relief Pursuant [to] 42 Pa.C.S.

§ 6501 & §6502,” alleging ineffective assistance of trial counsel.

       The PCRA court treated the amended filing as a PCRA petition and

dismissed it as untimely on September 28, 2018. This appeal followed.

       Appellant argues that the PCRA court improperly treated his claim of

ineffective assistance of counsel as a PCRA petition as opposed to a habeas

corpus petition. On the merits, Appellant argues that counsel was ineffective

for not challenging the reasonable doubt jury instruction given at his trial. We

disagree. Accordingly, we affirm.

       All PCRA petitions, “including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final.” 42 Pa.C.S.A.

§ 9545(b)(1). The one-year time limitation, however, can be overcome if a

petitioner (1) alleges and proves one of the three exceptions set forth in

Section 9545(b)(1)(i)-(iii) of the PCRA, and (2) files a petition raising this

exception within one year of the date the claim could have been presented.

42 Pa.C.S.A. § 9545(b)(2).1
____________________________________________


1Section 9545(b)(2) was recently amended to enlarge the deadline from sixty
days to one year. However, the amendment applies only to claims arising on
or after December 24, 2018.


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

PCRA petition is untimely, neither this Court nor the [PCRA] court has

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

legal authority to address the substantive claims.”          Commonwealth v.

Chester, 895 A.2d 520, 522 (Pa. 2006) (first alteration in original) (internal

citations and quotation marks omitted). As timeliness is separate and distinct

from the merits of Appellant’s underlying claims, we first determine whether

this PCRA petition is timely filed. See Commonwealth v. Stokes, 959 A.2d

306, 310 (Pa. 2008) (consideration of Brady2 claim separate from

consideration of its timeliness).        The timeliness requirements of the PCRA

petition must be met, even if the underlying claim is a challenge to the legality

of the sentence.      See Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa.

2007) (“Although legality of sentence is always subject to review within the

PCRA, claims must still first satisfy the PCRA’s time limits or one of the

exceptions thereto”) (citing Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.

1999)).

        It is well established that the PCRA subsumes all other post-conviction

remedies, including habeas corpus and coram nobis (see 42 Pa.C.S.A.

§ 9542), that the writ of habeas corpus can be used only when there is no

available remedy under the PCRA (see, e.g., Commonwealth v. Judge, 916

A.2d 511 (Pa. 2007)), and that claims of ineffective assistance of counsel

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2   Brady v. Maryland, 373 U.S. 83 (1963).

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squarely   fall   within   the   purview   of   the   PCRA   (see   42   Pa.C.S.A.

§ 9543(a)(2)(ii)). Accordingly, Appellant’s argument that his habeas petition

is not a PCRA petition is devoid of any support in the law.

      Appellant in addition argues that the PCRA court should have treated his

claim as a petition for habeas corpus because otherwise he would not be able

to prove the timeliness of his claim under the PCRA. In other words, Appellant

argues that unless his claim is treated as a habeas corpus petition he would

not have any remedy to rectify counsel’s ineffectiveness. As also noted by

the Commonwealth, this argument “confuses the issue of whether a claim

satisfies the jurisdictional requirements of the PCRA, and whether the PCRA

provides a remedy for such a claim.” Commonwealth v. Fahy, 737 A.2d

214, 224 (Pa. 1999).        Simply because Appellant is unable to meet the

jurisdictional requirements of the PCRA does not mean that there are no

remedies under the PCRA or that habeas corpus proceedings become an

alternative basis for relief. Id.

      The instant petition is facially untimely and Appellant does not allege,

let alone prove, the applicability of any exception to the time-bar. Indeed,

Appellant readily admits the instant petition is untimely under the PCRA. See

Writ of Habeas Corpus, 5/21/18, at 6; Appellant’s Brief at 10. Accordingly,

we have no jurisdiction to entertain the merits of the underlying petition, and

we affirm the order of the PCRA court.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/19




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