Opinion
1132 EDA 2022 J-S03025-23
07-05-2023
COMMONWEALTH OF PENNSYLVANIA v. ROBERT BARNETT SR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered April 4, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0200061-2002
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM
BOWES, J.
Robert Barnett Sr. appeals pro se from the order dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We vacate the PCRA court's order and remand for further proceedings consistent with this memorandum.
We begin with a summary of this case's serpentine procedural history. In 2002, a jury convicted Appellant of first-degree murder, robbery, burglary, carrying firearms without a license, and criminal conspiracy for the armed robbery and shooting death of an eighty-four-year-old restaurant owner in Manayunk, Pennsylvania. The trial court sentenced Appellant to life imprisonment without the possibility of parole, followed by twenty-eight and one-half to fifty-seven years of incarceration. On direct appeal, this Court affirmed his judgment of sentence and our Supreme Court denied his petition for allowance of appeal. See Commonwealth v. Barnett ("Barnett I"), 844 A.2d 1275 (Pa.Super. 2003) (unpublished memorandum), appeal denied, 862 A.2d 1253 (Pa. 2004). Of note, we determined that Appellant's "trial counsel filed an appeal that was so badly briefed his claims were deemed waived[.]" Commonwealth v. Barnett ("Barnett III"), 25 A.3d 371, 372 (Pa.Super. 2011) (en banc), vacated by 84 A.3d 1060 (Pa. 2014).
On October 5, 2005, Appellant filed a timely PCRA petition with the assistance of new counsel. The 2005 PCRA petition challenged the effective assistance of prior counsel and sought reinstatement of his direct appeal rights nunc pro tunc. After conducting an evidentiary hearing, the PCRA court denied the petition. This Court reversed, concluding that Appellant was entitled to reinstatement of his direct appeal rights. See Commonwealth v. Barnett ("Barnett II"), 974 A.2d 1175 (Pa.Super. 2009) (unpublished memorandum).
Thereafter, Appellant filed a direct appeal nunc pro tunc with this Court, solely challenging the effective assistance of counsel. Following then-existing precedent, this Court dismissed Appellant's claims of ineffective assistance of counsel without prejudice to raise them on collateral review and affirmed his judgment of sentence. See Barnett III, supra. Appellant filed a petition for allowance of appeal with our Supreme Court. Considering the High Court's pivotal decision in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), which allowed for limited consideration of ineffective assistance of counsel claims on direct appeal, the Court vacated our decision and remanded to the trial court for further proceedings.
On remand, the lower court conducted a waiver colloquy pursuant to Holmes and determined that Appellant waived his right to PCRA review, thereby permitting him to seek review of his ineffective assistance of counsel claims on direct appeal. Back on direct appeal to this Court, we determined Appellant's claims to be without merit and affirmed his judgment of sentence. Both our Supreme Court and the U.S. Supreme Court denied Appellant's requests for further review. See Barnett III, supra, appeal denied, 128 A.3d 1204 (Pa. 2015), certiorari denied, 578 U.S. 1014 (2016).
In 2016, Appellant filed two petitions. First, while further review of his reinstated direct appeal remained pending, Appellant pro se filed a PCRA petition. Since Appellant's judgment of sentence had not yet become final, the 2016 PCRA petition was premature and should have been dismissed by the PCRA court. Instead, the PCRA court appointed counsel, who filed a no-merit letter, and dismissed Appellant's 2016 petition based upon that letter.
Second, after the U.S. Supreme Court declined to review Appellant's case, he pro se filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. Upon initial review, a federal magistrate judge issued a report and recommendation to deny the petition. After Appellant filed objections and the Commonwealth responded, the matter was referred to the district court. The district court concluded that Appellant's habeas petition was not properly before it because the PCRA waiver in connection with Appellant's direct appeal was invalid, and therefore he had not exhausted his state remedies. In denying Appellant's petition without prejudice, the district court sought to ensure that Appellant was "afforded an opportunity to fully exhaust all claims in state court that were forfeited by reason of the defective PCRA waiver[.]" Barnett v. Mooney ("Barnett IV"), 2019 WL 4447588, at *9 (E.D.Pa. Sept. 16, 2019).
