Commonwealth v. Taylor, P., Aplt.

[J-19-2022]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 793 CAP

:

Appellee : Appeal from the Order entered on

: June 23, 2021 in the Court of

: Common Pleas, York County,

v. : Criminal Division at No. CP-67-CR-

: 0001762-1991

:

PAUL G. TAYLOR, : SUBMITTED: February 7, 2022

:

Appellant :

OPINION

JUSTICE BROBSON DECIDED: September 29, 2022

In this capital case, Paul G. Taylor (Taylor) appeals from the denial of his fifth

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa. C.S.

§§ 9541-9546. As we agree with the conclusion of the Court of Common Pleas of York

County (PCRA court) that Taylor untimely filed the petition, we affirm.

On May 18, 1991, Taylor brutally murdered his wife, two of his minor children, his

mother-in-law, and his mother-in-law’s minor son. On December 19, 1991, Taylor pled

guilty to five counts of criminal homicide generally. On January 10, 1992, following a

degree-of-guilt hearing, the trial court convicted Taylor of first-degree murder on all five

counts. The matter proceeded to a penalty phase hearing, following which the trial court

determined that the imposition of the death penalty was appropriate for four of Taylor’s

murder convictions and that a penalty of life imprisonment was appropriate for the

remaining murder conviction. The trial court formally imposed Taylor’s sentences on

January 23, 1992. This Court affirmed Taylor’s judgment of sentence on direct appeal on

December 9, 1993. Commonwealth v. Gamboa-Taylor, 634 A.2d 1106 (Pa. 1993)

(Taylor I). Taylor did not petition for a writ of certiorari to the United States Supreme

Court. On January 13, 1997, Taylor filed his first PCRA petition. The PCRA court denied

the petition on the merits, and this Court affirmed on appeal. Commonwealth v. Taylor,

718 A.2d 743 (Pa. 1998) (Taylor II). Taylor filed his second PCRA petition on

February 5, 1999. The PCRA court dismissed Taylor’s second petition as untimely filed,

and this Court again affirmed on appeal. Commonwealth v. Gamboa-Taylor,

753 A.2d 780 (Pa. 2000) (Taylor III).

On January 28, 2008, Taylor filed a third PCRA petition, alleging that his trial

counsel had a conflict of interest previously unknown to Taylor that adversely affected

trial counsel’s representation of Taylor. The PCRA court denied relief, and, once again,

this Court affirmed on timeliness grounds. Commonwealth v. Taylor, 67 A.3d 1245

(Pa. 2013) (Taylor IV), overruled by Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020).1

Pertinent to the instant matter, the Pennsylvania Office of Attorney General (OAG)

represented the Commonwealth in opposing Taylor’s third PCRA petition. Additionally,

Justice Eakin authored this Court’s unanimous majority opinion in Taylor IV, in which

Then-Chief Justice Castille, Justice Saylor, Then-Justice (Now-Chief Justice) Baer,

Justice Todd, and Justice McCaffery also participated.

On December 8, 2014, Taylor filed a fourth PCRA petition, seeking a new appeal

nunc pro tunc to this Court from the PCRA court’s denial of his third PCRA petition which

alleged trial counsel’s conflict of interest. Petitioner premised his fourth PCRA petition

1 Small overruled Taylor IV and several other cases to the extent that Small disavowed

application of the public record presumption in the context of the newly discovered facts

exception to timeliness under Section 9545(b)(1)(ii) of the PCRA, 42 Pa. C.S.

§ 9545(b)(1)(ii).

[J-19-2022] - 2

upon the well-publicized scandal involving the exchange of inappropriate emails between

employees of the OAG and members of the judiciary, including former Justices Eakin and

McCaffery. Petitioner alleged that emails exchanged during the pendency of Taylor IV

reflected partiality on the part of this Court in disposing of his appeal, in violation of

Taylor’s due process rights. Given that his fourth petition was facially untimely, Taylor

relied upon two of the three statutory exceptions to the PCRA’s one-year time-bar—i.e.,

the “governmental interference” exception set forth in Section 9545(b)(1)(i) of the PCRA,

42 Pa. C.S. § 9545(b)(1)(i), and the “newly discovered facts” exception set forth in

Section 9545(b)(1)(ii) of the PCRA.2 The PCRA court dismissed Taylor’s fourth petition,

concluding that the PCRA court lacked the authority to grant the relief that Taylor sought.

