MURRAY et al v. GLUNT et al
Filing
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MEMORANDUM THAT MURRAY'S PETITION IS DISMISSED AS UNTIMELY. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE J. WILLIAM DITTER, JR ON 10/19/11. 10/19/11 ENTERED AND COPIES MAILED TO PRO SE PETITIONER, E-MAILED TO COUNSEL.(pr, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JULIAN MURRAY
v.
WARDEN GLUNT, et al.
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CIVIL ACTION
No. 11-3420
MEMORANDUM
J. WILLIAM DITTER, JR., Sr. J.
October 19, 2011
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.1 On May 21, 1998, Murray was sentenced to an aggregate
1
The state court summarized the facts leading to Murray’s conviction as follows:
On September 4, 1996, [Murray] lived in Philadelphia with his wife, his twelveyear-old stepdaughter, and his daughters by his wife. The victim in this case was
[Murray’s] stepdaughter. At approximately 7:00 a.m. that day, [Murray] took his
wife to work. As was customary when their mother left early for work, the victim
and her sister went to sleep in their mother’s room. After [Murray] returned, he
awoke the victim and told her to get out of bed. She refused and fell back to
sleep. She suddenly was awakened by a sharp pain inside her vagina. [Murray]
was on top of her moving up and down. The victim pushed away [Murray], ran
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
downstairs, and started to telephone her mother. [Murray] followed, pulled the
telephone from her hand, and then ripped it from the wall. When [Murray]
returned upstairs, the victim ran to a neighbor’s house, where she telephoned
police and reported the rape.
The victim was transported to a local hospital for treatment and evaluation.
During the examination, the victim experienced extreme discomfort, and the
doctor observed abrasions and bleeding inside the victim’s vagina and rectum.
Commonwealth v. Murray, No. 2478 EDA 2001, slip op. at 1-2 (Pa. Super. July 22, 2002)
(unpublished memorandum), attached as Ex. “A” to Respondents’ Answer.
2
PCRA court dismissed Murray’ petition as untimely on December 14, 2004.2 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, 2011,3 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
2
Pursuant to the PCRA, collateral actions must be filed within one (1) year of the date the
conviction at issue becomes final. 42 Pa. Cons. Stat. Ann. § 9545(b)(1).
3
Generally, a pro se petitioner’s habeas petition is deemed filed at the moment he delivers
it to prison authorities for mailing to the district court. Burns v. Morton, 134 F.3d 109, 113 (3d
Cir. 1998) (citing Houston v. Lack, 487 U.S. 266 (1988)). Because Murray failed to date his
habeas petition, I will use the date the habeas petition was filed by the Clerk of Court as the
official filing date.
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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
his petition is untimely.
DISCUSSION:
Section 101 of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”),
effective April 24, 1996, imposes a one (1) year limitation period to applications for writ
of habeas corpus filed by persons in state custody. 28 U.S.C.A. § 2244(d)(1). Section
2244, as amended, provides that the one (1) year limitation period shall run from the latest
of:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review;
(B) the date on which the impediment to filing an
application created by state action in violation of the
Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such state action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through
the exercise of due diligence.
28 U.S.C. § 2244(d)(1). The amended statute also provides that the time during which a
properly filed application for state post-conviction or other collateral review is pending
4
shall not be counted toward any period of limitation. 28 U.S.C. § 2244(d)(2).
In the instant case, the applicable starting point for the statute of limitations is “the
date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” Swartz v. Meyers, 204 F.3d 417, 419 (3d
Cir. 2000). Murray’s conviction became final on August 21, 2002, when the time for
filing a petition for allowance of appeal in the Pennsylvania Supreme Court expired. See
Pa.R.A.P. 1113(a) (a petition for allowance of appeal in the Pennsylvania Supreme Court
is to be filed within thirty (30) days of the entry of the order of the Superior Court).
Consequently, Murray would have had until August 21, 2003, to timely file his § 2254
petition.
Murray filed his petition on May 26, 2011, over seven years after the limitation
period expired on August 21, 2003.4 He does not assert that there has been an
impediment to filing his habeas petition which was caused by state action, that his petition
involves a right which was newly recognized by the United States Supreme Court, or that
there are new facts which could not have been previously discovered. See 28 U.S.C. §
2244(d)(1)(B)-(D). Consequently, Murray would be barred from presenting his claims
4
Murray filed two PCRA petitions in 2004 and 2008; however, these petitions would not
toll the federal statute of limitations because the petitions were deemed untimely and thus, were
not “properly filed.” See 28 U.S.C. § 2254(d)(2). In any event, the federal limitations period had
already expired when the PCRA petitions were filed. Long v. Wilson, 393 F.3d 390, 394-395
(3d Cir. 2004) (petitioner’s untimely state post-conviction petition, filed after time to file a
habeas petition expired, did not toll the federal limitations period). Consequently, the 2004 and
2008 PCRA petitions would not impact this court’s calculations regarding the one (1) year
limitation period.
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under § 2254, unless the instant petition is subject to equitable tolling.
Equitable tolling is available in the context of a federal habeas petition in
appropriate cases. See Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). A petitioner
bears the burden of establishing his entitlement to equitable tolling through two (2)
elements: “‘(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstances stood in his way’ and prevented timely filing.” Id. at 2562,
quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The Court has also held that
“[a]ttorney miscalculation is simply not sufficient to warrant equitable tolling.”
Lawrence v. Florida, 549 U.S. 327, 336 (2007); see also Fahy v. Horn, 240 F.3d 239, 244
(3d Cir. 2001) (“[i]n non-capital cases, attorney error, miscalculation, inadequate
research, or other mistakes have not been found to rise to the ‘extraordinary’
circumstances required for equitable tolling”).
I do not find the instant matter to be one of the “rare situation[s] where equitable
tolling is demanded by sound legal principals as well as the interests of justice.” See
Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (requiring that plaintiff has “in some
extraordinary way” been prevented from asserting his rights). Murray has not presented
any evidence that he either diligently pursued his claims or was prevented in some
extraordinary way from doing so. Because Murray has not established “extraordinary”
circumstances which would justify application of equitable principles, I find that there are
no circumstances which would make the rigid application of the limitation period unfair.
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Consequently, Murray’s petition is dismissed as untimely.
An appropriate order follows.
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