J-S29023-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JAMES CHARLES BARNES

Appellant No. 2576 EDA 2016

Appeal from the PCRA Order dated July 27, 2016

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0000481-2007

BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY SOLANO, J.: FILED AUGUST 17, 2017

Appellant, James Charles Barnes, appeals from the order entered by 

the Monroe County Court of Common Pleas dismissing his second Post 

Conviction Relief Act (“PCRA”)1 petition as untimely. Appellant contends he 

is entitled to relief for his ineffectiveness-of-counsel claim under 

Montgomery v. Louisiana, 136 S. Ct. 718 (2016), and McQuiggin v. 

Perkins, 133 S. Ct. 1924 (2013). He suggests that when read together, 

McQuiggin and Montgomery establish that no PCRA time bar applies when 

there is “an important constitutional right at issue,” including the right to 

effective assistance of counsel (the right asserted here). We affirm. 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546. 
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2

Review of the facts underlying Appellant’s convictions is unnecessary 

for our disposition. Suffice to say that on May 8, 2007, Appellant was 

convicted of two counts each of rape, involuntary deviate sexual intercourse, 

statutory sexual assault, sexual assault, endangering the welfare of a child, 

corruption of minors, aggravated indecent assault, and indecent assault. 

PCRA Ct. Op., 9/20/16, at 1 (unpaginated). Appellant was sentenced to 34 

to 68 years’ imprisonment and appealed to this Court, which affirmed the 

judgment of sentence on July 15, 2008. Commonwealth v. Barnes, 959 

A.2d 957 (Pa. Super. 2008). Appellant did not petition to appeal to the 

Pennsylvania Supreme Court. Pet. for Post-Collateral Relief, 6/13/16, at 2 

(unpaginated).

Appellant filed a timely pro se PCRA petition on July 9, 2009. PCRA Ct. 

Op. at 2 (unpaginated). The PCRA court appointed Jason Leon, Esq., as 

counsel. Attorney Leon filed an amended PCRA petition alleging 

ineffectiveness of Appellant’s counsel at the trial and appellate level. Id. 

The PCRA court denied the petition on May 19, 2010. Id. Appellant timely 

appealed to this Court. Id. 

While his appeal was pending, Appellant retained new counsel, S. Lee 

Ruslander, Esq., who filed a petition to remand the case to the PCRA court to 

develop a claim of ineffectiveness against all prior counsel, including 

Attorney Leon. Pet. for Post-Collateral Relief, 6/13/16, at 2 (unpaginated). 
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This Court deferred decision on the petition to remand,2and subsequently 

denied appellate relief on September 7, 2011. Commonwealth v. Barnes, 

34 A.3d 216 (Pa. Super. 2011), appeal denied, 44 A.3d 1160 (Pa. 2012). 

The Pennsylvania Supreme Court denied Appellant’s petition for allowance of 

appeal on May 15, 2012. Id.

Appellant filed a second, counseled PCRA petition on June 13, 2016. 

Pet. for Post-Collateral Relief, 6/13/16. On June 21, 2016, the PCRA court 

issued a notice of its intent to dismiss the petition pursuant to Rule 907 of 

the Rules of Criminal Procedure. Rule 907 Notice, 6/21/16.3 Appellant filed a 

timely response on July 15, 2016. On July 28, 2016, the PCRA court 

dismissed Appellant’s petition as untimely. Order, 7/28/16. 

Appellant timely appealed and presents us with a single appellate 

issue: 

Whether the Court of Common Pleas of Monroe County erred in 

denying and dismissing [Appellant’s] Petition for Post-Collateral 

Relief without an evidentiary hearing in as much as the Petition 

for Post-Collateral Relief raised material issues of fact on its 

claims which had merit? 

Appellant’s Brief at 3.4

____________________________________________

2 The record does not reflect whether this Court ever explicitly ruled on the 

petition to remand. The certified record lacks any reference to the portion of 

the proceedings that featured Attorney Ruslander.

3 The Notice was docketed on June 20th, but the docket reflects that it was 

mailed the next day.