Taylor then appealed. On November 6, 2019, with its participating members being

equally divided on the matter, this Court affirmed the PCRA court’s order by operation of

law. Commonwealth v. Taylor, 218 A.3d 1275 (Pa. 2019) (per curiam) (Taylor V).

Then-Chief Justice Saylor, Then-Justice (Now-Chief Justice) Baer, and Justice Todd, all

of whom participated in Taylor IV, did not participate in the decision. Justice Wecht issued

an opinion in support of reversal (OISR), joined by Justice Donohue; Justice Dougherty

issued an opinion in support of affirmance (OISA), joined by Justice Mundy.

The opinions authored in Taylor V addressed, in relevant part, whether Taylor’s

fourth PCRA petition was timely filed, whether his constitutional claim of appellate court

2 The governmental interference exception requires a petitioner to plead and prove that

“the failure to raise the claim previously was the result of interference by government

officials with the presentation of the claim in violation of the Constitution or laws of this

Commonwealth or the Constitution or laws of the United States.” 42 Pa. C.S.

§ 9545(b)(1)(i). The newly discovered facts exception requires a petitioner to plead and

prove that “the facts upon which the claim is predicated were unknown to the petitioner

and could not have been ascertained by the exercise of due diligence.” 42 Pa. C.S.

§ 9545(b)(1)(ii). Additionally, at the time Taylor filed his fourth PCRA petition, the PCRA

required that he file the petition invoking these exceptions within sixty days of the date

the claim first could have been presented. 42 Pa. C.S. § 9545(b)(2) (amended 2018).

[J-19-2022] - 3

error was cognizable under the PCRA, and whether the PCRA court could afford him the

relief he sought—i.e., reinstatement of the right to appeal anew to this Court nunc pro

tunc. In the OISR, Justice Wecht concluded that Taylor’s claim was cognizable under the

PCRA and that the PCRA court had the authority to order the relief Taylor requested, if

warranted on the merits. Taylor V, 218 A.3d at 1275, 1279-83, 1285 (Wecht, J., OISR).

Justice Wecht further opined that any determination as to the timeliness of Taylor’s

petition was premature, notwithstanding its jurisdictional nature, as the PCRA court did

not dispose of the petition on timeliness grounds and the record was undeveloped as to

that issue. Id. at 1283 n.9. Justice Wecht, therefore, would have reversed the PCRA

court’s order and remanded the matter for further proceedings. Id. at 1275, 1283, 1285.

In contrast, Justice Dougherty concluded in the OISA that, while Taylor’s claim was

cognizable under the PCRA, the only constitutionally permissible remedy the PCRA court

could afford as to such a claim was the reinstatement of the right to seek reargument of

the original appellate decision nunc pro tunc. Id. at 1289, 1292 (Dougherty, J., OISA).

Additionally, Justice Dougherty’s review of the record led him to conclude that Taylor’s

fourth PCRA petition was untimely filed. Id. at 1293-95. As such, he opined that a remand

to the PCRA court was unwarranted and that, instead, he would affirm the order of that

court. Id. at 1286, 1293, 1295.

On November 20, 2019, Taylor filed an application for reargument (Application)

with this Court, including a request that the Court appoint additional jurists to hear the

matter. See generally Pa.R.J.A. 701(C); Supreme Court Internal Operating Procedures

§ 13, 210 Pa. Code § 63.13. During the pendency of Taylor’s Application, on

April 24, 2020, the Court impaneled a special complement of jurists consisting of Justices

Donohue, Dougherty, Wecht, and Mundy, and Judges King, Kunselman, and Nichols of

the Superior Court, and decided Commonwealth v. Koehler, 229 A.3d 915 (Pa. 2020)—

