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Moffitt v. Commonwealth

United States District Court, W.D. Pennsylvania

March 6, 2017

JAMES KENNETH MOFFITT, 179416, Petitioner,
v.
COMMONWEALTH OF PENNSYLVANIA, et al., Respondents.

          REPORT AND RECOMMENDATION

          ROBERT C. MITCHELL UNITED STATES MAGISTRATE JUDGE.

         I. Recommendation:

         It is 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.

         II. Report:

         James 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.[1] No appeals were pursued.[2]

         In his 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 fourteen.
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 program.[3]
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 ...


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