Com. v. Rizvi, A. , 166 A.3d 344 ( 2017 )

J-S35032-17
2017 Pa. Super. 191
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANWAR RIZVI :
:
Appellant : No. 1751 WDA 2016
Appeal from the PCRA Order October 25, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007762-2008
BEFORE: LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED JUNE 19, 2017
Anwar Rizvi (“Appellant”) appeals from the order entered by the Court
of Common Pleas of Allegheny County dismissing his second petition for
collateral relief filed under the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. § 9541-9546, as untimely. Appellant contends that extraordinary
circumstances required the equitable tolling of the PCRA’s one-year
limitations period in his case, making the PCRA court’s refusal to do so
reversible error. We affirm.
On August 11, 2009, Appellant was sentenced to 15 to 30 years’
incarceration for criminal attempt-homicide, and he filed a direct appeal to
this Court. On March 1, 2010, prior to our disposition of his direct appeal,
Appellant was transferred to a correctional institution in the Commonwealth
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S35032-17
of Virginia as part of an agreement between the Virginia Department of
Corrections and the Pennsylvania Department of Corrections, whereby
Virginia agreed to house 1,000 Pennsylvania male inmates.
On January 10, 2011, this Court affirmed Appellant’s judgment of
sentence. Appellant did not file a petition for allowance of appeal with the
Pennsylvania Supreme Court, making February 9, 2011, the date on which
his judgment of sentence became final. See 42 Pa.C.S. § 9545(b)(3);
Pa.R.A.P. 1113(a) (judgment of sentence becomes final at the conclusion of
direct review or the expiration of the time for seeking the review).
According to Appellant, it was during this time that he encountered
difficulties with conducting legal research on Pennsylvania rules pertaining to
appellate rights. Specifically, he claims that the Virginia correctional facility
in which he was housed contained an underequipped library that could only
accommodate several inmate researchers at a time, impeding his ability to
conduct meaningful conventional or computer-based research.
On February 7, 2012, Appellant filed with the PCRA court an
“Application for Notes of Testimony and All Other In-Court Related
Documents.” In his application, Appellant explained that the requested
documents would enable him to conduct legal research and prepare an
appeal under the PCRA. Apparently, the PCRA court never responded to
Appellant’s application.
By late February, 2012, Appellant returned to the PDOC’s custody and
was housed at SCI-Graterford. On March 28, 2012, Appellant filed a Motion
-2-
J-S35032-17
seeking permission to file a first PCRA petition nunc pro tunc. In this
motion, Appellant requested an order from the PCRA court confirming that it
would apply equitable tolling principles and the PCRA’s government
interference exception to the statutory time-bar to find his petition timely.
In his motion, Appellant attached an affidavit averring that inadequacies
within the VDOC made legal research and preparation of a timely appeal
impossible.
The PCRA court treated Appellant’s motion as a first PCRA petition and
appointed counsel to represent him. Appointed counsel subsequently filed a
Turner/Finley1 no merit letter and, by its Order of October 23, 2012, the
PCRA Court granted counsel’s motion to withdrawal and issued a notice,
pursuant to Pa.R.Crim.P. 907, of its intent to dismiss Appellant’s petition as
meritless. On November 13, 2012, the PCRA court dismissed Appellant’s
petition. Appellant appealed to this Court, and we affirmed on grounds that
Appellant’s motion was an untimely first PCRA petition. See
Commonwealth v. Rizvi, No. 148 WDA 2103, unpublished memorandum
(Pa.Super. filed June 16, 2014).
On January 17, 2016, Appellant filed the present, counseled petition,
his second under the PCRA.2 Among other claims, Appellant argued that
____________________________________________
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
2
Appellant contends that his first petition was not a PCRA petition but simply
a request that the court accept an imminent filing as a PCRA petition nunc
(Footnote Continued Next Page)
-3-
J-S35032-17
both equitable tolling principles as well as statutory exceptions to the time-
bar, infra, applied to except his otherwise patently untimely petition from
the PCRA’s timeliness requirements. The PCRA court, however, issued a
Rule 907 Notice of its intent to dismiss the petition because it was untimely.
Appellant filed objections to the notice, but the court entered its final
dismissal order on October 26, 2016. This timely appeal followed.