[J-19-2022] - 4

i.e., a separate case that was substantially similar to, and which extensively referenced,

Taylor V. Like Taylor in Taylor V, John Koehler (Koehler) filed a serial, facially untimely

PCRA petition in his capital case that: (1) was premised on the same email scandal and

a violation of his due process and other constitutional rights arising out of this Court’s

alleged partiality in adjudicating his appeal in his prior PCRA matter; and (2) sought

reinstatement of his appellate rights to this Court nunc pro tunc from the PCRA court’s

denial of his previously filed PCRA petition. Koehler, 229 A.3d at 922-24. Just as the

PCRA court did in Taylor V, the PCRA court in Koehler ultimately dismissed Koehler’s

serial petition, concluding that it lacked the authority to grant the relief Koehler sought.

Id. at 922.

In contrast to Taylor V, however, the seven-member special complement of this

Court in Koehler reversed the PCRA court’s dismissal in a divided opinion. Id. Justice

Wecht wrote the majority opinion, which Justice Donohue and Judges King, Kunselman,

and Nichols joined. Specifically, the majority concluded that “a due process challenge to

the impartiality of an appellate jurist is cognizable under” the PCRA and that the PCRA

court has the authority to grant relief in the form of reinstatement of a PCRA petitioner’s

right to appeal anew to the appellate tribunal nunc pro tunc. Id. at 922, 931, 942.

Observing that the PCRA court dismissed Koehler’s serial PCRA petition based on the

mistaken belief that it lacked the authority to afford Koehler the relief requested—a matter

separate from the jurisdictional question of timeliness and the merits of the underlying

claim, neither of which the PCRA court had yet addressed—the majority remanded the

matter to the PCRA court for further proceedings to address such issues and others in

the normal course. Id. at 939-43.

In a concurring and dissenting opinion, Justice Dougherty, again joined by Justice

Mundy, concluded that the Court lacked jurisdiction over the “unripe question” regarding

[J-19-2022] - 5

the authority of the PCRA court to grant Koehler’s requested relief, given that the PCRA

court erroneously failed to determine first whether Koehler timely filed his serial petition

and then whether he was entitled to relief on the merits. Id. at 946, 964 (Dougherty, J.,

concurring and dissenting). Justice Dougherty concluded that, as such, there was “no

present case and controversy regarding the proper relief that may be afforded to a

hypothetical petitioner who presents a meritorious judicial bias-based due process claim

in a timely PCRA petition.” Id. at 946. Justice Dougherty, thus, opined that “the only

option [wa]s to reverse and remand with instructions for the PCRA court to determine

whether [Koehler’s] petition [wa]s timely” and his claim meritorious. Id. This conclusion

notwithstanding, Justice Dougherty agreed that an allegation of appellate court

constitutional error is cognizable under the PCRA, opined as to the burden a PCRA

petitioner must meet in asserting such a claim pertaining to judicial bias, and reiterated

his position that “the nunc pro tunc reinstatement of the right to seek reargument is the

only lawful remedy for a judicial bias-based due process claim raised on collateral review.”

Id. at 950-56, 964.

On May 18, 2020, following the Court’s Koehler decision, the Court denied Taylor’s

Application by operation of law, as the participating Justices were again equally divided

on the Application. Commonwealth v. Taylor, 230 A.3d 341 (Pa. 2020) (per curiam). Just

as in Taylor V, Then-Chief Justice Saylor, Then-Justice (Now-Chief Justice) Baer, and

Justice Todd did not participate in the matter. Justice Wecht filed a dissenting statement,

which Justice Donohue joined. Consistent with their positions in Koehler, Justice

Dougherty and Justice Mundy voted to deny the Application. On May 29, 2020, in light

of Koehler, Taylor filed an application for leave to be heard further and accompanying

[J-19-2022] - 6

renewed application for reargument, which this Court denied by per curiam order on

June 17, 2020.3

Taylor then filed the instant PCRA petition, his fifth, on August 13, 2020. Therein,

he reasserted his due process claim premised upon the alleged partiality of this Court in

Taylor IV arising out of the email scandal, as well as his request for a new appeal in that

matter nunc pro tunc. In addressing the timeliness of his petition, Taylor asserted, inter

alia, that the petition met the “newly recognized constitutional right” exception set forth in

Section 9545(b)(1)(iii) of the PCRA, 42 Pa. C.S. § 9545(b)(1)(iii), 4 based on Koehler.

