MCDIVITT v. PITKINS et al
Filing
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MEMORANDUM AND OPINION re 5 Petition for Writ of Habeas Corpus filed by CHARLES DAVID MCDIVITT dismissing petition and denying a certificate of appealability. Signed by Magistrate Judge Robert C. Mitchell on 04/03/2012. (Mitchell, Robert)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHARLES DAVID MCDIVITT, HV-3016,
Petitioner,
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) 2:11-cv-1537
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v.
SUPERINTENDENT PITKINS, et al.,
Respondents.
MEMORANDUM and ORDER
Charles David McDivitt, an inmate at the State Correctional Institution at Somerset has
presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in
forma pauperis. 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.
While the petition as well as the response are confusing, it would appear that McDivitt is
presently serving sentences imposed by Venango County, Pennsylvania.1 However, it is not the
Venango County sentences which he seeks to challenge here but rather his conviction upon a
plea of guilty entered on October 1, 2008 to an offense in Magisterial District Judge District
court 35-3-02 at which time he was ordered to pay costs, restitution and a fine. As a result of not
paying the imposed penalty, Mercer County has lodged as detainer at the Somerset facility. It is
this detainer which he seeks to challenge here.
The petitioner never filed an appeal from this magisterial conviction.2 However, on
September 16, 2010, he filed a petition for a writ of mandamus in the Supreme Court of
1
The Docket sheets from the Court of Common Pleas of Venango County disclose the following: at No. CP-61CR-782-1995 the petitioner was convicted of drug and motor vehicle offenses and sentenced to thirty-two to
seventy-two months; at No. CP-61-CR-826-2007 the petitioner was convicted of drug and narcotic offenses and
sentenced to three to ten years, and at No. CP-61-CR-197-2008 he was convicted of drug charges and sentenced to
two to six years incarceration. These docket sheets are available at the Pennsylvania Judiciary Web Portal,
http://ujsport.pacourts.us
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Pennsylvania provides a mechanism to appeal from a decision of a magistrate to the court of common pleas, which
appeal must be filed within thirty days after entry of the guilty plea. Rule 460(A), Pa.R.Crim.P.
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Pennsylvania which Court denied the writ on January 26, 2011.3 On November 20, 2011 he
executed the instant petition.
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.
Since the petitioner is challenging a detainer, he is regarded as “in custody” for federal
habeas corpus purposes. Melong v. Cook, 490 U.S. 488 (1989); Leyva v. Williams, 504 F.3d
357 (3d Cir. 2007).
The exhaustion provision of §2254 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).
In the instant case, it is readily apparent that the petitioner failed to seek relief in the state
courts from the magistrate’s determination which occurred on October 1, 2008.4 In Coleman v.
Thompson, 501 U.S. 722,750 (1991), the Court held:
In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claim will result in a fundamental
miscarriage of justice.
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See: Supreme Court of Pennsylvania Docket 77 WM 2010.
We note also that an additional basis for dismissing the petition is that it is time barred. 28 U.S.C.§2244(d)(1).
2
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). Because no such showing is made here, the petitioner has procedurally
failed to pursue the available state court remedies and no further consideration of his claim is
warranted here.
Accordingly, the petition of Charles David McDivitt for a writ of habeas corpus will be
dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a
certificate of appealability will be denied.
An appropriate Order will be entered.
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ORDER
AND NOW, this 3rd day of April, 2012, for reasons set forth in the foregoing
Memorandum, the petition of Charles David McDivitt for a writ of habeas corpus is
DISMISSED and because reasonable jurists could not conclude that a basis for appeal exists, a
certificate of appealability is DENIED.
s/ Robert C. Mitchell
United States Magistrate Judge
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