PACK v. ALLEGHENY COUNTY DISTRICT COURT #05-2-23 et al

Filing 5

MEMORANDUM AND OPINION re 3 Petition for Writ of Habeas Corpus filed by JAMES PACK dismissing petition and denying a certificate of appealability. Signed by Magistrate Judge Robert C. Mitchell on 10/16/2012. (Mitchell, Robert)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JAMES PACK, 165622,
Petitioner,
v.
ALLEGHENY COUNTY DISTRICT
COURT #05-2-23, et al.,
Respondents.

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MEMORANDUM and ORDER
Mitchell, M.J.:
James Pack, an inmate at the Allegheny County Jail 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.
Pack is presently a pre-trial detainee at the Allegheny County Jail following his failure to
post bond on charges of robbery, conspiracy, simple assault, terroristic threats and theft by
unlawful taking at MJ-05223-CR-226-2012.1 The criminal complaint in this matter was filed on
July 9, 2012 and the petitioner's commitment occurred on July 10, 2012. No further action has
occurred.
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

1

The factual recitation of the background to this petition are gleaned from the public record available on the
Pennsylvania Unified Judicial System website, http://usportal.pacourt.us., at Magisterial District Courts type OTN at
number G567004-4.

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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 the instant case, petitioner alleges he is entitled to relief as a result of due process
violations and concedes that he has not sought any relief in the Pennsylvania courts.2 It is readily
apparent that there are remedies available to the petitioner in the Court of Common Pleas which
he has not endeavored to invoke and for this reason, his petition here is premature.3 Accordingly,
the petition of James Pack 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.

2

See: Petition at ¶12.
42 Pa.C.S.A. §932 provides in part: Except as otherwise prescribed … each court of common pleas shall have
exclusive jurisdiction of appeals from final orders of the minor judiciary…
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ORDER
AND NOW, this 16th day of October 2012, for the reasons set forth in the foregoing
Memorandum, the petition of James Pack for a writ of habeas corpus is DISMISSED, and
because reasonable jurists could not conclude that there is a basis for appeal, a certificate of
appealability is DENIED.
s/ Robert C. Mitchell
United States Magistrate Judge

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