Commonwealth v. Porter

510 A.3d 4 MOORE, Petitioner

Michael

v. COURT, OF COUNTY PLEAS COMMON PHILADELPHIA, Respondent.

No. 101 EM 2011. Pennsylvania. Supreme Court of 10, 2012. Jan. ORDER PER CURIAM. NOW, Application day January, 10th

AND GRANTED, and the Process Original to File for Leave Relief is Extraordinary for of Mandamus Petition Writ and/or DENIED.

35 A.3d Pennsylvania, Appellee COMMONWEALTH v. PORTER, Appellant. Ernest Pennsylvania. Supreme Court of 8, 2010. Submitted March 19, Decided Jan. Ñolas, Billy Horatio Defender Association of Philadelphia, Philadelphia, for Ernest Porter. Burns,

Hugh J. L. Philadelphia, Tracey Kavanagh, Philadel- Office, District phia Attorney’s Amy Zapp, for Harrisburg, Commonwealth Pennsylvania. of CASTILLE, C.J., SAYLOR, EAKIN, BAER,

BEFORE: TODD, McCAFFERY, MELVIN, ORIE JJ.

514

ORDER CASTILLE.1 Chief Justice 2012, review of upon NOW, January, day this 19th of

AND Re- and the Commonwealth’s for Recusal Motion Appellant’s is Motion, for Recusal the Motion to the in Opposition ply DENIED.

OPINION ap- Porter, prisoner, a death-sentenced Ernest Appellant Pleas of of the Court Common the order from peals his serial untimely County denying Philadelphia (“PCRA”), 42 Pa.C.S. Act Relief the Post Conviction under v. a claim under 9541-9546; the raised pleading §§ (1963).2 1194, 10 L.Ed.2d 83 S.Ct. Maryland, 378 U.S. merits and timeliness was briefed on the After the Court, this filed submitted, direction of parties, upon jurisdictional issue addressing the briefs supplemental final and appealable. order was the PCRA court’s whether review, appealable below is that the order we determine Upon determination and, merits, the court’s time-bar (1) circum- correct; thus, we affirm. We also address: in an appealability, uncertainty respecting creating stances again; not arise circumstances do ensure that those effort to (2) creating unacceptable the circumstances relatedly, Pennsylva- case, throughout courts in this so that PCRA delay we direct delays. Finally, such nia take measures to avoid will appellant’s long- promptly dispose the PCRA under which raised an issue prior pending 304, 122 153 L.Ed.2d S.Ct. Virginia, Atkins v. U.S. (2002).3 reassigned to this author. 1. This matter was “petition” separate serial or pleading below was a 2. Whether point we petition is a of contention amendment of a serial address below. Eakin and joined entirety Messrs. Justice Opinion is in its 3. This exception of Saylor joins Opinion with the McCaffery; Mr. Justice this V; joins Opinion Orie Melvin III and and Madame Justice Parts

515

I. BACKGROUND 27, 1985, twenty-six years ago, April appellant Over Raymond opening robbed and murdered Fiss as Mr. Fiss 26,1986, February his a beauty shop Philadelphia. jury On murder, appellant guilty degree robbery, found of first and a offense; day, jury firearms the next the same sentenced death, appellant finding single aggravating a circumstance (murder during felony) mitigators. commission of a and no Porter, 162, This affirmed in 524 Pa. Court Commonwealth v. denied, (1990), 925, 307, 569 A.2d 942 cert. 498 111 U.S. S.Ct. (1990), denied, 1017, 112 L.Ed.2d 260 111 rehearing 498 U.S. 593, 112 (1990); L.Ed.2d 597 and appellant’s S.Ct. first PCRA petition concluded with this Court’s affirmance of the denial of Porter, 301, relief in Commonwealth v. 556 Pa. 728 A.2d 890 (1999). counsel, Ñolas, current Appellant’s Billy Esq., H. now Federal Philadelphia-based Community Defender’s Of (“FCDO”), fice represented appellant on the appeal.4 PCRA then Appellant filed a federal habeas corpus petition District U.S. Court for Eastern District of Pennsylvania. In August returned to appellant Pennsylvania state court, Attorney with Ñolas a filing second PCRA raising single new claim: that appellant was re mentally tarded under the Supreme U.S. Court’s then-recent decision in Thereafter, v. Virginia.5 in June the federal exception with the Dissenting Opinion of Part V. Mr. Justice Baer files

in which joins. Madame Justice Todd time, co-counsel, Dunham, Attorney At the Ñolas and his Robert B. Esq., Legal were affiliated with the Center for Education and Defense (“CLEADA”), organization Assistance which involved itself in the representation Pennsylvania capital Attorneys defendants. Ñolas (an and Dunham were hired what is now identified as the FCDO organization employed years) that has various over monikers once disbanded, began CLEADA represen- and the FCDO to undertake such capital throughout Pennsylvania. only tations cases Ñolas is the lawyer pleadings listed on the FCDO here. sustained, capital ineligible 5. An Atkins if renders a murderer for reason, penalty. the death For that this Court has assumed that Atkins applies retroactively capital petitioners and is available even to appellant, rights such as who exhausted their direct and PCRA Thus, before Atkins was decided. this Court has held that a serial petition presenting cognizable a colorable Atkins claim is under federal habeas petition. court decided district (E.D.Pa.2003). The dis- Horn, Porter v. F.Supp.2d claims, grant- but guilt phase appellant’s court dismissed trict upon finding premised relief penalty phase conditional ed con- precedent the Third Circuit’s error under instructional 1860, 367, 100 Maryland, v. 108 S.Ct. struing Mills 486 U.S. trial. (1988), appellant’s after a case decided L.Ed.2d 384 Porter, Thereafter, filed the parties at 311. F.Supp.2d 276 Circuit, have not been which still to the Third cross-appeals is limited appeal presumably federal decided. Appellant’s See 276 appeal.6 certified for the district court the issues cross-appeal pre- The at 364-65. Commonwealth’s F.Supp.2d the Mills issue. sumably only concerns Atkins serial was some after point At to defer filed, persuaded apparently the PCRA court record does not reveal existing certified consideration. no The record contains pass. when or how this came to abeyance no order of abeyance, the matter place motion court, of the reason the and no statement by entered It was not unusual the Atkins was set aside.7 9545(b)(1)(iii), govern exception § to the PCRAtime-bar 42 Pa.C.S. retroactively, long ing rights apply so as new constitutional Atkins, required by sixty days of the decision in claim is raised within 459, 9545(b)(2). Bracey, v. 604 Pa. 986 § 42 Pa.C.S. Commonwealth 144, Miller, 128, (2009); v. 585 Pa. 888 A.2d A.2d 134 Commonwealth 624, (2005). 629 n. 5 rights appeal are limited 28 prisoner's A federal habeas 6. state 2253, § to issue a "certificate of U.S.C. which directs the district court appealability” allowing appeal only upon issues which the of those "strong showing denial a constitutional petitioner has made a Morris, 1, 721, (2001) right.” (citation v. 565 Pa. 771 A.2d Commonwealth omitted). "duplicate record” the Clerk of The certified record available is a Quarter court docu- "prepared from Photostats of available Sessions testimony," because the Clerk could not locate ments and notes of Presumably, original lodged in federal original record is record. court. addressing supplemental briefs After this was submitted and filed, jurisdiction filed a Motion for this author’s were FCDO copy an extra-record letter from the recusal. The FCDO attached a judge purportedly explaining the initial to the PCRA Commonwealth proffer where setting the claim aside. We discuss this reason for refrain from Atkins cases in the deciding immediate wake of decision, because the left it to High Court the individual Atkins, states to determine how to implement including See, of a fixing standard to determine mental retardation. e.g., 459, 128, Commonwealth v. Pa. Bracey, 604 986 A.2d (2009). Any delay for that ended in purpose when this Court addressed the Atkins standard in Commonwealth v. Miller, (2005). 585 Pa. 888 A.2d 624 15, 2006,

On June less than six after months Miller an- standard, nounced the Atkins review appellant filed what counsel called a “supplement and amendment” to the Atkins petition. The 2006 did not filing apprise PCRA court of Miller, nor did it a determination request of the Atkins claim. Nor was the “supplement and amendment” relevant to Atkins. The instead raised a new claim filing under v. Brady Mary- land, which said appellant ripened prior sixty had days; this claim possible involved of a impeachment prosecution witness, Gentile, premised Vincent a non-notarized state- upon ment Gentile allegedly gave investigator to FCDO on April 20, 2006. There is no indication the docket or elsewhere that appellant sought, granted, either or was leave to amend his existing petition Atkins to add the new Brady claim.

Following written submissions by parties on the Brady issue, the PCRA court heard argument September on Attorney Ñolas stated that the PCRA had held the 2002 Atkins “in petition abeyance,” awaiting the outcome N.T., 9/25/07, of the federal habeas corpus cross-appeals. at 12. Counsel also stated that the Third Circuit was holding the federal cross-appeals, at his request, appellant until could See, exhaust his new claim in state Brady e.g., court. id. at 8 (“[T]he Third ... Circuit has held the case in abeyance so this resolved[.]”). [Brady] issue be could then sought Counsel permission to witness “depose” prosecutor Gentile. The fo- cused on the gate-keeping jurisdictional issue timeli- ness, the fact that including Superior Court had found a witness, similar claim respecting the same in another relevant, separate, single The recusal motion is decided infra. Opinion contemporaneously Opinion. Justice filed with this prosecu- matters, be time-barred. criminal “fishing was a request deposition argued

tor also appellant required noted that expedition,” first. evidentiary hearing to an an entitlement show issue jurisdictional on the time-bar court focused The PCRA elaborated The court is denied.” petition that “[t]he and ruled “I am and stated: pleadings, read the parties’ that it had timely that it is not the grounds the PCRA denying materi- for the requirements not meet the and it does Brady Attor- the court’s denial Following al.” Atkins Counsel petition. up pending ney brought Ñolas Atkins, all resolve which would a decision on request did removed court, appellant have possibly in state issues succeeded, free if the Atkins claim up from death row Instead, cross-appeals. the federal upon to pass Third Circuit to reliti- adverted to the leverage counsel Gentile, had the court though even request depose his gate The follow- claim was time-barred. that the just determined occurred: ing exchange pertaining before the Court is a issue separate

Ñolas: This mental has to Atkins [ ] [appellant] in our submission that retardation. that. I didn’t deal with

Court: deny If don’t you before the Court. Ñolas: That’s taking deposi- with wrong [Mr. Gentile’s] what’s today, tion? you have submit- together. The two don’t mix What

Court: are the Atkins claim other you than the fact that ted on mentally he deficient? claiming that was mental Yes, has [Appellant] that’s our submission. Ñolas: retardation. Third before the Circuit? Is that issue [Atkins ]

Court: before the Third Circuit. Ñolas: It is not with me? squarely So that’s Court: Yes, I know Your Honor held it Ñolas: Your Honor. Third reversed the death abeyance because the Circuit that and appealing sentence and the Commonwealth is guilt the denial of relief of the [appellant appealing is] reasoning the Third I think the phase from Circuit. So to see what the Third holding abeyance ] before was [ if there’s no death sentence would do because [C]ircuit an Atkins. then there’s in us point doing no appeal? there is no death sentence. All it is is an Court: So ADA: send Yeah, [a] 907 notice exactly. ^[8] So just I was on the after going discovered suggest that evidence you claim. that that’s the claim specify slash And we’ll you today abey- are and then we’ll leave denying the Atkins to hear from the Third Circuit. ance to [sic] Court: Let me-see if I understand this. The Third Circuit already penalty

has taken the death off the table. No, Ñolas: Your Honor. The District granted Court relief to [appellant] on an instructional error at the penalty phase. appealed Commonwealth that to the Third That appeal Circuit. the Third Circuit [in] along appeal with an from us arguing [other issues]. Court: So the death is still on the table? penalty Ñolas: It’s still on the potentially, yes. [t]able ADA: I misspoke. why

Ñolas: And that’s we asked Your Honor to look at the Atkins issue.

