United States District Court, W.D. Pennsylvania
ROBERT C. MITCHELL, Magistrate Judge.
It is respectfully recommended that the petition of William Maskelunas for a writ of habeas corpus be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied.
William Maskelunas has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis.
Maskelunas is presently incarcerated at the State Correctional Institute - Pine Grove serving a one to two year sentence to be followed by a two year period of probation following his conviction upon a plea of guilty to charges of forgery and procurement of drugs by forgery at No CP-02-CR-15415-2009 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on April 21, 2010. No appeal was pursued although the docket sheet reflects that on July 26, 2012 petitioner filed a motion to modify sentence which was treated as a post-conviction petition and denied on February 11, 2013. Again, no appeal was pursued.
Petitioner now comes to this Court and alleges that on April 9, 2014, the Court of Common Pleas, acting without jurisdiction modified his probation from county probation to state probation supervision. The docket sheet does not reflect any such order.
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 ...