Opinion
No. 793 CAP
09-29-2022
COMMONWEALTH of Pennsylvania, Appellee v. Paul G. TAYLOR, Appellant
David Lee Zuckerman, Esq., Federal Community Defender Office, Eastern District of Pennsylvania, Philadelphia, for Appellant. Ronald Eisenberg, Esq., Pennsylvania Office of Attorney General, Philadelphia, William Ross Stoycos, Esq., Pennsylvania Office of Attorney General, State College, for Appellee.
David Lee Zuckerman, Esq., Federal Community Defender Office, Eastern District of Pennsylvania, Philadelphia, for Appellant.
Ronald Eisenberg, Esq., Pennsylvania Office of Attorney General, Philadelphia, William Ross Stoycos, Esq., Pennsylvania Office of Attorney General, State College, for Appellee.
BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
OPINION
JUSTICE BROBSON
In this capital case, Paul G. Taylor (Taylor) appeals from the denial of his fifth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§ 9541 - 9546. As we agree with the conclusion of the Court of Common Pleas of York County (PCRA court) that Taylor untimely filed the petition, we affirm.
On May 18, 1991, Taylor brutally murdered his wife, two of his minor children, his mother-in-law, and his mother-in-law's minor son. On December 19, 1991, Taylor pled guilty to five counts of criminal homicide generally. On January 10, 1992, following a degree-of-guilt hearing, the trial court convicted Taylor of first-degree murder on all five counts. The matter proceeded to a penalty phase hearing, following which the trial court determined that the imposition of the death penalty was appropriate for four of Taylor's murder convictions and that a penalty of life imprisonment was appropriate for the remaining murder conviction. The trial court formally imposed Taylor's sentences on January 23, 1992. This Court affirmed Taylor's judgment of sentence on direct appeal on December 9, 1993. Commonwealth v. Gamboa-Taylor , 535 Pa. 266, 634 A.2d 1106 (1993) ( Taylor I ). Taylor did not petition for a writ of certiorari to the United States Supreme Court. On January 13, 1997, Taylor filed his first PCRA petition. The PCRA court denied the petition on the merits, and this Court affirmed on appeal. Commonwealth v. Taylor , 553 Pa. 144, 718 A.2d 743 (1998) ( Taylor II ). Taylor filed his second PCRA petition on February 5, 1999. The PCRA court dismissed Taylor's second petition as untimely filed, and this Court again affirmed on appeal. Commonwealth v. Gamboa-Taylor , 562 Pa. 70, 753 A.2d 780 (2000) ( Taylor III ).
On January 28, 2008, Taylor filed a third PCRA petition, alleging that his trial counsel had a conflict of interest previously unknown to Taylor that adversely affected trial counsel's representation of Taylor. The PCRA court denied relief, and, once again, this Court affirmed on timeliness grounds. Commonwealth v. Taylor , 620 Pa. 429, 67 A.3d 1245 (2013) ( Taylor IV ), overruled by Commonwealth v. Small , ––– Pa. ––––, 238 A.3d 1267 (2020). Pertinent to the instant matter, the Pennsylvania Office of Attorney General (OAG) represented the Commonwealth in opposing Taylor's third PCRA petition. Additionally, Justice Eakin authored this Court's unanimous majority opinion in Taylor IV , in which Then-Chief Justice Castille, Justice Saylor, Then-Justice (Now-Chief Justice) Baer, Justice Todd, and Justice McCaffery also participated.
Small overruled Taylor IV and several other cases to the extent that Small disavowed application of the public record presumption in the context of the newly discovered facts exception to timeliness under Section 9545(b)(1)(ii) of the PCRA, 42 Pa. C.S. § 9545(b)(1)(ii).
On December 8, 2014, Taylor filed a fourth PCRA petition, seeking a new appeal nunc pro tunc to this Court from the PCRA court's denial of his third PCRA petition which alleged trial counsel's conflict of interest. Petitioner premised his fourth PCRA petition upon the well-publicized scandal involving the exchange of inappropriate emails between employees of the OAG and members of the judiciary, including former Justices Eakin and McCaffery. Petitioner alleged that emails exchanged during the pendency of Taylor IV reflected partiality on the part of this Court in disposing of his appeal, in violation of Taylor's due process rights. Given that his fourth petition was facially untimely, Taylor relied upon two of the three statutory exceptions to the PCRA's one-year time-bar—i.e. , the "governmental interference" exception set forth in Section 9545(b)(1)(i) of the PCRA, 42 Pa. C.S. § 9545(b)(1)(i), and the "newly discovered facts" exception set forth in Section 9545(b)(1)(ii) of the PCRA. The PCRA court dismissed Taylor's fourth petition, concluding that the PCRA court lacked the authority to grant the relief that Taylor sought. Taylor then appealed. On November 6, 2019, with its participating members being equally divided on the matter, this Court affirmed the PCRA court's order by operation of law. Commonwealth v. Taylor , 655 Pa. 714, 218 A.3d 1275 (2019) (per curiam) ( Taylor V ). Then-Chief Justice Saylor, Then-Justice (Now-Chief Justice) Baer, and Justice Todd, all of whom participated in Taylor IV , did not participate in the decision. Justice Wecht issued an opinion in support of reversal (OISR), joined by Justice Donohue; Justice Dougherty issued an opinion in support of affirmance (OISA), joined by Justice Mundy.
The governmental interference exception requires a petitioner to plead and prove that "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." 42 Pa. C.S. § 9545(b)(1)(i). The newly discovered facts exception requires a petitioner to plead and prove that "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." 42 Pa. C.S. § 9545(b)(1)(ii). Additionally, at the time Taylor filed his fourth PCRA petition, the PCRA required that he file the petition invoking these exceptions within sixty days of the date the claim first could have been presented. 42 Pa. C.S. § 9545(b)(2) (amended 2018).
The opinions authored in Taylor V addressed, in relevant part, whether Taylor's fourth PCRA petition was timely filed, whether his constitutional claim of appellate court error was cognizable under the PCRA, and whether the PCRA court could afford him the relief he sought—i.e. , reinstatement of the right to appeal anew to this Court nunc pro tunc . In the OISR, Justice Wecht concluded that Taylor's claim was cognizable under the PCRA and that the PCRA court had the authority to order the relief Taylor requested, if warranted on the merits. Taylor V , 218 A.3d at 1275, 1279-83, 1285 (Wecht, J., OISR). Justice Wecht further opined that any determination as to the timeliness of Taylor's petition was premature, notwithstanding its jurisdictional nature, as the PCRA court did not dispose of the petition on timeliness grounds and the record was undeveloped as to that issue. Id. at 1283 n.9. Justice Wecht, therefore, would have reversed the PCRA court's order and remanded the matter for further proceedings. Id. at 1275, 1283, 1285. In contrast, Justice Dougherty concluded in the OISA that, while Taylor's claim was cognizable under the PCRA, the only constitutionally permissible remedy the PCRA court could afford as to such a claim was the reinstatement of the right to seek reargument of the original appellate decision nunc pro tunc . Id. at 1289, 1292 (Dougherty, J., OISA). Additionally, Justice Dougherty's review of the record led him to conclude that Taylor's fourth PCRA petition was untimely filed. Id. at 1293-95. As such, he opined that a remand to the PCRA court was unwarranted and that, instead, he would affirm the order of that court. Id. at 1286, 1293, 1295.
On November 20, 2019, Taylor filed an application for reargument (Application) with this Court, including a request that the Court appoint additional jurists to hear the matter. See generally Pa.R.J.A. 701(C) ; Supreme Court Internal Operating Procedures § 13, 210 Pa. Code § 63.13. During the pendency of Taylor's Application, on April 24, 2020, the Court impaneled a special complement of jurists consisting of Justices Donohue, Dougherty, Wecht, and Mundy, and Judges King, Kunselman, and Nichols of the Superior Court, and decided Commonwealth v. Koehler , 658 Pa. 658, 229 A.3d 915 (2020) —i.e. , a separate case that was substantially similar to, and which extensively referenced, Taylor V . Like Taylor in Taylor V , John Koehler (Koehler) filed a serial, facially untimely PCRA petition in his capital case that: (1) was premised on the same email scandal and a violation of his due process and other constitutional rights arising out of this Court's alleged partiality in adjudicating his appeal in his prior PCRA matter; and (2) sought reinstatement of his appellate rights to this Court nunc pro tunc from the PCRA court's denial of his previously filed PCRA petition. Koehler , 229 A.3d at 922-24. Just as the PCRA court did in Taylor V , the PCRA court in Koehler ultimately dismissed Koehler's serial petition, concluding that it lacked the authority to grant the relief Koehler sought. Id. at 922.
In contrast to Taylor V , however, the seven-member special complement of this Court in Koehler reversed the PCRA court's dismissal in a divided opinion. Id. Justice Wecht wrote the majority opinion, which Justice Donohue and Judges King, Kunselman, and Nichols joined. Specifically, the majority concluded that "a due process challenge to the impartiality of an appellate jurist is cognizable under" the PCRA and that the PCRA court has the authority to grant relief in the form of reinstatement of a PCRA petitioner's right to appeal anew to the appellate tribunal nunc pro tunc . Id. at 922, 931, 942. Observing that the PCRA court dismissed Koehler's serial PCRA petition based on the mistaken belief that it lacked the authority to afford Koehler the relief requested—a matter separate from the jurisdictional question of timeliness and the merits of the underlying claim, neither of which the PCRA court had yet addressed—the majority remanded the matter to the PCRA court for further proceedings to address such issues and others in the normal course. Id. at 939-43.
In a concurring and dissenting opinion, Justice Dougherty, again joined by Justice Mundy, concluded that the Court lacked jurisdiction over the "unripe question" regarding the authority of the PCRA court to grant Koehler's requested relief, given that the PCRA court erroneously failed to determine first whether Koehler timely filed his serial petition and then whether he was entitled to relief on the merits. Id. at 946, 964 (Dougherty, J., concurring and dissenting). Justice Dougherty concluded that, as such, there was "no present case and controversy regarding the proper relief that may be afforded to a hypothetical petitioner who presents a meritorious judicial bias-based due process claim in a timely PCRA petition." Id. at 946. Justice Dougherty, thus, opined that "the only option [wa]s to reverse and remand with instructions for the PCRA court to determine whether [Koehler's] petition [wa]s timely" and his claim meritorious. Id. This conclusion notwithstanding, Justice Dougherty agreed that an allegation of appellate court constitutional error is cognizable under the PCRA, opined as to the burden a PCRA petitioner must meet in asserting such a claim pertaining to judicial bias, and reiterated his position that "the nunc pro tunc reinstatement of the right to seek reargument is the only lawful remedy for a judicial bias-based due process claim raised on collateral review." Id. at 950-56, 964.
On May 18, 2020, following the Court's Koehler decision, the Court denied Taylor's Application by operation of law, as the participating Justices were again equally divided on the Application. Commonwealth v. Taylor , 659 Pa. 11, 230 A.3d 341 (2020) (per curiam). Just as in Taylor V , Then-Chief Justice Saylor, Then-Justice (Now-Chief Justice) Baer, and Justice Todd did not participate in the matter. Justice Wecht filed a dissenting statement, which Justice Donohue joined. Consistent with their positions in Koehler , Justice Dougherty and Justice Mundy voted to deny the Application. On May 29, 2020, in light of Koehler , Taylor filed an application for leave to be heard further and accompanying renewed application for reargument, which this Court denied by per curiam order on June 17, 2020.
Again, Then-Chief Justice Saylor, Then-Justice (Now-Chief Justice) Baer, and Justice Todd did not participate in the decision.
Taylor then filed the instant PCRA petition, his fifth, on August 13, 2020. Therein, he reasserted his due process claim premised upon the alleged partiality of this Court in Taylor IV arising out of the email scandal, as well as his request for a new appeal in that matter nunc pro tunc . In addressing the timeliness of his petition, Taylor asserted, inter alia , that the petition met the "newly recognized constitutional right" exception set forth in Section 9545(b)(1)(iii) of the PCRA, 42 Pa. C.S. § 9545(b)(1)(iii), based on Koehler . Taylor further submitted that, if relief was unavailable to him under the PCRA, then he must be able to obtain habeas corpus relief with respect to his claim. The Commonwealth filed a response, and Taylor filed a reply thereto. The PCRA court then issued a notice of intent to dismiss the petition pursuant to Pennsylvania Rule of Criminal Procedure 909, concluding that the petition was facially untimely and that Taylor failed to establish that this Court's holding in Koehler "has been held to apply retroactively as contemplated under [Section] 9545(b)(1)(iii)" of the PCRA. (PCRA Ct. Pa.R.Crim.P. 909 Notice, 3/31/2021, at 1.) After Taylor filed a response to the PCRA court's notice, the PCRA court denied the petition on June 23, 2021, "upon consideration of the facts and [this Court's] Order denying [Taylor's] previous [m]otion for relief based on the same claims." (PCRA Ct. Order, 6/23/2021.)
The newly recognized constitutional right exception requires a petitioner to plead and prove 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 period provided in this section and has been held by that court to apply retroactively." 42 Pa. C.S. § 9545(b)(1)(iii).
Taylor again appealed. The PCRA court directed him to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), and Taylor complied. In its opinion issued pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), the PCRA court opined that it considered Taylor's "fifth PCRA [petition] and second appeal to [this Court] as a tactic to prolong [Taylor's] judgment of sentence [sic ]." (PCRA Ct. Pa.R.A.P. 1925(a) Op., 8/4/2021, at 1.) The PCRA court also pointed to its notice of intent to dismiss the petition, its order denying the petition, and this Court's order "issued on December 12, 2020, addressing the same claims raised in [Taylor's] present appeal" for its reasoning in support of its decision to deny Taylor relief. (Id. at 1-2.)
Though the PCRA court referred to the date of the above order as December 12, 2020, it appears that the PCRA court was referring to this Court's order of June 17, 2020, denying Taylor's application for leave to be heard further and accompanying renewed application for reargument based upon Koehler .
On appeal, Taylor presents the following two issues in his brief to this Court:
I. Does Commonwealth v. Koehler , 658 Pa. 658, 229 A.3d 915 (2020), which held for the first time that lower courts have the authority to remedy claims of judicial bias of higher courts, satisfy one or more of the enumerated exceptions to the PCRA timeliness requirements?
II. If [Taylor's] judicial bias claim does not qualify under a PCRA timeliness exception, is it nevertheless cognizable under state habeas corpus?
(Taylor's Brief at 2.) In addressing these issues, we observe that our review of an order denying relief under the PCRA is limited to determining whether the order is supported by the evidence of record and free of legal error. Commonwealth v. Ali , 624 Pa. 309, 86 A.3d 173, 177, cert. denied , 574 U.S. 1026, 135 S.Ct. 707, 190 L.Ed.2d 439 (2014).
We begin with the timeliness of Taylor's fifth petition. Generally, any PCRA petition must be filed within one year of the date that the petitioner's judgment of sentence becomes final to be deemed timely filed. 42 Pa. C.S. § 9545(b)(1) ; Commonwealth v. Marshall , 596 Pa. 587, 947 A.2d 714, 719 (2008). A petitioner, however, can overcome this one-year time-bar if "the petition alleges and the petitioner proves" one of the timeliness exceptions set forth in the PCRA. See 42 Pa. C.S. § 9545(b)(1)(i)-(iii). Further, pursuant to Section 9545(b)(2) of the PCRA, 42 Pa. C.S. § 9545(b)(2), any petition invoking a timeliness exception must "be filed within one year of the date the claim could have been presented."
It is well settled that the PCRA's time limitations are jurisdictional in nature and that neither this Court nor the PCRA court has jurisdiction over an untimely petition. Commonwealth v. Albrecht , 606 Pa. 64, 994 A.2d 1091, 1093 (2010). We have further held that the PCRA's time limitations are not subject to equitable exceptions:
Jurisdictional time limits go to a court's right or competency to adjudicate a controversy. These limitations are mandatory and interpreted literally; thus, a court has no authority to extend
filing periods except as the statute permits. Unlike a statute of limitations, a jurisdictional time limitation is not subject to equitable principles such as tolling except as provided by statute. Thus, the filing period is only extended as permitted; in the case of the PCRA, the time limitations are extended upon satisfaction of the exceptions found in [ Section] 9545(b)(1)(i)-(iii) and timely filing pursuant to (b)(2). As it has been established that the PCRA's time restrictions are jurisdictional, we hold that the period for filing a PCRA petition is not subject to the doctrine of equitable tolling, save to the extent the doctrine is embraced by [ Section] 9545(b)(1)(i)-(iii).
Commonwealth v. Fahy , 558 Pa. 313, 737 A.2d 214, 222 (1999) (citations omitted); see also Commonwealth v. Watts , 611 Pa. 80, 23 A.3d 980, 983 (2011) (observing that PCRA does not confer authority on "this Court to fashion ad hoc equitable exceptions to the PCRA time-bar in addition to those exceptions expressly delineated in the [PCRA]") (quoting Commonwealth v. Robinson , 575 Pa. 500, 837 A.2d 1157, 1161 (2003) ).
Taylor's judgment of sentence became final in 1994, after the time for seeking a writ of certiorari to the Supreme Court of the United States from this Court's decision in Taylor I expired. See 42 Pa. C.S. § 9545(b)(3) (providing that, for PCRA purposes, "[a] judgment becomes final at the conclusion of direct review ... or at the expiration of time for seeking the review"); U.S. Sup. Ct. Rule 13 (providing that petition for writ of certiorari is timely when filed within 90 days after entry of judgment of state court of last resort). As such, it is undisputed that the instant PCRA petition, filed on August 13, 2020, is facially untimely. In an effort to overcome the one-year time-bar, Taylor claims that, in light of Koehler , the instant petition satisfies the newly recognized constitutional right exception set forth in Section 9545(b)(1)(iii) of the PCRA. As previously stated, this exception requires a PCRA petitioner to plead and prove 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 period provided in this section and has been held by that court to apply retroactively." 42 Pa. C.S. § 9545(b)(1)(iii).
While Taylor phrases his first issue on appeal and portions of his supporting argument in general terms of whether Koehler satisfies the PCRA's timeliness exceptions, we note that the only exception he addresses before this Court is the newly recognized constitutional right exception set forth in Section 9545(b)(1)(iii) of the PCRA.
Taylor submits that Koehler "represents new law" because the decision "recognized, for the first time, that PCRA courts have the power to grant new appeals, nunc pro tunc , to remedy due process violations flowing from decisions issued by biased appellate tribunals" and no prior precedent dictated that holding. (Taylor's Brief at 17.) Taylor also argues that Koehler ’s holding is of constitutional dimension given that it is grounded on a PCRA petitioner's constitutional due process right to an unbiased tribunal on appeal. Taylor additionally argues that Koehler applies—or should apply—retroactively for the following reasons. First, Taylor contends that Koehler itself holds or otherwise "dictates" that the decision applies retroactively. (Id. at 19.) Arguing that "[t]he PCRA says nothing about an express statement of retroactivity," Taylor notes that Koehler was litigated through the PCRA and Koehler himself "received the benefit of the new law announced therein. In other words, Koehler itself applied the new rule retroactively to ... Koehler." (Id. at 20-21.) Taylor also points to language from the majority opinion in Koehler recognizing that other defendants claiming unconstitutional jurist bias would likewise be entitled to relief in the form of a new appeal, if warranted on the merits. (Id. at 20 (relying upon Koehler , 229 A.3d at 934 ).) Second, Taylor argues that Koehler ’s holding relative to the PCRA court's remedial authority is "jurisdictional," and, thus, it should be applied retroactively as is "typical[ly]" done in the case of "jurisdictional rulings." (Id. at 21-25 (relying upon, inter alia , Firestone Tire & Rubber Co. v. Risjord , 449 U.S. 368, 379, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981) (explaining that "by definition, a jurisdictional ruling may never be made prospective only")).) Finally, Taylor asks us to apply "a more flexible approach to retroactivity" under the unique circumstances of this case, where merits review of his judicial bias claim has evaded him despite his diligence in asserting the claim. (Id. at 25-26.)