Taylor further submitted that, if relief was unavailable to him under the PCRA, then he

must be able to obtain habeas corpus relief with respect to his claim. The Commonwealth

filed a response, and Taylor filed a reply thereto. The PCRA court then issued a notice

of intent to dismiss the petition pursuant to Pennsylvania Rule of Criminal Procedure 909,

concluding that the petition was facially untimely and that Taylor failed to establish that

this Court’s holding in Koehler “has been held to apply retroactively as contemplated

under [Section] 9545(b)(1)(iii)” of the PCRA. (PCRA Ct. Pa.R.Crim.P. 909 Notice,

3/31/2021, at 1.) After Taylor filed a response to the PCRA court’s notice, the PCRA court

denied the petition on June 23, 2021, “upon consideration of the facts and [this Court’s]

Order denying [Taylor’s] previous [m]otion for relief based on the same claims.” (PCRA

Ct. Order, 6/23/2021.)

3Again, Then-Chief Justice Saylor, Then-Justice (Now-Chief Justice) Baer, and Justice

Todd did not participate in the decision.

4The newly recognized constitutional right exception requires a petitioner to plead and

prove that “the right asserted is a constitutional right that was recognized by the Supreme

Court of the United States or the Supreme Court of Pennsylvania after the time period

provided in this section and has been held by that court to apply retroactively.” 42 Pa.

C.S. § 9545(b)(1)(iii).

[J-19-2022] - 7

Taylor again appealed. The PCRA court directed him to file a concise statement

of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b), and Taylor complied. In its opinion issued pursuant to Pennsylvania

Rule of Appellate Procedure 1925(a), the PCRA court opined that it considered Taylor’s

“fifth PCRA [petition] and second appeal to [this Court] as a tactic to prolong [Taylor’s]

judgment of sentence [sic].” (PCRA Ct. Pa.R.A.P. 1925(a) Op., 8/4/2021, at 1.) The

PCRA court also pointed to its notice of intent to dismiss the petition, its order denying

the petition, and this Court’s order “issued on December 12, 2020, addressing the same

claims raised in [Taylor’s] present appeal”5 for its reasoning in support of its decision to

deny Taylor relief. (Id. at 1-2.)

On appeal, Taylor presents the following two issues in his brief to this Court:

I. Does Commonwealth v. Koehler, 229 A.3d 915 (Pa. 2020), which held

for the first time that lower courts have the authority to remedy claims of

judicial bias of higher courts, satisfy one or more of the enumerated

exceptions to the PCRA timeliness requirements?

II. If [Taylor’s] judicial bias claim does not qualify under a PCRA timeliness

exception, is it nevertheless cognizable under state habeas corpus?

(Taylor’s Brief at 2.) In addressing these issues, we observe that our review of an order

denying relief under the PCRA is limited to determining whether the order is supported by

the evidence of record and free of legal error. Commonwealth v. Ali, 86 A.3d 173, 177

(Pa.), cert. denied, 574 U.S. 1026 (2014).

We begin with the timeliness of Taylor’s fifth petition. Generally, any PCRA petition

must be filed within one year of the date that the petitioner’s judgment of sentence

becomes final to be deemed timely filed. 42 Pa. C.S. § 9545(b)(1); Commonwealth v.

5 Though the PCRA court referred to the date of the above order as December 12, 2020,

it appears that the PCRA court was referring to this Court’s order of June 17, 2020,

denying Taylor’s application for leave to be heard further and accompanying renewed

application for reargument based upon Koehler.

