J-S62041-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BILLY RAY ALLEN

Appellant No. 206 EDA 2014

Appeal from the PCRA Order December 18, 2013

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0000048-1996

BEFORE: ALLEN, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED NOVEMBER 24, 2014

Billy Ray Allen brings this appeal pro se from the order entered 

December 18, 2013, in the Court of Common Pleas of Montgomery County, 

dismissing, as untimely, his second petition filed pursuant to the 

Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. 

In this appeal, Allen presents 13 issues, of which the final two address the 

timeliness of his PCRA petition.1 Based upon the following, we affirm.

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1

In the first nine issues raised by Allen, he contends that he is entitled to 

relief on the basis of prosecutorial misconduct. In his tenth issue, Allen 

contends his trial counsel engaged in unethical acts of professional 

misconduct. In the eleventh issue, Allen claims the trial court abused its 

discretion and violated his constitutional rights to have his innocence 

determined by a jury, when the trial judge denied his pro se motion for a 

mistrial and appointment of new counsel. See Allen’s Brief at 4–5.
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On November 27, 1996, a jury found Allen guilty of murder of the first 

degree, robbery, and possession of an instrument of crime (PIC).2 On 

December 3, 2006, following a penalty hearing, the jury did not impose the 

death penalty. The trial court thereafter sentenced Allen to life 

imprisonment, a consecutive sentence of 10 to 20 years on the robbery 

conviction, and a concurrent sentence of one to five years for the PIC 

conviction. On May 14, 1998, this Court affirmed the judgment of sentence, 

and on March 29, 1999, the Pennsylvania Supreme Court denied Allen’s 

petition for allowance of appeal. Commonwealth v. Allen, 718 A.2d 853 

[3996 PHL 1997] (Pa. Super. 1998) (unpublished memorandum), appeal 

denied, 737 A.2d 1222 [466 MDA 1996] (Pa. 1999).

On October 18, 1999, Allen filed his first PCRA petition, which was 

unsuccessful. See Commonwealth v. Allen, 778 A.2d 730 [1556 EDA 

2000; 2782 EDA 2000] (Pa. Super. 2001) (unpublished memorandum), 

appeal denied, 788 A.2d 731 [455 MAL 2001; 456 MAL 2001] (Pa. 2001). 

Presently, we address Allen’s second PCRA petition, filed pro se on July 31, 

2013. 

Preliminarilyy, we state the principles that guide our review:

This Court’s standard of review regarding a PCRA court’s order is 

whether the determination of the PCRA court is supported by the 

evidence of record and is free of legal error. Great deference is 

granted to the findings of the PCRA court, and these findings will 

____________________________________________

2 18 Pa.C.S. §§ 2502(a), 3701, and 907, respectively.
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not be disturbed unless they have no support in the certified 

record.

Commonwealth v. Turpin, 87 A.3d 384, ___ (Pa. Super. 2013) (citation 

omitted). Furthermore,

[a] PCRA petition, including a second or subsequent one, must 

be filed within one year of the date the petitioner's judgment of 

sentence became final, unless he pleads and proves one of the 

three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A 

judgment becomes final at the conclusion of direct review by 

[the Pennsylvania Supreme] Court or the United States Supreme 

Court, or at the expiration of the time for seeking such review. 

42 Pa.C.S.[A.] § 9545(b)(3). The PCRA’s timeliness 

requirements are jurisdictional; therefore, a court may not 

address the merits of the issues raised if the petition was not 

timely filed. The timeliness requirements apply to all PCRA 

petitions, regardless of the nature of the individual claims raised 

therein. The PCRA squarely places upon the petitioner the 

burden of proving an untimely petition fits within one of the 

three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16–17 (Pa. 2012) (case citations 

and footnote omitted).