4 On May 1, 2017, Appellant filed a petition to amend his appellate brief to 

allege additional instances of ineffectiveness by Attorney Leon. Pet. to 

(Footnote Continued Next Page)
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Before examining the merits of an appellant’s claims, we must 

determine whether the post-conviction petition is timely. The timeliness of a 

post-conviction petition is jurisdictional — if a petition is untimely, neither an 

appellate court nor the PCRA court has jurisdiction. Commonwealth v. 

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). To be timely,

[a]ll PCRA petitions must be filed within one year of the date a 

judgment of sentence becomes final unless the petitioner pleads 

and proves that (1) there has been interference by government 

officials in the presentation of the claim; or (2) there exists 

after-discovered facts or evidence; or (3) a new constitutional 

right has been recognized. 42 Pa.C.S.A. § 9545(b)(1)(i-iii); 

[Commonwealth v.] Robinson [, 837 A.2d 1157, at 1161 (Pa. 

2003)].

Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007), appeal 

denied, 944 A.2d 756 (Pa. 2008). It is the petitioner’s burden to allege and 

prove that one of the timeliness exceptions applies; whether this burden has 

been carried is a “threshold inquiry that must be resolved prior to 

considering the merits of any claim.” Commonwealth v. Robinson, 139 

A.3d 178, 186 (Pa. 2016) (citation omitted). Couching an otherwise 

untimely PCRA petition in terms of ineffectiveness of counsel will not save it 

from the PCRA’s time restrictions. Commonwealth v. Lesko, 15 A.3d 345, 

367 (Pa. 2011) (citing Commonwealth v. Breakiron, 781 A.2d 94, 97 (Pa. 

2001)). 

(Footnote Continued) _______________________

Amend Appellant’s Br., 5/1/17. We deny Appellant’s request because, as 

explained below, Appellant failed to overcome the PCRA’s time-bar. The 

Commonwealth did not file a brief in this case.
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We agree with the PCRA court that Appellant’s second PCRA petition is 

untimely. Appellant’s judgment of sentence became final on August 14, 

2008 — thirty days after the Pennsylvania Superior Court affirmed. 

Therefore, Appellant had until August 14, 2009, to file a timely PCRA 

petition. Appellant filed his instant, second PCRA petition well beyond that 

deadline, on June 13, 2016.

To overcome the one-year time-bar, Appellant was required to plead 

and prove one of the PCRA’s three timeliness exceptions. See Robinson, 

139 A.3d at 186. Appellant never explicitly invokes any of the exceptions in 

his brief. However, he implicitly points to the third — assertion of “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)(iii) — by arguing that effective assistance to counsel is an 

“important constitutional right” that he should be allowed to raise at any 

time, regardless of the PCRA’s time-bar. Appellant’s Brief at 7. Appellant 

fails to meet the requirements of this exception, however, because, like the 

defendant in Robinson, his petition does not refer to any decision 

recognizing a new, retroactively applied right to effective counsel.5 Like the 

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5

In order to invoke the newly-recognized constitutional right exception to 

the PCRA, a petition must point to specific decisions granting retroactive 

effect to a newly recognized right. See Robinson, 139 A.3d at 186 

(rejecting the defendant’s untimely PCRA petition alleging ineffectiveness of 

counsel for, among other reasons, failing to refer to any new, retroactive 

(Footnote Continued Next Page)
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defendant in Commonwealth v. Feliciano, 69 A.3d 1270, 1275 (Pa. Super. 

2013), Appellant fails to establish that he relies on a right that is “newly 

recognized,” rather than longstanding. 

Appellant contends that the PCRA court had jurisdiction to entertain 

his untimely second PCRA petition because Montgomery, read alongside 

McQuiggin,

6

“meant [that] any important constitutional right can be raised 

and argued in state PCRA courts no matter a time bar,” including the 

“important constitutional right” of “effective assistance of counsel.” 

Appellant’s Brief at 9. The PCRA court rejected Appellant’s Montgomery

argument, reasoning that since “[n]o case relevant to [Appellant’s] has 

announced a new substantive rule under the Constitution,” Montgomery is 

not applicable. Rule 907 Notice, 6/21/16. In this Court, Appellant seeks to 

use McQuiggan to bolster his argument by pointing out that McQuiggin

held that (1) a “plea of actual innocence can overcome [a] habeas statute of 

limitations,” and (2) that “federal habeas courts may invoke [a] miscarriage 

of justice exception to justify consideration” of state court claims that 

(Footnote Continued) _______________________

constitutional right recognized after his conviction was finalized); see also

Commonwealth v. Feliciano, 69 A.3d 1270, 1276-77 (Pa. Super. 2013) 

(rejecting the petitioner’s argument that recent U.S. Supreme Court cases 

created a new, retroactive constitutional right to effective counsel, reasoning 

that the right to effective counsel “has been recognized for decades,” and 

that the cases cited did not create a new right but rather applied the Sixth 

Amendment to particular circumstances). 

