J-S29023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA


                         v.

JAMES CHARLES BARNES

                                Appellant                    No. 2576 EDA 2016


                  Appeal from the PCRA Order dated July 27, 2016
                   In the Court of Common Pleas of Monroe County
                 Criminal Division at No(s): CP-45-CR-0000481-2007

BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY SOLANO, J.:                                  FILED AUGUST 17, 2017

        Appellant, James Charles Barnes, appeals from the order entered by

the Monroe County Court of Common Pleas dismissing his second Post

Conviction Relief Act (“PCRA”)1 petition as untimely. Appellant contends he

is    entitled    to   relief    for   his   ineffectiveness-of-counsel   claim   under

Montgomery v. Louisiana, 136 S. Ct. 718 (2016), and McQuiggin v.

Perkins, 133 S. Ct. 1924 (2013).               He suggests that when read together,

McQuiggin and Montgomery establish that no PCRA time bar applies when

there is “an important constitutional right at issue,” including the right to

effective assistance of counsel (the right asserted here). We affirm.



____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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     Review of the facts underlying Appellant’s convictions is unnecessary

for our disposition.   Suffice to say that on May 8, 2007, Appellant was

convicted of two counts each of rape, involuntary deviate sexual intercourse,

statutory sexual assault, sexual assault, endangering the welfare of a child,

corruption of minors, aggravated indecent assault, and indecent assault.

PCRA Ct. Op., 9/20/16, at 1 (unpaginated). Appellant was sentenced to 34

to 68 years’ imprisonment and appealed to this Court, which affirmed the

judgment of sentence on July 15, 2008. Commonwealth v. Barnes, 959

A.2d 957 (Pa. Super. 2008).     Appellant did not petition to appeal to the

Pennsylvania Supreme Court. Pet. for Post-Collateral Relief, 6/13/16, at 2

(unpaginated).

     Appellant filed a timely pro se PCRA petition on July 9, 2009. PCRA Ct.

Op. at 2 (unpaginated).    The PCRA court appointed Jason Leon, Esq., as

counsel.    Attorney   Leon   filed   an   amended   PCRA   petition   alleging

ineffectiveness of Appellant’s counsel at the trial and appellate level.   Id.

The PCRA court denied the petition on May 19, 2010. Id. Appellant timely

appealed to this Court. Id.

     While his appeal was pending, Appellant retained new counsel, S. Lee

Ruslander, Esq., who filed a petition to remand the case to the PCRA court to

develop a claim of ineffectiveness against all prior counsel, including

Attorney Leon. Pet. for Post-Collateral Relief, 6/13/16, at 2 (unpaginated).




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This Court deferred decision on the petition to remand, 2 and subsequently

denied appellate relief on September 7, 2011. Commonwealth v. Barnes,

34 A.3d 216 (Pa. Super. 2011), appeal denied, 44 A.3d 1160 (Pa. 2012).

The Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal on May 15, 2012. Id.

         Appellant filed a second, counseled PCRA petition on June 13, 2016.

Pet. for Post-Collateral Relief, 6/13/16. On June 21, 2016, the PCRA court

issued a notice of its intent to dismiss the petition pursuant to Rule 907 of

the Rules of Criminal Procedure. Rule 907 Notice, 6/21/16.3 Appellant filed a

timely response on July 15, 2016.                  On July 28, 2016, the PCRA court

dismissed Appellant’s petition as untimely. Order, 7/28/16.

         Appellant timely appealed and presents us with a single appellate

issue:

         Whether the Court of Common Pleas of Monroe County erred in
         denying and dismissing [Appellant’s] Petition for Post-Collateral
         Relief without an evidentiary hearing in as much as the Petition
         for Post-Collateral Relief raised material issues of fact on its
         claims which had merit?

