The opinion of the court was delivered by: Mitchell M.J.
Memorandum and Order James Scott Nicholson, an inmate at the State Correctional Institution at Camp Hill has presented a petition for a writ of habeas corpus. Because he has not exhausted the available state court remedies, the petition will be dismissed, without prejudice, and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.
Nicholson is presently serving a thirteen and a half to thirty year sentence imposed following his conviction, by a jury, of rape, sexual assault and incest at No. 1766 of 2007, in the Court of Common Pleas of Fayette County, Pennsylvania. This sentence was imposed on February 6, 2008.*fn1
An appeal was taken to the Superior Court in which the issue presented was that the evidence was insufficient to establish guilty beyond a reasonable doubt. On August 12, 2008, the judgment of sentence was affirmed.*fn2
On January 12, 2009, Nicholson filed a post-conviction petition in the Fayette County Court of Common Pleas where it is presently pending.*fn3
The petitioner now seeks relief in this Court alleging that:
1. The Pennsylvania State police failed to test the rape kit to ascertain whether more than one male had sexual contact with the victim.
2. A statement was taken from the petitioner without the benefit of his Miranda warnings, and evidence was seized from his home without a warrant.
3. Trial counsel was ineffective.
4. The prosecution failed to prove his guilt beyond a reasonable doubt.*fn4 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 ...