J-S45023-14



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

GREGORY THOMAS

                            Appellant                   No. 1601 EDA 2013


                 Appeal from the PCRA Order of May 13, 2013
             In the Court of Common Pleas of Philadelphia County
            Criminal Division at Nos.:  CP-51-CR-0316801-1989
                                        CP-51-CR-0820411-1990



BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                               FILED AUGUST 08, 2014

       Gregory Thomas appeals pro se from the May 13, 2013 order

dismissing his fifth petition for relief under the Post-Conviction Relief Act

                                   -46. We affirm.



merits, we need not review the factual history of this case. The trial court



       [Thomas] was found guilty of [two counts of] murder[1] and
       related offensives [sic] stemming from the murders of Tom
____________________________________________


*
       Former Justice specially assigned to the Superior Court.
1
     18 Pa.C.S. §§ 2502(a) (first degree) and 2502(b) (second degree),
respectively.
J-S45023-14


       Corley and Clyde Henley, which occurred on November 28, 1988.

                                                                     s of
       ineffective assistance of trial counsel. On September 13, 1991,
                        -trial motions were denied. On December 13,
       1991, [Thomas] was sentenced to two concurrent life sentences
       for the two murder convictions. [Thomas] was also sentenced to
       [one to two] years for aggravated assault,[2] [two to four] years
       for criminal conspiracy,[3] [ten to twenty] years for robbery, [4]
       [five to ten] years for robbery, [one to two] years for possession
       of an instrument of crime,[5] and [one to two] years for
       possession of an instrument of crime to run consecutive[ly] to
       the life sentence but concurrent[ly] with each other.[6]
       [Thomas] timely filed a Notice of Appeal, and on November 4,
       1992, the Superior Court vacated the sentence for aggravated
       assault and the matter was remanded for the imposition of
       sentence [for] simple assault.[7]        Allowance of Appeal was
       sought, but the Supreme Court of Pennsylvania denied
                                            8
                                              ]

       On January 15, 1997, [Thomas] filed his first PCRA petition,
       which [the PRCA court] dismissed on April 20, 1998. [Thomas]
       appealed this decision to the Pennsylvania Superior Court, which
                                                            -conviction

____________________________________________


2
       18 Pa.C.S. § 2702(a)(1).
3
       18 Pa.C.S. § 903.
4
       18 Pa.C.S. § 3701.
5
       18 Pa.C.S. § 907(a).
6
     Thomas was convicted on two separate counts of robbery and two
counts of possession of a criminal instrument.
7
      Commonwealth v. Thomas, 620 A.2d 1238 (Pa. Super. 1992)
(table).
8
       Commonwealth v. Thomas, 626 A.2d 1157 (Pa. 1993).




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J-S45023-14


       petition on August 13, 1999.[9] On July 31, 2002, [Thomas]
       filed his second pro se PCRA petition. On March 19, 2003, [the

       [Thomas] appealed that decision to the Superior Court, which
       affirmed the decision of [the PRCA court] by Order dated March
       16, 2004.[10] On March 3, 2009, [the PRCA court] dismissed
                         pro se PCRA petition, originally filed on February
       9, 2009.      [Thomas] appealed and, again, the Pennsylvania
       Superior Court affirmed the dismis
       petition.[11]    [Thomas] appealed that affirma[nce] to the
       Pennsylvania Supreme Court[,] but that appeal was denied on
       April 4, 2011.[12]

       One week later, [Thomas] filed his fourth pro se PCRA petition
       on April 11, 2011. [The PRCA court] dismissed the petition on
       November 30, 2011. [Thomas] did not appeal that denial.
       Instead, on April [4], 2012,[13] [Thomas] filed his fifth pro se
       PCRA petition[,] which was denied [as] untimely on May 13,
       2013.[14] [Thomas] now appeals that denial.

