The opinion of the court was delivered by: Mitchell, M.J.
Lewis E. Vearnon, a pretrial detainee at the Allegheny County Jail 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.
Vearnon is presently awaiting disposition of charges of unlawful use of an access device, identity theft, receiving stolen property and theft by unlawful taking at Nos. CC 828, 831, 854 and 7819 of 2007 in the Court of Common Pleas of Allegheny County, Pennsylvania. According to the petitioner, and acting under coercion he originally entered a guilty plea, but later moved for and was granted leave to withdraw the plea. Despite numerous attempts to gain release on bail the latest of which was filed on December 10, 2010, he has been unsuccessful and his trial which was originally scheduled for October 15, 2008 has been continued on several occasions and as of this date is still pending although trial is now scheduled for January 10, 2011.*fn1
On October 6, 2010, Vearnon filed a motion to dismiss pursuant to PA.R.CrimP. 600(d)(1)and (g) [denial of a speedy trial]. There is nothing contained in the petition nor in the state docket sheets demonstrating that the petitioner has sought any form of relief in the appellate courts of Pennsylvania, but instead has filed a petition for a writ of habeas corpus in this Court.
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);
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 ...