Murray v. Johnson

1

BRAY MURRAY, Petitioner, v. PHILLIP JOHNSON; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA, LYNN ABRAHAM; and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, MICHAEL FISHER, Respondents.

Civil Action No. 00-4903

United States District Court, E.D. Pennsylvania

March 27, 2023

MEMORANDUM OPINION

EDWARD G. SMITH, J.

The pro se petitioner is currently serving a life sentence after a jury convicted him of first-degree murder and a firearms offense in 1982. After his sentencing, the petitioner did not file a direct appeal, and his first petition for collateral relief in the state courts was dismissed as untimely in 1988. Then, in 1997, the petitioner filed his second petition for collateral relief which was also dismissed as untimely, and this dismissal was upheld on appeal. Thereafter, he filed his first petition for a writ of habeas corpus under 28 U.S.C. § 2254 in this court which was denied in August 2001 because it was filed outside the one-year limitations period in 28 U.S.C. § 2244(d)(1)(A) and was not entitled to statutory or equitable tolling.

Currently before the court is the petitioner's motion under Federal Rule of Civil Procedure 60(b)(6) in which he seeks to have the court vacate the August 2001 denial of his original habeas petition. In his motion, he contends that he has demonstrated extraordinary circumstances entitling him to relief based mainly on two Pennsylvania Supreme Court decisions Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018) and Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), both of which addressed issues pertaining to ineffective assistance of counsel claims. He also appears to argue that he is entitled to relief based on his prior counsel's cumulative acts of ineffective assistance of counsel and the Commonwealth of Pennsylvania having purportedly misled him regarding his ability to obtain review of ineffective assistance of counsel claims in 1997.

As discussed below, the petitioner is not entitled to relief under Rule 60(b)(6) because the two Pennsylvania Supreme Court decisions he references are immaterial to the August 2001 denial of his habeas petition on timeliness grounds. In addition, with respect to Bradley, even if it was material, the petitioner has failed to exhaust this claim by first raising it in the state courts. Concerning the petitioner's remaining claims, the court must deny them as untimely because the petitioner has known the factual basis of these claims for years. For these reasons, the court will deny the Rule 60(b)(6) motion.

I. BACKGROUND AND PROCEDURAL HISTORY^[1]

Over 40 years ago, the petitioner, Bray Murray (“Murray”), was tried by a jury sitting in the Court of Common Pleas of Philadelphia County on charges of criminal homicide, possessing an instrument of crime, and robbery. See Commonwealth v. Murray, 488 A.2d 45, 45 (Pa. Super. 1985) (“Murray I”); Docket Commonwealth v. Murray, No. CP-51-CR-402931-1982 (Phila. Ct. Com. Pl.), available at: https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-51-CR-0402931-1982&dnh=nTLsmNIl275rZCZjNWU%2Ftg%3D%3D (“CCP Docket”) (last visited March 24, 2023). During the trial, the

Commonwealth's evidence established that on November 7, 1981, at approximately 8:30 p.m., [Murray] and the decedent, Eric Taylor, were customers of the P and D Bristol Bar in Philadelphia. [Murray] exited the bar and waited outside where he was overheard saying to himself: “Wait till the motherfucker come out the bar.” When Eric Taylor emerged from the bar, [Murray] grabbed him from behind and said, “Give me your money, pussy.” Immediately thereafter, [Murray] repeatedly stabbed Taylor with a ten-inch dagger. [Murray] then ran away, leaving Taylor bleeding heavily and leaning against a parked automobile.^[2]Mr. Taylor died six days later as a result of multiple stab wounds.

Murray I at 45 (footnote in original). In his defense, Murray presented the testimony of his

companion, Kevin Mathis a/k/a Gilmore. According to him, Taylor and [Murray] had a verbal argument inside the bar and when they went outside Taylor was the first to brandish a knife. He further testified that [Murray] responded by seizing Taylor with one hand and repeatedly stabbing him with the other.

Id. at 46.

A jury ultimately found Murray guilty of first-degree murder^[3] and possessing an instrument of crime.^[4] See Id. The jury acquitted Murray of robbery. See id.

Prior to sentencing, Murray filed a motion in which he requested a new trial because, inter alia, his trial counsel was ineffective. See Id. Based on this allegation, the trial court appointed new counsel to represent Murray, and his new counsel filed an amended motion for a new trial in which he again argued that he was entitled to a new trial due to the ineffectiveness of his trial counsel, in part because trial counsel failed to contact and call certain witnesses.^[5] See Id. The trial court scheduled an evidentiary hearing on the motion in which Murray, Murray's mother, and Murray's trial counsel testified.^[6] See Id. The trial court later granted Murray's motion for a new trial due to trial counsel's ineffectiveness, but before Murray could be retried, the Commonwealth filed an appeal from the order granting Murray a new trial to the Superior Court of Pennsylvania. See Id. at 45, 46.