PCRA                                             -2.15


____________________________________________


9
       Commonwealth v. Thomas, 745 A.2d 47 (Pa. Super. 1999) (table).
10
       Commonwealth v. Thomas, 1139 EDA 2003 (Pa. Super 2003).
11
       Commonwealth v. Thomas, 912 EDA 2009 (Pa. Super 2009).
12
       Commonwealth v. Thomas, 20 A.3d 487 (Pa. 2011).
13
       The trial court incorrectly stated in its facts and procedural history that
Appellant filed his fifth pro se petition on April 16, 2012, but correctly stated
in its legal analysis that Thomas filed the petition on April 4, 2012. See
P.C.O at 2, 4.
14
       It is not clear from the record why the PCRA court delayed for over a


15
      The trial court did not order Thomas to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Without the
(Footnote Continued Next Page)


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J-S45023-14



      Thomas raises the following issues, reproduced verbatim and with all

typographical errors preserved, for our review.16

      1. WHETHER, under state law ineffective-assistance-counsel
         claims must be raised in an initial-review collateral
         proceeding, a procedural default will not bar States High
         Courts from hearing those claims if, in the initial-review
         collateral proceeding, there was no counsel or counsel in that
         proceeding was ineffective. by the Bedrock Principal.

      2. WHETHER, the Appeals Court will agree with limited
         circumstances recognized by the Federal Courts that the
         Antiterrorism And Effective Death Penalty Act of 1996 does
         not bar Thomas or speak to the questions presented here.

      3. WHETHER Thomas attorney abandonment in his first
         collateral proceeding was ineffective (Tariq Shabazz) and
         whether his ineffective-assistance-at trial claim is substantial,
         as well as the question of prejudice, are questions that
         remain open for a decision on remand.

      4.                                newly discovered evidence meets the
           60 day rule.

      5. Whether. an appeal court may excuse a procedural default of
         an ineffective claim when the claim was not properly
         preserved and presented in the lower/district court due to an
         attorney errors in an initial-review collateral proceeding.

      6. WHETHER, the State refusal to turn over all notes/documents
         Detective interview notes concerning Raymond Bullock who
         the State claim commented the murders Violates Brady
         evidence. And the Initial Statement of star witness Arthur
         Smith

                       _______________________
(Footnote Continued)

benefit of such a statement, on July 2, 2013, the trial court filed its opinion
pursuant to Rule 1925(a).
16
                                               fifth pro se PCRA petition is
                          pro se PCRA petition, which was filed on April 11,
2011, and dismissed by the trial court on November 30, 2011. P.C.O. at 2.



                                            -4-
J-S45023-14



Brief for Thomas at 6-7.

       Like the trial court, we begin by reviewing our jurisdiction to consider

                                -established that the PCRA time limits are

jurisdictional, and must be construed strictly, regardless of the potential

merit of the claims asserted. Commonwealth v. Leggett, 16 A.3d 1144,

1145 (Pa. Super. 2011); Commonwealth v. Murray, 753 A.2d 201, 202-

03 (Pa. 2000), abrogated on other grounds by Commonwealth v. Brown,

943 A.2d 264 (Pa.

filing requirements] in order to reach the merits of the claims raised in a

                                                        Murray, 753 A.2d at

203.

       A petition under the PCRA must be filed within one year of the date

that the underlying judgment of sentence becomes final.            42 Pa.C.S.

§

direct review, including discretionary review in the Supreme Court of the

United States and the Supreme Court of Pennsylvania, or at the expiration of

the tim                                      9545(b)(3). In the instant case,




                                                    he United States Supreme

Court, which he did not do, expired ninety days later.      See U.S.Sup.Ct.R.

13(1).    Thus, his judgment became final for purposes of the PCRA on or

about July 5, 1993.    Consequently, under section 9545, Thomas had until

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July 5, 1994 to file a timely PCRA petition, unless he alleged one of the

exceptions enumerated in section 9545(b)(1).              The instant petition,

however, was filed on April 4, 2012, more than seventeen years after the

expiration of the one-year period. Therefore, the petition is untimely on its

face.