Court: It that from what I he appears read won on the

death penalty issue. just Ñolas: He penalty won a new from the District phase subject Court which is [the] Commonwealth’s subject be may resentencing down the road. They didn’t take the death off the table. penalty Court: When will issue be resolved? (permitting

8. Pa.R.Crim.P. 907 PCRA court to dismiss a with hearing). out a for us. waiting are They ADA: on the Honor to decide for Your waiting were They Ñolas: to Mr. Gentile. [Brady pertaining issue ] are not Circuit] Third They [the That’s all. Okay. Court: issue? with the Atkins on me to deal counting ADA: No. it, haven’t said that they about but told them

Ñolas: We’ve look at it. look at it or shouldn’t you should to the respect to do a 907 with just So I need Court: surrounding [filing]. and timeliness issue claim that’s object to that because I think I have to Ñolas: And with before the Court proceeding You have a strange. I with a 907 guess raised. And being claims that are two file a notice of objections our notice we’d restate it’s a non- jurisdiction, have no so you and then process. are I do? you suggesting What

Court: deposition. let you [Mr. Gentile’s] Ñolas: I us do suggest beyond you suggesting are that. What are Court: We do, I rule on Atkins? know[;] I I think can rule on Atkins. don’t you

Ñolas: don’t before, I think I have to haven’t so process I seen object. 9/25/07,

N.T., at 12-15. to the question both exchange pertinent The above in this gridlock to the federal and state court jurisdiction and counsel In stated federal summary, position case. court was that: before (cid:127) raised in the Atkins issue holding the PCRA court until abeyance 2002 serial include the which did not cross-appeals,

the federal habeas decided; were Atkins (cid:127) might the Third Circuit issue was held because order, a new effectively granting

affirm the district court’s hearing; penalty

(cid:127) the Third was not the federal holding appeals Circuit court

abeyance for PCRA to rule on the Atkins it petition; request, holding only counsel’s was for exhaust claim appellant sounding his new Brady; (cid:127) the PCRA court could not of the dispose Brady claim object

because counsel would of the light pendency the Atkins claim and would file an deprive the jurisdiction; court of

(cid:127) Atkins, the PCRA court could not rule on because counsel well; object

would to that course as and (cid:127) only action the PCRA could take was to let depose

counsel a witness on the Brady even though already PCRA court had found the claim time-barred. The PCRA court did not accept only that its choice was perpetual stasis and gridlock, federal-state which during coun- sel sought to a time-barred develop Brady claim. The court advised that a Rule 907 notice of dismissal of “the petition” afternoon, would be issued that and scheduled actual dismissal 8, for 25, November 2007. The 2007 cover September letter on the Notice, Rule 907 dismissal addressed to appellant, stated that “your PETITION FOR POST CONVICTION COLLATERAL RELIEF being dismissed.” The Notice (1) issue(s) identified the reasons for dismissal as: “[t]he (is)(are) raised PCRA filed your attorney time-barred____” (2) merits; without “[y]our and petition is 8, The November 2007 order likewise stated that appellant’s “petition” was being dismissed. In his Notice of Appeal, Ñolas Attorney stated that appel- lant was appealing “from each and every aspect of the Court of Common Pleas’ Order of September made orally and in open 8, 2007, Court and entered on November denying [appellant’s] Post Conviction Relief Act Petition.” Similarly, in the Jurisdictional Statement attached to the Notice of Appeal, counsel stated that this jurisdiction Court had because jurisdiction “[t]he lower court’s properly invoked and thus jurisdiction this Court has from the timely appeal [sic] ¶ denial of petition.” Statement, Jurisdictional 1 2. Coun- every each and review of seeks “Appellant that: sel elaborated for a new request his denying opinion and of the Order part during made relief, rulings review of trial, and other raised in all claims as well as the proceedings, course of filings supplemental in all Appellant’s ¶2 3. All Id. at before the Court.” orally during proceedings every encompassing “petition” to denial of a were references ruling below.

II. JURISDICTION A. Brady that serial oddity appellant’s procedural Given the while his Atkins also was filed and decided petition sponte svn this remained Court pending, serial pleading, i.e., jurisdiction, to briefing addressed supplemental directed final and of dismissal was the court’s order whether PCRA brief, that argues appellant In his supplemental appealable. there was a that improper. Appellant posits appeal his the below, two claims: raising single petition serial PCRA claim, Brady Atkins claim, appellant and the which original 905(A), appellant Citing amendment. Pa.R.Crim.P. added serial pending amend a may that a says petitioner PCRA Citing new claim. Pa.R.Crim.P. to add a serial PCRA court’s 910, that the PCRA argues and then appellant 907 on the Atkins claim, Brady ruling of the without “dismissal not claim, final does appealable Appellant not an order.” that this argues but instead appeal, seek to withdraw to ability to his prejudice it without quash should Court jurisdiction.” Brady proper claim “when there is present Ñolas, to the court that argued who PCRA Notably, Attorney claim, it could not decide the Atkins thereby and could theory, current does not a final order under counsel’s produce order could ever be entered. appealable how a final suggest how the Atkins ruling procedural explain Nor does counsel claim, urging— at counsel’s ruling not to decide below—a claim, subject appeal. to thereby on the ruling is not itself

523 brief that supplemental argues The Commonwealth’s jurisdictional “nullity” is a for a different reason. In appeal view, 2006 effort to amend his Commonwealth’s 2002 serial Atkins to add a new claim was an time-bar, to subvert the PCRA via improper attempt manipu- lation of the Criminal Rules of Procedure authorizing PCRA amendments. The Commonwealth warns that if PCRA peti- will, tioners amend serial abuse may petitions at ensue, maneuvering will cases. The particularly capital argues Commonwealth such amendments is prohibiting time-bar, only approach respects see Moore, 508, 1212, Commonwealth v. 569 Pa. 805 A.2d 1225 (2002) (Castille, J., Eakin, JJ., joined by Newman and concur- it ring dissenting); approach is also the Supreme U.S. Court has taken respecting the federal habeas corpus time- bar, Felix, 644, 650, 2562, Mayle v. 545 125 U.S. S.Ct. (2005); L.Ed.2d 582 see also United States v. Duffus, F.3d (3d 333, Cir.1999); 337-38 and the same rule applies civil Petro, statutes of limitation. Kincy See v. 606 Pa. 2 A.3d (2010). Since had no appellant right unilaterally amend a serial petition to add an unrelated and time- submits, barred Brady the Commonwealth he had no right to disposing order of the improper attempt amend. The Commonwealth that we dismiss requests appeal and remand for disposition petition.

B. Appellant’s position that his claim Brady was an amendment of the Atkins pending petition is belied record. procedural contemplate Our Rules that amendments PCRA are to pending petitions “freely be allowed to achieve 905(A). justice.” And, substantial Pa.R.Crim.P. it is true that Rule explicitly 905 does not distinguish between initial and However, petitions. serial appellant is mistaken in arguing i.e., that Rule 905 amendments are that a self-authorizing, petitioner may “amend” a simply pending petition with a Rather, supplemental pleading. the Rule states that explicitly amendment is permitted only by direction or leave of the case, appel no indication there is court. In this

PCRA ever granted, court or that PCRA requested, lant ever all, less to amend at much petition the Atkins leave to amend that counsel The fact new and unrelated claim. it to include a amendment,” petition “supplement Brady labeled the amended authorization, mean the pleading does not without Misdesigna petition. Atkins became part deducing proper from a court preclude tion does not Abdul-Salaam, v. Commonwealth pleading. nature of a See (2010) labeling (involving deceptive Pa. 996 A.2d 482 No. 126. Appellant’s Pa.R.C.P. pleading). of PCRA Cf. is baseless. argument “amendment” treated Moreover, appel- that the it is clear noted as counsel separate petition; as a Brady pleading lant’s “the court’s order dismissed the PCRA appeal papers, his court character- The PCRA not an “amendment.”9 petition,” that had “petition” a serial PCRA ruling ized its order as a analysis. to its own time-bar subject raised a new claim Brady precise- claim accepted Significantly, approach court and it to the PCRA Attorney initially argued Ñolas ly in securing it to the Third as he had Circuit exactly presented new claim within said he filed the stay. a federal Counsel with the discovery comply so as to sixty days of its claim that could separate He it as a serial posed time-bar. remained in ruled while the Atkins upon, and must be with the proceed the Third could abeyance, so that Circuit had, according which in turn federal stayed cross-appeals, counsel, abeyance.” held “in petition being led to the Atkins that the Third Circuit told the PCRA court explicitly Counsel the issue pertaining for Your Honor to decide on “waiting 9/25/07, Likewise, N.T., securing Mr. at Gentile.” told the Third Circuit appeals, of the federal counsel stay litigate court was to to state purpose returning the sole amend, grant and did not PCRA court did not leave to 9. Because the amendment, pass improper we need not petition as an treat the Rather, jurisdictional argument. the com- upon the Commonwealth's straightforward analysis plicating in what would otherwise be a factor holding the court's a serial PCRA of the timeliness of III, abeyance. that factor in Part petition in We address infra. Brady new giving impression Circuit the that the Brady reviewable, claim immediately was and that the result- ing delay state exhaustion would be minimal. opinion PCRA court’s corroborates that it treated the

Brady claim a separate as PCRA and concluded that it jurisdiction lacked because the was time-barred petition (and that, event, failed). in any the claim The court noted appellant’s filing of the 2002 Atkins in one petition paragraph. In the following paragraph, court recounted that Brady issue was forwarded labeled a pleading “supple- motion,” mental and amended PCRA but thereafter repeated- ly adverted to it as “the simply petition” or “the instant PCRA Atkins petition” without further reference to the petition. The opinion’s comprehensive discussion of the time-bar and its exceptions addressed alone and made no com- the ment upon See PCRA Ct. petition. 3-4, Op. at short, & 16. In the PCRA court treated the Brady filing as a distinct collateral ripe attack for just as federal “resolution”— counsel had it argued court, both state and federal up until the point counsel, the court against just ruled counsel later treated it when he filed his Notice of Appeal his initial brief.

