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The Pennsylvania Supreme Court has struck down Mumia Abu-Jamal’s latest challenge to his conviction. Abu-Jamal had argued that his previous appellate counsel was ineffective. In Wednesday’s opinion in Common-wealth v. Abu-Jamal,the court upheld a Philadelphia trial court’s denial of the convicted cop killer’s petition for relief under the state Post Conviction Relief Act because it was untimely. “Merely filing a petition in a capital case or couching claims in ineffectiveness terms does not save an untimely petition,” wrote Justice J. Michael Eakin for the court. Justice Russell M. Nigro concurred in the result but did not write separately. A Philadelphia jury sentenced Mumia Abu-Jamal to death in 1982 for killing police officer Daniel Faulkner in Center City. Abu-Jamal, also known as Wesley Cook, appealed and has continued to appeal the judgment for the last 21 years, changing his legal representation several times. The U.S. Supreme Court has denied two petitions for certiorari and has repeatedly denied requests for rehearing. In December 2001, the U.S. District Court for Eastern Pennsylvania granted Abu-Jamal’s petition for a writ of habeus corpus in part. It affirmed his murder conviction but reversed his sentence. When state prosecutors and Abu-Jamal both appealed, the 3rd U.S. Circuit Court of Appeals stayed the appeals pending this decision from the Pennsylvania Supreme Court. Abu-Jamal’s first PCRA petition was filed in 1995, and the trial and Supreme Court denied it. Six years later Abu-Jamal filed his second PCRA petition, claiming the two private attorneys who represented him during his first petition were ineffective counsel and reiterating allegations of judicial bias that he has claimed in the past, according to the opinion. The PCRA court denied his petition for relief, dismissing it without a hearing because the petition was untimely, having not been filed within a year of the final date of judgment. Wednesday, the state Supreme Court affirmed the PCRA court’s finding that the petition was untimely; Abu-Jamal’s judgment was final in June 1991, and he didn’t file his second petition until 2001, “clearly beyond the one-year time limit,” Eakin wrote. Abu-Jamal’s petition also failed to meet any of the exceptions to the filing deadline enumerated in the act. Abu-Jamal had argued that his previous counsel failed to investigate the claim that a supposed hit man, “Arnold Beverly,” confessed to the murder four years ago and that because this failure served the state, his lawyers were “acting” as agents for the government, according to the opinion. “Such a contorted notion cannot be accepted,” Eakin wrote. “Appellant’s claim is, in reality, a thinly veiled ineffectiveness claim, and this court has rejected such attempts to circumvent the timeliness requirement by asserting prior counsel’s ineffectiveness for failure to raise an issue.” “Government officials” do not include defense counsel under the PCRA, the court said, referencing its 2000 ruling in Commonwealth v. Pursell. The court said Abu-Jamal’s second claim also fails. Abu-Jamal argued that new information regarding his former attorneys’ behavior came to his attention only after one of his previous lawyers published a book about his trial. Abu-Jamal could not have learned of this behavior — his attorneys’ allegedly acting in their own personal interest and sabotaging his case — by the exercise of due diligence, he argued. But Abu-Jamal’s assertion of “constructive denial of counsel,” means his attorneys completely failed in their duties. The court rejected this contention. “Simply because counsel allegedly failed to oppose the prosecution in a specific way does not mean there was ‘complete failure’ of counsel,” Eakin wrote. In response to Abu-Jamal’s claim that the PCRA court applied the wrong standard of review when it dismissed his claim without a hearing, the Supreme Court said Abu-Jamal “overlooks the fact that his petition was summarily dismissed not because it was patently meritless, but because it was untimely.” The PCRA court can’t examine the merits of a petition that is untimely, Eakin explained. Abu-Jamal tried to argue another exception to the time-limit on filing petitions for relief under PCRA — after-discovered evidence. He alleged that the late Common Pleas Judge Albert F. Sabo made a specific racist comment during his trial in 1982, but Abu-Jamal said he did not know about this comment until 2001 and so it should fall under the after-discovered evidence exception, according to the opinion. But Abu-Jamal made this claim of judicial bias during his first PCRA petition in 1995, the court pointed out. To be eligible for post-conviction relief “petitioner must plead and prove [an] issue not previously litigated,” Eakin wrote. The court also denied Abu-Jamal’s alternative argument that it should consider his second petition as an extension of his first because Sabo presided over his first petition hearing and his claim of judicial bias hadn’t yet been heard by an impartial judge, according to the opinion. “Such an allegation . . . does not entitle him to equitable tolling of the PCRA’s jurisdictional time limit,” Eakin wrote. Finally, Eakin dismissed Abu-Jamal’s argument that the PCRA court should have reviewed his petition claims under the state’s writ of habeus corpus. Eakin pointed to the court’s 1999 opinion in Commonwealth v. Fahy,which establishes that the PCRA “subsumes the writ of habeus corpus with respect to remedies offered under the PCRA . . . 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.” Because Abu-Jamal was free to seek relief under PCRA, he is not entitled to habeus corpus relief, the court said. (Copies of the 12-page opinion inCommonwealth v. Abu-Jamal , PICS NO. 03-1583, are available fromThe Legal Intelligencer . Please call the http://www.palegalpubs.com/pics/ Pennsylvania Instant Case Serviceat 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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