IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

SHAWN CHRISTIAN MURRAY, :

:

Petitioner :

:

v. : CIVIL NO. 4:CV-14-531

:

SECRETARY JOHN WETZEL, : (Judge Brann)

:

Respondent :

MEMORANDUM

June 24, 2016

Procedural History

Shawn Christian Murray filed this pro se habeas corpus petition pursuant to

28 U.S.C. § 2254 while previously confined at the State Correctional Institution

Camp Hill, Pennsylvania. Murray subsequently notified the Court that he has

been released from confinement and is residing in Fayetteville, Pennsylvania. See

Doc. 25.

By Memorandum and Order dated January 23, 2015, Respondent’s motion

to dismiss Petitioner’s action for failure to exhaust state remedies was partially

granted. See Docs. 30 & 31. Specifically, it was determined that adjudication of

Murray’s federal habeas corpus action should be stayed pursuant to Rhines v.

1

Case 4:14-cv-00531-MWB-JVW Document 49 Filed 06/24/16 Page 1 of 11
Weber, 544 U.S. 269 (2005) and Crews v. Horn, 360 F. 3d 146 (3d Cir. 2004) in

order to allow the Pennsylvania state courts an initial opportunity to review

Murray’s arguments.1

 

In addition, Petitioner was advised that if he wished to proceed with this

matter, he needed to file a written status report with the Court detailing the

conclusion of his Pennsylvania state court exhaustion efforts and including a copy

of the Superior and/or Supreme Court’s disposition within thirty (30) days after

the termination of his state court proceedings. Alternatively, the Memorandum

and Order stated that if Murray believed that he could show that he should be

excused from the exhaustion requirement, he could seek the reopening of this

matter.2

 

1 Both Rhines and Crews recognized that district courts have discretion to stay

a mixed § 2254 federal habeas corpus petition so that the petitioner can pursue review

of unexhausted claims in state court because those claims might be time barred upon

returning to federal court due to the time limitations imposed by 28 U.S.C. §

2254(b)(1). 

2 Exceptions to the exhaustion requirement are made when: (1) the state

corrective process is so deficient as to render any effort to obtain relief futile, 28

U.S.C. § 2254(b); (2) acts of state officials have, in effect, made state remedies

unavailable to the petitioner, Mayberry v. Petsock, 821 F.2d 179, 184 (3d Cir. 1987);

or (3) "inordinate delay" in state proceedings has rendered state remedies ineffective. 

Story v. Kindt, 26 F.3d 402, 405 (3d Cir. 1994); Schandelmeier v. Cunningham, 819

F.2d 52, 55 (3d Cir. 1986).

2

Case 4:14-cv-00531-MWB-JVW Document 49 Filed 06/24/16 Page 2 of 11
By Order dated May 5, 2015, Murray’s motion for reconsideration was

granted. See Doc. 36. The Order directed that this matter be reopened and the

parties were required to file supplemental memorandums addressing the issue of

whether Murray’s claims have been procedurally defaulted and if so, whether the

cause and prejudice requirement has been satisfied. As a result of that decision,

Petitioner’s pending appeal of the January 23, 2015 memorandum and Order to the

United States Court of Appeals for the Third Circuit was dismissed on July 20,

2015. See Doc. 40.

By Order dated February 3, 2016, Petitioner’s motion to compel

Respondent to fie a supplemental memorandum as mandated by the May 5, 2015

Order was denied. Petitioner appealed that decision to the Court of Appeals. By

Order dated May 19, 2016, the Court of Appeals dismissed the appeal. See Doc.

48. 

Petitioner’s Claims

Murray was convicted of driving under the influence (DUI) in the Court of

Common Pleas of Franklin County, Pennsylvania on July 15, 2013 (No. 2116 of

2012).3

 It is undisputed that Petitioner’s conviction followed a trial conducted in

absentia. On August 22, 2013, Murray was sentenced, in absentia, to a three (3) to

3

 According to the state criminal docket, eight other related charges lodged

against Murray were withdrawn. See Doc. 13-1, p. 4.

3

Case 4:14-cv-00531-MWB-JVW Document 49 Filed 06/24/16 Page 3 of 11
six (6) month term of confinement. Petitioner states that service of the sentence

was to commence September 30, 2013 and conclude March 30, 2014.4

Murray adds that as a consequence of his DUI conviction, a term of

probation imposed for an earlier terroristic threats conviction, (No. 1694 of 2009) 

was revoked on December 18, 2013. He was sentenced to serve a nine to sixty

month term of incarceration which was to commence December 31, 2013 and

conclude June 7, 2018.5

 Murray claims entitlement to federal habeas corpus relief

on the grounds that he was denied due process because his trial on the DUI charge

and related sentencing were held in absentia and without the benefit of counsel. 