C. The PCRA court’s treatment of the Brady petition as separate and distinct was also authorized under the terms of the PCRA. The statute speaks in singular terms of “the claim” or “the right” which is the subject of a serial “petition,” as follows:

(1) Any under this subchapter, including second or subsequent petition, shall be filed within one year of the final, date the judgment becomes unless alleges and the petitioner proves that:

(i) the failure to raise the claim previously was the result of interference by government officials with the presenta- tion of the claim in violation of the Constitution or laws of

526 laws of the or the Constitution or

this Commonwealth States; United were is

(ii) predicated the claim facts which upon the ascer- not have been and could the petitioner unknown to or diligence; due the exercise of by tained was (iii) right a constitutional right asserted is the or States of the United Court by Supreme recognized period the time after Pennsylvania Supreme Court court to by held section and has been in this provided retroactively. apply

(2) provided para- invoking exception Any petition the claim (1) days of the date be filed within 60 shall graph presented. have been could added). 9545(b)(1) (2) These (emphases §§ &

42 Pa.C.S. be, given would have to they as claim-specific, are provisions restriction, the fact that the statute filing sixty-day the shift- Particularly given claims. “exceptional” addresses to the Ñolas made Attorney contentions idiosyncratic ing the proceedings, course for concerning appropriate treating viewed its decision sensibly the PCRA court it resolved which separate claim as a serial final order. a definitive court had the is whether the PCRA complication Atkins Brady petition while the to dismiss the

authority aside the abeyance. Setting question inwas petition see Part the abeyance, holding petition propriety law III, prevents in the or our decisional infra, nothing PCRA treatment; jurisdictional of a impediment and there is no such nature. scenario; but, this case from this Court addresses

No Lark, 487, v. Pa. Commonwealth case, 560 nearest notably, the court. Lark (2000), limit the does not so PCRA 746 A.2d 585 entertain a new that a trial court cannot only holds review on is still under prior petition when a petition appeal: his second PCRA could not have filed

Appellant while his first PCRA pleas the court of common 527 The trial court had no still before this [C]ourt. case; adjudicate issues related to this jurisdiction directly only did. A second cannot be taken [C]ourt proceeding type already pend- when another of the same ing. ... (citation omitted); at A.2d accord Commonwealth v.

Jones, (2002) 343, 598, 572 Pa. 815 A.2d 604-05 (Opinion Court); Announcing Judgment see also Common- Bond, (2002) (“[I]n wealth v. 572 Pa. 819 A.2d [Lark], this Court held that this of new precise type in a alleged remand motion before this Court during of a pendency appeal, PCRA must be filed as a second PCRA petition, may which not be filed until this completes Court its review of the pending PCRA matter. a Permitting PCRA petitioner to new to append appeal already claims on review would subvert the wrongly time limitation and serial Thus, Lark, petition restrictions of the PCRA. under claim, Court cannot entertain this which was not raised in the us.”) petition subject PCRA which is the appeal of the before (citations omitted). Lark does not speak to the PCRA court’s authority one, in situations like this where no appeal was pending, aside, and where a prior petition was set in accor- dance with petitioner’s demand that it not be decided. Nor does Lark speak to a circumstance where the new serial claim is forwarded in state conjunction court in with counsel’s representation to the Third immediately Circuit that it is corollary reviewable and a representation by counsel court that pending PCRA federal habeas cross-appeals cannot until proceed the PCRA court acts on the new claim. Furthermore, the PCRA court here displayed commendable courts, respect for the federal given the circumstances as federal argued counsel had them. Attorney position, Nolas’s if accepted, would create an open-ended gridlock federal/state (1) occasioned by: securing counsel stay federal habeas in order to exhaust a cross-appeals Brady new (2) court, and then arguing, the PCRA that the court could not finally Brady decide the claim or the Atkins claim. In the meantime, abeyance. the Atkins was held in The of the ripe final disposition

necessity prompt for to the essentially argued after counsel was heightened i.e., that neither the federal trapped, court that it was PCRA appellant’s to decide proceed court could court nor the state after promptly court acted attacks. The PCRA collateral it delay argued absurdity choreographed recognizing to move counsel, open way wisely sought by federal forums. forward both appeals D. final would such as this is not To hold that an one, cases, unlike this consequences also have untoward and the PCRA delay being pursued, strategy where no his claims decided. To instead seeks to have all of petitioner only ruled on one of two the PCRA court conclude appellant alleges serial single petition, distinct claims in a should, interlocutory. the order below we would not make piece pa appealable court’s order here —the a claim within merely per —dismissed a “partial to render purport it. Nor did the PCRA “claims,” ie., while resolving an “order” some disposition,” others, entire dismissing without hearing ordering cmt. (adverting partial Pa.R.Crim.P. 910 petition. See 907(3)). face, On its dispositions under Pa.R.Crim.P. total, final and appeal- court’s dismissal order here was PCRA able, in of just Appeal as counsel said it was his Notice (“An order Statement. See Pa.R.Crim.P. Jurisdictional finally or otherwise of denying, dismissing, disposing granting, a collateral relief shall constitute post-conviction a for purposes appeal.”). final order for of that proceedings produced If there was error entirety, that is a dismissing “petition” the order its notice was objection specific given appel matter for —and objection here to allow for entry lant before of the order —and Thus, to rule all obliged upon if the PCRA court appeal. “claims,” serial and erred but unrelated appellant’s dismissing all “claims” in because it failed to address objection that could have raised “petition,” appellant entire it upon appeal. Any pursu- below and renewed defendant not Indeed, a would ing strategy delay do so. this Court routinely capital sees such claims on where a appeals, PCRA argues defendant the PCRA court erred in failing But, address all claims. cir- individually issue-specific cumstance jurisdictional impediment creates no to appeal here, Indeed, for the been petition has denied. if a PCRA court dismisses an entire PCRA while declining to rule a discrete upon petitioner’s recourse is an only Otherwise, a appeal. PCRA court could insulate its “partial” ruling from review and correction merely by ignoring certain claims, while dismissing petition as a whole. fundamental,

The point simple obscured here only by the fact that federal counsel’s strategy pursued in both state — and federal court—has been to avoid having any collateral any claims decided time soon. This is a legally dubious, common, but strategy peculiar capital to certain counsel, defense who view delay as end itself for those Weber, condemned under sentence of death. See Rhines v. 269, 277-78, (2005) 544 U.S. 125 S.Ct. 161 L.Ed.2d 440 that, while (cautioning many habeas petitioners might desire resolution, speedy “not all petitioners have an incentive to obtain federal quickly relief as as possible. In particular, capital petitioners might deliberately engage dilatory tactics their prolong incarceration and avoid execution of the death.”). But, sentence of non-capital consider a peti- tioner serving years, term of with no incentive to pursue delay and decision-avoidance. If the PCRA court dismisses that petitioner’s “petition,” without addressing all “claims” in the petition, is that appealable? dismissal not appel- Under lant’s theory, order is not appealable, which would leave such petitioners without any recourse: the trial court is them, finished with and the appellate court will not hear them. This consequence would be additional collateral damage of a dubious, decision that rewarded delay-oriented litigation strat- egies. case, fact,

If involves single but a serial PCRA claims, petition states, with two appellant unrelated it does undeniably dismissed the order below fact that change and as final must be viewed an order and such appealable. compli- viewed, rise to giving the circumstance

However holding petition a serial PCRA practice cation here is exhausted review of previously federal abeyance pending address. claims, we will now which THE ATKINS PETITION III. HOLDING IN ABEYANCE appel- and characterization Nolas’s Attorney presentation and the federal court claim in both the serial lant’s in both court, proceedings in the delay which secured Atkins because possible only was systems, made argument The record abeyance. was held by the Com- disputed below—which was not Attorney Ñolas the court— monwealth, accepted by was apparently and which of death raising question was that a serial PCRA relief) Atkins (i.e., abeyance be held in should eligibility lesser, parallel was pursuing because the defendant merely This notion is mistak- federal habeas prior review of claims. he told the authority cited no when Notably, en.10 counsel recusal, Attorney has seeking my Ñolas subsequent Motion In 13, 2003, August from an Assistant letter dated attached a non-record which, judge says, that the Attorney counsel shows to the PCRA District request initially upon of the Common- petition was held "stay specifies reasons to letter two wealth. The Commonwealth’s (1) granted recently district court had proceedings”: the federal further (on 2003), the Atkins claim could penalty phase relief June and thus held; (2) penalty hearing when that new be addressed considering legislation Assembly Pennsylvania General was then "procedures to determine Atkins claims. and criteria” establish paragraphs in the letter of the Commonwealth’s four substantive Three impracti- point. noted the the second The Commonwealth concerned Atkins, upon Supreme Court had left it cality passing where the U.S. Atkins, yet Assembly had implement but the General up to the states to so, thus, governing authority. The Common- there was no to do fashioning futility its potential of the PCRA court wealth also noted the Atkins, Legislature opt for implementing since the could manner of own a different standard. explanation PCRA court below of the Notably, Attorney Nolas's to the being square with the petition was held does not reasons the Atkins N.T., court, you “I don’t think can rule on Atkins.” 9/25/07, so, authority at 15. That is because no such exists.