Appellant presents one question for our review:
The General Assembly constructed and worded the Post-
Conviction Relief Act (“PCRA”) with the intention of
allowing the 1-year limitations period to be equitably
tolled when extraordinary circumstances prevented the
petitioner from timely filing his PCRA petition and the
petitioner diligently pursued his PCRA rights. The facts
presented in Mr. Rizvi’s PCRA petition should have
triggered the PCRA’s equitable tolling exception, giving
the PCRA court jurisdiction to substantively adjudicate his
trial counsel ineffectiveness claim. The PCRA court,
therefore, erred when it dismissed Mr. Rizvi’s PCRA
_______________________
(Footnote Continued)
pro tunc. Appellant, however, was asking the PCRA court to do what it could
not do, for it was well-settled at the time, and remains so, that the PCRA
provides the “sole means” for obtaining nunc pro tunc relief, and all claims
seeking reinstatement of appellate rights are subject to the PCRA timeliness
requirements. 42 Pa.C.S. § 9542 (emphasis added); Commonwealth v.
Hall, 771 A.2d 1232, 1236 (Pa. 2001) (holding court has no authority to
entertain request for nunc pro tunc appeal outside time constraints of PCRA,
notwithstanding claim of counsel's ineffectiveness); Commonwealth v.
Eller, 807 A.2d 838, 845 (Pa. 2002) (rejecting claim of entitlement to nunc
pro tunc appeal outside PCRA framework). The PCRA court and this Court
on appeal both correctly deemed Appellant’s self-styled “motion” as a first
PCRA petition and reviewed it under the PCRA’s timeliness provisions.
Accordingly, this petition is Appellant’s second under the PCRA, despite his
protestations to the contrary.
-4-
J-S35032-17
petition on untimeliness grounds. U.S. Const. Amnds. 5,
6, 14; Pa.Const. art. I, §§ 9, 23.
Appellant’s brief at 2.
This Court's standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. See Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007).
We begin by addressing the timeliness of Appellant's petition, as “[t]he
PCRA's time restrictions are jurisdictional in nature. Thus, [i]f a PCRA
petition is untimely, neither this Court nor the trial court has jurisdiction
over the petition. Without jurisdiction, we simply do not have the legal
authority to address the substantive claims.” Commonwealth v. Albrecht,
994 A.2d 1091, 1093 (Pa. 2010).
The PCRA's time limitations “are mandatory and interpreted literally;
thus, a court has no authority to extend filing periods except as the statute
permits.” Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999). The
period for filing a PCRA petition “is not subject to the doctrine of equitable
tolling.” Id.
Instead, the time for filing a PCRA petition can be extended only if the
PCRA permits it to be extended, i.e., by operation of one of the statutorily
enumerated exceptions to the PCRA time-bar. Id. There are three
exceptions:
(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
-5-
J-S35032-17
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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.
Gamboa–Taylor, 753 A.2d 780, 783 (Pa. 2000).
Since there is no equitable tolling of the PCRA's one-year statute of
limitations, we lack jurisdiction over this case unless Appellant satisfies the
plain language of an exception to the one-year statute of limitations. This,
Appellant has not done. As noted, supra, Appellant’s conviction became final
on February 9, 2011, upon the expiration of the thirty-day period for seeking
allowance of appeal with the Pennsylvania Supreme Court. See 42 Pa.C.S. §
9545(b)(3); Pa.R.A.P. 1113(a) (judgment of sentence becomes final at the
conclusion of direct review or the expiration of the time for seeking the
review). It follows that Appellant’s one-year statute of limitations expired on
February 9, 2012. 42 Pa.C.S. § 9545(b)(1). Therefore, Appellant’s present
petition, filed on January 17, 2016, is patently untimely.
-6-
J-S35032-17
To the extent Appellant’s argument asserts the “interference by
government officials” exception to the one year statute of limitations in
Section 9545(b)(1)(i), we discern no merit to his claim. Appellant contends
that both limited library resources and his restricted housing status within
the Virginia correctional facility frustrated his efforts to understand and
invoke his appellate rights under Pennsylvania law. In making this
allegation, Appellant does not allege that the VDOC administered its library
or housing policies in violation of his rights under constitutional or state law
as required under a governmental interference claim. We addressed a
similar claim in Commonwealth v. Albrecht, 994 A.2d 1091 (Pa. 2010),
where the petitioner raised a Section 9545(b)(1)(i) claim that PDOC rules
impaired his ability to prepare a pro se petition:
Further, appellant claims the restricted incarceration status of
capital inmates, including himself, constitutes governmental
interference because such restricted status limits the ability of
such inmates to prepare pro se PCRA petitions. Appellant fails to
show any of the conditions of his incarceration were illegal, as
required to meet the governmental interference exception to
PCRA’s timeliness requirement. See 42 Pa.C.S. § 9545(b)(1)(i)
(governmental interference must violate United States or
Pennsylvania Constitution or laws). Accordingly, appellant has
not sufficiently developed his claim of governmental
interference. See Commonwealth v. Puksar, 951 A.2d 267,
293-94 (Pa. 2008) (failure to develop claim waives it).
