The opinion of the court was delivered by: Mitchell, M.J.
Matthew Smith has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition is subject to dismissal, and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability should be denied. The petitioner will be granted until April 4, 2010, to show cause, if any, why judgment should not be entered accordingly.
At the time the petition was filed, Matthew Smith was an inmate at the State Correctional Institution at Graterford serving the balance of his sentence as a recommitted parole violator.*fn1 The petitioner was originally convicted in Beaver County of unspecified offenses and on October 28, 1988 sentenced to a three to ten year period of incarceration and on February 5, 1991 to a nine to twenty-four month period of incarceration.*fn2 However, it is not this conviction or sentence about which the petitioner now complains but rather the calculation of his sentence by the Pennsylvania Board of Probation and Parole ("the Board"). Specifically, he contends that these two sentences were "aggregated" so that his sentence became three years and nine months to twelve years.*fn3 The petitioner did not challenge this sentence and was paroled on June 19, 1992.*fn4
While on parole the petitioner was arrested and convicted of another offense and on June 7, 1999 sentenced to a ten to twenty-two year period of incarceration.*fn5 As a result of his arrest on these charges, on July 23, 1998 the Board ordered him detained pending disposition of the new criminal changes.*fn6 On November 23, 1998 and December 14, 1999, the Board directed the petitioner to serve additional time as a technical parole violator on his original sentence.*fn7 On June 19, 2002 and August 6, 2003, the petitioner was denied release on parole and directed to serve his unexpired maximum sentence until October 10, 2005 on the original charges.*fn8 It is this calculation of this remaining sentence imposed on the first convictions which the petitioner seeks to challenge here.
Specifically, in support of the instant petition, Smith contends he is entitled to relief on the following grounds:
1. Respondents aggregation of petitioner's original maximum term of three yrs to 10 yrs came without "subject matter jurisdiction and violated petitioner's 14th amendment due process rights, and procedural and substantive rights reserved under Title 37 Pa.Code 71.2 relief.
2. Petitioner's original maximum sentence date was illegally re-calculated to the years 11/15/99, 10/10/2005 and 10/11/2027 violating petitioner's 14th amendment due process rights, procedural and substantive rights under title 37 Pa.Code 71.2 relief and is barred by res judicata.
3. Currently, all incarceration time calculated beyond petitioner's maximum date originally imposed, is in violation of the Eight[th] amendment to the U.S. Constitution and is barred by res judicata.
4.Respondent illegally re-calculated and aggregated petitioner's original maximum term absent written statement by fact-finder as to the grounds/evidence relief upon; in conspiracy with others. Thus void of subject matter jurisdiction or personal jurisdiction.*fn9 In his prayer for relief, Smith seeks to have this court vacate his allegedly unconstitutional sentences and reinstate his original maximum of May 8, 2018.*fn10 That is, as noted above, the petitioner seeks to challenge the manner in which his maximum sentence was calculated.
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 ...