6 Appellant cites McQuiggin for the first time on appeal. He made no 

mention of the case in his PCRA petition or Rule 1925(b) statement. 
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defaulted under state timeliness rules. Id. Appellant’s argument is 

unavailing.

Federal decisions about federal habeas corpus law, like McQuiggin, 

are irrelevant to construction of the PCRA’s timeliness requirements. In 

Commonwealth v. Brown, 143 A.3d 418, 420-21 (Pa. Super. 2016), the 

defendant cited McQuiggin to argue that the PCRA’s time-bar should not 

apply to his untimely PCRA petition that asserted actual innocence because 

the U.S. Supreme Court in McQuiggin held that convincing claims of actual 

innocence could overcome the statute of limitations for filing a federal 

habeas corpus petition. Id. at 420. Rejecting that argument, this Court 

emphasized that McQuiggin represented only a development in federal

habeas corpus law, which has no effect on state court construction of the 

PCRA’s time bar, since a “change in federal law is irrelevant to the time 

restrictions of our PCRA.” Id. at 421. 

Pennsylvania courts do not have jurisdiction to create extra-statutory 

exceptions to the PCRA’s time-bar. Robinson, 139 A.3d at 187. In 

Robinson, the Pennsylvania Supreme Court rejected the defendant’s 

proposed exception to the PCRA time-bar for facially untimely PCRA petitions 

challenging the performance of prior PCRA counsel. Id. In support of his 

exception, the defendant cited two recent U.S. Supreme Court decisions7

____________________________________________

7 The defendant cited Martinez v. Ryan, 132 S. Ct. 1309 (2013), and 

Trevino v. Thaler, 133 S. Ct. 1911 (2013). See Robinson, 139 A.3d at 

183 n.7 (summarizing both cases).
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that “altered the federal law of procedural default to allow post-conviction 

petitioners to have their waived claims of trial counsel ineffectiveness 

reviewed in federal habeas corpus proceedings where post-conviction 

counsel never raised such claims.” Id. at 183. Our Supreme Court held 

that the defendant’s —

proposed [exception] would be in direct contravention of the 

legislatively created time-bar of the PCRA and the limited 

statutory exceptions provided therein. This Court has no 

authority to carve out equitable exceptions to statutory 

provisions and the federal jurisprudence cited by [the defendant] 

neither requires nor authorizes our doing so.

Id. at 187.

Appellant’s citation of Montgomery and McQuiggin does not render 

his petition timely, as neither case suggests the existence of a newly 

recognized right to effective counsel. The U.S. Supreme Court in 

Montgomery never mentioned ineffectiveness of counsel, much less 

announced a new substantive right or rule on the matter. McQuiggin is 

inapposite for reasons similar to those given by this Court in Brown; even if 

Appellant had timely invoked McQuiggin and not cited it for the first time 

on appeal, it would remain irrelevant to our construction of the PCRA’s time 

limitations. Like the defendant’s argument in Robinson, Appellant’s 

suggested interpretation of Montgomery — that any “important” 

constitutional right may be raised at any time by a PCRA petitioner, 

regardless of time-bar — would directly contravene the PCRA’s legislative 

mandate and require this Court to exceed its authority by creating a new 
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exception to a statutory provision. Appellant’s reading would significantly 

undermine the PCRA’s jurisdictional time limits; any time a right was 

characterized as “important” (a vague and overly general standard), those 

limits would become inapplicable. As explained in Robinson, we lack

authority to carve out exceptions to the PCRA’s limits that are not already in 

the statute. 

Because we agree with the PCRA court that Appellant’s petition was 

untimely and Montgomery does not cure its untimeliness, we affirm the 

dismissal.

Petition to amend Appellant’s brief denied as moot. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/17/2017