The opinion of the court was delivered by: Mitchell, M.J.
Andy Lee Large an inmate at the State Correctional Institution - Fayette 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 will be dismissed, and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.
Large is presently serving a six to twelve year sentence imposed following his conviction upon a plea of guilty to charges of owning and operating or conducting a chop shop at No. 174 of 2007, in the Court of Common Pleas of Butler County, Pennsylvania. This sentence was imposed on November 15, 2007.*fn1 The petitioner then sought post-conviction relief in the Court of Common Pleas on January 14, 2008*fn2 and that relief was denied on May 23, 2008 without any reasons for the denial being set forth.*fn3 Apparently, no appellate relief was sought.
However, on June 4, 2008, Large filed a nunc pro tunc motion for reduction/modification of sentence.*fn4 On June 19, 2008 relief was denied.*fn5
An appeal was taken to the Superior Court at No. 1393 WDA 2008.*fn6 The notice of appeal was filed on July 18, 2008 and the appeal was quashed on September 17, 2008 as having not been timely filed.*fn7 Specifically, in reviewing this matter the Superior Court wrote:
AND NOW, this appeal having been taken from an order imposing judgment of sentence on November 15, 2007, is QUASHED as being untimely filed. See Pa.R.A.P.903(a). Appellant filed his post-sentence motions nunc pro tunc on June 14, 2008. Such filings are untimely pursuant to Commonwealth v. Dreves, 839 A.2d 1122 (Pa.Super.2003)(en banc), which allows for the filing of post-sentence motions within 10 days of the judgment of sentence. In order to file a post-sentence motion nunc pro tunc, a defendant must demonstrate sufficient cause or reasons to excuse the late filing within 30 days of the judgment of sentence. Appellant did not request a late filing. Accordingly, the trial court did not have authority to allow for the late filing or act on such motions and the notice of appeal was filed beyond 30 days from the imposition of judgment of sentence.*fn8 Leave to appeal to the Pennsylvania Supreme Court was not requested.
The petitioner also filed a motion for return of seized property.*fn9 That motion was denied on June 23, 2008, as the property was deemed to constitute instruments of the crimes.*fn10 A notice of appeal was filed on July 23, 2008 and is docketed in the Superior Court at No. 1335 WDA 2008 where it is presently pending.*fn11 A second petition for post-conviction relief was denied on October 27, 2008.*fn12
The instant petition was executed on November 1, 2008, and in it, Large contends he is entitled to relief on grounds of,
Due process violation, coercion by District Attorney, ineffective counsel, judge should recuse himself, illegal sentence, crime was one criminal act, co-defendant not charged same way, if [only] one count of charge [is proper, then] sentence is beyond legal maximum, double jeopardy - triple prosecution for one offense.*fn13
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 ...