The opinion of the court was delivered by: Mitchell, M.J.
Robert E. Chambers, II, 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.
Chambers is presently incarcerated the State Correctional Institution at Albion serving a five to ten year sentence imposed, following his conviction by a jury of possession with intent to deliver a controlled substance at No. 3823 of 2006, in the Court of Common Pleas of Westmoreland County, Pennsylvania. This sentence was imposed on August 28, 2007.*fn1
An appeal was taken to the Superior Court in which the issues presented were:
A. Whether the trial court erred in denying the Appellant's pretrial motion to suppress evidence obtained by the New Kensington Police Department.
B. Whether the trial court erred in finding the evidence sufficient to sustain a verdict of guilty on the count of possession with intent to deliver cocaine.
C. Whether the trial court abused its discretion in sentencing the Appellant to "stay out of New Kensington, Arnold and Lower Burrell" upon his release from prison as it is a direct violation of the due process clause of both the Constitution of the United States and the Constitution of the Commonwealth of Pennsylvania.*fn2 On May 20, 2008, the Superior Court affirmed the judgment of sentence.*fn3 On October 8, 2008, leave to appeal was denied by the Pennsylvania Supreme Court.*fn4
The petitioner apparently moved for an extension of time to file a post-conviction petition and leave was granted until September 22, 2008 to do so.*fn5 However, the respondents represent that there is no record "regarding the PCRA petition."*fn6
In the instant petition which was executed on December 3, 2008, Chambers contends that he is entitled to relief on the following grounds:
1. The IV Amendment of the U.S. Constitution [apparently challenging the seizure of evidence which he had discarded and which resulted in his conviction].
2. Whether the trial court erred in finding that the evidence presented was sufficient to support a finding of guilt.
3. Due process under the U.S. and PA constitutions [referring to the portion of the sentence requiring that he "stay out of New Kensington, Arnold and Lower Burrell upon release" from custody].*fn7 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 ...