The opinion of the court was delivered by: Mitchell, M.J.
Robert P. Derrickson, Jr. an inmate at the State Correctional Institution at Smithfield has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. For the reasons set forth below, the petition is subject to dismissal. However, in accordance with the requirements of United States v. Bendolph, 409 F.3d 155 (3d Cir.2005), the petitioner will have until June 17, 2008 to file an amended petition correcting those deficits.
Derrickson is presently incarcerated at the State Correctional Institution at Smithfield serving a technical parole violation sentence from Fayette County. However, in the instant petition, he seeks to challenge a five year probationary sentence imposed, following his conviction upon a plea of nolo contendere to charges of indecent assault, endangerment of children and corruption of minors at No. CC 200216598 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on February 9, 2005.*fn1 Apparently no appeal was taken but on September 15, 2005, Derrickson filed a post-conviction petition.*fn2
That petition was denied on February 1, 2006.*fn3 No further action was taken until the petitioner filed a motion to modify or vacate his sentence on April 23, 2008.*fn4 The latter petition is currently pending in the Court of Common Pleas.
The instant petition was executed on May 11, 2008 and in it, Derrickson contends he is entitled to relief on the following grounds:
1. Ineffective assistance of counsel.
3. Violation of constitutional rights to a fair and impartial trial.
4. Denial of right to confront his accusers.*fn5
It is provided in 28 U.S.C. §2254(b) that: An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
This statute represents a codification of the well-established concept which requires that before a federal court will review any allegations raised by a state prisoner, those allegations must first be presented to that state's highest court for consideration. Presser v. Rodriguez, 411 U.S. 475 (1973); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973); Doctor v. Walters, 96 F.3d 675 (3d Cir. 1996).
It is only when a petitioner has demonstrated that the available corrective process would be ineffective or futile that the exhaustion requirement will not be imposed. Presser v. Rodriguez, supra.; Walker v. Vaughan, 53 F.3d 609 (3d Cir. 1995).
If it appears that there are available state court remedies, the court must determine whether a procedural default has occurred. If a procedural default has occurred, the court must determine whether cause or prejudice exists for the default, or whether a fundamental miscarriage of justice would result from a ...