In so doing, Taylor advocates for application of the following test, which, according to Taylor, counsels in favor of retroactive application of Koehler and requires consideration of: "(1) the purpose to be served by the new rule, (2) the extent of the reliance on the old rule, and (3) the effect on the administration of justice by the retroactive application of the new rule." (Taylor's Brief at 27 (quoting Dana Holding Corp. v. Workers’ Comp. Appeal Bd. , 659 Pa. 461, 232 A.3d 629, 633 (2020) ).) Taylor also submits that his reliance on Koehler to render the instant petition timely is consistent with this Court's recognition that the PCRA—generally the sole avenue for post-conviction relief—must be liberally construed to promote justice and "so as not to foreclose avenues of relief for an otherwise diligent litigant." (Taylor's Brief at 35-36.)
In response, the Commonwealth argues that the PCRA court's determination that Taylor's fifth PCRA petition is untimely filed, depriving the court of jurisdiction to consider the merits, is supported by the record and free from legal error. As to Taylor's assertion that his petition is timely under Section 9545(b)(1)(iii) of the PCRA, the Commonwealth argues that the exception is inapplicable because it requires, inter alia , that the newly recognized constitutional right "has [previously] been held by that court to apply retroactively," and "[t]his Court has not previously stated that the holding of the Majority Opinion in Koehler applies retroactively to cases on collateral review." (Commonwealth's Brief at 41-42 (emphasis omitted) (quoting 42 Pa. C.S. § 9545(b)(1)(iii) ) (relying upon Commonwealth v. Abdul-Salaam , 571 Pa. 219, 812 A.2d 497 (2002) ; Commonwealth v. Reid , ––– Pa. ––––, 235 A.3d 1124 (2020) ).) The Commonwealth submits that, "[f]aced with this straightforward law, Taylor makes several ambiguous, convoluted, and ultimately meritless arguments." ( Id. ) The Commonwealth contends that, to the extent that Taylor relies upon case law pertaining to the subject of retroactivity outside of the PCRA context, such reliance is irrelevant and improper given that the PCRA is the governing law. The Commonwealth also challenges Taylor's position insofar as he claims that he acted diligently in filing his claims in his fourth PCRA petition, which he is attempting to relitigate in the instant PCRA petition.
The Commonwealth requested and received three extensions of time to file an appellate brief in this matter. On February 14, 2022, after failing to file a brief by the January 28, 2022 deadline provided in this Court's order granting the Commonwealth's third extension of time, the Commonwealth filed an "Application for Leave to File Appellee's Brief Late." The Commonwealth attached its proposed brief and averred that Taylor's counsel did not oppose the application. Taylor's counsel likewise informed the Court that he had no objection to the application, and he submitted a reply brief in response thereto. This Court granted the Commonwealth's application by order dated August 15, 2022. In so doing, we directed the Prothonotary to docket the Commonwealth's Appellee Brief as well as Taylor's Reply Brief, both of which we consider in rendering our decision.
With respect to the timeliness exception set forth in Section 9545(b)(1)(iii) of the PCRA, our Court has held that the provision 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 this [C]ourt 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.
Abdul-Salaam , 812 A.2d at 501-02 (specifically holding that "the language ‘has been held’ means that the ruling on retroactivity of the new constitutional law must have been made prior to the filing of the petition for collateral review" and "that a retroactivity determination must exist at the time that the petition is filed"). Additionally, in Reid , this Court reaffirmed Abdul-Salaam and further explained:
The plain language [of Section 9545(b)(1)(iii) of the PCRA] makes clear that, when dealing with an otherwise untimely PCRA petition, our collateral review courts are only "open" to a claim that a new constitutional right applies when the right "has been held by that court to apply retroactively." 42 Pa.C.S. § 9545(b)(1)(iii). In other words, because the "has been held" language "means that the ruling on retroactivity of the new constitutional law must have been made prior to the filing of the petition for collateral review[,]" Abdul-Salaam , 812 A.2d at 501, our state collateral courts are, in fact, not "open" to a claim that a new constitutional right applies, unless the right has already been held to apply retroactively.
Reid , 235 A.3d at 1160-61 (emphasis in original).
Assuming arguendo that Koehler announced a new constitutional right, we find no error in the PCRA court's conclusion that the newly recognized constitutional right exception is inapplicable herein because Taylor has failed to establish that this Court's decision in Koehler "has been held to apply retroactively as contemplated under [Section] 9545(b)(1)(iii)" of the PCRA. (PCRA Ct. Pa.R.Crim.P. 909 Notice, 3/31/2021, at 1.) Specifically, notwithstanding Taylor's arguments to the contrary, this Court's decision in Koehler itself—although decided in the context of a collateral proceeding—did not hold that any right established therein applies retroactively within the meaning of Section 9545(b)(1)(iii). Moreover, insofar as Taylor asks this Court to hold now that the ruling of Koehler applies retroactively on any of the theories he advances, we decline his invitation. As noted, it is well settled that a new constitutional right must already have "been held" by this Court to apply retroactively prior to the filing of the subject petition in order for Section 9545(b)(1)(iii) to apply. See Abdul-Salaam , 812 A.2d at 501-02 ; Reid , 235 A.3d at 1160-61. In the absence of such a preexisting holding, Taylor has failed to establish the applicability of the newly recognized constitutional right exception to his instant PCRA petition. We also reiterate that the PCRA's time limitations are not subject to equitable exceptions. Fahy , 737 A.2d at 222 ; Watts , 23 A.3d at 983. We, therefore, agree with the PCRA court that Taylor's fifth petition is time-barred under the PCRA and conclude that, like the PCRA court, we lack jurisdiction over the petition.
While Taylor presents a cursory argument that Koehler recognized a new constitutional right, neither the PCRA court nor the Commonwealth have addressed this initial requirement of Section 9545(b)(1)(iii) of the PCRA. Insofar as it can be argued that Koehler did not recognize a new constitutional right, we are careful to note that we do not treat Koehler ’s satisfaction of this initial requirement as a foregone conclusion. Rather, we need not reach the issue in light of our conclusion herein relative to Taylor's failure to demonstrate satisfaction of Section 9545(b)(1)(iii) ’s second requirement (i.e. , that the right has been held to apply retroactively).
In his reply brief, Taylor adds, inter alia , that this Court should find his petition timely filed based on retroactive application of Koehler because Koehler was decided while Taylor's Application in Taylor V was pending before the Court and Taylor properly preserved the issue in that matter. In support, Taylor relies upon case law relative to retroactive application of new rules in cases pending on direct review. See, e.g. , Commonwealth v. Cabeza , 503 Pa. 228, 469 A.2d 146, 148 (1983) ("[W]here an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal."). Taylor submits that the "same logic applies" in the post-conviction context. (Taylor's Reply Brief at 3.) We do not address this basis for retroactive application of Koehler for the same reasons stated above.