[J-19-2022] - 8

Marshall, 947 A.2d 714, 719 (Pa. 2008). A petitioner, however, can overcome this

one-year time-bar if “the petition alleges and the petitioner proves” one of the timeliness

exceptions set forth in the PCRA. See 42 Pa. C.S. § 9545(b)(1)(i)-(iii). Further, pursuant

to Section 9545(b)(2) of the PCRA, 42 Pa. C.S. § 9545(b)(2), any petition invoking a

timeliness exception must “be filed within one year of the date the claim could have been

presented.”

It is well settled that the PCRA’s time limitations are jurisdictional in nature and that

neither this Court nor the PCRA court has jurisdiction over an untimely petition.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). We have further held that

the PCRA’s time limitations are not subject to equitable exceptions:

Jurisdictional time limits go to a court’s right or competency to

adjudicate a controversy. These limitations are mandatory and interpreted

literally; thus, a court has no authority to extend filing periods except as the

statute permits. Unlike a statute of limitations, a jurisdictional time limitation

is not subject to equitable principles such as tolling except as provided by

statute. Thus, the filing period is only extended as permitted; in the case of

the PCRA, the time limitations are extended upon satisfaction of the

exceptions found in [Section] 9545(b)(1)(i)-(iii) and timely filing pursuant to

(b)(2). As it has been established that the PCRA’s time restrictions are

jurisdictional, we hold that the period for filing a PCRA petition is not subject

to the doctrine of equitable tolling, save to the extent the doctrine is

embraced by [Section] 9545(b)(1)(i)-(iii).

Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999) (citations omitted); see also

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (observing that PCRA does not

confer authority on “this Court to fashion ad hoc equitable exceptions to the PCRA

time-bar in addition to those exceptions expressly delineated in the [PCRA]”) (quoting

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)).

Taylor’s judgment of sentence became final in 1994, after the time for seeking a

writ of certiorari to the Supreme Court of the United States from this Court’s decision in

Taylor I expired. See 42 Pa. C.S. § 9545(b)(3) (providing that, for PCRA purposes, “[a]

[J-19-2022] - 9

judgment becomes final at the conclusion of direct review . . . or at the expiration of time

for seeking the review”); U.S. Sup. Ct. Rule 13 (providing that petition for writ of certiorari

is timely when filed within 90 days after entry of judgment of state court of last resort). As

such, it is undisputed that the instant PCRA petition, filed on August 13, 2020, is facially

untimely. In an effort to overcome the one-year time-bar, Taylor claims that, in light of

Koehler, the instant petition satisfies the newly recognized constitutional right exception

set forth in Section 9545(b)(1)(iii) of the PCRA.6 As previously stated, this exception

requires a PCRA petitioner to plead and prove that “the right asserted is a constitutional

right that was recognized by the Supreme Court of the United States or the Supreme

Court of Pennsylvania after the time period provided in this section and has been held by

that court to apply retroactively.” 42 Pa. C.S. § 9545(b)(1)(iii).

Taylor submits that Koehler “represents new law” because the decision

“recognized, for the first time, that PCRA courts have the power to grant new appeals,

nunc pro tunc, to remedy due process violations flowing from decisions issued by biased

appellate tribunals” and no prior precedent dictated that holding. (Taylor’s Brief at 17.)

Taylor also argues that Koehler’s holding is of constitutional dimension given that it is

grounded on a PCRA petitioner’s constitutional due process right to an unbiased tribunal

on appeal. Taylor additionally argues that Koehler applies—or should apply—

retroactively for the following reasons. First, Taylor contends that Koehler itself holds or

otherwise “dictates” that the decision applies retroactively. (Id. at 19.) Arguing that “[t]he

PCRA says nothing about an express statement of retroactivity,” Taylor notes that

Koehler was litigated through the PCRA and Koehler himself “received the benefit of the

6 While Taylor phrases his first issue on appeal and portions of his supporting argument

in general terms of whether Koehler satisfies the PCRA’s timeliness exceptions, we note

that the only exception he addresses before this Court is the newly recognized

constitutional right exception set forth in Section 9545(b)(1)(iii) of the PCRA.

