J-S70003-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EUGENE JACOBS,

Appellant No. 250 EDA 2016

Appeal from the PCRA Order of January 5, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1003721-1995

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 02, 2016

Appellant, Eugene Jacobs, appeals pro se from the order entered on 

January 5, 2016, which dismissed his second petition filed pursuant to the 

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On October 2, 1996, a jury found Appellant guilty of first-degree 

murder, robbery, theft, and possessing an instrument of crime.1 On October 

4, 1996, the trial court sentenced Appellant to serve a term of life in prison 

for the murder conviction and various other terms of imprisonment for the 

remaining convictions. We affirmed Appellant’s judgment of sentence on 

December 1, 1999; Appellant did not file a petition for allowance of appeal 

____________________________________________

1 18 Pa.C.S.A. §§ 2502, 3701, 3921, and 907, respectively.
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with the Pennsylvania Supreme Court. Commonwealth v. Jacobs, 750 

A.2d 369 (Pa. Super. 1999) (unpublished memorandum) at 1-16. 

On November 30, 2000, Appellant filed his first PCRA petition and the 

PCRA court appointed counsel to represent Appellant. On October 2, 2002, 

the PCRA court dismissed Appellant’s petition and, after a lengthy appeal, 

this Court affirmed the dismissal on April 8, 2009. The Pennsylvania 

Supreme Court denied Appellant’s petition for allowance of appeal on 

December 9, 2009. Commonwealth v. Jacobs, 974 A.2d 1184 (Pa. Super. 

2009) (unpublished memorandum) at 1-16, appeal denied, 985 A.2d 970 

(Pa. 2009).

On May 14, 2012, Appellant filed the current petition, which 

constitutes Appellant’s second petition for post-conviction collateral relief 

under the PCRA. Within Appellant’s petition, Appellant acknowledged that he 

filed his petition more than one year after his judgment of sentence became 

final. However, Appellant claimed that his petition was timely under the 

“newly recognized constitutional right” exception to the PCRA’s time-bar. 

Specifically, Appellant claimed that he filed his petition within 60 days of the 

United States Supreme Court’s decision in Martinez v. Ryan. See 

Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012); Appellant’s 
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Second PCRA Petition, 5/14/12, at Supplemental 1.2 In Martinez, the 

United States Supreme Court held: 

Where, under state law, claims of ineffective assistance of 

trial counsel must be raised in an initial-review collateral 

proceeding, a procedural default will not bar a federal 

habeas court from hearing a substantial claim of ineffective 

assistance at trial if, in the initial-review collateral 

proceeding, there was no counsel or counsel in that 

proceeding was ineffective.

Martinez, ___ U.S. at ___, 132 S.Ct. at 1320. In other words, the 

Martinez Court held that, where counsel is ineffective in an initial state 

collateral review proceeding, and where the ineffectiveness caused the 

petitioner to procedurally default on a “substantial” substantive claim, the 

ineffectiveness “may provide cause [to excuse a] procedural default in a 

[later] federal habeas proceeding.” Martinez, ___ U.S. at ___, 132 

S.Ct. at 1315 (emphasis added).

On January 5, 2016, the PCRA court dismissed Appellant’s petition 

without a hearing and, on January 12, 2016, Appellant filed a timely notice 

of appeal. We now affirm the dismissal of Appellant’s patently untimely, 

serial PCRA petition.

As our Supreme Court held, we “review an order granting or denying 

PCRA relief to determine whether the PCRA court’s decision is supported by 

____________________________________________

2 The United States Supreme Court decided Martinez on March 20, 2012.
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evidence of record and whether its decision is free from legal error.” 

Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003). 

The PCRA contains a jurisdictional time-bar, which is subject to limited 

statutory exceptions. This time-bar demands that “any PCRA petition, 

including a second or subsequent petition, [] be filed within one year of the 

date that the petitioner’s judgment of sentence becomes final, unless [the] 

petitioner pleads [and] proves that one of the [three] exceptions to the 

timeliness requirement . . . is applicable.” Commonwealth v. McKeever, 

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further, 

since the time-bar implicates the subject matter jurisdiction of our courts, 

we are required to first determine the timeliness of a petition before we 

consider the underlying claims. Commonwealth v. Yarris, 731 A.2d 581, 

586 (Pa. 1999). Our Supreme Court has explained:

the PCRA timeliness requirements are jurisdictional in 

nature and, accordingly, a PCRA court is precluded from 

considering untimely PCRA petitions. See, e.g.,

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)