We also note that, while the Commonwealth primarily relies upon Abdul-Salaam and Reid in support of its position, Taylor fails even to cite either case in his briefing to this Court, let alone present pointed advocacy to refute that their interpretation of Section 9545(b)(1)(iii) controls the outcome of this matter. As such, we dispose of Taylor's appeal pursuant to the prevailing law governing application of Section 9545(b)(1)(iii) of the PCRA as set forth in those cases.
The parties also present argument on the propriety of the PCRA court's conclusion that this Court's prior ruling(s) relative to Taylor V preclude review of this petition, as well as whether the PCRA court's dismissal of the instant petition should be affirmed on the basis that Taylor failed to make a prima facie showing that a miscarriage of justice may have occurred. See Fahy , 737 A.2d at 223 ("This [C]ourt has determined that in reviewing claims for relief in a second or subsequent collateral attack on a conviction and judgment of sentence, the request will not be entertained unless a strong prima facie showing is demonstrated that ... a miscarriage of justice occurred."). We need not consider these arguments in light of our conclusion that we lack jurisdiction over Taylor's petition because the petition is time-barred.
As a final point, we address Taylor's second issue, wherein he asserts that, if his "judicial bias claim does not qualify under a PCRA timeliness exception, it must be cognizable under state habeas corpus." (Taylor's Brief at 37.) Our Court has squarely rejected this claim. See, e.g. , Commonwealth v. Abu-Jamal , 574 Pa. 724, 833 A.2d 719, 737 (2003) (finding no merit to assertion that, "even if [petitioner's] claims are time-barred under the PCRA, the PCRA court should have used its inherent power under common law to review his claims under Pennsylvania's writ of habeas corpus"); Fahy , 737 A.2d at 223 (rejecting argument that "even if [petitioner's] claims are barred as untimely, his claims are entitled to review under our Commonwealth's writ of habeas corpus"). In so doing, the Court has observed:
The Commonwealth does not respond to this claim in its brief to this Court.
[T]he PCRA subsumes the writ of habeas corpus with respect to remedies offered
under the PCRA. However, a writ of habeas corpus continues to exist as a separate remedy. Even so, the writ continues to exist as an independent basis for relief only in cases in which there is no remedy under the PCRA .
Abu-Jamal , 833 A.2d at 738 (emphasis in original) (quoting Fahy , 737 A.2d at 223-24 ). As made clear in Koehler , the PCRA provides a remedy for Taylor's underlying claim, which is cognizable under the PCRA. As Taylor "confuses the issues of whether a claim satisfies the jurisdictional requirements of the PCRA[ ] and whether the PCRA provides a remedy for such a claim," Fahy , 737 A.2d at 224, he is not entitled to habeas corpus relief.
Based on the foregoing, we conclude that Taylor's fifth petition filed pursuant to the PCRA is untimely filed. As such, the PCRA court was without jurisdiction to address the merits of his claims, and dismissal of the petition was proper. We, therefore, affirm the order of the PCRA court.
Justices Dougherty, Wecht and Mundy join the opinion.
Justice Dougherty files a concurring opinion in which Justice Mundy joins.
Justice Donohue files a dissenting opinion.
Chief Justice Baer and Justice Todd did not participate in the consideration or decision of this matter.
JUSTICE DOUGHERTY, concurring
I join the majority opinion in full. In Commonwealth v. Koehler , 658 Pa. 658, 229 A.3d 915 (2020), the Court described the issue before it as "whether the reinstatement of appellate rights nunc pro tunc is an appropriate remedy to correct a constitutional deprivation that occurred in a prior appeal." Id. at 931 n.8. The Koehler majority answered that question in the affirmative over my emphatic dissent. Compare id . at 942 (holding PCRA courts have "inherent authority to grant a nunc pro tunc appeal to remedy a due process violation occurring in the prior appeal") with id. at 964 (Dougherty, J., concurring and dissenting) ("the nunc pro tunc reinstatement of the right to seek reargument is the only lawful remedy for a judicial bias-based due process claim raised on collateral review"). Significantly, though, none of the expressions in Koehler said anything about its holding applying retroactively. This fact singlehandedly defeats Taylor's main claim that Koehler satisfies the newly recognized constitutional right exception to the PCRA timebar under 42 Pa.C.S. § 9545(b)(1)(iii), as the majority rightly concludes. See Majority Opinion at 187 ("Taylor has failed to establish ... Koehler has been held to apply retroactively as contemplated under Section 9545(b)(1)(iii) [.]") (internal quotation marks, brackets, and citation omitted); accord Commonwealth v. Abdul-Salaam , 571 Pa. 219, 812 A.2d 497, 501 (2002) ("The language ‘has been held’ [in Section 9545(b)(1)(iii) ] ... mean[s] 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.").
This is not Taylor's only problem though. The majority flags another. It notes that while "neither the PCRA court nor the Commonwealth have addressed" the issue, it could be argued that " Koehler did not recognize a new constitutional right" at all, rendering Section 9545(b)(1)(iii) inapplicable for this additional reason. Majority Opinion at 187 n.9; see id . ("we are careful to note that we do not treat Koehler ’s satisfaction of this initial requirement as a foregone conclusion"). Ultimately, the majority does "not reach the issue in light of [its] conclusion [ ] relative to Taylor's failure to demonstrate satisfaction of Section 9545(b)(1)(iii) ’s second requirement (i.e. , that the right has been held to apply retroactively)." Id . While the majority's restraint is reasonable under the circumstances, appellant did place the matter directly at issue, see Taylor's Brief at 14 (" Koehler is a new constitutional rule"), and since I believe it is unwise for us to leave unanswered a question about whether one of our decisions announced a new constitutional right (even if that right is not retroactive), I would resolve it now.
In his brief, Taylor repeatedly declares Koehler announced a new "right" or "rule" (he uses the terms interchangeably, see, e.g. , Taylor's Brief at 14, 17), but he noticeably fails to set forth clearly what he believes that right entails. The closest he comes is in a section titled " Koehler is newly recognized law." Id . at 17. There, he argues Koehler "recognized, for the first time, that PCRA courts have the power to grant new appeals, nunc pro tunc , to remedy due process violations flowing from decisions issued by biased appellate tribunals." Id . "That newly recognized right[,]" he continues in the next section, "was rooted in the Constitution." Id .
I point out the semantic differences because they matter under the plain language of the PCRA. Section 9545(b)(1)(iii) excuses an untimely claim where the petitioner alleges and proves ("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)(iii) (emphasis added). The exception does not mention new "rules" or new "law"; it plainly requires recognition of a new "constitutional right."
This Court "generally has looked to the Teague doctrine in determining retroactivity of new federal constitutional rulings." Commonwealth v. Cunningham , 622 Pa. 543, 81 A.3d 1, 8 (2013). Taylor suggests that this Court should employ a broader test, a possibility raised by Cunningham itself. Id . at 9. As I conclude that existing caselaw provides an avenue for relief, I do not further address this claim.