It be for a court to await a may prudent decision from a court which binds it—the U.S. Su Court, when it capital Court or this comes to cases—if preme the the that decision will control issue before PCRA court. There be may hoped-for clarifying legislation; reason await Atkins cases were a until it became clear prime example, that act, Assembly the General would not and this Court had to But, in step and address the issue. the notion that a PCRA in petition abeyance should hold a serial PCRA while a review, petitioner pursues different claims on federal habeas courts, in the lower only federal serves to create unwarranted in There delay capital why cases. is no reason federal habeas petitions and serial state collateral cannot petitions proceed simultaneously. Simultaneous advances the decision-making fundamental concern of finality. The PCRA does not require delay; or authorize such nor do this procedural Court’s Rules. hand, repose, State PCRA on the other rewards strategic ping-ponging delay between state and federal court conse quent abuse. litigation

The specific reason proffered by federal counsel to the PCRA court in this case for holding the Atkins petition position Attorney nothing in the Commonwealth's letter. Ñolas said Atkins, implementation the absence of for the standards which Instead, comprised the bulk Attorney of the Commonwealth's concern. said, petition abeyance Ñolas the was held "to see what the Third Circuit would do because if there’s no death sentence then there’s no

point doing in us an Atkins." The Commonwealth's 2003 letter made instead, cross-appeals; no mention of the Third Circuit or it adverted to prospect penalty hearing resulting of an imminent new from the short, ruling. requested federal trial-level In the Commonwealth that Attorney the Atkins be held for reasons other than the reason below; Ñolas identified to the PCRA court and neither of the reasons any currency cited in the Commonwealth’s 2003 letter retained after this Court’s 2005 decision in Miller. event, any position In the letter accounts for the Commonwealth's at time, why actually that but not for the reasons the PCRA court decided importantly, only to defer decision. More the letter addresses delay, delay litigation initial and not the occasioned federal counsel’s claim; delay began ago, years of the 2006, five over June of V, and is addressed Part infra. reasoning “I think stated: point. Counsel

confirms what the Third to see abeyance holding [ ] was before then no death sentence if there’s would do because [Circuit N.T., 9/25/07, at 12. Atkins.” doing in us there’s no point incorrect. Counsel the Third Circuit pendency assuming

Even aside setting the reason for cross-appeals Third supra, but see note place, in the first the need to decide not eliminate decision -will Circuit issue, eligibility. Atkins involves death since penalty phase on a perceived relief granted district precedent; the Third Circuit’s Mills error under instructional If the Mills eligibility. do not involve death Mills claims Supreme the Third Circuit or U.S. by is reversed ruling Court, cross-appeal on granted appellant’s no relief is claim), (which eligibility an exhausted death does not include If the is will stand. determination death sentence affirmed, penalty free to seek the death is the Commonwealth it a way, prospective capital Either is in a new proceeding. relief Any must be decided. and the Atkins issue case him to the exposes in federal court still could secure appellant retrial, Atkins claim while a meritorious capital of a prospect reminded of death. As this Court is prospect removes the contexts, there are other conse- counsel in different capital including conditions finding ineligibility, of a of death quences incarceration, against counsel deferral specifically of which There is no simply claims. legitimate eligibility of death of an Atkins unless reason to defer decision legitimate it lacks merit.

But, that would be deferred even where the serial claim there is no reason eligibility, legitimate involve does not death a merely because petitions decisions on serial PCRA to defer argu- Acceptance pending. federal habeas unnecessary delays— invites ment counsel advances federal The state capital litigation. abuses—in strategic and rewards in federal role obliged accept complicit are not courts judice, In the case sub strategies delay. defense counsel first when it was to hold the Atkins there was reason filed, given legislative absence of but guidance, that reason expired when this Court acted and decided Miller. There also may have been a reason to hold the Atkins petition for shorter if the period Commonwealth was wheth- deciding er to pursue appeal of the federal district court’s condition- relief; al grant penalty phase if the accept- Commonwealth decision, ed the federal a new pursued penalty phase, the But, Atkins issue could be litigated the retrial setting. there is no reason to hold a serial PCRA petition merely because federal were cross-appeals already-ex- hausted habeas claims.

We will direct the PCRA court to address the Atkins petition immediately; and we caution PCRA courts generally they should not place serial petitions repose merely to allow for federal habeas litigation prior, exhausted claims. THE

IV. MERITS

A. Initially, in arguing merits of his to the challenge ruling time-barred, court’s that his Brady petition was appel- lant repeatedly maintains that the Third Circuit’s action in placing the federal cross-appeals abeyance habeas indicates that the Third Circuit made a preliminary determination that claim was meritorious. Ñolas Attorney says that he informed the Third Circuit of the serial Brady petition and it provided with the “same submission” briefed here. Attor-

ney Ñolas then avers that the Third Circuit would not have placed “abeyance” case in unless it had determined that: (1) (2) merit, the Brady claim had it would be entertained on (3) courts, the merits by Pennsylvania it was forwarded with diligence. As for support posed what is as this certain law, proposition Attorney Ñolas cites only to the U.S. Weber, Supreme Court’s 2005 decision in Rhines v. supra. 3, 8, Brief for Appellant, & 10. fact,

In the Third order any Circuit’s does not identify authority to its explain holding the federal cross-appeals,

534 underlying a on the view syllable expressing not a

and there is website, public Third on the Circuit’s listing merits. the order information, describes merely penalty under death PA State Courts’ appeals pending staying “temporarily no Order, There is petition.” of PCRA disposition 2/7/07. that Rhines is the fact troubling No less to Rhines.11 citation Attorney Ñolas proposition the inferred support does hold; hold is and the order to the Third Circuit’s ascribes to authority, habeas relevant federal with more square to difficult to cite. neglects counsel which federal appeals court of a federal in Rhines authorizes Nothing pris- allow a state in order to habeas stay a federal a new claim that to exhaust return to state court oner to be- appeal pending habeas subject ripe was not subject be Circuit, and therefore would which fore contained petitions federal habeas restrictions on serial of 1996 Penalty Death Act and Effective the Antiterrorism Rhines, 2244(b). fed- (“AEDPA”). In § See U.S.C. contain- with a “mixed” court was faced eral district (of not been exhausted thirty-five) had eight claims ing time the District Court determined By court. in state unexhausted, time one-year AEDPA’s claims were that eight had See 28 expired. habeas petitions restriction on federal 2244(d)(1) (“A ap- of limitation shall 1-year period § U.S.C. corpus by person writ of habeas for a ply application court....”). to the of State custody pursuant judgment time-bar, mixed the AEDPA such Prior to establishment of could return and the petitioner could be dismissed petitions claims his unexhausted attempt court to to exhaust to state later; or, he could delete to federal court and then return immediate review. See claims and secure his unexhausted 1198, 71 L.Ed.2d 379 455 U.S. S.Ct. Lundy, Rose v. Motion, the Commonwealth response to recusal In its docket, entry on Febru- of an order appends the federal which reflects temporarily these “granting by [appellant] to hold ary motion disposition Pennsylvania state courts’ appeals abeyance pending the that the The docket also indicates petition under the [PCRA].” of his Commonwealth, which opposition "stay” over the of federal was any or There is no citation to Rhines on December 2006. was filed authority. other

535 (1982). AEDPA, But, dismissal and return outright after have left the following petition- state court exhaustion would any in time-barred from federal habeas pursuing er Rhines Rhines, 272-75, at all. 544 at 125 review U.S. S.Ct. circumstances, soon after arising Given this set of particular AEDPA, the district court in Rhines a passage adopted it procedure stay to avoid AEDPA’s time-bar: issued abeyance held the federal habeas in until the proceedings defendant had returned to state court to exhaust his claims. The for the Appeals Eighth U.S. Court Circuit vacated stay, Supreme but the U.S. Court further review. granted issue, noting After a circuit on the split High Court context, ultimately held that the mixed federal district court can be but if stay-and-abey appropriate, only “the district court determines there cause for the good failure to exhaust his claims first in state court.” petitioner’s at U.S. S.Ct. 1528. Rhines Court added: “Moreover, failure, if petitioner good even a had cause for that the district court would abuse if grant its discretion it were to him a when stay his unexhausted claims are meritless.” plainly (citation omitted). that, Id. Notably, the Court cautioned while many petitioners habeas wish for a might speedy resolu tion, all petitioners “not have an incentive to obtain federal relief as quickly possible. In particular, capital petitioners might deliberately engage tactics to their dilatory prolong incarceration and avoid execution of the sentence of death ... frustrate AEDPA’s goal finality by [and] out dragging indefinitely their federal habeas review.... if petitioner And a engages litigation abusive tactics or intentional delay, the 277-78, district court not grant stay should him a at all.” Id. at (citation omitted). S.Ct. 1528 spoke Rhines thus to first federal petitions habeas were subject undecided district court and also to district they court dismissal because were mixed. Accord 408, 416-17, 125 1807, 161 Pace v. DiGuglielmo, 544 U.S. S.Ct. (2005). L.Ed.2d 669 That is not the case with appellant’s petition. habeas The federal district court was not faced with mixed and it did a stay-and-abey not issue order Instead, the district the petition.12 passing upon and defer granting petition, non-mixed ripe, case decided court in this final, and both sides Its order became part. relief in appellant Appel- to the Third Circuit. petition the non-mixed appealed nor is it before petition, in the Brady new claim is not lant’s the Third Circuit. involve

Furthermore, cases such as Rhines petition mixed timely perceived then petitions; problem habeas federal that, court to exhaust returned to state petitioner was if the claims, with the time-bar he would be faced his unexhausted case, AEDPA, all. But in this and no federal review at under of-right, of his non- received full federal review appellant obviously new claim Brady petition. Appellant’s mixed habeas AEDPA’s time and serial subject it is to timely; is not the Third is not stay issued Circuit restrictions. Rhines, sup- much less does Rhines explainable by resort appel- assertion that the repeated, unqualified counsel’s port Brady that the claim finding late made a preliminary merit. has characterization of the Third Cir-

Notably, federal counsel’s an on the merits stay representing expression cuit’s Supreme with other Third Circuit and U.S. squared cannot be Duffus, supra, fails to cite. In which counsel precedent, Court that the habeas could not be petitioner the Third Circuit held AED- motion for habeas relief after to amend his permitted because the expired proposed PA’s limitations had period a mere clarification of the claim raised amendment was not a new claim out arising the former but instead raised at 338. The court held that of different facts. 174 F.3d Brooks, (3d Cir.2009), the Third Circuit In Heleva v. 581 F.3d stay-and-abeyance procedure in a appeared approve a district court But, petition. a mixed Heleva does not case which did not involve timely change analysis case first pertinent here: involved uncertainty respecting the petition, where there was federal habeas exhaustion, authority availability and the district’s court of state court nothing stay- says about stay-and-abey in that circumstance. Heleva and-abeyance identified at the federal response to serial claims level, expired, time has which are appellate after AEDPA’s restriction disposed appeal, while the from a part of the habeas pending. habeas allowing the amendment would run” indulge improper “end around AEDPA’s statute of at limitations. Id. 336-38. The Third refusal in Circuit’s to allow unrelated and time- Duffus barred claims or theories to be postured as “amendments” to timely-raised grounds claims different strengthened Thomas, (3d Cir.2000). United States v. 221 F.3d 430 Thomas quoted extensively from and held: Duffus, “Under Fed. 15(c), which, R.Civ.P. an amendment by way of additional facts, clarifies or a claim or amplifies theory the petition discretion, inmay, the District Court’s relate back to the date of that if and if only timely the was filed and the proposed amendment does not seek to add a new claim or to insert a new into theory 2005, the case.” Id. at 431. In the Supreme U.S. Court effectively endorsed the approach Duffus in Mayle, supra. (“An at U.S. 125 S.Ct. 2562 hold, (and amended habeas petition, we does not relate back limit) thereby escape one-year AEDPA’s time when it asserts a ground new for relief supported by facts that differ in both time forth.”).13 from type those the original pleading set

Nothing the Third Circuit’s temporary stay order remote- ly suggests that the court rendered the merits assessment that federal counsel claims the order represents. The Third Rhines, Circuit never cited and never indicated that it accept- ed counsel’s misrepresentation of the holding of that case. Nor is there in the anything order that opines the merits of appellant’s Brady claim. The stayed Third Circuit the cross- appeals for undisclosed reasons.