On September 30, 2019, Appellant filed the pro se PCRA petition that is the subject of the instant appeal. As Appellant's 2005 PCRA petition resulted in reinstatement of his direct appeal rights and the 2016 PCRA petition was premature, we must consider the 2019 PCRA petition as Appellant's first. See Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa.Super. 2013) ("[W]hen a PCRA petitioner's direct appeal rights are reinstated nunc pro tunc in his first PCRA petition, a subsequent PCRA petition will be considered a first PCRA petition for timeliness purposes." (cleaned up)); Commonwealth v. DiClaudio, 210 A.3d 1070, 1074 n.3 (Pa.Super. 2019) ("Because the judgment of sentence was not final, i.e., a direct appeal from the judgment of sentence was pending before this Court, the trial court should have dismissed [DiClaudio's] first PCRA petition as prematurely filed." (cleaned up)).
In the subsequent two years, Appellant purported to amend his 2019 PCRA petition and submit memoranda of law. Without appointing counsel to assist Appellant, the PCRA court issued notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss the petition without a hearing because it was untimely. Appellant sought an extension of time to respond to the Rule 907 notice and attached a copy of the federal district court's opinion to explain the basis for the PCRA court's jurisdiction. Without addressing Appellant's request for an extension or his response, the PCRA court dismissed Appellant's petition.
Appellant filed a timely appeal to this Court. The PCRA court did not order Appellant to file a concise statement pursuant to Pa.R.A.P. 1925(b) and none was filed. The PCRA court issued a short opinion in compliance with Rule 1925(a), concluding that the petition, which it incorrectly deemed a second or subsequent petition, was untimely filed and Appellant failed to plead and prove a timeliness exception. Appellant presents the following issues for our consideration:
1. Did the PCRA court err in denying Appellant's pro se PCRA petition as untimely asserting: "that the subsequent PCRA petition was untimely filed and Appellant failed to plead and prove any exception under 42 Pa.C.S. § 9545(b)(1)"?
2. Did the PCRA court err by not [acc]epting Appellant's newly discovered facts of a miscarriage of justice referenced in the September 16, 2019 memorandum of law and court order issued by U.S. Eastern District Judge C. Darnell Jones II remanding Appellant back to state PCRA court as an exception to the time-bar under timeliness provision 42 Pa.C.S. § 9545(b)(1)(i)-(iii)?
3. Did the PCRA court err when it refused to consider Appellant's layered motion for extension of time/response to PCRA court's motion of intent to dismiss under Rule of Criminal Procedure 907 which was, a letter of explanation for filing and a[n] exhibit being a copy of the memorandum of law and attached court order from U.S. District Court Judge C. Darnell Jones II?Appellant's brief at 5 (cleaned up).
Appellant contests the PCRA court's conclusion that his petition was untimely. "The timeliness of a PCRA petition is a jurisdictional requisite." Commonwealth v. Ballance, 203 A.3d 1027, 1033 (Pa.Super. 2019) (citation omitted).
The PCRA time limitations implicate our jurisdiction and may not be altered or disregarded in order to address the merits of the petition. In other words, Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition. The PCRA requires a petition, including a second or subsequent petition, to be filed within one year of the date the underlying judgment becomes final.Id. at 1031 (cleaned up, emphasis in original). "Generally, to obtain merits review of a PCRA petition filed more than one year after the sentence became final[,] the petitioner must allege and prove at least one of the three timeliness exceptions" set forth at § 9545(b)(1)(i)-(iii). Id. When a PCRA petition is untimely and fails to plead and prove one of the timeliness exceptions, the PCRA court has no jurisdiction to entertain the merits of any issues raised in the petition. See id. at 1032. Critically, "statutory jurisdiction cannot be conferred by silence, agreement or neglect." Id. at 1033 (citation omitted). Moreover, "[c]ourts do not have the authority to fashion ad hoc equitable remedies to the time bar in addition to those provided by the PCRA statute." Commonwealth v. Wharton, 263 A.3d 561, 572 (Pa. 2021) (citation omitted).
