The opinion of the court was delivered by: Mitchell, M.J.
Memorandum Opinion and Order
Robert U. Story 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 viable basis for appeal exists, a certificate of appealability will be denied.
Story was convicted in 1989 of prostitution and related offenses, corruption of minors and simple assault at No. 1422 of 1989, in the Court of Common Pleas of Allegheny County, Pennsylvania, and was sentenced on August 24, 1989 to a two to five year period of imprisonment to be followed by a period of parole.*fn1 After a series of parole violations the petitioner reached his maximum sentence on January 20, 1999.*fn2 Thereafter, the petitioner was reentered into the correctional system on a totally unrelated offense in 2004.*fn3
It would appear that the petitioner is not challenging his 1989 conviction but rather the collateral consequences of that conviction imposed by Pennsylvania Megan's Law, 42 Pa.C.S. 9795.1(a). As applied to him, the latter provides that the petitioner register as a sexual offender for a period of ten years. This he acknowledged on September 6, 1996.*fn4 Thus, while his obligation to register should have expired in 2006, that obligation continues through January 9, 2011 due to his repeated periods of noncompliance throughout the original time period.*fn5 It is this obligation which Story seeks to challenge here.
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.
For purposes of implementing this statute, the term "in custody" as been interpreted not to include the requirement for registration as a sexual predator. Leslie v. Randle. 296 F.3d 518 (6th Cir.2002); McNab v. Kok, 170 F.3d 1246 (9th Cir.1999); Davis v. Nassau County, 524 F.Supp.2d 182 (E.D.N.Y. 2007). Thus, there is no basis for considering the petition here. However, even if this were not the case the petition would be subject to dismissal for failure to raise the appropriate challenges in the courts of the Commonwealth.
Section 2254 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 state-court ...