The opinion of the court was delivered by: Mitchell, M.J.
Steven Addlespurger, has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. The defendants have now filed a motion to dismiss. For the reasons set forth below, the motion will be granted; the petition will be dismissed and because no reasonable jurists could conclude that a basis for appeal exists, a certificate of appealability will be denied. An appropriate Order will be entered.
The events giving rise to this petition have their genesis several years ago. Following a separation and divorce, the petitioner was directed to pay child support and other sums. When he failed to do so, the Court of Common Pleas adjudicated him to be in civil contempt and sentenced him to up to six months imprisonment unless he purged himself of the contempt. The tortured history of this ongoing saga is summarized in the respondents' motion to dismiss:
Due to repeated findings that he has willfully failed to comply with valid orders of court regarding the payment of child support, Steven Addlespurger has been sentenced to incarceration on the charge of civil contempt on the following dates: September 13, 2006; September 26, 2006; December 13, 2006; February 7, 2007; March 13, 2007; April 10, 2007; October 19, 2007; February 1, 2008; May 29, 2008; July 25, 2008 and September 3, 2008. However, as was the case on September 13, 2006, February 7, 2007, April 10, 2007, and February 1, 2008, the Honorable David N. Wecht suspended the sentence of incarceration on September 3, 2008 provided that Mr. Addlespurger purge himself of the charge of civil contempt... Moreover, despite finding that Steven Addlespurger remained in civil contempt on October 10, 2008, the Honorable David N. Wecht did not order his incarceration. Instead, Judge Wecht again provided Mr. Addlespurger the opportunity to purge himself of the charge of civil contempt.. A review of the petitioner's compliance with the purge conditions set on October 10, 2008 is currently scheduled to be heard on February 6, 2009. To the best of the undersigned's information, knowledge and belief, neither Steven Addlespurger nor Julie Marie Addlespurger has filed a Notice of Appeal to the Superior Court of Pennsylvania in regard to the judgments and orders of court issued by the Honorable David N. Wecht on September 3, 2008 and October 10, 2008.*fn1 At the time the instant complaint was filed, October 8, 2008, Addlespurger was an inmate at the Allegheny County Jail as a result of his most recent contempt citation. He has since been released.*fn2
The respondents now move to dismiss and in support thereof allege that the petitioner is not "in custody" as required by 28 U.S.C. 2254(a); that the petitioner has failed to exhaust the available state court remedies, and finally on the merits because there is neither a showing of the state courts having made an unreasonable determination nor one that is contrary to clearly established federal law.
At the time the petitioner commenced this action, he was incarcerated at the Allegheny County Jail serving a six month civil contempt sentence.*fn3 Confinement pursuant to either civil or criminal process satisfies the "in custody" requirement of 28 U.S.C. 2254. Rogers v. Illinois, 160 F.Supp.2d 972 (N.D.Ill.2001). Thus, the "in custody" argument is without merit.
The respondents next contend that the petition is subject to dismissal for failure to exhaust the available state court remedies.
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. Preiser 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. Preiser v. Rodriguez, supra.; Walker v. Vaughn, 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 failure to consider the claims. Carter v. Vaughn, 62 F.3d 591 (3d Cir. 1995).
In construing § 2254(d)(1), the Court in Williams v. Taylor, 529 U.S. 362, 412-413 (2000) stated:
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied-the state-court adjudication resulted in a decision that (1) "was contrary to... clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of... clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
In Hameen v. Delaware, 212 F.3d 226, 235 (3d Cir. 2000), the Court determined: The Court in Williams v. Taylor held that "[u]nder the'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, further held that "[u]nder the'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was objectively unreasonable." Thus, under the "unreasonable application" clause, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant ...