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RAY v. HOWARD

March 10, 1980

ROBERT ALLEN RAY
v.
JAMES F. HOWARD, SUPERINTENDENT STATE CORRECTIONAL INSTITUTION PITTSBURGH, PENNSYLVANIA AND THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA



The opinion of the court was delivered by: DAVIS

OPINION AND ORDER

 PRELIMINARY STATEMENT

 Mr. Ray, through his attorney, initially filed a direct appeal of his armed robbery conviction in the Superior Court of Pennsylvania. This appeal was dismissed for "failure to proceed" on September 9, 1965.

 Subsequently, Petitioner filed a petition under the Pennsylvania Post-Conviction Hearing Act, 19 P.S. § 1180-1, et seq., (hereafter "PCHA"), alleging ineffective assistance of court-appointed trial counsel and ineffective assistance of court-appointed appellate counsel in connection with his appeal. On January 23, 1973, the Common Pleas Court of Delaware County dismissed this PCHA petition and denied the requested relief.

 A second PCHA petition was then filed, alleging ineffective assistance of court-appointed counsel in connection with the first PCHA petition. After granting Petitioner an evidentiary hearing, held on September 6, 1977, this second petition was also dismissed. *fn1" Without the assistance of counsel, Mr. Ray then filed an appeal from this dismissal, docketed on November 2, 1977.

 In addition to his PCHA petitions filed in state court, Relator had concurrently filed with this Court a writ of habeas corpus, basing his claim for relief on (1) undue delay and ineffective state court process, thus a deprivation of his due process and equal protection rights, and (2) denial of effective assistance of trial counsel. After reviewing Petitioner's allegations, this Court denied on April 4, 1977, Mr. Ray's original petition for failure to exhaust state remedies, since Mr. Ray's second PCHA was still pending.

 After the dismissal of this second PCHA claim by the state court, upon a motion to reinstate his original federal petition, this Court again denied relief. Petitioner had still not exhausted his state remedies since an appeal to the Superior Court was pending. In addition, this Court rejected Relator's arguments that existing circumstances warranted an exception to the exhaustion requirement. See United States ex rel. Ray v. James F. Howard, Superintendent, State Correctional Institution, No. 77-649 (E.D.Pa. January 5, 1978).

 On July 9, 1979, Mr. Ray filed a third PCHA petition, alleging ineffective assistance of court-appointed counsel in connection with the second PCHA petition and his subsequent appeal from the denial of relief thereunder. This petition is still pending before the state court.

 Presently before this Court for determination is Petitioner's second pro se petition for a writ of habeas corpus. Relator sets forth the following assertions as grounds for relief *fn2" :

 
(A) An absence of a state rule requiring state court action upon a PCHA petition within a reasonable time, thus resulting in an "inordinate delay" and infringing on Petitioner's constitutional rights;
 
(B) Improper and ineffective state court process and procedures, thus violating Petitioner's constitutional rights.

 In addition to Petitioner's listing of the above two broad grounds for relief, the Court has interpreted and rephrased Mr. Ray's allegations to state the following additional claims: ...


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