Here, Appellant's petition was patently untimely and the PCRA court dismissed it on that basis. That conclusion, however, was premature because Appellant had not been provided the benefit of counsel in litigating the timeliness of this petition. As a first-time PCRA petitioner, Appellant "enjoys a well-recognized right to legal representation during this initial collateral review of his judgment of sentence. In this context, the right to counsel conferred on initial PCRA review means an enforceable right to the effective assistance of counsel." Commonwealth v. Betts, 240 A.3d 616, 621 (Pa.Super. 2020) (cleaned up).
Instantly, the PCRA court neglected to appoint counsel to assist Appellant in litigating this PCRA petition. If the PCRA court believed that it was relieved of this obligation because it determined Appellant's petition to be untimely filed, it was incorrect:
Even though the timeliness requirements of the PCRA leave a court without jurisdiction to consider the merits of an untimely petition, they do not preclude a court from appointing counsel to aid an indigent petitioner in attempting to establish an exception to the time-bar. Although the PCRA court determines the issue of timeliness prior to reaching the merits of a PCRA petition, the PCRA court is not divested of its jurisdiction until it analyzes the facts and makes the determination that the petition is time-barred. Therefore, an indigent petitioner, who files his first PCRA petition, is entitled to have counsel appointed to represent him during the determination of whether any of the exceptions to the one-year time limitation apply.Commonwealth v. Smith, 818 A.2d 494, 499 (Pa. 2003) (emphasis in original).
Stated simply, before this Court or the PCRA court may determine the timeliness of the instant petition, Appellant must be afforded the assistance of counsel in litigating his petition, including pleading and proving an applicable exception to the PCRA's time-bar. Since the PCRA court dismissed Appellant's petition without affording him that right, we vacate the PCRA court's order and remand for the appointment of counsel.
In doing so, we do not rule on whether the PCRA petition was timely filed, as it will be up to appointed counsel on remand to plead and prove an applicable timeliness exception before the PCRA court. Our esteemed colleague posits that this Court should deem the petition timely in light of the district court's opinion. Respectfully, we cannot countenance this suggestion. As detailed hereinabove, statutory jurisdiction to consider an otherwise untimely PCRA petition "cannot be conferred by silence, agreement or neglect." Commonwealth v. Ballance, 203 A.3d 1027, 1033 (Pa.Super. 2019) (citation omitted). Nor can this Court, nor the district court, fashion ad hoc equitable remedies to the time bar in addition to those provided by the PCRA statute." Commonwealth v. Wharton, 263 A.3d 561, 572 (Pa. 2021) (citation omitted). What the district could did was ensure that Appellant was "afforded an opportunity to fully exhaust all claims in state court that were forfeited by reason of the defective PCRA waiver that occurred on November 6, 2014." Barnett v. Mooney, 2019 WL 4447588, at *9 (E.D.Pa. Sept. 16, 2019).
The doctrine of "exhaustion of state remedies" requires a federal habeas petitioner to present all claims to the state courts prior to seeking relief from the federal courts. 28 U.S.C. § 2254. However, the exhaustion requirement does not apply in cases where the state courts would not consider the unexhausted claims because they are procedurally defaulted. Slutzker v. Johnson, 393 F.3d 373, 380 (3d Cir. 2004).Id. at *5 n.3. Here, Appellant was initially precluded from seeking PCRA review because he waived his right to seek PCRA relief on direct appeal. When the district court determined that it lacked jurisdiction to consider Appellant's habeas petition because the waiver was constitutionally deficient, it removed the procedural default of waiver and afforded Appellant the opportunity to first seek relief in the PCRA court by filing a PCRA petition with the PCRA court. The concurrence equates the dismissal of a habeas petition without prejudice for the petitioner to exhaust state remedies with a federal mandate that the state court rule on the merits of the claim. However, the Third Circuit has explained that, at the core of the exhaustion doctrine, is "[a]ll claims that a petitioner in state custody attempts to present to a federal court for habeas corpus review must have been fairly presented to each level of the state courts." Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) (cleaned up). "The exhaustion requirement ensures that state courts have the first opportunity to review convictions and preserves the role of state courts in protecting federally guaranteed rights." Id. (cleaned up). As happened here, "[f]ederal courts will dismiss without prejudice claims that have not been properly presented to the state courts, allowing petitioners to exhaust their claims." Id. at 159-60. However, if sending the case back to state court would be futile, the failure to exhaust will be excused and the case will proceed in federal court. See id. at 162. Futility exists where, among other things, "exhaustion is not possible because the state court would refuse on procedural grounds to hear the merits of the claims." Id. at 163 (cleaned up). The federal courts will "not excuse exhaustion in this context unless state law clearly forecloses state court review of claims which have not previously been presented to a state court." Id. (cleaned up, emphasis in original).
