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Bryant v. Warden, Sci Fayette

United States District Court, W.D. Pennsylvania

May 9, 2019

JULIAN BRYANT, KT-7886, Petitioner,
v.
WARDEN, SCI FAYETTE, et al., Respondents.

          REPORT AND RECOMMENDATION

          Robert C. Mitchell, United States Magistrate Judge

         I. Recommendation:

         It is respectfully recommended that the petition of Julian Bryant for a writ of habeas corpus be dismissed, and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied.

         II. Report:

         Julian Bryant, an inmate at the State Correctional Institution-Fayette has presented a petition for a writ of habeas corpus. Bryant is presently serving a twenty to forty-year sentence imposed following his conviction by the court of criminal attempt (homicide), two counts of aggravated assault and acquitted on firearms violations at No. CP-02-CR-10073-2011 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on October 29, 2012.[1]

         An appeal was filed in the Superior Court in which the sole issue presented was:

I. Was the evidence sufficient to establish attempted murder as the intent here was to scare, not to kill, the victim?[2]

         On August 13, 2014, the judgment of sentence was affirmed.[3] Leave to appeal was denied by the Pennsylvania Supreme Court on January 27, 2015.[4]

         A timely post-conviction petition was filed on August 4, 2015 and denied. An appeal was filed in the Superior Court in which petitioner claimed he was entitled to relief on the basis that an improper mandatory minimum sentence had been imposed under the deadly weapons enhancement while he had been acquitted on the firearms charge.[5] The denial of post-conviction relief was affirmed on November 16, 2017[6] and allowance of appeal was denied by the Pennsylvania Supreme Court on June 27, 2018.[7]

         In the instant petition received on December 17, 2018, two issues are presented:

I. Did the state courts reversibly err in ruling that the evidence established was sufficient to [demonstrate] petitioner's intent to kill?
II. Did the state courts abuse discretion and reversibly err in having overlooked the underlying basis of petitioner's illegal sentence?

         The background to this prosecution is set forth in November 16, 2017 Memorandum of the Superior Court:

On the afternoon of June 18, 2011, the defendant, Julian Bryant, fired six shots, wounding Kareem “Moose” Howard. The victim, Mr. Howard, sustained three gunshot wounds to his buttocks, one to his arm, one to his hip, and one to his ear. The incident occurred at approximately 1:20 p.m. near the intersection of Frankstown Avenue ...

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