B. merits, Turning appellant’s Brady petition prem- ised upon the non-notarized Gentile, statement of Vincent trial, witness at which 20, 2006, was obtained on April which apparently day was the the FCDO decided to send an investi- Mayle approved 13. The approach Court majority of circuits only that "allow by relation back when the claims added amendment claims, arise from the timely same core facts as filed and not when depend upon the new separate claims type’ events in 'both time and originally episodes.” from the raised 545 U.S. at 125 S.Ct. 2562 (citation omitted). men at three was robbed Gentile to talk to Gentile. gator mur- after days appellant three jewelry in his store gunpoint an alarm and activated Fiss. Gentile Raymond dered robbers, appel- apprehending chased the arrived and police appellant saw discard police During police pursuit, lant. recovered, caliber Colt seizing a .38 they bag, white which trial, appellant identified At Gentile appellant’s revolver. him; evidence showed and ballistics man had robbed who he weapon was the abandoned appellant revolver that the Colt Mr. Fiss. used to murder twenty-one investigator, to the FCDO statement

Gentile’s recantation, claim including a later, nature of was years at trial. appellant when he identified he himself perjured that statement, recognize claims he did Gentile In the new charges for hearing preliminary at the appellant who claimed he “told a woman also robbing Gentile. Gentile was held hearing the preliminary in the court” where worked robber, woman but the unidentified was not appellant are in they look different once always him that defendants told guilty appellant the evidence showed court and that that, once he was told further claimed robbery. Gentile of store, “I of his did robbery of the guilty that was appellant wanted,” his later which included the prosecutor whatever as murder trial as well testimony appellant’s at identification store, in his though, even robbery for the of his the trial federal counsel’s “heart,” Notably, he was lying. he knew quotes to this Court claim presentation “I statement, interpolation: a bracketed but includes Gentile’s prosecutor] in the court who worked told woman person____” Nothing was not the Gentile’s that Mr. Porter statement, presenta- counsel’s appellant’s proffer, supports or fact, said that the “woman tion, if it were that Gentile as From hearing prosecutor. was preliminary court” at rashly accuse goes counsel predicate, his false suborning perjury, claiming deliberately Commonwealth false give “knew” would only that the Gentile prosecution him” to do so.14 testimony, actively “pressured but PCRA court noted: 14. As the

539 that appellant’s Brady petition held was that, event, untimely; and the claim failed on the any merits, reasons, for including various that there was no evi- dence that account was suppressed by Gentile’s the Common- wealth, the evidence was not and the evidence of exculpatory, appellant’s guilt overwhelming. was

Resolution of the merits of this need not detain long, us that appellant’s argument Brady petition his timely filed is frivolous. The “[a]ny provides invoking exception one-year [to PCRA’s time- shall be filed within 60 days bar] of the date the claim could see, 9545(b)(2); § have been 42 presented.” e.g., Pa.C.S. Stokes, 574, 306, Commonwealth v. 598 Pa. 959 A.2d 309-10 (2008); Marshall, 587, 714, Commonwealth v. Pa. 596 947 A.2d (2008); Breakiron, Commonwealth v. 566 Pa. (2001). A.2d The PCRA court accurately noted that appellant offered no with the explanation why, exercise of diligence, due the information in Gentile’s new account could not have been discovered the twenty-one years between appellant’s trial and when the eventually FCDO decided to investigator send an to talk to As Gentile. the Commonwealth notes, all that appellant, lawyers, his or their investigator had Indeed, to do was to talk to Gentile.15 Gentile’s statement any There is no prosecu- contention that Mr. Gentile ever informed Rather, tor about plainly his identification concerns. he states spoke he ato "woman who worked in the court” when he attended [appellant’s] preliminary hearing. allegation nothing This does requirement "suppressed" establish the that the Commonwealth question, willfully inadvertently,” evidence in "either or since there is no any indication that the Commonwealth was ever aware of of Mr. issues____ Gentile’s identification Op. PCRA Ct. at 12-13. I, delays 15. Given the posturing supra, and the FCDO’s In detailed Part significance timing of the FCDO’s decision interview upon Gentile is not lost this Court. The federal docket reveals that the appeals delayed awaiting Third Circuit were twice decisions from the 1, 2006, Supreme February U.S. Court in two other cases. On over delays expired, finally seven months after those the Third Circuit appellant forty directed days. to file his brief within On March (the appellant granted sixty-day the first of four extensions preceded appellant's extensions appellate pro ultimate motion to hold extension, ceedings abeyance). During pendency in the of the first the for either the attorney “if a defense an assertion that includes me, I interviewed would would have or the homicide robbery hearing that preliminary I the at the lady have said that told to the According the robbers.” was not one of [appellant] declaration, any responsible or had counsel terms of this Gentile, information would the “new” interviewed inquirer investiga- with which counsel’s The ease have been revealed. it was corroborates declaration tor secured Gentile’s for a diligence generation; of due available the exercise upon sixty days more than have been discovered certainly could The Brady petition. filing appellant’s to the of prior record, and by is supported court’s of untimeliness finding Hence, we will affirm the order below is error. legal without on time-bar grounds. THE DELAY ISSUE

V. of this case—both state delay litigation The in the collateral two The first cause is and federal —has resulted from causes. already which we have of pendency litigation strategy The second cause is the FCDO’s addressed. claim in “new” since its pursuit indeed, of— is intertwined source strategy This with— here, and has created state-federal jurisdictional issue Spotz, v. concurring opinion In a Commonwealth gridlock. (Pa.2011), joined McCaffery, Mr. by 18 A.3d 244 Justice in the context larger discussed the record in this case author with the accusation in addressing concern FCDO’s Dougherty, v. pleading federal habeas Commonwealth (Pa.2011). Dougherty pleading alleged, among The A.3d 1095 delays cause of things, primary other that this Court was cases, indeed that this Court was Pennsylvania capital to, its docket. incapable managing,” capital indifferent “and cases, capital offered from Spotz examples concurrence in its federal motion many adverted to FCDO including was the primary where the FCDO’s conduct DougheHy, During pendency investigator interviewed Gentile. FCDO extension, Brady petition, upon that appellant filed his based second interview. delay, cause of a fact the had failed to inexplicably FCDO disclose in This case was one of the cases identi- Dougherty. in the by Dougherty fied the FCDO motion.

The record summarized in Part I of this details the Opinion strategy delay employed by Attorney Ñolas here. The concurrence described counsel’s record Spotz argument as follows: argument

Nolas’s the PCRA court’s respecting power to straight decide was out of “Catch-22.” He argued [FN] (a) that the PCRA court: could not dismiss the serial Brady (a claim new PCRA claim that led Ñolas to secure a federal Circuit) of the habeas in

stay appeals pending the Third (b) without ruling also on the Atkins petition; and rule could not on the Atkins because the court so, somehow lacked and authority do Ñolas would have to So, object. Ñolas, according to the PCRA court could act “claim,” on neither and counsel had already succeeded in having the federal habeas until appeals held the PCRA Then, on acted claim. appealed Ñolas non-final order jurisdictional under Nolas’s argu- [non-final ment This strategy facto, here]. [FCDO] assured de perpetual stay of execution. (1961). Heller, See Joseph

[FN]: Catch-22 (Castille, C.J., A.3d at 347 & n. 9 joined by J., McCaffery, in concurring) (emphasis original).

But, this is not the last word on the circumstances relevant to the delay gridlock and created FCDO’s pursuit its Brady claim in this case. After this Court directed supple- issue, mental briefing jurisdictional on the Attorney Ñolas brief, filed appellant’s supplemental dated November Commonwealth, The brief, its own supplemental responsive a status appended report Attorney Ñolas later filed Third Circuit on December 2010. That federal status reads, report relevant part, follows: As stated our prior reports, Philadelphia County Court of summarily Common Pleas denied relief on Mr. claim Porter’s from the recantation arising of witness Vin- of constitutional Gentile, arguments includes which cent its progeny. Brady Maryland v. error under claim over our jurisdiction Pleas retained of Common Court v. awaiting word Virginia under for relief before Court Pennsylvania Supreme from the further. proceeding to the appeal behalf an on Mr. Porter’s have taken

We relief on the from the denial of Court Supreme Pennsylvania Pleas indicated. We claim, the of Common Brady Court its has now filed brief, the our Commonwealth have filed Pennsyl- The brief. reply and we filed our brief responsive supplemental ordered thereafter Supreme vania Court this recently filed and we questions, on briefing procedural Pennsylvania that the hope It is our brief. supplemental by believe were errors will correct what we Court Supreme for an at least remand Pleas and the of Common Court Brady hope It is also our claim. evidentiary hearing on relief on the grant Pleas will of Common that Court Atkins claim. of that the States Court request United respectfully

We case in keep continue to for the Third Circuit Appeals Pennsylvania Supreme pending suspense/abeyance and, Brady claim if relief of Mr. Porter’s resolution Court’s Brady claim, Mr. Porter’s pending on the granted is not believe both Atkins claim in the courts. We Pennsylvania Appeals keep are substantial. We will Court claims you your Thank for developments. of further apprised attention. Brief, A, Attor- Exhibit 1-2. Supplemental

Commonwealth’s brief, reply in his supplemental later ney represented Ñolas 23, 2010, “[ejverything December in this Court on filed report (appended court status stated in the federal counsel brief) accurate.” Appel- is Supplemental the Commonwealth’s Brief at 3. Reply Supplemental lant’s report status that the federal argues The Commonwealth the feder- court and “stalemate between furthers a [appel- by been manufactured has appeals [that] al court has filed motions years for more than six attorney, who lant’s] asking and status the Third Circuit to hold reports [the that, federal appeals] abeyance.” Commonwealth adds arguing even after to this Court that this should be appeal quashed jurisdiction, for lack of counsel “continues to assure the Third that he expects Circuit this Court to rule his favor, and that the Third Circuit should refrain from acting.” Supplemental Commonwealth’s Brief at 1 & n. 1.

