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Julian Murray v. Warden Glunt

October 19, 2011

JULIAN MURRAY
v.
WARDEN GLUNT, ET AL.



The opinion of the court was delivered by: J. William Ditter, Jr., Sr. J.

MEMORANDUM

Presently before me is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Julian Murray and the response thereto. Murray, who is currently incarcerated in the State Correctional Institution in Houtzdale, Pennsylvania, challenges his incarceration for, inter alia, rape and endangering the welfare of a child. For the reasons that follow, the petition will be dismissed.

FACTS AND PROCEDURAL HISTORY:

After a bench trial before the Honorable Lisa Aversa Richette, Court of Common Pleas of Philadelphia County, Murray was convicted of rape, sexual assault, statutory rape, indecent assault, endangering the welfare of children, corruption of minors, simple assault, and indecent exposure.*fn1 On May 21, 1998, Murray was sentenced to an aggregate term of seven to fourteen years of imprisonment.

After Murray's untimely direct appeal was quashed, he filed a petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. § 9541, et seq., seeking reinstatement of his direct appellate rights. The petition was granted and on July 22, 2002, the Pennsylvania Superior Court affirmed the judgment of sentence. Commonwealth v. Murray, No. 2478 EDA 2001 (Pa. Super. July 22, 2002) (unpublished memorandum), attached as Ex. "A" to Respondents' Answer. Murray did not file a petition for allowance of appeal in the Pennsylvania Supreme Court.

On May 20, 2004, Murray filed a second PCRA petition. Counsel appointed to represent Murray in his PCRA matter subsequently filed a letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), certifying that he had reviewed the entire record and concluded that there were no meritorious issues to advance before the PCRA court. Counsel was permitted to withdraw from representation. The PCRA court dismissed Murray' petition as untimely on December 14, 2004.*fn2 On November 9, 2005, the Superior Court affirmed the dismissal of Murray's PCRA petition. Commonwealth v. Murray, No. 389 EDA 2005 (Pa. Super. Nov. 9, 2005) (unpublished memorandum), attached as Ex. "B" to Respondents' Answer.

On November 17, 2008, Murray filed another PCRA petition which was dismissed as untimely by the PCRA court. The Superior Court affirmed the dismissal of the PCRA petition on September 24, 2010. Commonwealth v. Murray, No. 3731 EDA 2009 (Pa. Super. Sept. 24, 2010) (unpublished memorandum), attached as Ex. "C" to Respondents' Answer.

On May 26, 2011,*fn3 Murray filed the instant petition for a federal writ of habeas corpus claiming:

1) the Commonwealth violated the double jeopardy clause by refiling charges after the court had dismissed all charges;

2) he was unconstitutionally charged multiple times for one alleged offense;

3) the evidence was insufficient to support his conviction and his conviction was against the weight of the evidence; and

4) trial counsel was ineffective for failing to protect against double jeopardy and failing to call an expert medical witness.

Respondents' answer asserts that Murray is not entitled to federal habeas relief because ...


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