Contrary to Taylor's view, Koehler ’s holding in this regard did not announce a new "right," and certainly not a constitutional one. All Koehler did was conclude PCRA courts have "the authority to grant a well-established form of relief" — a nunc pro tunc appeal — "to remedy a constitutional deprivation that has been proven on the merits." Koehler , 229 A.3d at 929 n.7 ; see id . at 931 n.8 (stating the "straightforward question" is "whether the reinstatement of appellate rights nunc pro tunc is an appropriate remedy"). In other words, Koehler simply decided the proper remedy for a meritorious appellate judicial bias-based due process claim when raised in a timely PCRA petition; it did not purport to recognize a new constitutional right of any kind. I would therefore conclude Taylor's claim also fails on this independent basis.
A third reason for rejecting Taylor's position also warrants discussion. Taylor appears to believe that if Koehler were retroactive (or if we were to now hold it is retroactive), it would somehow "revive his claims of judicial bias" that he originally raised in his fourth PCRA petition, the denial of which we affirmed by operation of law in Commonwealth v. Taylor , 655 Pa. 714, 218 A.3d 1275 (2019) (per curiam ) due to a deadlocked Court. Taylor's Brief at 6. This understanding is wrong. We have explained that just because a petitioner meets his burden to prove a timebar exception with respect to one claim does not mean that endows the PCRA court with all-encompassing jurisdiction to entertain different issues raised in the petition — it merely grants the court jurisdiction over those claims that actually fall within the exception. See Commonwealth v. Porter , 613 Pa. 510, 35 A.3d 4, 13-14 (2012) ( Section 9545(b) "speaks in singular terms of ‘the claim’ or ‘the right’ which is the subject of a serial PCRA ‘petition’ " and, as such, the exceptions "are claim-specific"); Commonwealth v. Fahy , 558 Pa. 313, 737 A.2d 214, 223 (1999) ("claims must still first satisfy the PCRA's time limits or one of the exceptions thereto") (emphasis added); see also Commonwealth v. Woods , 179 A.3d 37, 44 (Pa. Super. 2017) ("if the right announced in Miller [v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)] applies to any of [a]ppellant's claims, the petition is timely as to that specific claim").
In keeping with the majority's designation, I refer to this decision as "Taylor IV ."
Justice Dougherty asserts that Taylor was not diligent because the underlying PCRA petition was untimely. Concurring Opinion at 191 n.3 (Dougherty, J.). The concurrence made this same argument in Commonwealth v. Taylor , 655 Pa. 714, 218 A.3d 1275 (2019), but Justice Wecht and I disagreed. Id . at 1283 n.9 ("Contrary to Justice Dougherty's view, we do not believe that it is appropriate at this juncture to ascertain the timeliness of Taylor's petition. ... the PCRA court did not resolve the petition on timeliness grounds, and we have no developed record upon which to evaluate timeliness.") (Wecht, J., opinion in support of reversal). It is difficult to say that Taylor was treated fairly on the basis that Justice Dougherty was correct and we were wrong.
In his fifth PCRA petition, Taylor, citing Koehler , raised only the newly recognized constitutional right exception to the timebar. Before this Court, he continues to complain that Koehler ’s "new constitutional rule ... has yet to be applied to [his] claims." Taylor's Brief at 14. Again, however, Taylor misunderstands the import of Koehler ’s holding. It was, at bottom, about remedies. In contrast, what Taylor seeks to do here is use Koehler (a case about remedies) to "revive his claims of judicial bias." Id . at 6. But the timeliness and merits of Taylor's underlying due process claim are entirely separate from the issue of remedy, and Koehler pointedly "offer[ed] no opinion" on those matters. Koehler , 229 A.3d at 933. So, for this reason also, even if Koehler were retroactive it could not resurrect and make timely the due process claim raised in Taylor's fourth PCRA petition. That claim was untimely for reasons I have previously explained, see Taylor V , 218 A.3d at 1293-95 (Dougherty, J., opinion in support of affirmance), and nothing about Koehler changes that either.
The dissent credits appellant's assertion he was " ‘always diligent in pursuing his claims and yet review has eluded him[.]’ " Dissenting Opinion at 195, quoting Taylor's Brief at 37. It is from this premise that the dissent would apply Commonwealth v. Cruz , 578 Pa. 263, 851 A.2d 870 (2004). See id . at 195 ("Cruz recognizes that when two defendants diligently pursue their claims and are identically situated in terms of pure legal issues they should receive the same treatment."). I must reiterate that the portrayal of Taylor as having been diligent is without foundation considering his fourth PCRA petition was untimely. See Taylor V , 218 A.3d at 1294 n.10 (Dougherty, J., opinion in support of affirmance) ("[Taylor] included within the record the very news articles that definitively prove he did not raise his claim within sixty days of the date the claim could have been presented, as Section 9545(b)(2) requires, and no additional arguments will alter this reality."). Had Taylor timely filed that petition, I would have joined in his request that we grant reconsideration of Taylor V in light of Koehler . But since he didn't, there was nothing "inexplicable" about our decision to deny reconsideration. See Commonwealth v. Taylor , 659 Pa. 11, 230 A.3d 341 (2020) (per curiam ) (Wecht, J., dissenting). Nor is the majority "wrong" for declining to shoehorn this case under Cruz when it is nothing like that matter. Dissenting Opinion at 195-96. To put it bluntly, any fairness concern here is illusory. And I'm not alone in thinking so: the PCRA court, which observed Taylor's "strategems" firsthand, Commonwealth's Brief at 32, took the unusual step of noting in its opinion that it viewed Taylor's fifth PCRA petition and current appeal as nothing more than "a tactic to prolong [his] judgment of sentence." Trial Court Opinion, 8/4/2021 at 1.
This brings me to my last point. It's no secret I believe the majority in Koehler went far astray and got things terribly wrong. See, e.g. , Koehler , 229 A.3d at 946 (Dougherty, J., concurring and dissenting) ("there is no present case and controversy regarding the proper relief that may be afforded to a hypothetical petitioner who presents a meritorious judicial bias-based due process claim in a timely PCRA petition"); id . ("everything the [m]ajority purports to do beyond [remand to the PCRA court for a timeliness determination] is entirely advisory and non-binding"); id . at 946-47 ("a PCRA court is not authorized, under the Pennsylvania Constitution, to investigate matters of judicial misconduct; or to undo this Court's precedents by means of ordering us to rehear an appeal; or to impose judicial discipline, in the form of retroactive removal from an appellate panel, for perceived violations of the Code of Judicial Conduct"); id . at 949 ("the [m]ajority's entire analysis necessarily presumes an unripe, hypothetical situation where a petitioner files a timely PCRA petition raising a meritorious claim that his due process rights were violated by the participation of a biased jurist in a prior appeal") (emphasis omitted); id . at 960 ("[t]he constructs of stare decisis , binding authority, and law of the case, which derive at least in part from the judicial hierarchy established by the Pennsylvania Constitution, provide ample bases for rejecting the [m]ajority's position outright"). I maintain this position today.
