J-S10011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

CLINTON WALKER

                         Appellant                     No. 1752 EDA 2015


                 Appeal from the PCRA Order May 18, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0506521-1999


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

JUDGMENT ORDER BY GANTMAN, P.J.:                 FILED DECEMBER 29, 2015

     Appellant, Clinton Walker, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, which denied his second

petition filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.

§§ 9541-9546. On April 15, 1999, Appellant shot and killed Victim during a

“game” of “Russian Roulette,” following an argument between Appellant and

Victim over a counterfeit $100.00 bill.    Appellant was 17 years old at the

time of the shooting.       Appellant pled guilty on December 16, 1999, to

murder generally. Following a degree-of-guilt hearing, the court convicted

Appellant of first-degree murder and sentenced him to life imprisonment

without   parole.    This    Court   affirmed   on   March   22,   2001.   See

Commonwealth v. Walker, 777 A.2d 510 (Pa.Super. 2001). On May 23,

_____________________________

*Retired Senior Judge assigned to the Superior Court.
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2005, Appellant filed his first PCRA petition, which the court dismissed on

August 14, 2006. On June 14, 2010, Appellant filed the current pro se PCRA

petition.   Appellant filed amendments on August 3, 2012, September 17,

2012, and December 26, 2013. On June 12, 2014, the court issued notice

per Pa.R.Crim.P. 907.      Appellant responded on June 30, 2014.     The court

denied PCRA relief on May 18, 2015. On June 3, 2015, Appellant timely filed

a notice of appeal. No Pa.R.A.P. 1925(b) statement was ordered or filed.

      The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013), appeal denied,

625 Pa. 649, 91 A.3d 162 (2014). A PCRA petition must be filed within one

year of the date the underlying judgment becomes final.         42 Pa.C.S.A. §

9545(b)(1). A judgment is deemed final at the conclusion of direct review or

at the expiration of time for seeking review.     42 Pa.C.S.A. § 9545(b)(3).

The statutory exceptions to the PCRA’s timeliness provisions allow for very

limited circumstances under which the late filing of a petition will be

excused; a petitioner asserting an exception must file a petition within 60

days of the date the claim could have been presented. See 42 Pa.C.S.A. §

9545(b)(1), (b)(2).   When asserting the newly created constitutional right

exception under Section 9545(b)(1)(iii), “a petitioner must prove that there

is a ‘new’ constitutional right and that the right ‘has been held’ by that court

to apply retroactively.”    Commonwealth v. Chambers, 35 A.3d 34, 41

(Pa.Super. 2011), appeal denied, 616 Pa. 625, 46 A.3d 715 (2012).


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Instantly, Appellant’s judgment of sentence became final on April 21, 2001,

upon expiration of the time to file a petition for allowance of appeal with our

Supreme Court. See Pa.R.A.P. 1113. Appellant filed the current petition on

June 14, 2010, which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).

Appellant now attempts to invoke a timeliness exception under Section

9545(b)(1)(iii), claiming Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455,

183 L.Ed.2d 407 (2012) set forth a newly recognized constitutional right,

held to apply retroactively.1        Nevertheless, our Supreme Court has ruled

Miller does not apply retroactively to sentences which became final before

the filing date of Miller (June 25, 2012).            See Commonwealth v.

Cunningham, 622 Pa. 543, 81 A.3d 1 (2013), cert. denied, ___ U.S. ___,

134 S.Ct. 2724, 189 L.Ed.2d 763 (2014).          Thus, the PCRA court properly

dismissed Appellant’s petition.2

       Order affirmed.

____________________________________________


1
  In his PCRA petition filed June 14, 2010, Appellant relied on Graham v.
Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding
imposition of life without parole sentences for juvenile non-homicide
offenders violates Eighth Amendment).        Graham does not apply to
Appellant, as the court convicted Appellant of first-degree murder. See id.
Appellant relied on Miller in his amended PCRA petitions.
2
   Appellant’s attempt to seek habeas corpus relief also fails. See 42
Pa.C.S.A. § 9542 (stating PCRA shall be sole means of obtaining collateral
relief and encompasses all other common law and statutory remedies for
same purpose); Commonwealth v. Deaner, 779 A.2d 578 (Pa.Super.
2001) (stating any collateral petition raising issues with respect to remedies
offered under PCRA will be considered PCRA petition).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2015




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