J-S35032-17

2017 PA Super 191

COMMONWEALTH OF PENNSYLVANIA

v.

ANWAR RIZVI 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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.
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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 
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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 

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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)
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both equitable tolling principles as well as statutory exceptions to the timebar, 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 PostConviction 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.
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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 
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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.
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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). 
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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 

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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.
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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 

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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.”).
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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