If the federal court is uncertain how a state court would resolve a procedural default issue, it should dismiss the petition for failure to exhaust state remedies even if it is unlikely that the state court would consider the merits to ensure that, in the interests of comity and federalism, state courts are given every opportunity to address claims arising from state proceedings.
The fact that it is merely unlikely that further state process is available is therefore insufficient to establish futility:
If we permitted such a prediction to constitute the type of futility which would allow a federal court to excuse exhaustion, we would undermine the exhaustion doctrine. Although exhaustion is often cumbersome, and may appear to require duplicative expenditure of judicial resources on claims that frequently have no merit, the doctrine is premised on firmly entrenched principles of comity. We are not free to disregard those principles for the sake of expediency or occasional efficiency.Id. (cleaned up, emphasis in original). Therefore, "in questionable cases it is better that the state courts make the determination of whether a claim is procedurally barred." Id. (cleaned up). This is precisely what happened here. The district court removed the procedural default of waiver but could not and did not alter the PCRA's time-bar. Despite the patent untimeliness of any PCRA petition at this juncture, Appellant was not "clearly foreclosed" from PCRA review because the untimeliness of a first PCRA petition may be overcome by a petitioner pleading and proving one of the timeliness exceptions. Therefore, the district court dismissed the case for Appellant to have the opportunity to present to the PCRA court, with the assistance of counsel, the reasons why he believes that the PCRA court has jurisdiction to consider the merits of his petition. Nonetheless, in the interest of comity, it is up to the PCRA court to determine in the first instance whether the claim is procedurally barred by the petition's untimeliness. Notwithstanding the unlikeliness of Appellant being able to do so, the doctrine of exhaustion required the district court to permit Appellant the opportunity, and only the opportunity, to present his PCRA claims to the PCRA court in a PCRA petition. It was then up to Appellant to plead and prove a timeliness exception to invoke the PCRA court's jurisdiction. In other words, compliance with the district court's decision does not require the PCRA court to consider the merits of Appellant's PCRA claims without regard to the timeliness of the petition. Nor does anything in the district court's order suggest that the district court intended to bypass the PCRA's timeliness requirements. Rather, based on Lines, supra, it is the role of the PCRA court to ascertain whether it has jurisdiction to consider Appellant's untimely petition. Thus, once counsel is afforded the opportunity to plead and prove an exception, whether the petition is ultimately deemed timely by the PCRA court and resolved on the merits or dismissed as untimely, Appellant will have had the opportunity to exhaust his state claims and be free to seek relief once again in federal court.
Order vacated. Case remanded for proceedings consistent with this memorandum. Jurisdiction relinquished.
Judge Sullivan joins this Memorandum.
Judge McCaffery files a Concurring Memorandum.
Judgment Entered.
CONCURRING MEMORANDUM
McCAFFERY, J.
I agree with the Majority's determination to vacate the PCRA court's order and remand for the appointment of counsel to assist Appellant in litigating what the Majority correctly determines to be his first PCRA petition. Nevertheless, I am compelled to concur because I conclude the present petition was timely filed.