[J-19-2022] - 10

new law announced therein. In other words, Koehler itself applied the new rule

retroactively to . . . Koehler.” (Id. at 20-21.) Taylor also points to language from the

majority opinion in Koehler recognizing that other defendants claiming unconstitutional

jurist bias would likewise be entitled to relief in the form of a new appeal, if warranted on

the merits. (Id. at 20 (relying upon Koehler, 229 A.3d at 934).) Second, Taylor argues

that Koehler’s holding relative to the PCRA court’s remedial authority is “jurisdictional,”

and, thus, it should be applied retroactively as is “typical[ly]” done in the case of

“jurisdictional rulings.” (Id. at 21-25 (relying upon, inter alia, Firestone Tire & Rubber Co.

v. Risjord, 449 U.S. 368, 379 (1981) (explaining that “by definition, a jurisdictional ruling

may never be made prospective only”)).) Finally, Taylor asks us to apply “a more flexible

approach to retroactivity” under the unique circumstances of this case, where merits

review of his judicial bias claim has evaded him despite his diligence in asserting the

claim.7 (Id. at 25-26.)

In response,8 the Commonwealth argues that the PCRA court’s determination that

Taylor’s fifth PCRA petition is untimely filed, depriving the court of jurisdiction to consider

7 In so doing, Taylor advocates for application of the following test, which, according to

Taylor, counsels in favor of retroactive application of Koehler and requires consideration

of: “(1) the purpose to be served by the new rule, (2) the extent of the reliance on the old

rule, and (3) the effect on the administration of justice by the retroactive application of the

new rule.” (Taylor’s Brief at 27 (quoting Dana Holding Corp. v. Workers’ Comp. Appeal

Bd., 232 A.3d 629, 633 (Pa. 2020)).) Taylor also submits that his reliance on Koehler to

render the instant petition timely is consistent with this Court’s recognition that the

PCRA—generally the sole avenue for post-conviction relief—must be liberally construed

to promote justice and “so as not to foreclose avenues of relief for an otherwise diligent

litigant.” (Taylor’s Brief at 35-36.)

8 The Commonwealth requested and received three extensions of time to file an appellate

brief in this matter. On February 14, 2022, after failing to file a brief by the

January 28, 2022 deadline provided in this Court’s order granting the Commonwealth’s

third extension of time, the Commonwealth filed an “Application for Leave to File

Appellee’s Brief Late.” The Commonwealth attached its proposed brief and averred that

Taylor’s counsel did not oppose the application. Taylor’s counsel likewise informed the

Court that he had no objection to the application, and he submitted a reply brief in

[J-19-2022] - 11

the merits, is supported by the record and free from legal error. As to Taylor’s assertion

that his petition is timely under Section 9545(b)(1)(iii) of the PCRA, the Commonwealth

argues that the exception is inapplicable because it requires, inter alia, that the newly

recognized constitutional right “has [previously] been held by that court to apply

retroactively,” and “[t]his Court has not previously stated that the holding of the Majority

Opinion in Koehler applies retroactively to cases on collateral review.” (Commonwealth’s

Brief at 41-42 (emphasis omitted) (quoting 42 Pa. C.S. § 9545(b)(1)(iii)) (relying upon

Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa. 2002); Commonwealth v. Reid,

235 A.3d 1124 (Pa. 2020)).) The Commonwealth submits that, “[f]aced with this

straightforward law, Taylor makes several ambiguous, convoluted, and ultimately

meritless arguments.” (Id.) The Commonwealth contends that, to the extent that Taylor

relies upon case law pertaining to the subject of retroactivity outside of the PCRA context,

such reliance is irrelevant and improper given that the PCRA is the governing law. The

Commonwealth also challenges Taylor’s position insofar as he claims that he acted

diligently in filing his claims in his fourth PCRA petition, which he is attempting to relitigate

in the instant PCRA petition.