Appellant’s Brief at 3.4

____________________________________________
2
  The record does not reflect whether this Court ever explicitly ruled on the
petition to remand. The certified record lacks any reference to the portion of
the proceedings that featured Attorney Ruslander.
3
 The Notice was docketed on June 20th, but the docket reflects that it was
mailed the next day.
4
  On May 1, 2017, Appellant filed a petition to amend his appellate brief to
allege additional instances of ineffectiveness by Attorney Leon. Pet. to
(Footnote Continued Next Page)
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      Before examining the merits of an appellant’s claims, we must

determine whether the post-conviction petition is timely. The timeliness of a

post-conviction petition is jurisdictional — if a petition is untimely, neither an

appellate court nor the PCRA court has jurisdiction.             Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). To be timely,

      [a]ll PCRA petitions must be filed within one year of the date a
      judgment of sentence becomes final unless the petitioner pleads
      and proves that (1) there has been interference by government
      officials in the presentation of the claim; or (2) there exists
      after-discovered facts or evidence; or (3) a new constitutional
      right has been recognized. 42 Pa.C.S.A. § 9545(b)(1)(i-iii);
      [Commonwealth v.] Robinson [, 837 A.2d 1157, at 1161 (Pa.
      2003)].

Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007), appeal

denied, 944 A.2d 756 (Pa. 2008). It is the petitioner’s burden to allege and

prove that one of the timeliness exceptions applies; whether this burden has

been carried is a “threshold inquiry that must be resolved prior to

considering the merits of any claim.”                Commonwealth v. Robinson, 139

A.3d 178, 186 (Pa. 2016) (citation omitted).                  Couching an otherwise

untimely PCRA petition in terms of ineffectiveness of counsel will not save it

from the PCRA’s time restrictions. Commonwealth v. Lesko, 15 A.3d 345,

367 (Pa. 2011) (citing Commonwealth v. Breakiron, 781 A.2d 94, 97 (Pa.

2001)).


                       _______________________
(Footnote Continued)
Amend Appellant’s Br., 5/1/17. We deny Appellant’s request because, as
explained below, Appellant failed to overcome the PCRA’s time-bar. The
Commonwealth did not file a brief in this case.

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       We agree with the PCRA court that Appellant’s second PCRA petition is

untimely.     Appellant’s judgment of sentence became final on August 14,

2008 — thirty days after the Pennsylvania Superior Court affirmed.

Therefore, Appellant had until August 14, 2009, to file a timely PCRA

petition. Appellant filed his instant, second PCRA petition well beyond that

deadline, on June 13, 2016.

       To overcome the one-year time-bar, Appellant was required to plead

and prove one of the PCRA’s three timeliness exceptions.      See Robinson,

139 A.3d at 186. Appellant never explicitly invokes any of the exceptions in

his brief.    However, he implicitly points to the third — assertion of “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)(iii) — by arguing that effective assistance to counsel is an

“important constitutional right” that he should be allowed to raise at any

time, regardless of the PCRA’s time-bar. Appellant’s Brief at 7. Appellant

fails to meet the requirements of this exception, however, because, like the

defendant in Robinson, his petition does not refer to any decision

recognizing a new, retroactively applied right to effective counsel.5 Like the

____________________________________________
5
  In order to invoke the newly-recognized constitutional right exception to
the PCRA, a petition must point to specific decisions granting retroactive
effect to a newly recognized right. See Robinson, 139 A.3d at 186
(rejecting the defendant’s untimely PCRA petition alleging ineffectiveness of
counsel for, among other reasons, failing to refer to any new, retroactive
(Footnote Continued Next Page)
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defendant in Commonwealth v. Feliciano, 69 A.3d 1270, 1275 (Pa. Super.

2013), Appellant fails to establish that he relies on a right that is “newly

recognized,” rather than longstanding.

      Appellant contends that the PCRA court had jurisdiction to entertain

his untimely second PCRA petition because Montgomery, read alongside

McQuiggin,6 “meant [that] any important constitutional right can be raised

and argued in state PCRA courts no matter a time bar,” including the

“important    constitutional      right”   of        “effective   assistance   of   counsel.”

