United States District Court, W.D. Pennsylvania
REPORT AND RECOMMENDATION
C. MITCHELL UNITED STATES MAGISTRATE JUDGE.
respectfully recommended that the petition of James Kenneth
Moffitt for a writ of habeas corpus (ECF No. 1) be dismissed
for failure to exhaust state court remedies, and because
reasonable jurists could not conclude that a basis for appeal
exists, that a certificate of appealability be denied.
Kenneth Moffitt, an inmate at the Allegheny County Jail, has
presented a petition for a writ of habeas corpus. Moffitt is
presently serving an eighteen to twenty-four month sentence
imposed following his plea of guilty to charges of
manufacture, delivery or possession with intent to
manufacture or deliver a controlled substance at
CP-02-CR-3990-2016 in the Court of Common Pleas of Allegheny
County, Pennsylvania. This sentence was imposed on October
25, 2016. No appeals were pursued.
petition filed on February 28, 2017, Moffitt contends he is
entitled to relief on the following grounds:
1. To be granted and not deprived of my rights to life and
liberty. Violation of my rights, Amendments one, five six and
2. The deprivation for my medical condition of having
seizures, I'm not being properly cared for medically
violating my civil rights.
3. Participation in second chance act. Entrance into a
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
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).
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).
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