With respect to the timeliness exception set forth in Section 9545(b)(1)(iii) of the

PCRA, our Court has held that the provision has two requirements:

First, it provides that the right asserted is a constitutional right that was

recognized by the Supreme Court of the United States or this [C]ourt after

the time provided in this section. Second, it provides that the right “has

been held” by “that court” to apply retroactively. Thus, a petitioner must

prove that there is a “new” constitutional right and that the right “has been

held” by that court to apply retroactively. The language “has been held” is

in the past tense. These words mean that the action has already occurred,

response thereto. This Court granted the Commonwealth’s application by order dated

August 15, 2022. In so doing, we directed the Prothonotary to docket the

Commonwealth’s Appellee Brief as well as Taylor’s Reply Brief, both of which we consider

in rendering our decision.

[J-19-2022] - 12

i.e., “that court” has already held the new constitutional right to be

retroactive to cases on collateral review. By employing the past tense in

writing this provision, the legislature clearly intended that the right was

already recognized at the time the petition was filed.

Abdul-Salaam, 812 A.2d at 501-02 (specifically holding that “the language ‘has been held’

means that the ruling on retroactivity of the new constitutional law must have been made

prior to the filing of the petition for collateral review” and “that a retroactivity determination

must exist at the time that the petition is filed”). Additionally, in Reid, this Court reaffirmed

Abdul-Salaam and further explained:

The plain language [of Section 9545(b)(1)(iii) of the PCRA] makes clear

that, when dealing with an otherwise untimely PCRA petition, our collateral

review courts are only “open” to a claim that a new constitutional right

applies when the right “has been held by that court to apply retroactively.”

42 Pa.C.S. § 9545(b)(1)(iii). In other words, because the “has been held”

language “means that the ruling on retroactivity of the new constitutional law

must have been made prior to the filing of the petition for collateral review[,]”

Abdul-Salaam, 812 A.2d at 501, our state collateral courts are, in fact, not

“open” to a claim that a new constitutional right applies, unless the right has

already been held to apply retroactively.

Reid, 235 A.3d at 1160-61 (emphasis in original).

Assuming arguendo that Koehler announced a new constitutional right, we find no

error in the PCRA court’s conclusion that the newly recognized constitutional right

exception is inapplicable herein because Taylor has failed to establish that this Court’s

decision in Koehler “has been held to apply retroactively as contemplated under

[Section] 9545(b)(1)(iii)” of the PCRA.9 (PCRA Ct. Pa.R.Crim.P. 909 Notice, 3/31/2021,

9 While Taylor presents a cursory argument that Koehler recognized a new constitutional

right, neither the PCRA court nor the Commonwealth have addressed this initial

requirement of Section 9545(b)(1)(iii) of the PCRA. Insofar as it can be argued that

Koehler did not recognize a new constitutional right, we are careful to note that we do not

treat Koehler’s satisfaction of this initial requirement as a foregone conclusion. Rather,

we need not reach the issue in light of our conclusion herein relative to Taylor’s failure to

demonstrate satisfaction of Section 9545(b)(1)(iii)’s second requirement (i.e., that the

right has been held to apply retroactively).

[J-19-2022] - 13

at 1.) Specifically, notwithstanding Taylor’s arguments to the contrary, this Court’s

decision in Koehler itself—although decided in the context of a collateral proceeding—did

not hold that any right established therein applies retroactively within the meaning of

Section 9545(b)(1)(iii). Moreover, insofar as Taylor asks this Court to hold now that the

ruling of Koehler applies retroactively on any of the theories he advances, we decline his

invitation.10 As noted, it is well settled that a new constitutional right must already have

“been held” by this Court to apply retroactively prior to the filing of the subject petition in

order for Section 9545(b)(1)(iii) to apply. See Abdul-Salaam, 812 A.2d at 501-02;

Reid, 235 A.3d at 1160-61. In the absence of such a preexisting holding, Taylor has failed

to establish the applicability of the newly recognized constitutional right exception to his

instant PCRA petition.11 We also reiterate that the PCRA’s time limitations are not subject

to equitable exceptions. Fahy, 737 A.2d at 222; Watts, 23 A.3d at 983. We, therefore,

10 In his reply brief, Taylor adds, inter alia, that this Court should find his petition timely

filed based on retroactive application of Koehler because Koehler was decided while

Taylor’s Application in Taylor V was pending before the Court and Taylor properly

preserved the issue in that matter. In support, Taylor relies upon case law relative to

retroactive application of new rules in cases pending on direct review. See, e.g.,

Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983) (“[W]here an appellate decision

overrules prior law and announces a new principle, unless the decision specifically

declares the ruling to be prospective only, the new rule is to be applied retroactively to

cases where the issue in question is properly preserved at all stages of adjudication up

to and including any direct appeal.”). Taylor submits that the “same logic applies” in the

post-conviction context. (Taylor’s Reply Brief at 3.) We do not address this basis for

retroactive application of Koehler for the same reasons stated above.