The federal report status of counsel’s overall probative First, and is strategy delay, disturbing respects. two shows that federal counsel’s report representations to both the PCRA court and the Third Circuit lacked candor. In the Circuit, to the Third Ñolas report Attorney represented that appellant’s Atkins claim was held being judge Brady Court, “word” to this declared his “hope the Court of Common Pleas will relief on grant the claim,” and then that the requested appeals federal Brady decision, be kept abeyance, just for the but also “if relief is not on the granted pending Mr. Porter’s Atkins claim in the Pennsylvania courts.” But, coun- sel very position had taken a different before the PCRA so, successfully thereby delay and the inducing court— —and report to the Third Circuit the state court misrepresents proceedings concerning the Atkins issue. As reflected in Part I Opinion, of this counsel had to the court represented PCRA being that the federal were held to allow for appeals solely exhaustion of the Brady Atkins claim claim; that being held state court until after the federal appeals decided; Atkins were that there was no need to the decide decided; indeed, claim before the federal were appeals and object that counsel would if the court passed upon Atkins claim. status to the Third report Counsel’s Circuit contrary failed to disclose the he had patently argument made court, in state appellant’s or the true status of claim with to both court respect systems.

Second, the Commonwealth is correct that federal counsel’s to the Third did not disclose that the report “procedur- Circuit al questions” upon supplemental which this Court directed Nor, briefing jurisdiction. Attorney involved did Ñolas dis- filed in this already he had brief supplemental close that the order, and that a non-final appealed he had argued that Court preju- without of the quashal requesting he was now how the case could dice, of suggestion so without doing and Instead, the Third Circuit gave counsel move forward. on appel- a merits resolution awaiting he was that impression he would was hopeful appeal, lant’s claim to secure fur- designed were representations succeed. Such court, have succeed- and apparently in the federal delay ther ed. in the to the Third Circuit report representations

Counsel’s from the record below: apparent what was fully corroborate created “the feder- litigation strategy Attorney that Nolas’s 346; case, at and that 18 A.3d logjam” Spotz, al/state con- expression without any was undertaken strategy concerns, ensured. To those delay strategy for the cern of federal specter Third adds the to the Circuit report the status systems concerning both court misleading counsel execution. case, stay perpetuate of this in order to defacto THE ATKINS PETITION VI. no control over the actions of

This Court has courts; our own power police but we do have the federal by officers of the judicial delay unwarranted system against here, the court must our affirmance Following Court. decide the Atkins should pass upon petition. still so, the doing as In expeditiously possible. has delaying strategy court should be mindful court, counsel, controls been and that the already deployed below. See timing pace proceedings scope, has had over nine Appellant 986 A.2d at 137-40. Bracey, The is his on the Atkins claim. court years proof to marshal has adequate proffer unless an obliged hearing to hold retardation, and an issue of concerning made mental been If the present. fact determined to be conduct material matters, is author unduly delays below the FCDO new counsel. appoint ized

VII. CONCLUSION The order of the PCRA court is affirmed. The court is Atkins directed to decide the as expeditiously Opinion. mindful of the concerns addressed possible, relinquished. Jurisdiction is join EAKIN and the Opinion.

Justices McCAFFERY I, II, IV, joins Justice Parts and VII of the SAYLOR VI Opinion. joins MELVIN the Opinion except

Justice ORIE for Part V. BAER a Dissenting Justice files in which Opinion Justice joins. TODD BAER,

Justice dissenting. Appellant’s This Court resolved first PCRA observes, 16, 2002, Majority As the August Appellant on filed his second in which he petition, challenged PCRA his death sentence under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, (2002) 153 L.Ed.2d 335 that it (holding is unconstitution- al punishment cruel and unusual to execute a mentally retard- (hereinafter “Atkins person) 15, ed petition”).1 On June 2006, court, a third Appellant presented filing to the PCRA for the Brady v. raising first time a claim premised Maryland, (1963) 373 U.S. 83 S.Ct. 10 L.Ed.2d 215 (declaring that due process is offended when the prosecution withholds evidence favorable to the accused that would tend to him or exculpate reduce the The penalty imposed). question before the Court is whether the Brady claim was an amend- ment to the pending or a separate dis- creet petition. finds that Majority claim was in a new brought I view it as an petition. amendment to the Atkins petition. my Pursuant to interpre- tation, this case involves the straight application forward the final order doctrine. Because I believe that the order from which Appellant was not a final appealed order virtue days 1. This claim was filed within 60 of the decision in Atkins as 9545(b)(2). required by § 42 Pa.C.S. 546 Atkins and not the Brady petition of the only disposition

of its Thus, I dissent. appeal. the quash I would Appel- of disposition our following Majority explains, As the 1999, filed a federal Appellant petition lant’s first PCRA the for in the District Court U.S. corpus petition habeas federal action Pennsylvania. While Eastern District in state court litigation new began Appellant was pending, Thereafter, the federal of his Atkins petition. filing with relief sentencing premised Appellant court granted district Third error, relying upon instructional finding upon Maryland, Mills v. 486 U.S. construing precedent Circuit’s (1988). filed 1860, parties 100 L.Ed.2d 108 S.Ct. to the Third Circuit. cross-appeals Meanwhile, to defer consideration court decided record does not Atkins Although the petition. Appellant’s action, it appears basis for this precise demonstrate to defer con- the PCRA court persuaded counsel Appellant’s Third before the parties’ cross-appeals until the sideration 515-18, at Maj. at 35 A.3d 8-9. Op. were resolved. Circuit stayed, the Atkins disposition was with petition pending While and amendment” what he titled a “supplement filed Appellant Brady it claim. raising persuaded to federal court and then returned Appellant of the cross- pending to defer consideration Third Circuit of instruction- finding the federal district court’s from appeals Brady under Mills until the filed claim was newly al error was the PCRA court Consequently, resolved in state court. the Atkins petition pending resolu- consideration of deferring Circuit, the Third Circuit to the Third cross-appeals tion of the of the pending resolution deferring cross-appeals was Brady claim PCRA court. court, course, written submis- accepted

The PCRA due that it and found Brady argument, heard sions on 25, 2007, orally the PCRA court September On untimely. to be Brady going claim was that his Appellant informed hearing, “[t]he and ruled dismissed without and the parties A.3d at 9. The Maj. at Op. denied.” court, however, that an expressed understanding Brady claim would not affect the from the denial of the hold the trial court’s decision disposition parties’ to the Third cross-appeals Circuit. Consequently, the denial of relief on the claim is now while the Atkins claim remains to presented appeal, us court, unresolved and pending before the and PCRA the cross-appeals to the Third remain pending. Circuit also

The Majority justifications raises serial for its belief that Appellant’s Brady claim was raised in a separate PCRA Atkins petition notwithstanding that the petition was pending Brady First, when claim the was filed. the Majority reasons that pending amendments to petitions may only PCRA be permitted upon prior direction or leave of the PCRA court. 905). Maj. at Op. A.3d at (citing Pa.R.Crim.P. Because Appellant request did not and receive leave to amend Atkins the Brady petition, the does not the Majority consider Second, claim to be amendment. the Majority observes Brady that the court PCRA treated the claim as a separate petition, by virtue of its order “the dismissing petition.” The Majority to consider whether proceeds the PCRA court had Brady the authority dismiss the while the “petition” holding Atkins petition abeyance, and finds no to such impediment resolution.

I disagree with the for Majority’s analysis several reasons. First, respect with to the procedural requirement that a petitioner who wishes to pending amend a PCRA petition see Pa.R.Crim.P. court, must first seek and obtain leave of 905, the Majority apparently views an amendment filed with- out prior approval by the PCRA court necessarily be a new petition. Notably, the objected Commonwealth never to the Brady filing of the claim and there is no indication that the focused on this issue. It does not follow that Appellant amend, because did not seek permission failure, Commonwealth did object to this and the trial court did not recognize procedural that the irregularity, is a new filing petition. Just as the finds it Majority obvious facts, that the must be a filing new under these I find amendment, equally it obvious that it was an notwithstanding court’s parties’ to file escaped issue of leave that the attention. this construction.

Moreover, as supporting I view the record an amendment through claim was asserted Brady Appellant’s filing through rather than to his as a supplement this claim Appellant styled new petition. of a relief, and for post-conviction amendment to Majority opin- exchange reproduced the on-the-record treated the and the court parties that ion demonstrates than claim as two issues rather and the Atkins claim 517-20, at 9-10. When Maj. at 35 A.3d Op. two See petitions. it, one of the two claims before only court resolved he solely indicated his notice Appellant order, jurisdictional in his and indicated from appealing (at “denying the order that he was from appealing statement impre- The PCRA court’s petition. his PCRA part)” least either comes from “petition” cise reference to its denial of the issue now recognition borne from lack of language loose court’s understanda- or because of the trial before this Court before filings the treatment uncertainty regarding ble supplemental it. belated Additionally, Commonwealth’s to amend his attempt unilaterally that argument Appellant’s on the premise not be rests petition permitted should amend- through attempted claim arose Appellant’s Brady ment pending petition. of in a petition cannot file a new

We have held that one review. appellate while a is under prior petition trial court (2000). Lark, 487, Pa. 746 A.2d 585 v. 560 Commonwealth multiple, desire to avoid This rule arises from this Court’s at 588 could not have (“Appellant serial PCRA Id. petitions. pleas in the court of common petition his second PCRA filed was still before this while his first PCRA issues jurisdiction adjudicate court had no court. The trial did.”). case; In only my this court related to this directly view, majority’s holding Lark is in tension with the logic of filed clear that Petitioner could not have herein. While it is finally had been if the Atkins Brady petition his from, means that Majority holding appealed decided and jurisdiction, so as the trial court maintains long multiple can be it in presented filings, claims serial the PCRA court can individually subject decide each and each can be to a separate appeal. While I do not that the suggest Majority scenario, I respectfully suggest envisioned do that it is consistent with the I it Majority’s holding. suggest also that decision, wholly inconsistent with the Lark and the wisdom that guided that pronouncement. I

Because view the Atkins and Brady issues as two claims

in a single PCRA I petition, would conclude that the PCRA

court issued an order interlocutory deciding only one of the two claims before it. jurisdiction This Court has exclusive only over final orders arising cases, from capital including 722(4) those invoking § PCRA. See Pa.C.S. (providing Supreme jurisdiction “[t]he Court shall have exclusive from final appeals orders of the pleas courts common in the (4) following classes of cases: ... Automatic review of sen- 9546(d) provided by §§ tences as 42 Pa.C.S. (relating relief order) 9711(h) (relating to review of death sen- tence).”); 9546(d) (“A § 42 Pa.C.S. final court order under this in a subchapter case which the death penalty has been imposed shall be directly appealable only to the Supreme 9711(h) Court pursuant rules.”); (“A to its § Pa.C.S. sen- tence of subject death shall be to automatic review by the Supreme Pennsylvania rules.”); Court of pursuant to its Com- Breakiron, monwealth v. 566 Pa. 781 A.2d 95 n. 1 (2001) (“Our Court has jurisdiction exclusive appeals from final orders denying post-conviction cases.”). relief in capital I Consequently, only believe we can review the PCRA court’s dismissal of Appellant’s claim if the PCRA court issued a final order.