-7-
J-S35032-17
Albrecht, 994 A.2d at 1095. For the same reasons expressed in Albrecht,
we reject Appellant’s governmental interference claim. 3
We note, additionally, that even if Appellant’s claim possessed
substantive merit, he fails to offer a reasonable explanation why, with the
exercise of due diligence, he did not ascertain this alleged interference of
government officials earlier and seek redress. See Commonwealth v.
Breakiron, 781 A.2d 94 (Pa. 2001) (rejecting governmental interference
____________________________________________
3
Appellant contends he had access to the prison library, but the four
computers enabling online research were always occupied except for one
time, when his research yielded no useful information. The bound “material
relat[ing] to Pennsylvania law was insufficient at best,” Appellant continues.
Appellant’s brief at 16. At some point during the course of his two year
incarceration there, Appellant was moved to restricted quarters in the
Transitional Housing Unit, which precluded visitations to the library. He was
able to request information and materials from the library, but the library
was unable to meet his requests, he says. Id. at 17.
Notably, Appellant does not indicate what the purpose of his legal research
was or whether it pertained to filing a timely pro se collateral appeal.
Indeed, his direct appeal was still pending for the first ten months of his
Virginia incarceration. Even assuming such a purpose, we would reject his
claim that the conditions at VDOC amounted to governmental interference
with the filing of a timely PCRA petition. In Commonwealth v. Barrett,
761 A.2d 145 (Pa.Super. 2000), a prison’s restrictive housing unit policy
permitted petitioner to obtain library materials only by request slips and
prohibited him from seeking legal assistance from other inmates. This Court
affirmed the PCRA court’s rejection of petitioner’s governmental interference
claim based on these restrictions. We stated “although [petitioner] may not
have been permitted to prepare his PCRA petition in the manner he would
have wished, prison officials did not prevent him from filing his petition in
accordance with the timing requirements by reason of his confinement in the
RHU.” Similarly, Appellant’s bald allegations of an inadequate library do not
permit the inference that the VDOC prevented him from filing a timely PCRA
petition.
-8-
J-S35032-17
exception where petitioner failed to offer reasonable explanation why, with
the exercise of due diligence, alleged interference of government officials
could not have been ascertained earlier). Appellant was presumptively
aware that this Court had denied his direct appeal, yet it appears he allowed
a year to lapse before he attempted to inquire seriously about his collateral
appeal rights. To this point, there is no indication of record that he ever
informed VDOC or PDOC personnel about his problems or attempted to
contact family, friends, or a lawyer asking what, if any, appellate rights
remained at his disposal. Indeed, by his own account, he attempted in vain
to conduct legal research in Virginia for the better part of a year without
ever lodging a complaint about the alleged interference he was experiencing.
Appellant’s conduct, therefore, fails to satisfy the due diligence requirement
of Section 9545(b)(2).4
The remainder of Appellant’s claim does not plead or prove time bar
exceptions, but, instead, recounts alleged oversights of both prior PCRA
____________________________________________
4
Aside from Appellant’s failure to adhere to the 60-day requirement of
Section 9545(b)(2), we note that he had the opportunity in his first PCRA
petition to raise the underlying governmental interference exception to the
time-bar, but he failed to do so. This claim is, therefore, also waived. See
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa. Super. 2007)
(holding claim waived where “it could have been raised prior to the filing of
the PCRA petition, but was not.”). (citation omitted); see also 42 Pa.C.S.A.
§ 9544(b) (stating, “an issue is waived if the petitioner could have raised it
but failed to do so before trial, at trial, during unitary review, on appeal or in
a prior state post conviction proceeding.”).
-9-
J-S35032-17
counsel and the PCRA court that occurred after the PCRA time-bar had
already applied to his case. As we lack jurisdiction to entertain such claims,
they can offer him no relief.
Accordingly, we discern no error with the PCRA court’s dismissal of
Appellant’s petition as untimely, as the court was without jurisdiction to
review the merits of Appellant’s claim.
Order is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/19/2017
- 10 -