The Superior Court reversed the trial court's order granting a new trial and remanded the case for sentencing. See Id. at 45, 48. The Superior Court explained that the trial court granted Murray a new trial “because trial counsel knew that the fight took place before a group of people, he was ineffective in failing to employ a professional investigator to locate any witnesses, as opposed to depending upon the efforts of appellee and his family.” Id. at 46 (noting that trial court relied on Commonwealth v. White, 450 A.2d 63 (Pa. Super. 1983) in support of decision to grant new trial). The Superior Court determined that this was an insufficient reason upon which to grant Murray a new trial because the trial court never addressed whether counsel's alleged ineffectiveness prejudiced Murray, and the record showed that Murray was not prejudiced. See Id. at 48. Instead, the record showed that none of the witnesses Murray wanted his trial counsel to contact and call appeared for the evidentiary hearing, and Murray “never established what they would testify to had they appeared or how their absence at trial prejudiced him.” Id. at 46. As such, Murray failed “to adduce any evidence whatsoever that the uncalled witnesses would have aided his defense.” Id. at 47. Accordingly, the Superior Court determined that the trial court erred in finding Murray's trial counsel ineffective based on the failure to call certain witnesses because “not only have the alleged witnesses never been produced, [but] there is [also] no indication whatsoever that their testimony-assuming they do exist and were willing to testify-would be helpful to [Murray].” Id. at 48.

The Superior Court remanded the case to the Philadelphia Court of Common Pleas, after which the trial judge held a sentencing hearing on April 23, 1985, and sentenced Murray to life imprisonment for first-degree murder and two-and-a-half years' imprisonment for possessing an instrument of crime. See Commonwealth v. Murray, No. 1943 EDA 2012, 2013 WL 11280957, at *1 (Pa. Super. Feb. 19, 2013) (“Murray II”); Docket; May 30, 2001 R. & R. at 2, Doc. No. 8. Murray did not file a direct appeal from his sentence. May 30, 2001 R. & R. at 2.

Murray, acting through newly appointed counsel, filed his first petition for post-conviction collateral relief under Pennsylvania's Post Conviction Hearing Act (“PCHA”) on December 31, 1986. See id.; Pet'r's Br. in Supp. of 2d Mot. for Recons. of J. Pursuant to Fed.R.Civ.P. 60(b)(6), Entered 08/24/2001, Dismissing Habeas Corpus Petition as Untimely (“Pet'r's Br.”) at ECF pp. 6-7, Doc. No. 35. The Court of Common Pleas dismissed that PCHA petition as untimely on June 1, 1988. See May 30, 2001 R. & R. at 2; Pet'r's Br., Ex. K, Mem. and Order at 1, Commonwealth v. Murray, No. CP-51-CR-402931-1982 (Phila. Ct. Com. Pl.), Doc. No. 35-1 (indicating that court denied PCHA petition in June 1988 because it was untimely filed).^[7] Murray did not file an appeal from this dismissal. See id.

Murray filed a second collateral relief petition under Pennsylvania's renamed Post Conviction Relief Act, 42 Pa. C.S. §§ 9541-46 ("PCRA") on January 10, 1997.^[8] See May 30, 2001 R. & R. at 2. The PCRA court dismissed the petition as untimely on June 11, 1997. See Id. (citing 42 Pa. C.S. § 9545(b)).^[9] On this occasion, Murray did appeal from the dismissal of his second PCRA petition to the Pennsylvania Superior Court, which affirmed the dismissal of the second PCRA petition on May 24, 1999. See Id. (citing Commonwealth v. Murray, No. 2919 Phila. 1997 (Pa. Super. May 24, 1999)). Murray then filed a petition for allowance of appeal with the Pennsylvania Supreme Court on June 16, 1999, and the Court denied that petition later in 1999.^[10]See Id. at 2-3.

After twice unsuccessfully seeking collateral relief in the Pennsylvania state courts, Murray filed his first petition for a writ of habeas corpus under 28 U.S.C. § 2254 in this court on September 21, 2000. See Doc. No. 1. In this habeas petition, Murray asserted (1) claims of ineffective assistance of counsel against his trial counsel post-verdict counsel, and "substitute counsel," (2) a claim that his right to appeal was denied, (3) a claim that there was insufficient evidence to support the verdict, (4) a claim that the trial court imposed an illegal sentence, and (5) claims that his equal protection and due process rights were violated. See Pet. for Writ of Habeas Corpus by a Person in State Custody at 9-10, 14,...