United States District Court, W.D. Pennsylvania
REPORT AND RECOMMENDATION
C. MITCHELL UNITED STATES MAGISTRATE JUDGE
respectfully recommended that the petition of Ronald Thomas
Masko for a writ of habeas corpus (ECF No. 5) be dismissed
for failure to exhaust state court remedies, and because
reasonable jurists could not disagree, that a certificate of
appealability be denied.
Thomas Masko, an inmate at the Washington County Corrections
Facility has presented a petition for a writ of habeas corpus
which he has been granted leave to prosecute in forma
petition, Masko alleges that he was arrested on March 2, 2018
on various felony and misdemeanor charges; that despite his
requests, a formal complaint was not filed until March 5,
2018 and he was not provided with a “docket
sheet”; that the state court has not taken any action
on his motions and requests; that his requests for recusal of
the district magistrate and counsel have been ignored and
that reasonable bail has not been set resulting in his
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
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).
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
would result from a failure to consider the claims.
Carter v. Vaughn, 62 F.3d 591 (3d Cir. 1995).
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.
is, the state court determination must be objectively
unreasonable. Renico v. Lett, 130 S.Ct. 1855 (2010).
This is a very difficult burden to ...