I recognize that, for purposes of the PCRA, Appellant's judgment of sentence was final on May 31, 2016, when the United States Supreme Court denied his petition for writ of certiorari from his nunc pro tunc direct appeal. See Commonwealth v. Barnett, 121 A.3d 534 (Pa. Super. 2015), appeal denied, 540 EAL 2015 (Pa. Super. Dec. 22, 2015), cert. denied, 578 U.S. 1014 (May 31, 2016); see also 42 Pa.C.S. § 9545(b)(3) ("a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States"). Thus, pursuant to Section 9545(b)(1), Appellant had one year from that date ─ or until May 31, 2017 ─ to file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(1). His present petition was filed more than two years later, on September 30, 2019. Moreover, Appellant did not plead any of the time for filing exceptions in his petition as required by Section 9545(b)(1). See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Nevertheless, the unique procedural history of this matter leads me to conclude Appellant's petition must be considered a first, timely request for PCRA relief ─ a conclusion with which the Commonwealth agrees. See Commonwealth's Brief at 6-7.
Preliminarily, I acknowledge the Majority's determination, supported by accompanying case law, that (1) "[t]he timeliness of a PCRA petition is a jurisdictional prerequisite[;]" (2) "statutory jurisdiction cannot be conferred by silence, agreement or neglect[;]" and (3) courts are not empowered to "fashion ad hoc equitable remedies" to the PCRA's time bar. See Majority's Memorandum at 6 (citations omitted). However, I conclude that to give effect to the federal district court's determination that Appellant's prior PCRA waiver was inadequate to protect his rights, we must consider this petition (filed within one year of the date of the federal district court's opinion) to be timely.
The Majority provides no context for the federal district court's opinion, but simply cites its conclusion that Appellant's PCRA waiver was invalid, such that Appellant had not exhausted his state remedies. See Majority's Memorandum at 3. Further, the Majority notes the court denied Appellant's habeas petition "without prejudice, [to] ensure that Appellant was afforded an opportunity to fully exhaust all claims in state court that were forfeited by reason of the defective PCRA waiver." Id. at 4 (citation omitted).
A brief summary of the federal district court's ruling is instructive. First, the federal district court noted that "[f]ederal courts reviewing a habeas petition generally refuse to hear procedurally defaulted claims pursuant to an independent and adequate state procedural rule[, i.e., one that is] firmly established and regularly followed." Barnett v. Mooney, No. CV 16-2973, 2019 WL 4447588, at *5 (E.D. Pa. Sep. 16, 2019) (citations & some quotation marks omitted). The court opined that the procedural rule for waiving future PCRA review, set forth in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), was neither "firmly established" nor "regularly followed" at the time Appellant waived his PCRA rights in November of 2014. See id. at *6-*7.
Second, the district court concluded that the waiver colloquy administered to Appellant herein "reveal[ed] significant deficiencies" and was "inadequate to truly determine whether [Appellant] knowingly and voluntarily waived his PCRA rights." Barnett, 2019 WL 4447588 at *8. The court explained that Appellant's colloquy did not sufficiently inform him that any future claims would be subject to the time restrictions of the PCRA, or that this restriction applied to all claims "not just those [asserting] ineffective assistance of counsel[.]" Id. Therefore, the court directed that Appellant's "[h]abeas [p]etition be dismissed without prejudice and he shall be afforded an opportunity to exhaust all claims in state court that were forfeited by reason of the defective PCRA waiver that occurred on November 6, 2014." Id. at *9.
Accordingly, as explained above, the federal district court determined that Appellant's PCRA waiver was inadequate to protect his rights, and directed that Appellant be "afforded an opportunity to exhaust all claims in state court that were forfeited by reason of the defective PCRA waiver that occurred on November 6, 2014." Barnett, 2019 WL 4447588 at *9 (emphasis added). Unless we conclude that Appellant's September 2019 petition was timely filed following the district court's conclusion that Appellant's PCRA waiver was inadequate, any claims purportedly forfeited via the defective waiver would still be required to overcome the time bar to be "fully exhausted." I conclude that remedy would not provide Appellant with the proper relief from the defective PCRA waiver colloquy that the federal district court intended.
Thus, I respectfully concur.