In fact, Koehler is now wrong for the additional reason I alluded to in my partial dissent there: the majority "blatantly misrepresent[ed] what occurred in Williams [v. Pennsylvania , 579 U.S. 1, 136 S.Ct. 1899, 195 L.Ed.2d 132 (2016)] to support its false narrative that the grant of a nunc pro tunc appeal to remedy appellate-level judicial bias claims is a widely sanctioned remedy." Koehler , 229 A.3d at 959 n.10 (Dougherty, J., concurring and dissenting). Notably, after we decided Koehler , we issued our opinion in Commonwealth v. Reid , ––– Pa. ––––, 235 A.3d 1124 (2020), which examined Williams at length. Reid confirms the majority in Koehler gravely misunderstood the import of Williams and erroneously concluded "[a]ny other defendant who can establish an unacceptable risk of actual bias in his or her case would be entitled to the same relief the High Court deemed appropriate in Williams ." Koehler , 229 A.3d at 934 (emphasis added). Compare, e.g. , id . at 959 n.10 (Dougherty, J., concurring and dissenting) ("the procedural posture of Williams — wherein the Supreme Court of the United States granted direct review of former Chief Justice Castille's refusal to recuse — demonstrates only that a higher tribunal is empowered to vacate a lower court's decision when it determines the lower court committed a constitutional violation") (emphasis in original; internal quotation marks and citation omitted) with Reid , 235 A.3d at 1131-33, 1162 (corroborating this procedural posture).
Regrettably, the Commonwealth in the present appeal has not asked us to overrule Koehler . Although I recognize "there have been numerous occasions in which this Court has sua sponte reconsidered and overruled prior precedent[,]" Freed v. Geisinger Med. Ctr. , 607 Pa. 225, 5 A.3d 212, 215 (2010), it is my general view that, absent compelling circumstances, "we ought not to overrule prior precedent sua sponte , without any request by or advocacy from the parties." Commonwealth v. Mason , ––– Pa. ––––, 247 A.3d 1070, 1083 n.1 (2021) (Dougherty, J., concurring). In any event, as I explained in Koehler , "by going out of its way to provide an answer to an academic question ‘based on assertions as to hypothetical events that might occur in the future[,]’ the [m]ajority render[ed] what is ‘clearly an advisory opinion; and such an opinion is without legal effect.’ " Koehler , 229 A.3d at 946 ( Dougherty, J., concurring and dissenting), quoting Philadelphia Entm't and Dev. Partners, L.P. v. City of Philadelphia , 594 Pa. 468, 937 A.2d 385, 392 (2007) and Okkerse v. Howe , 521 Pa. 509, 556 A.2d 827, 833 (1989). This means "courts in this Commonwealth are not bound to follow the [ Koehler m]ajority's analysis in this regard[.]" Id . at 949. Still, as Taylor's arguments here demonstrate, confusion persists regarding the egregiously wrong decision in Koehler , and this Court should, at the earliest opportune moment, overrule it.
Justice Mundy joins this concurring opinion.
JUSTICE DONOHUE, dissenting
I agree that Paul G. Taylor has not shown that his petition satisfies one of the three statutory exceptions to the one-year time-bar. Taylor asserts that Commonwealth v. Koehler , 658 Pa. 658, 229 A.3d 915 (2020), recognized a constitutional right that applies retroactively per 42 Pa.C.S. § 9545(b)(1)(iii). While I disagree with some aspects of the Majority's discussion regarding the continued viability of our caselaw with respect to some components of retroactivity jurisprudence, see generally Commonwealth v. Reid , ––– Pa. ––––, 235 A.3d 1124, 1177-80 (2020) (Donohue, J., dissenting), I conclude that Koehler does not require retroactive application under Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).1 Simply put, Koehler does not "place certain criminal laws and punishments altogether beyond the State's power to impose." Montgomery v. Louisiana , 577 U.S. 190, 201, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). Additionally, Edwards v. Vannoy , ––– U.S. ––––, 141 S. Ct. 1547, 209 L.Ed.2d 651 (2021), held that as a matter of federal law new rules of criminal procedure—in that case the right to conviction by a unanimous jury for serious offenses—do not apply retroactively under Teague . Thus, assuming arguendo that Koehler announced a "new" rule as opposed to applying settled precedent, the PCRA's time-bar exception for new constitutional rights does not apply.
Had Taylor sought relief only under the PCRA, I would be inclined to join the Court. However, I respectfully dissent because I disagree with the Majority's disposition of Taylor's alternative request to grant relief as a matter of habeas corpus principles. I conclude that the circumstances of this case warrant application of the rule established by an analogous case, Commonwealth v. Cruz , 578 Pa. 263, 851 A.2d 870, 871 (2004). Cruz involved a claim of "disparate treatment on direct appellate review, as compared to that afforded to a co-defendant[.]" Id . We concluded that habeas corpus "is presently available on collateral review in the particularized circumstances presented." Id . at 878.
I find that this situation presents an analogous "particularized circumstance" justifying habeas corpus relief that is available outside of the PCRA's statutory requirements. In Cruz , Cruz and his co-defendant Melendez both raised Article I, Section 8 claims challenging a warrantless entry. The Superior Court denied relief to both defendants and both petitioned this Court for discretionary review. We granted Cruz's petition but later dismissed it as improvidently granted over the dissents of Justices Cappy and Zappala. We then decided Melendez's case and reversed the Superior Court. Commonwealth v. Melendez , 544 Pa. 323, 676 A.2d 226, 228 (1996).
