The opinion of the court was delivered by: Mitchell, M.J.
Nigel Dwayne Parms, an inmate at the State Correctional Institution at Albion has presented a petition for a writ of habeas corpus. 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.
Parms is presently serving a five to fifteen year period of incarceration to be followed by a ten year period of probation imposed following his conviction by the court of attempted rape, aggravated indecent assault and corruption of minors at No. CP-02-CR-8388-1997 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on December 14, 1998.*fn1
Although the petitioner, pro se, filed an untimely notice of appeal, he subsequently filed a post-conviction petition, and on January 26, 2000, the post-conviction court reinstated his appellate rights nunc pro tunc.*fn2 In his appeal, the sole issue presented was:
Whether the facts of this case required the sentence of aggravated indecent assault to be merged into the sentence of attempted rape?*fn3
On June 26, 2001, the judgment of sentence was affirmed by the Superior Court.*fn4 A petition for allowance of appeal to the Pennsylvania Supreme Court was filed raising this same issue and on October 9, 2001, leave to appeal was denied.*fn5
There then commenced an odyssey of frustration. On April 29, 2002, the petitioner filed a post-conviction petition.*fn6 Counsel was appointed to represent the petitioner on September 10, 2002, and he entered his appearance of October 7, 2002. No further action occurred. On April 29, 2004, Parms submitted another post-conviction petition; on May 11, 2004, he requested that prior appointed counsel be removed alleging abandonment by counsel, and requested that new counsel be appointed. Again nothing happened and on August 4, 2008 he filed another post-conviction petition. The instant petition was executed on July 23, 2010 and served on the respondents on August 16, 2010. On August 26, 2010, the Commonwealth moved the Court of Common Pleas to appoint counsel for the petitioner so that his post-conviction petition could be addressed. That motion was granted on September 15, 2010, the Office of Conflict Counsel was appointed to represent Parms and on October 6, 2010 an appearance of counsel was entered.*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 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.
We must thus decide whether the state supreme court‟s "adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as ...