See id. at p. 9. 

 Petitioner was released on parole as of December 29, 2014. 

Specifically, Murray’s pending action raises the following claims: (1) the

trial court lacked subject matter and personal jurisdiction; (2) there was a violation

of the prohibition against double jeopardy; (3) trial court bias; (4) improper

denial of his request for a change of venue; (5) denial of his right to a mandatory

4 Prior to trial, Petitioner fled to the State of California. As a result of that

conduct, he was subsequently charged and convicted of flight to avoid apprehension

and prosecution.

5 Petitioner indicates that he was afforded sentence credit for the period of

March 27, 2012 to March 21, 2013. See Doc. 1, p. 2.

4

Case 4:14-cv-00531-MWB-JVW Document 49 Filed 06/24/16 Page 4 of 11
arraignment; (6) ineffective assistance of counsel; (7) unlawful arrest; (8) 

imposition of a sentence without a drug and alcohol assessment; and (9) denial of

counsel at his preliminary hearing, arraignment, trial, and sentencing.

Discussion

It is undisputed that Murray did not pursue a direct appeal but that the

claims presently before this Court were raised by Petitioner in a January 15, 2014

petition pursuant to Pennsylvania’s Post Conviction Relief Act (PCRA). The

parties also acknowledge that the merits of Murray’s PCRA action were never

addressed by the state courts. 

Respondent maintains that Murray did not properly exhaust his available

state court remedies, and his claims have been procedurally defaulted; they are

subject to dismissal on that basis. See Doc. 38, p. 5 . Petitioner counters that he

did everything possible to comply with the exhaustion of state remedies

requirement but that his unconditional release from custody rendered him

ineligible for PCRA relief under Commonwealth v. Ahlborn, 699 A.2d 718 (Pa.

1997).6

 As such, Murray concludes that the merits of his habeas petition should

be considered. 

6 The Pennsylvania Supreme Court in Ahlborn held an appellant who was not

presently serving a sentence, probation or parole could not obtain collateral relief. 

See id. at 720. 

5

Case 4:14-cv-00531-MWB-JVW Document 49 Filed 06/24/16 Page 5 of 11
As previously discussed by this Court’s January 23, 2015 Memorandum,

Title 28 United States Code Section 2254(b)(1) provides that an application for a

writ of habeas corpus filed on behalf of a person in custody pursuant to the

judgment of a State court cannot be granted unless the applicant has exhausted the

remedies available in the courts of the State; or there is an absence of available

state corrective process; or there are existing circumstances which render the state

process ineffective.7

 The exhaustion requirement serves the interests of comity

between the federal and state systems, by allowing the state an initial opportunity

to determine and correct any violations of a prisoner’s federal rights. Crews v.

Horn, 360 F.3d 146, 151 (3d Cir. 2004). “[U]nder 28 U.S.C. § 2254(c), a

petitioner ‘shall not be deemed to have exhausted the remedies available in the

courts of the State ... if he has the right under the law of the State to raise, by any

available procedure, the question presented.” Wenger v. Frank, 266 F.3d 218,

223-24 (3d Cir. 2001). 

Federal habeas relief is not available “unless the prisoner has properly

presented his or her claims through one ‘complete round of the State’s established

appellate review process.’” Woodford v. Ngo, 548 U.S. 81, 92 (2006) (internal

7 However, a Section 2254 petition may be denied on the merits

notwithstanding the failure of a petitioner to exhaust available state court remedies. 

6

Case 4:14-cv-00531-MWB-JVW Document 49 Filed 06/24/16 Page 6 of 11
citations omitted); O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)(while

exhaustion does not require state prisoners to invoke extraordinary remedies, the

state courts must be afforded one full opportunity to resolve any constitutional

issues via completion of the State's established appellate review process). The

United States Supreme Court in O’Sullivan explained, that state prisoners must

“file petitions for discretionary review when that review is part of the ordinary

appellate review procedure in the State.” Id. at 847. The Supreme Court added

that, in determining whether a state prisoner has preserved an issue for

presentation in a federal habeas petition, it must be determined not only whether a

prisoner has exhausted his state remedies, but also whether he has properly

exhausted those remedies, i.e., whether he has fairly presented his claims to the

state courts. See id. at 848.

Fair presentation requires that the “substantial equivalent” of both the legal

theory and the facts supporting the federal claim are submitted to the state courts,

and the same method of legal analysis applied in the federal courts must be

available to the state courts. Evans v. Court of Common Pleas, 959 F. 2d 1227,

1230 (3d Cir. 1992); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). 