Appellant’s Brief at 9.       The PCRA court rejected Appellant’s Montgomery

argument, reasoning that since “[n]o case relevant to [Appellant’s] has

announced a new substantive rule under the Constitution,” Montgomery is

not applicable. Rule 907 Notice, 6/21/16. In this Court, Appellant seeks to

use McQuiggan to bolster his argument by pointing out that McQuiggin

held that (1) a “plea of actual innocence can overcome [a] habeas statute of

limitations,” and (2) that “federal habeas courts may invoke [a] miscarriage

of justice exception to justify consideration” of state court claims that


                       _______________________
(Footnote Continued)
constitutional right recognized after his conviction was finalized); see also
Commonwealth v. Feliciano, 69 A.3d 1270, 1276-77 (Pa. Super. 2013)
(rejecting the petitioner’s argument that recent U.S. Supreme Court cases
created a new, retroactive constitutional right to effective counsel, reasoning
that the right to effective counsel “has been recognized for decades,” and
that the cases cited did not create a new right but rather applied the Sixth
Amendment to particular circumstances).
6
 Appellant cites McQuiggin for the first time on appeal. He made no
mention of the case in his PCRA petition or Rule 1925(b) statement.

                                                 6
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defaulted under state timeliness rules.                Id.    Appellant’s argument is

unavailing.

       Federal decisions about federal habeas corpus law, like McQuiggin,

are irrelevant to construction of the PCRA’s timeliness requirements.               In

Commonwealth v. Brown, 143 A.3d 418, 420-21 (Pa. Super. 2016), the

defendant cited McQuiggin to argue that the PCRA’s time-bar should not

apply to his untimely PCRA petition that asserted actual innocence because

the U.S. Supreme Court in McQuiggin held that convincing claims of actual

innocence could overcome the statute of limitations for filing a federal

habeas corpus petition.        Id. at 420.         Rejecting that argument, this Court

emphasized that McQuiggin represented only a development in federal

habeas corpus law, which has no effect on state court construction of the

PCRA’s time bar, since a “change in federal law is irrelevant to the time

restrictions of our PCRA.” Id. at 421.

       Pennsylvania courts do not have jurisdiction to create extra-statutory

exceptions to the PCRA’s time-bar.                 Robinson, 139 A.3d at 187.       In

Robinson, the Pennsylvania Supreme Court rejected the defendant’s

proposed exception to the PCRA time-bar for facially untimely PCRA petitions

challenging the performance of prior PCRA counsel. Id. In support of his

exception, the defendant cited two recent U.S. Supreme Court decisions7
____________________________________________
7
  The defendant cited Martinez v. Ryan, 132 S. Ct. 1309 (2013), and
Trevino v. Thaler, 133 S. Ct. 1911 (2013). See Robinson, 139 A.3d at
183 n.7 (summarizing both cases).

                                               7
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that “altered the federal law of procedural default to allow post-conviction

petitioners to have their waived claims of trial counsel ineffectiveness

reviewed in federal habeas corpus proceedings where post-conviction

counsel never raised such claims.”        Id. at 183.     Our Supreme Court held

that the defendant’s —

      proposed [exception] would be in direct contravention of the
      legislatively created time-bar of the PCRA and the limited
      statutory exceptions provided therein.        This Court has no
      authority to carve out equitable exceptions to statutory
      provisions and the federal jurisprudence cited by [the defendant]
      neither requires nor authorizes our doing so.

Id. at 187.

      Appellant’s citation of Montgomery and McQuiggin does not render

his petition timely, as neither case suggests the existence of a newly

recognized right to effective counsel.           The U.S. Supreme Court in

Montgomery never mentioned ineffectiveness of counsel, much less

announced a new substantive right or rule on the matter.            McQuiggin is

inapposite for reasons similar to those given by this Court in Brown; even if

Appellant had timely invoked McQuiggin and not cited it for the first time

on appeal, it would remain irrelevant to our construction of the PCRA’s time

limitations.   Like   the   defendant’s   argument   in    Robinson,    Appellant’s

suggested      interpretation   of   Montgomery      —     that   any   “important”

constitutional right may be raised at any time by a PCRA petitioner,

regardless of time-bar — would directly contravene the PCRA’s legislative

mandate and require this Court to exceed its authority by creating a new

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J-S29023-17



exception to a statutory provision.   Appellant’s reading would significantly

undermine the PCRA’s jurisdictional time limits; any time a right was

characterized as “important” (a vague and overly general standard), those

limits would become inapplicable.     As explained in Robinson, we lack

authority to carve out exceptions to the PCRA’s limits that are not already in

the statute.

      Because we agree with the PCRA court that Appellant’s petition was

untimely and Montgomery does not cure its untimeliness, we affirm the

dismissal.

      Petition to amend Appellant’s brief denied as moot. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2017




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