11We also note that, while the Commonwealth primarily relies upon Abdul-Salaam and

Reid in support of its position, Taylor fails even to cite either case in his briefing to this

Court, let alone present pointed advocacy to refute that their interpretation of

Section 9545(b)(1)(iii) controls the outcome of this matter. As such, we dispose of

Taylor’s appeal pursuant to the prevailing law governing application of

Section 9545(b)(1)(iii) of the PCRA as set forth in those cases.

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agree with the PCRA court that Taylor’s fifth petition is time-barred under the PCRA and

conclude that, like the PCRA court, we lack jurisdiction over the petition.12

As a final point, we address Taylor’s second issue, wherein he asserts that, if his

“judicial bias claim does not qualify under a PCRA timeliness exception, it must be

cognizable under state habeas corpus.”13 (Taylor’s Brief at 37.) Our Court has squarely

rejected this claim. See, e.g., Commonwealth v. Abu-Jamal, 833 A.2d 719, 737

(Pa. 2003) (finding no merit to assertion that, “even if [petitioner’s] claims are time-barred

under the PCRA, the PCRA court should have used its inherent power under common

law to review his claims under Pennsylvania’s writ of habeas corpus”); Fahy, 737 A.2d

at 223 (rejecting argument that “even if [petitioner’s] claims are barred as untimely, his

claims are entitled to review under our Commonwealth’s writ of habeas corpus”). In so

doing, the Court has observed:

[T]he PCRA subsumes the writ of habeas corpus with respect to remedies

offered under the PCRA. However, a writ of habeas corpus continues to

exist as a separate remedy. Even so, the writ continues to exist as an

independent basis for relief only in cases in which there is no remedy under

the PCRA.

Abu-Jamal, 833 A.2d at 738 (emphasis in original) (quoting Fahy, 737 A.2d at 223-24).

As made clear in Koehler, the PCRA provides a remedy for Taylor’s underlying claim,

which is cognizable under the PCRA. As Taylor “confuses the issues of whether a claim

12 The parties also present argument on the propriety of the PCRA court’s conclusion that

this Court’s prior ruling(s) relative to Taylor V preclude review of this petition, as well as

whether the PCRA court’s dismissal of the instant petition should be affirmed on the basis

that Taylor failed to make a prima facie showing that a miscarriage of justice may have

occurred. See Fahy, 737 A.2d at 223 (“This [C]ourt has determined that in reviewing

claims for relief in a second or subsequent collateral attack on a conviction and judgment

of sentence, the request will not be entertained unless a strong prima facie showing is

demonstrated that . . . a miscarriage of justice occurred.”). We need not consider these

arguments in light of our conclusion that we lack jurisdiction over Taylor’s petition because

the petition is time-barred.

13 The Commonwealth does not respond to this claim in its brief to this Court.

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satisfies the jurisdictional requirements of the PCRA[] and whether the PCRA provides a

remedy for such a claim,” Fahy, 737 A.2d at 224, he is not entitled to habeas corpus relief.

Based on the foregoing, we conclude that Taylor’s fifth petition filed pursuant to

the PCRA is untimely filed. As such, the PCRA court was without jurisdiction to address

the merits of his claims, and dismissal of the petition was proper. We, therefore, affirm

the order of the PCRA court.

Justices Dougherty, Wecht and Mundy join the opinion.

Justice Dougherty files a concurring opinion in which Justice Mundy joins.

Justice Donohue files a dissenting opinion.

Chief Justice Baer and Justice Todd did not participate in the consideration or

decision of this matter.

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