Moreover, to satisfy exhaustion, the state court must be put on notice that a federal

claim is being asserted. Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001). The

7

Case 4:14-cv-00531-MWB-JVW Document 49 Filed 06/24/16 Page 7 of 11
exhaustion requirement is satisfied if the petitioner’s claims are presented through

a collateral proceeding, such as a petition under the PCRA, and it is not necessary

to present federal claims to state courts both on direct appeal and in a PCRA

proceeding. Evans, 959 F.2d at 1230.

When a claim has not been fairly presented to the state courts but further

state-court review is clearly foreclosed under state law, exhaustion is excused on

the ground of futility. See Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000);

Toulson v. Beyer, 987 F.2d 984, 987-88 (3d Cir. 1993). Such a claim is

procedurally defaulted, not unexhausted. A federal habeas court cannot review a

procedurally defaulted claim, “if the decision of [the state] court rests on a state

law ground that is independent of the federal question and adequate to support the

judgment.” Beard v. Kindle, 558 U.S. 53, 55 (2009). Procedural default can only

be excused if a petitioner can show “cause” and “prejudice” or that a “fundamental

miscarriage of justice” would result. Edwards v. Carpenter, 529 U.S. 446, 451

(2000).

It is undisputed that Murray did not file a direct appeal in Pennsylvania state

court. See Doc. 1, p. 3. However, he did file a PCRA action on January 13,

2014, which was pending before the Court of Common Pleas of Franklin County

when this federal habeas corpus petition was initiated. The PCRA petition was

8

Case 4:14-cv-00531-MWB-JVW Document 49 Filed 06/24/16 Page 8 of 11
never addressed on the merits. Rather, Petitioner filed a motion to withdraw his

PCRA action which was granted by the PCRA court on August 27, 2014. Thus, it

is undisputed that Murray’s pending claims were not exhausted and have been

procedurally defaulted.

In Levya v. Williams, 504 F.3d 357 (3d Cir. 2007) the United States Court

of Appeals for the Third Circuit addressed a case where a Pennsylvania state

inmate’s PCRA action was not considered on its merits due to expiration of the

applicant’s sentence. Levya indicated that under such circumstances the petitioner

satisfied the cause requirement. However, in Levya, unlike the present case, the

PCRA action was dismissed on procedural grounds, i.e. the applicant’s completion

of his state sentence. In this case, Petitioner is still under parole supervision, thus

satisfying both Pennsylvania and the federal custody requirement. See id. at p.

363 (the in custody requirement is satisfied when a petitioner is on probation).8

 

Second, unlike Levya, where the PCRA petition was dismissed on procedural

grounds, Murray voluntarily discontinued his PCRA action. The dismissal of

Murray’s PCRA action is solely attributable to his own actions, i.e., his

submission of a request to withdraw. Unlike Leyva, the procedural default of

Murray’s pending claims did not result from factors beyond his control. Based

8 The fact that Murray was still on parole also undermines his reliance on

Ahlborn and his assertion that he was no longer eligible for PCRA relief.

9

Case 4:14-cv-00531-MWB-JVW Document 49 Filed 06/24/16 Page 9 of 11
upon those considerations, Petitioner’s reliance on Leyva and Ahlborn are

misplaced and the cause requirement has not been satisfied in the pending matter. 

There was evidence in the record in Levya showing that the prejudice

requirement was also satisfied. However, absent Petitioner’s conclusory

statement that he is innocent of the DUI charge he has not provided this Court

with any specific evidence supporting his claim of innocence. Based on his failure

to address the merits of his vague claim of innocence, Murray has failed to satisfy

the prejudice requirement.

Petitioner also asserts that because he was denied counsel during pre-trial

proceedings, at trial and during sentencing he is automatically entitled to relief. 

However, the docket of this matter indicates that Petitioner made a pre-trial

request for appointment of counsel which was granted and he was afforded

representation by court appointed counsel together with a continuance. See Doc.

13-1, p. 14. Murray later filed a pre-trial motion requesting leave to proceed pro

se which was granted.9 See id. at p. 15. As such, Petitioner’s claim of denial of

counsel does not satisfy the prejudice requirement as his lack of representation

was, again, the result of his own voluntary decision.

9 Murray was also appointed counsel for purposes of his PCRA proceeding. 

See id. at p. 20.

10

Case 4:14-cv-00531-MWB-JVW Document 49 Filed 06/24/16 Page 10 of 11
Pursuant to the above discussion, Respondent’s request for dismissal of the

procedurally defaulted claims will be granted since Petitioner has failed to satisfy

the cause and predjuice requirement. An appropriate Order will issue.

BY THE COURT:

 s/ Matthew W. Brann 

Matthew W. Brann

United States District Judge

11

Case 4:14-cv-00531-MWB-JVW Document 49 Filed 06/24/16 Page 11 of 11