A final order is one that finally disposes of a petition. PCRA (“An Pa.R.Crim.P. 910 order granting, denying, dismissing, or otherwise finally disposing of a for post-conviction collateral relief shall constitute a final order for of purposes Schwartz, appeal.”); 475, 547, Ben v. 556 Pa. 729 A.2d 550 (1999) (“A final is ordinarily order one which ends the litiga- ”); tion or the disposes of entire case.... see also Common- (2005) 570, 883 A.2d 584 Pa. Dowling, v. wealth the clearly dispose appel- of (where court did not the PCRA final to enter a the court we directed lant’s PCRA to appellant to enable the disposing of order one Here, only disposed because the PCRA appeal). it, a final order it did not issue claims before pending of two over the jurisdiction lacks and, this Court my opinion, appeal. the prompt desire for Majority’s

Although applaud I claims, in a final I favor such resolution of all PCRA resolution Majority necessari- order, orders multiple rather than claims and of all disposing a final order Having embraces. ly piecemeal litiga- for potential therefrom avoids one appeal filed, to be tion, multiple petitions permitting whereas breed mis- considered, likely will appealed independently that occurred gamesmanship the sort of encourage chief and here.2 multiple to file petitioner it could example, permit

For claims and obtain unrelated petitions raising untimely final leading multiple independently, review of each one and a orders, separate appeals, holdings, inconsistent possibly justice. administration of orderly burden on the substantial Ass’n, 602 Pa. Funeral Directors Pennsylvania Rae v. See (2009) all the consolidation of (explaining 977 A.2d courts appellate rulings single appeal provides contested into in light a trial court’s actions with an consider opportunity gridlock created federal counsel concern for the I share Court's By persuading the PCRA court to defer consideration in this case. Circuit parties' cross-appeals in the Third the Atkins claim until the resolved, stay persuading the Third Circuit to resolution were and then cross-appeals pending the PCRA court’s resolution of the delay of these appears able to final resolution it that counsel was courts, Obviously, feder- indefinitely. all state and capital proceedings al, guard against manipulation. I believe counsel's con- such should crossed a line to see if it has duct in this case should be scrutinized advocacy inappropriate manipulations of the court zealous from review, I believe that system. Notwithstanding my support for such doctrine, and its well-established final order this Court should adhere to Atkins claims before require the PCRA court to address Indeed, prove will in the end appellate review. I believe such course expeditious. only qualitatively superior but more 551 below, the likeli thereby enhancing of the entire proceedings review); Bankers Ass’n Pennsylvania hood of sound appellate 1, 597 Pa. 948 A.2d 790 Pennsylvania Dept. Banking, v. (2008) efforts to (collecting cases to document this Court’s Pentlong Capital, avoid v. piecemeal litigation); Corp. GLS (2003) Inc., 34, (warning piecemeal 573 Pa. 820 A.2d 1240 that results); inefficient and inconsistent litigation likely yield 411, 413, Pa. 521 A.2d Corp., Stevenson v. Motors 513 General (1987) interlocutory (explaining discouraging appeals consequent avoids determinations and the “piecemeal protrac v. 378 Pa. litigation”) (quoting Philadelphia, tion Sullivan (1954)). 648, 107 I Accordingly, quash A.2d would appeal.3 joins

Justice TODD this dissenting opinion. CASTILLE, in of denial support appellant’s Chief Justice motion for recusal.

This capital appeal is from denial of serial petition for relief under the Post Relief Act Conviction (“PCRA”).1 submission on the briefs and Following supple- briefing jurisdiction, mental at the direction of addressing Court, Porter, counsel, appellant through Ernest his H. Billy Ñolas of the Philadelphia-based Community Federal Defend- (“FCDO”), er’s Office has filed a Motion for 19-page my recusal from the appeal, along request with a to refer the below, Motion to the full Court.2 For the reasons set forth I deny will the Motion request. referral agree Majority I inadvertently with the that when a PCRA court fails may all claims in a address raised this Court consider the fact-finding. Maj. issue if we can do so without the PCRA court's See Op. at 35 A.3d at 15. Unlike those instances where a PCRA court claim, intentionally has overlooked a the court here chose not major address one of two constitutional claims before it. circumstances, permit Under these I would remand to the PCRA court in the with first instance to deal the Atkins and then review all aspects petition. of this PCRA §§ 1. 42 Pa.C.S. 9541-9546. any attorney

2. Neither the Chief Defender of the FCDO nor other from organization by Attorney is listed on Motion filed Ñolas. con the record history, including procedural The relevant case, in the is set forth Court’s in this delay cerning Opinion. with this Recusal contemporaneously filed Opinion, my Concurring upon based primarily The recusal is request (Pa.2011), v. 18 A.3d Spotz, in Opinion Commonwealth Attorney Ñolas McCaffery. joined by Mr. Justice which Spotz the Porter record the discussion of alleges my that I “ex supposedly recusal because requires my concurrence the merits” of Porter’s an about opinion articulated pressly of misconduct” this case. and “accused counsel The McCaffery. the recusal of Ñolas does not seek Justice the recusal motion that responds by noting Commonwealth concerns ad and institutional corroborates the administrative Thus, the Commonwealth my Spotz dressed in concurrence. for recusal lacks even grounds that each of the argues Motion, basis, is significantly that the which colorable and brief, confirms the further appellant’s principal than longer by forcing cases strategy delaying capital of global FCDO’s to “an endless series of respond and the Court prosecutors frivolous claims.” recusal

Attorney my required Ñolas first states that is my record in Spotz discussion of the Porter my because of merits prejudgment” the “express concurrence included concurrence says my Ñolas appeal. Specifically, of this Bra- or “conclusion” that serial my stated “belief’ subject the Porter’s appeal, the denial of which is of dy3 actual argument was time-barred under the PCRA. Nolas’s 3A(6) the Citing Pennsylvania this is brief. Canon point decisions from non-binding Code Judicial Conduct Courts, argues my Ñolas recusal is various federal Circuit expressing my because I made a comment required public ¶ Motion, of a 40. opinion pending appeal. on the merits reliance on responds that counsel’s Commonwealth 3A(6) frivolous, only discourages Canon since Canon cases made outside a concerning pending comments public media; duties, such as comments to the judge’s official guise comments” “public Canon does not address (1963). 10 L.Ed.2d 215 Maryland, v. 373 U.S. 83 S.Ct. judicial formal opinions.4 Respecting Attorney Nolas’s accusa- tion of “prejudgment,” the Commonwealth notes that Spotz concurrence in was issued after long this case had already indeed, been submitted to the Court for decision— Spotz concurrence was filed after this Court had directed further briefing appeal, this a directive that obviously Thus, resulted from consideration and deliberation. the Com- submits, monwealth any commentary concur- Spotz case, rence the record in concerning whether involving not, merits or reflects judging, pre-judging. frivolous,

This recusal argument indeed is distressingly so. Even though well-taken,5 Commonwealth’s are points the argument is frivolous for a more fundamental reason: Attorney blatantly Ñolas misrepresents my concurrence in declares, Spotz. Ñolas as if the assertion were self-proving, that I “expressly articulated an opinion about the merits of the appeal,” further declaring my “comments Appellant’s on pending appeal were matters, not directed peripheral toward but went to central issues before the Court. Chief Justice Castille stated his belief that Appellant has asserted a ‘time- ” ¶ ¶ Motion, barred Brady 6; claim.’ 10 39.

This is simply false. My concurrence in Spotz addressed the delay that Attorney Ñolas has orchestrated in this state case, capital which plainly is demonstrated the transcript (and has been Motion). corroborated by the pleadings I offered no view on the merits of this appeal, much less did I “expressly prejudge” those merits.

Nolas’s argument to the contrary is revealingly non-contex- My tual. concurrence in Spotz quoted at length from the 4. The Canon reads as follows: Judges public should abstain from comment pro- about a court, ceeding any in require and should similar abstention on the

part personnel subject of court to their direction and control. This prohibit judges making subsection does not public from statements in the explaining course of their official public duties or from for procedures information the of the court. untenable; indeed, public theory Nolas’s comment under his interpretation, judge’s strained argument even a comment at oral reflecting skepticism, sympathy, require or on the merits would recusal. the trial court at which hearing of the PCRA

transcript the I prefaced Brady petition. Porter’s appellant decided noting Spotz by in transcript the Porter from quotation already had the court after occurred exchange Brady petition. to dismiss its intention announced forth the I then set transcript quoted of the Porter portion this case that the ruling of-record PCRA court’s timely and does that it is not grounds “on the was denied Later in the material.” Brady for requirements meet the next step noted the court after quotation, a dismissal notice issuing its time-bar implementing decision— object, and said he would 907—Ñolas under Pa.R.Crim.P. the court do instead. suggest he would asked Ñolas what depose be permitted that he should responded Ñolas in the concurrence’s Spotz At that point witness. Brady Porter, the follow- I inserted transcript from the quotation “i.e., drag disposi- out notation brackets: ing clarifying claim.” Brady the time-barred tion of does not argument recusal Remarkably, Attorney Nolas’s in the The bracketed reference this context. acknowledge claim,” which Brady “the time-barred concurrence to Spotz case, in this transcript from the quotation in a block appeared to the status of factual reference explanatory was an court and by the PCRA already determined material. The bracketed very quoted in the same reflected faced with argument, Nolas’s also noted the effect of reference would have accepted, if ruling; argument, time-bar case, years, for already delayed in a delay caused further request Nolas’s Notably, time-barred. a claim deemed pursue to the challenge an answer or the witness was not depose to was, instead, that would request it ruling; time-bar court’s deemed time-barred. being the delay despite induce the I accurately excerpt characterized comment My bracketed quoted.