        Despite facial untimeliness, a tardy PCRA petition nonetheless will be

considered timely if (but only if) the petitioner pleads and proves one of the

three     exceptions    to   the    one-year    time    limit   enumerated    in

subsection 9545(b) of the PCRA, which provides as follows:

        (1) Any petition under this subchapter, including a second or
        subsequent petition, shall be filed within one year of the date the
        judgment becomes final, unless the petition alleges and the
        petitioner proves that:

           (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.

        (2) Any petition invoking an exception provided in
        paragraph (1) shall be filed within 60 days of the date the claim
        could have been presented.




                                       -6-
J-S45023-14



42 Pa.C.S. § 9545(b).    When an appellant files a facially untimely petition

under the PCRA, and fails to plead and prove one or more of the exceptions

                  -year jurisdictional time limit, the petition is untimely and

we must deny the appellant relief.     Commonwealth v. Gamboa-Taylor,

753 A.2d 780, 784 (Pa. 2000). Moreover, even when one of the exceptions

may apply to a given petition, we will excuse the untimeliness only if the

petition was filed within sixty days of the date that the conditions underlying

the exception came to light.     42 Pa.C.S. § 9545(b)(2); Gamboa-Taylor,

753 A.2d at 783-84.

      Thomas does not argue that any of the exceptions to the one-year rule

apply.   Rather, he proceeds directly to assert various poorly developed

claims of ineffective assistance primarily with respect to trial counsel, claims

he has litigated unsuccessfully before.        To prevail on an ineffective




Pa.C.S.A. § 9543(a)(2)(ii).   In order to obtain relief on an IAC claim, the

petitioner must satisfy a three-prong test set forth by our Supreme Court,

and must do so by a preponderance of the evidence.

      [I]n order to obtain relief based on [an IAC] claim, a petitioner
      must establish: (1) the underlying claim has arguable merit;
      (2)
      act; and (3) petitioner suffered prejudice as a result of counsel's


                                     -7-
J-S45023-14


      error such that there is a reasonable probability that the result of
      the proceeding would have been different absent such error.

Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2009) (citing

Commonwealth v. (Charles) Pierce, 527 A.2d 973, 975 (Pa. 1987)).

      The petitioner bears the burden of proving all three prongs of this test.

Commonwealth v. Meadows, 787 A.2d 312, 319-

is presumed to be effective[,] and Appellant has the burden of proving

               Commonwealth v. Holloway, 739 A.2d 1039, 1044 (Pa.

1999). Finally, an IAC claim will be denied if the petitioner fails to meet any

one of the three prongs. Commonwealth v. (Michael) Pierce, 786 A.2d

203, 221-22 (Pa. 2001), abrogated on other grounds by Commonwealth v.

Grant, 813 A.2d 726 (Pa. 2002).

      It is well-established that a claim of ineffective assistance of counsel

does not save an otherwise untimely PRCA petition.        Commonwealth v.

Pursell, 749 A.2d 911, 915-16 (Pa. 2000) (citing Commonwealth v.

Beasley, 741 A.2d 1258, 1260 (Pa. 1999); Commonwealth v. Yarris, 731

A.2d 581, 586 (Pa. 1999)). This is true even when the allegations of IAC are

claimed to have contributed to the untimeliness of the petition, see id.,



IAC claims, he can establish his right to relief only by pleading and proving

that one of the timeliness exceptions applies.    However, Thomas does not

                                                                             -year

jurisdictional time limit.   Furthermore, he does not argue that he filed the



                                      -8-
J-S45023-14



instant petition within sixty days of the date upon which he discovered facts

establishing any of his IAC claims.17            Indeed, he provides no discussion



PCRA petition is untimely.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2014




____________________________________________


17
      Although, as set forth supra, Thomas includes (as question presented
number four) a contention that his petition satisfied the sixty-day rule,
nothing appears in his argument to substantiate that claim.



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