The opinion of the court was delivered by: Robert C. Mitchell United States Magistrate Judge
Leonard Berton II has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. Because Berton has failed to exhaust the available state court remedies his petition here 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.
Berton is presently incarcerated at the State Correctional Institution at Rockview serving a six to twelve year sentence imposed following his conviction upon a plea of guilty to charges of statutory sexual assault, involuntary deviate sexual intercourse with a person less than sixteen years of age, and indecent sexual assault of a person less that sixteen years of age. This sentence was imposed on June 16, 2008.*fn2
No appellate relief was sought but the petitioner did file something in the Court of Common Pleas.*fn3 Although not set forth in the petition, the Common Pleas docket sheet also demonstrates that a timely post-conviction petition was filed on February 27, 2009; that on March 27, 2009, a rule to show cause was issued directing the Commonwealth to respond and that on July 7, 2009, Berton filed a motion for the appointment of counsel.*fn4
The petitioner now seeks habeas corpus relief in this Court and in support of his petition contends that:
1. His guilty plea was unlawfully induced and involuntary.
2. His conviction was obtained by the use of a coerced confession.
3. His conviction was obtained through the failure of the prosecution to disclose exculpatory evidence.
4. His conviction was obtained through a denial of the effective assistance of counsel.
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 ...