Meanwhile, Cruz's sentence had become final and he unsuccessfully sought relief under the PCRA. The Superior Court affirmed, explaining that Cruz "was improperly attempting to relitigate his search and seizure claim, and was not entitled to ‘retroactive’ application of the Melendez decision." Cruz , 851 A.2d at 874. We granted allowance of appeal and reversed. Regarding the applicability of the PCRA, the Court stated:
We are aware of, and generally enforce according to its plain terms, the statutory bar against relitigation of claims on collateral review under the PCRA. See 42 Pa.C.S. § 9543(a)(2). As Appellant notes, however, by its effort to channel the broadest category of post-conviction
claims into the statutorily-prescribed procedures, the Legislature implemented a scheme that must necessarily be deemed to take into account facets of traditional habeas corpus jurisprudence, see [Commonwealth v.] Chester, 557 Pa. [358] at 375-76, 733 A.2d [1242] at 1250-51 [1999] ; [Commonwealth v.] Lantzy, 558 Pa. [214] at 223, 736 A.2d [564] at 569-70 [1999], under which previous litigation does not function as a never-yielding bar to the possibility of collateral relief. See, e.g., Darr v. Burford, 339 U.S. 200, 214-15, 70 S.Ct. 587, 596, 94 L.Ed. 761 (1950) ("All authorities agree that res judicata does not apply to applications for habeas corpus. The courts must be kept open to guard against injustice through judicial error."), overruled in part on other grounds, Fay v. Noia, 372 U.S. 391, 435-36, 83 S.Ct. 822, 847, 9 L.Ed.2d 837 (1963) ; accord Duncan v. Kerby, 115 N.M. 344, 851 P.2d 466, 468-69 (1993), cited with approval in Commonwealth v. Grant, 572 Pa. 48, 63-64 & n. 13, 813 A.2d 726, 735-36 & n. 13 (2002). Indeed, in other instances involving unique circumstances embodying manifest error or irregularity in the chain of previous litigation, this Court and others have found that the doctrine need not be regarded as dispositive on collateral review. See Commonwealth v. Tyson, 535 Pa. [391] at 394-95, 635 A.2d [623] at 624-25 [1993] (granting post-conviction relief to equalize the treatment of similarly situated co defendants); accord Walter v. United States, 969 F.2d [814] at 817 [9th Cir. 1992] (citing Davis v. United States, 417 U.S. 333, 346-47, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974) ).
Id . at 877–78 (footnotes omitted).
I acknowledge that the disparate treatment alleged here is removed from the direct appellate review process, and the decision to apply "new" decisions on collateral review is even further removed. Moreover, Cruz's petition was timely whereas Taylor's petition was not. Additionally, as Cruz recognized, "[i]t is unclear whether federal equal protection or due process concepts will ultimately be construed by the United States Supreme Court to require consistently equal treatment of co-defendants with respect to purely legal issues on appeal." Id . at 877.
Nevertheless, Cruz established the groundwork for Taylor's habeas corpus claim. The Cruz Court agreed that the PCRA's statutory requirements could not be satisfied in Cruz's case. For instance, as the Superior Court recognized, the previous litigation bar could not be overcome. This Court, by dismissing Cruz's appeal as improvidently granted, had left intact the Superior Court's resolution of the Article I, Section 8 claim. Indeed, Justice Castille's dissenting opinion criticized the majority for "eviscerat[ing] salutary provisions in the PCRA concerning cognizability, and previous litigation." Id . at 879 (Castille, J., dissenting).
Cruz , in my view, responds to those criticisms via application of "traditional habeas corpus jurisprudence ... under which previous litigation does not function as a never-yielding bar to the possibility of collateral relief." Id . at 877. There is no doubt that "the scope of the PCRA cannot be narrowly confined to its specifically enumerated areas of review," due to the fact the PCRA reflects a legislative intent to channel all collateral claims into its framework. Commonwealth v. Judge , 591 Pa. 126, 916 A.2d 511, 520 (2007). Simultaneously, "this Court has never held that habeas corpus cannot provide a separate remedy, in appropriate circumstances. Indeed, the boundaries of cognizable claims under the PCRA can only be extended so far as is consistent with the purposes of the statute[.]" Id . at 520. Cruz recognizes that when two defendants diligently pursue their claims and are identically situated in terms of pure legal issues they should receive the same treatment. When this Court denies relief to one and capriciously gives relief to the other, habeas corpus permits the Court to rectify its arbitrary behavior.
I thus accept Taylor's alternative argument. See Taylor's Brief at 37-38 ("[Taylor] was always diligent in pursuing his claims and yet review has eluded him, not because of the merits of his claim or failure to follow procedural rules, but because extraordinary (and inexplicable) procedural irregularities have rendered the PCRA ineffectual or nonexistent as a mechanism for him to litigate his meritorious claim.") (quotation marks and citation omitted).2 Taylor and Koehler were identically situated in all material respects. See Cruz , 851 A.2d at 876 (observing that Melendez and Cruz were "identically (or at least as similarly enough) situated."). When this Court affirmed the denial of Taylor's PCRA petition by operation of law, Taylor filed an application for reargument and asked the Court to appoint additional jurists. Maj. Op. at 181-82. While that request was pending, we empaneled additional jurists to decide Koehler . "In contrast to [Taylor's case], however, the seven-member special complement of this Court in Koehler reversed the PCRA court's dismissal in a divided opinion." Id . at 182. We then denied the application for reargument, again by a 2-2 split.
Cruz holds that habeas corpus can remedy extraordinary circumstances and this is surely one. For purposes of this alternative argument, Taylor is not seeking the benefit of the new Koehler claim as a matter of "retroactive" application but instead merely asks this Court to rectify its arbitrary treatment. I fully agree that our denial of Taylor's petition for reconsideration is fairly characterized as such. See Commonwealth v. Taylor , 659 Pa. 11, 230 A.3d 341 (2020) (Wecht, J., dissenting) (describing denial of Taylor's application for reconsideration as "inexplicable, given our decision in Koehler ."). As Justice Cappy explained in Melendez , the decision to dismiss Cruz's appeal "was wrong then; it is wrong now. The injustice suffered by Cruz as a result of this Court's inconsistency is, for lack of a better word, shameful." Melendez , 676 A.2d at 232 (Cappy, J., concurring). We were wrong then, and the Majority is wrong now.
The Cruz Court ultimately corrected that unfair treatment. Taylor will not be so fortunate. And make no mistake that only sheer luck explains why this Court empaneled Superior Court judges to break the tie for Koehler but not for Taylor. Moreover, this case presents an even stronger case for relief than Cruz with respect to the Court's composition. At least in Cruz it could be said that a majority of the Court had voted to dismiss the petition as improvidently granted. Taylor, in contrast, was denied relief by operation of law based on a deadlock of four Justices, a deadlock that Taylor specifically asked us to address.
Finally, I observe that this case presents an extraordinary circumstance warranting application of Cruz because Taylor diligently pursued all potential remedies when the controversy was still live. Had Taylor failed to seek reconsideration of our initial split decision, I would be inclined to affirm. Cf . Commonwealth v. Watts , 611 Pa. 80, 23 A.3d 980, 988 (2011) (holding that Commonwealth v. Bennett , 593 Pa. 382, 930 A.2d 1264 (2007), was not a new "fact" for purposes of the PCRA's time-bar); id . at 988 (Baer, J., concurring) ("As the Majority notes, Watts had the opportunity to ‘become’ Bennett by ... raising the same arguments that Bennett did. ... Instead, he waited for Bennett's vanguard success in this Court, and then attempted to capitalize on it."). Taylor did not sit idly by and raise his claim only after seeing Koehler's succeed. Taylor tried to "become" Koehler at all stages of his case, including by asking the Court to appoint additional jurists. Under these extraordinary circumstances, I would apply Cruz . I would remand the petition to the PCRA court for further proceedings.