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Ray v. Rozum

March 15, 2010

KENNETH RAY, CJ-6269, PETITIONER,
v.
GERALD ROZUM, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Robert C. Mitchell United States Magistrate Judge

Memorandum and Order

Kenneth Ray, and inmate at the State Correctional Institution at Somerset has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. For the reasons set forth below the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

Ray is presently serving an eleven to twenty-five year sentence imposed following his conviction by a jury of third degree murder and violation of the uniform firearms act at Nos. CC 199310974 and CC 199311042 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on April 6, 1994.*fn1 A direct appeal was not pursued but in response to a post-conviction petition, on August 18, 1997, the petitioner's rights to appeal were reinstated nunc pro tunc.*fn2 Because of counsel's failure to file a timely appeal, new counsel was appointed to represent the petitioner and his right to file an appeal nunc pro tunc was again reinstated.*fn3

In his appeal the petitioner raised the following issues:

I. Whether trial counsel was ineffective for failing to fully cross-examine the only Commonwealth eyewitness concerning his possible prosecutorial bias due to pending charges?

II. Whether Mr. Ray is entitled to an arrest of judgment on a VUFA change when the Commonwealth failed to present any evidence of barrel length?

III. Whether trial counsel was ineffective for failing to object to the flight instruction when there was no evidence that Mr. Ray fled or attempted to elude the police?

IV. Whether trial counsel was ineffective for failing to object to the imposition of a prior record score for both offenses which arose from the same incident?*fn4

On April 20, 2000, the judgment of conviction and sentence on the murder count was affirmed and the sentence on the uniform firearms change was vacated for resentencing.*fn5

A petition for allowance of appeal to the Pennsylvania Supreme Court was filed in which petitioner raised the following issues:

I. Has the Superior Court decided the question of whether trial counsel was ineffective for failing [to] cross-examine the only Commonwealth eyewitness concerning his possible prosecutorial bias in a way probably not in accord with applicable decisions of this Honorable Court?

II. Has the Superior Court decided the question of whether the petitioner is entitled to an arrest of judgment on a VUFA charge when the Commonwealth failed to present any direct evidence of barrel length in a way probably not in accord with applicable decisions of this Honorable Court?

III. Has the Superior Court decided the question of whether trial counsel was ineffective for failing to object to the f[l]ight instruction when there was no evidence that the petitioner fled or attempted to elude the police in a way probably not in accord with applicable decisions of this Honorable Court?*fn6

On August 31, 2000, leave to appeal was denied.*fn7 Pursuant to the mandate of the Superior Court, the petitioner was resentenced on November 11, 2000 on the firearms charge to a nine to sixteen month period of incarceration thereby reducing his total ...


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