Moreover, transcript Spotz the Porter my discussion of issue, merits Brady the “central” remotely examine did not Rather, exclusively the discussion was falsely claims. counsel delay about FCDO-induced my with concern in connection cases concurrence in Pennsylvania capital generally. My noted that the in cases such Spotz strategy delay FCDO’s by (cid:127)as and Porter was made relevant the Spotz global FCDO’s case, in yet then-pending capital federal motion another Com- Dougherty, monwealth v. 585 CAP. That federal motion at- docket, tacked this Court’s of its entire includ- handling capital case, Court, ing delays blamed the on this and claimed to, that this Court was indifferent and incompetent manage, its docket. there capital (Notably, has been no averment that the has FCDO corrected the scurrilous accusations in its motion.) federal motion in or Dougherty My "withdrawn that final about point Spotz this case was to note that accurately not once did Ñolas “forward the new-found concern [FCDO’s] delay with while in both ensuring delay judicial systems Porter.” 18 A.3d at 348.

I not “pre-judge” Brady did merits of this in Spotz case by discussing delay Attorney Ñolas has indisputably engineered My here.6 comments in Spotz nothing had to do delay 6. The Spotz in this case that I described in federal/state —the stay logjam resulting abeyance once Ñolas both secured a federal (over Commonwealth) objection on Porter’s habeas argued and then to the PCRA court that it could not decide either Brady chargeable Porter’s solely or his new claim—was arguments strategy. to the charge delay FCDO's Ñolas tries Commonwealth, noting suggestion by to the a non-record the Common- wealth PCRA court set aside the Atkins before Ñolas Brady petition. responsibility filed his delay The issue of for the by respecting occasioned counsel’s machinations claim is apparent on the face my PCRA record here and is addressed in addition, Opinion for the response Court. In the Commonwealth’s point adequately: instant Recusal Motion addresses the argument Defense counsel also makes an ... that the Common- case, agreed strategy delay wealth to his in this which involved telling the PCRA court that it could not act on the Atkins claim until proceedings complete telling the federal were while the federal court proceedings it could not act at all until the PCRA were finished. This gross certainly is a mischaracterization. It is true that the Common- willing wealth was to defer defendant’s Atkins claim until the time of (in re-sentencing vacating the event the federal district court's order Circuit) the sentence of death is affirmed the Third if the PCRA Indeed, procedure court found such a more efficient. as defense admits, specifically quoted counsel Chief Justice Castille the Com- position opinion. monwealth’s to that effect in his But the Common- supported [appellant’s] position wealth has never either that the cause; with the conduct of had to do they Porter’s with Ernest in causing Ñolas in particular, and of general, the FCDO in Moreover, that- beyond it is remarkable in case. delay this acknowledging without argument this recusal Ñolas forwards point in Dougherty, and accusations the FCDO’s motion concurrence, and the context in actually being my Spotz made responsive opinion. in that explanation bracketed factual my of premised in this case is argument recusal Because Nolas’s in my of concurrence abject an mischaracterization upon of the FCDO’s determination example it is another Spotz, yet pleadings. courts with frivolous Pennsylvania to tie up Next, my required that recusal is Attorney Ñolas asserts actions in this concerning his record my because comments toward him express “animosity” personally. and other cases to given opportunity that he was not complains Ñolas also plainly I noted what the record disclosed be heard before delay Finally, in in this case. creating about his role his role in my Spotz concerning Ñolas that remarks argues here were “unfounded.” causing delay nothing improp- that there is responds The Commonwealth describing er in a of this the record abusive Justice Court cases. Further- Pennsylvania capital tactics of the FCDO more, if strong notes that condemnation Commonwealth recusal, virtually warrant then enough of such abuses were cases, have recuse in since a the entire Court would FCDO were condemned Spotz number of the FCDO’s claims frivolous, or even “frivolous Opinion Court’s this insti- extreme.” The Commonwealth also stresses Court’s role, resort in Pennsylvania tutional both as the Court last attorney discipline. and the ultimate arbiter Given authority to rule on his Atkins or his PCRA court lacked paradoxical argument Third cannot decide the federal that the Circuit ruling claim in habeas until he receives a on the Atkins state that, ruling theory, it court —a under his can never occur. And contradictory positions inherently for which defense counsel those advocated, attempts successfully the Commonwealth’s at has accommodation, delay the enormous in this case. modest caused Answer, 10-11, ¶ unnecessary It Commonwealth's is clear that all chargeable delay in case since Ñolas raised the claim is litigation strategy. Nolas’s role, can, emphasizes Commonwealth that this Court must, police attorney conduct and when its constituent Jus- tices act in fulfillment of that their duty, actions cannot be construed as reasonably bearing “personal animosity” to- involved; instead, attorney ward the the is merely Court observer, its fulfilling constitutional mandate. No reasonable argues, Commonwealth would believe that the Justices of this Court should be incapable fairly deemed of adjudicating cases involving lawyers whose record misconduct those Jus- tices have may noted and even condemned.

Furthermore, there is no in the law for the support ludi- crous assertion attorney that an be given “opportunity to be heard” before a court may notice and comment in a published as to what opinion a case record plainly discloses about attorney’s course, relevant conduct. Of such a requirement cases; would surely cause further in delay capital but the Due Process Clause is not a Due Delay Clause. Moreover, the FCDO’s own actions indicate that it does not subscribe to this novel theory posed by My Ñolas. discussion in Spotz of of examples FCDO-induced in delay capital cases was occasioned in part by the motion filed in federal court in Dougherty, FCDO which attacked the competence this Court to manage docket, its capital while failing acknowledge the in FCDO’s central role in causing delay many they cases cited. Notably, the present FCDO did not its even, first, scurrilous accusation in here Dougherty or bother to serve accusation, this Court with a copy before its attack in lodging federal court. event,

In any I have considered Attorney Nolas’s Motion here as airing grievance his that ascribing any in delay Porter to his conduct is “unfounded.” The record plainly and unam- biguously Furthermore, reveals otherwise. objections Nolas’s do speak well of the organization of which he is a central part, beginning, does, as the motion with a factual mischarac- terization. My Opinion for the Court this case addresses detail, the record in as well as non-record material appended to this recusal motion that bears upon delay question. That discussion encompasses all of the relevant circumstances including his complaint, Nolas’s current the basis for

that form ap- initially requested that the Commonwealth assertion held; misrepresenta- Nolas’s claim be Porter’s Atkins pellant Weber, 544 U.S. of Rhines v. import and holding tion of the (2005), declaring that 161 L.Ed.2d 125 S.Ct. the federal cross- abeyance” of “stay and the Third Circuit’s on the of view expression a favorable represented appeals claim; signifi- content and merits of to the report than candid status less cance of FCDO’s case; significance and the content in this Third Circuit below. the PCRA court Ñolas made to argument the record and accu- comments, are record-based Spotz, here and My Dougherty about complaint Contrary rate. FCDO’s Court, Attorney of this part delay incompetence FCDO, a course of conduct Ñolas, undertook on behalf of the in state and delay both that ensured substantial in this case court, of either admis- uttering syllable without ever federal That is a concerning consequence. or that complaint sion here; be made Ñolas response fact. further will record No of this time with enough have wasted Court’s and FCDO posturings. their frivolous respecting my sup- Nolas’s

Turning Attorney argument him, complaint repris- toward this animosity” posed “personal time, This Ñolas has made before. argument es an obviously citations to superficial is cluttered with argument non- opinions, and authority, including concurring inapposite ¶ 10-11, Motion, trial involving judges. binding opinions include is a citation to Ñolas not bother to What does in an cited, rejecting I reasoning provided, I and the authority Beasley, in v. 594 he made Commonwealth argument identical J.). (2007) (Recusal Castille, 458, Opinion A.2d 379 of Pa. 937 claim; it would be a more than answers this Opinion That contemptuous Nolas’s chasing waste of time down further authority. inapposite invocation of in- further burdens the Court Finally, Attorney Ñolas citing “addi- argument a near stream-of-consciousness cluding that, my need” for says, “support he tional considerations” reprises repetitious The first FCDO’s point recusal. District my former as the elected complaint position recusal, my of even Attorney Philadelphia County requires I in Porter’s trial though appellant had no actual involvement waived, failed to or direct This claim is since Ñolas appeal. my ground prior seek recusal on this to submission of this event, In I appeal any and commitment of resources to it. See, have addressed the argument multiple prior opinions. e.g., Beasley, supra. Attorney

The second of Nolas’s in this part argument 1993, regard my campaign hearsay adverts to election Motion, 14-17, reported in media accounts of that election. ¶¶ Any 55-57. recusal this material argument premised upon submitted; easily available to Ñolas before this was thus, event, is waived. In argument, any complaint unaccompanied by anything resembling legal argument, one, obliged I am not the net in search of disentangle although I would refer Ñolas to the High opinion Court’s White, Republican Party Minnesota v. U.S. (2002). 2528, 153 it to say,

S.Ct. L.Ed.2d 694 Suffice only Commonwealth is correct that Nolas’s contortions serve my global strategy to corroborate observations of the FCDO’s delay. Third, Attorney says my opinions Ñolas recusal Beasley, supra, and in v. 590 Pa. Rainey, Commonwealth (2006) (Recusal J.) Castille, 912 A.2d 755 Opinion betray “antipathy” toward him which somehow requires my recusal. I addressed the in this at perverse regard, FCDO’s worldview length, Beasley. If the feels truly aggrieved, FCDO remains disinclined to require profes- Ñolas conform to his courts, sional ethical obligations Pennsylvania the simple reassign answer is to Ñolas to the federal court where system, actually the FCDO is authorized Congress practice. Turning Attorney request Nolas’s that I refer this Motion Court, to the full the request supported by authority no or Even if there were some for the I argument. request, basis would not burden the with this sort of pleading. Court considerations, I find that foregoing upon

Based is, be, hereby and it recusal should my motion requesting denied, the attached order. per

35 A.3d752 PENNSYLVANIA NORTHEASTERN CENTER, Appellee IMAGING

v. Pennsylvania, Appellant. COMMONWEALTH Valley, P.C., Appellee Lehigh Medical Associates of v. Pennsylvania, Appellant. Commonwealth of Pennsylvania. Supreme Court of Dec. 2010. Submitted Decided Dec.

Case Details

Case Name: Commonwealth v. Porter

Court Name: Supreme Court of Pennsylvania

Date Published: Jan 19, 2012

Citation: 35 A.3d 4

Docket Number: 557 CAP

Court Abbreviation: Pa.