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Julian Enrique Hernandez v. John K. Murray

October 18, 2012

JULIAN ENRIQUE HERNANDEZ
v.
JOHN K. MURRAY, ET AL.



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

MEMORANDUM

Before the court is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Julian Enrique Hernandez and a motion for a stay and abeyance of that habeas petition. Hernandez is currently incarcerated in the State Correctional Institution in Camp Hill, Pennsylvania. For the reasons that follow, the motion to stay and abey is denied. Furthermore, I shall permit Hernandez thirty additional days to respond to me with an answer as to whether he wishes to proceed with his habeas petition at this time or after he has completed litigating his claims in state court.

I. FACTS AND PROCEDURAL HISTORY:

In 2008, Hernandez was found guilty of rape, involuntary deviate sexual intercourse, sexual assault, endangering the welfare of a child, corruption of minors, and indecent assault. Hernandez was subsequently determined to be a Sexually Violent Predator ("SVP") under Megan's Law, 42 Pa.C.S.A. §§ 9791-9799.9, and sentenced to a term of 7 1/2 to 20 years of imprisonment followed by 12 years of probation.

Hernandez filed a direct appeal arguing that:

(1) the trial court erred in permitting 3 witnesses to testify regarding out-of-court statements made to them by the victim;

(2) the trial court erred in admitting the victim's out-of-court statements because they were inadmissible under the Tender Years Exception to the hearsay rule;

(3) the verdict was against the weight of the evidence; and

(4) the trial court erred in denying Hernandez's motion for a mistrial after the trial court granted a defense motion to strike the testimony of a Commonwealth witness and instructed to the jury to disregard that testimony.

The Pennsylvania Superior Court affirmed the judgment of sentence on May 6, 2010. Hernandez did not file petition for allowance of appeal in the Pennsylvania Supreme Court.

On August 18, 2010, Hernandez filed a timely pro se petition in the state court under the Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541, et seq., presenting one claim of ineffective assistance of counsel at trial and two claims of ineffective assistance of counsel related to his SVP hearing. See App. to Answer to Pet., at A139-148. Counsel appointed to represent Hernandez in his PCRA matter subsequently filed a letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), certifying that she had reviewed the entire record and concluded that there were no meritorious issues to advance before the PCRA court. On July 25, 2012, counsel was permitted to withdraw from representation. On October 2, 2012, the PCRA court dismissed Herrnandez's PCRA petition. Hernandez has 30 days to appeal that order to the Pennsylvania Superior Court.

In the meantime, Hernandez filed a petition for a federal writ of habeas corpus on November 19, 2010, asserting:

(1) the trial court erred in permitting hearsay testimony from ...


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