J-S01022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

THELBERT LEWIS

Appellant No. 1304 EDA 2015

Appeal from the PCRA Order April 21, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0407531-1986

BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

JUDGMENT ORDER BY MUNDY, J.: FILED JANUARY 25, 2016

Appellant, Thelbert Lewis, appeals pro se from the April 21, 2015 

order, dismissing as untimely his second petition for relief filed pursuant to 

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

careful review, we affirm.

On May 4, 1987, Appellant pled guilty to one count each of seconddegree murder, criminal conspiracy, and kidnapping, and two counts of 

robbery.1 That same day, the trial court imposed an aggregate sentence of 

life imprisonment. On February 12, 1993, this Court affirmed Appellant’s 

judgment of sentence, and our Supreme Court denied Appellant’s petition for 

____________________________________________

1 18 Pa.C.S.A. §§ 2502(b), 903(a), 2901(a), and 3701(a), respectively.
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allowance of appeal on June 7, 1993.2 Commonwealth v. Lewis, 620 A.2d 

516 (Pa. Super. 1993) (unpublished memorandum), appeal denied, 627 

A.2d 730 (Pa. 1993). Appellant did not file a petition for a writ of certiorari

with the United States Supreme Court. As a result, his judgment of 

sentence became final on September 7, 1993, when the filing period for such 

a petition expired.3 See generally 42 Pa.C.S.A. § 9545(b)(3); U.S. S. Ct. 

R. 13(1). Because Appellant’s judgment of sentence became final before the 

effective date of the 1995 amendments to the PCRA, Appellant had one year 

from the effective date of those amendments, or until January 16, 1997, to 

file a timely PCRA petition.4 See Commonwealth v. Thomas, 718 A.2d 

326, 329 (Pa. Super. 1998) (en banc). Appellant filed the current PCRA 

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2 Appellant did not file a direct appeal. However, he filed a petition under 

the Post Conviction Hearing Act, the predecessor to the PCRA, seeking to 

appeal his judgment of sentence nunc pro tunc, which the trial court granted 

on April 30, 1991.

3 We observe that the 90th day fell on Sunday, September 5, 1993, and 

Monday, September 6, 1993 was Labor Day, a federal legal holiday. 

Therefore, the 90th day for Appellant to file a timely petition for a writ of 

certiorari was Tuesday, September 7, 1993. See U.S. S. Ct. R. 30(1).

4 Appellant filed his first, timely PCRA petition on July 17, 1996, which the 

PCRA court dismissed on June 12, 1997. This Court affirmed that order on 

October 2, 1998, and our Supreme Court denied his petition for allowance of 

appeal on April 6, 1999. Commonwealth v. Lewis, 718 A.2d 1262 (Pa. 

Super. 1998), appeal denied, 737 A.2d 1224 (Pa. 1999). 
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petition on July 10, 2012.5 As a result, it was facially untimely because it 

was not filed within one year of Appellant’s judgment of sentence becoming 

final. See 42 Pa.C.S.A. § 9545(b)(1). 

Moreover, in his appellate brief, Appellant does not expressly argue 

that one of the three enumerated time-bar exceptions applies. To the extent 

that Appellant’s PCRA petition could be construed as arguing that the United 

States Supreme Court’s decision in Martinez v. Ryan, 132 S. Ct. 1309 

(2012), satisfies the new constitutional right exception to the PCRA timebar, this Court has rejected that argument. Commonwealth v. Saunders, 

60 A.3d 162, 165 (Pa. Super. 2013) (concluding “[w]hile Martinez

represents a significant development in federal habeas corpus law, it is of no 

moment with respect to the way Pennsylvania courts apply the plain 

language of the time bar set forth in section 9545(b)(1) of the PCRA[]”), 

appeal denied, 72 A.3d 603, cert. denied, Saunders v. Pennsylvania, 134 

S. Ct. 944 (2014); see also Commonwealth v. Holmes, 79 A.3d 562, 

581-582 (Pa. 2013) (explaining that Martinez did not create a constitutional 

right to counsel in a collateral proceeding), quoting Martinez, supra at 

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5 We note that even though Appellant captioned his second petition as a writ 

for habeas corpus, the ineffective assistance of counsel claims raised therein 

are cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(ii). 

Accordingly, Appellant is not entitled to habeas corpus relief. See id.

§ 9542; Commonwealth v. Turner, 80 A.3d 754, 770 (Pa. 2013) (stating 

that because Appellant’s “claim[] [was] cognizable under the PCRA ... the 

writ of habeas corpus was not available[]”). Therefore, the PCRA court 

properly treated Appellant’s petition as a PCRA petition.
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1319-1320. Therefore, Appellant’s PCRA petition is untimely and he has not 

proven that any of the time-bar exceptions apply.

Based on the foregoing, we conclude the PCRA court properly 

dismissed Appellant’s petition as untimely. Accordingly, the PCRA court’s 

April 21, 2015 order is affirmed.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/25/2016