(stating that “given the fact that the PCRA's timeliness 

requirements are mandatory and jurisdictional in nature, no 

court may properly disregard or alter them in order to reach 

the merits of the claims raised in a PCRA petition that is 

filed in an untimely manner”); Commonwealth v. Fahy, 

737 A.2d 214, 220 (Pa. 1999) (holding that where a 

petitioner fails to satisfy the PCRA time requirements, this 

Court has no jurisdiction to entertain the petition). [The 

Pennsylvania Supreme Court has] also held that even where 

the PCRA court does not address the applicability of the 

PCRA timing mandate, th[e court would] consider the issue 

sua sponte, as it is a threshold question implicating our 
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subject matter jurisdiction and ability to grant the requested 

relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).

In the case at bar, Appellant’s judgment of sentence became final in 

1999. As Appellant did not file his current petition until May 14, 2012, the 

current petition is manifestly untimely and the burden thus fell upon 

Appellant to plead and prove that one of the enumerated exceptions to the 

one-year time-bar applied to his case. See 42 Pa.C.S.A. § 9545(b)(1); 

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to 

properly invoke a statutory exception to the one-year time-bar, the PCRA 

demands that the petitioner properly plead and prove all required elements 

of the relied-upon exception).

Here, Appellant purports to invoke the “newly recognized constitutional 

right” exception to the time-bar. This statutory exception provides:

(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:

. . .

(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.
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42 Pa.C.S.A. § 9545(b).

According to Appellant, in Martinez v. Ryan, the United States 

Supreme Court recognized a new constitutional right and, in accordance with 

this new constitutional right, Appellant is now entitled to raise claims that his 

trial counsel and direct appellate counsel were ineffective. This claim fails. 

The “newly recognized constitutional right” exception to the PCRA’s 

time-bar is codified in 42 Pa.C.S.A. § 9545(b)(1)(iii). As our Supreme Court 

has explained: 

Subsection (iii) of Section 9545(b)(1) has two requirements. 

First, it provides that 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 provided in this section. Second, it provides that 

the right “has been held” by “that court” to apply 

retroactively. Thus, a petitioner must prove that there is a 

“new” constitutional right and that the right “has been held” 

by that court to apply retroactively. The language “has 

been held” is in the past tense. These words mean that the 

action has already occurred, i.e., “that court” has already 

held the new constitutional right to be retroactive to cases 

on collateral review. By employing the past tense in writing 

this provision, the legislature clearly intended that the right 

was already recognized at the time the petition was filed.

Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007), 

quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002) 

(internal corrections omitted). Moreover, since the plain statutory language 

of section 9545 demands that the PCRA petition “allege” all elements of the 

statutory exception, it is clear that – to properly invoke the “newly 
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recognized constitutional right” exception – the petitioner must plead each of 

the above-stated elements in the petition. 42 Pa.C.S.A. § 9545(b)(1). 

As stated above, in Martinez, the Supreme Court held that, where 

counsel is ineffective in a prior, initial state collateral review proceeding, and 

where the ineffectiveness caused the petitioner to procedurally default on a 

substantive claim, counsel’s ineffectiveness “may provide cause [to excuse 

a] procedural default in a federal habeas proceeding.” Martinez, ___ U.S. 

at ___, 132 S.Ct. at 1315. Yet, as the Martinez Court explicitly declared, it 

was not handing down a “constitutional ruling” and it was not recognizing a 

new constitutional right. Martinez, ___ U.S. at ___, 132 S.Ct. at 1319-

1320. Rather, the Martinez Court based its holding upon an “equitable” 

exception to a court-created doctrine that is applicable only in the federal 

courts. Id.; see also Coleman v. Thompson, 501 U.S. 722, 730-731 

(1991) (in habeas proceedings, the doctrine of “procedural default” arises 

from the “independent and adequate state ground doctrine” – which, in turn, 

“is grounded in concerns of comity and federalism”); Martinez, ___ U.S. at 

___, 132 S.Ct. at 1315.

Since Martinez did not recognize a new constitutional right, 

Appellant’s attempt to invoke the “newly recognized constitutional right” 

exception to the PCRA’s one-year time-bar immediately fails. Further, since 

Appellant has not attempted to plead any other exception to the time-bar, 

we conclude that Appellant’s petition is time-barred and that our “courts are 
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without jurisdiction to offer [Appellant] any form of relief.” Commonwealth 

v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). Therefore, we affirm the 

PCRA court’s order dismissing Appellant’s second PCRA petition without a 

hearing. 

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/2/2016