Instantly, the Pennsylvania Supreme Court, on March 29, 1999, 

denied Allen’s petition for allowance of appeal, filed following direct review of 

his judgment of sentence. As such, Allen’s judgment of sentence became 

final on June 27, 1999, upon expiration of the 90-day appeal period for filing

a petition for writ of certiorari in the United States Supreme Court. See 42 

Pa.C.S. § 9545(b)(3) (providing judgment is deemed final “at the conclusion 

of direct review, including discretionary review in the Supreme Court of the 

United States and the Supreme Court of Pennsylvania, or at the expiration of 

time for seeking the review”); U.S.Sup.Ct. Rule 13 (allowing 90 days to file a 
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petition for writ of certiorari). Therefore, Allen had one year from that date 

to file a petition for collateral relief. See 42 Pa.C.S. § 9545(b)(1). 

Here, Allen filed the current petition on July 31, 2013, over 13 years 

after his judgment of sentence became final. Therefore, Allen’s petition is 

untimely on its face, and the PCRA court lacked jurisdiction unless Allen 

pleaded and proved one of the statutory exceptions to the time bar. See 42 

Pa.C.S. § 9545(b)(1)(i)-(iii).3

 Our review of the record in light of the PCRA timeliness requirements 

and relevant case law confirms that the PCRA court correctly determined 

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3 The statutory exceptions that allow for review of an untimely petition are: 

(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 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). In addition, a PCRA petition invoking one of 

these statutory exceptions must “be filed within 60 days of the date the 

claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
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Allen’s petition was untimely and that he failed to prove a statutory 

exception to the PCRA’s one year time-bar. 

In this appeal, Allen has acknowledged that he mistakenly relied on 

the United States Supreme Court decision in McQuiggin v. Perkins, 133 S. 

Ct. 1924 (2013), in invoking the PCRA’s exception for an after-recognized 

constitutional right, 42 Pa.C.S. § 9545(b)(1)(iii). Allen concedes McQuiggin

does not satisfy this exception. See Allen’s Brief at 34.4 As the PCRA Court 

aptly explained in its Pa.R.Crim.P. 907(1) notice:

McQuiggin holds that, in federal habeas corpus proceedings, 

strict compliance with the one (1) year statute of limitations 

imposed by 28 U.S.C. § 2244(d) will not be required when the 

petitioner advances a convincing claim of actual innocence. 

Nowhere in McQuiggin does the Supreme Court of the United 

States announce that this holding recognizes any new 

constitutional right that is to be accorded retroactive effect.

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4 Specifically, Allen states in his brief:

Even though his PCRA Petition wa[s] facially untimely, Defendant 

thought nonetheless, that he was still entitled to proceed under 

the authority of McQuiggin[] vs. Perkins, 133 S. Ct. 1924, 

185 L.Ed.2d 1019 [decided May 28, 2013]. Defendant was 

under the presumption that the aforementioned ruling 

recognized a Constitutional Right that the State could review the 

merits of his claims under the authority of 42 Pa.C.S.A. § 

9545([b])(1)(iii). This Defendant acknowledges that he was 

mistaken.

Allen’s Brief at 34.
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PCRA Court Notice Pursuant to Pa.R.Crim.P. 907(1), 11/15/2013, at 8. 

Therefore, the after-recognized constitutional right exception does not allow 

review of Allen’s untimely petition. 

Furthermore, Allen did not raise any other statutory exception in his 

PCRA petition. Accordingly, we agree with the Commonwealth that Allen has 

waived his argument raised in his brief filed with this Court that 42 Pa.C.S. § 

9545(b)(1)(i) and (ii) allow review of his claims. See Pa.R.A.P. 302(a) 

(“Issues not raised in the lower court are waived and cannot be raised for 

the first time on appeal.”); Commonwealth v. Burton, 936 A.2d 521, 525 

(Pa. Super. 2007) (“[E]xceptions to the time bar must be pled in the PCRA 

petition, and may not be raised for the first time on appeal.”), appeal 

denied, 959 A.2d 957 (Pa. 2008). 

Accordingly, there is no basis upon which to disturb the decision of the 

Honorable William T. Nicholas that dismissed Allen’s second PCRA petition as 

untimely and satisfying no statutory exception to the time bar.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/24/2014