United States District Court, W.D. Pennsylvania
Magistrate Judge Maureen P. Kelly
Stewart Cercone United States District Judge.
Buxton (Petitioner") initiated these proceedings under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person
in State Custody in September, 2016. ECF No. 1. Petitioner
subsequently filed an Amended Petition (the "Amended
Petition") on March 21, 2017. ECF No. 13. Petitioner is
attacking his State court convictions for, inter
alia, possession of drugs with intent to deliver, 35 P.
S. § 780-113 §§ A30, being a member of a
corrupt organization, 18 Pa. C.S.A. § 911 §§
B3, and, criminal use of a communication facility, 18
Pa.C.S.A. § 7512 §§ A. The case was referred
to Chief Magistrate Judge Maureen Kelly in accordance with
the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and
Local Civil Rules 72.C and D.
Magistrate Judge Kelly issued a Report and Recommendation
(the "Report"), recommending that the Amended
Petition be dismissed pre-service because, at the time
Petitioner initiated this proceedings, he had a Post Sentence
Motion pending in the Court of Common Pleas of Allegheny
County and, hence, he had failed to exhaust his state court
remedies. ECF No. 14. Petitioner has now filed Objections to
the Report. ECF No. 17.
thoroughly reviewed the Report and the Objections, we find
that the Objections do not merit the rejection of the Report
or extended comment. The Report is clearly correct that
Petitioner has failed to exhaust his state court remedies at
the time he initiated these proceedings. The United States
Supreme Court has explained that "Section 2254(b)
requires habeas applicants to exhaust those remedies
'available in the courts of the State.' This
requirement, however, refers only to remedies still available
at the time of the federal petition." Engle v.
Isaac, 456 U.S. 107, 125 n.28 (1982) (emphasis added).
See also Wilson v. Foti. 832 F.2d 891, 892
(5th Cir. 1987) (Section 2254's
"exhaustion requirement is not met 'if he has the
right under the law of the state to raise, by any available
procedure, the question presented.' 28 U.S.C. S 2254(c).
When determining whether state remedies are available, we
look to the time of the filing of the federal habeas
petition")(some internal quotations omitted).
by this clear legal rule, Petitioner concedes that he has not
exhausted his state court remedies. ECF No. 17 at 2
("Petitioner concedes he has not exhausted his state
court remedies."). However, he argues that because he is
"actually innocent" the failure to review his
claims now at this juncture would result in a fundamental
miscarriage of justice such that he should not be required to
exhaust. Petitioner argues that his "procedural default
[sic] should be excused because of the new evidence of actual
innocence...." Id. The Court is not persuaded.
Petitioner is confusing the distinct doctrines of
"procedural default" and exhaustion. While there
may be an actual innocence exception to procedural default,
no such actual innocence exception to the requirement that a
Petitioner exhaust his state court remedies before coming to
federal court exists. Johnson v. Glunt, No. CIV.A.
14-2317, 2014 WL 5334078, at *4 (E.D. Pa. Oct. 20, 2014)
("The cases cited by Johnson do not excuse the
exhaustion requirement itself. In other words, the cause and
prejudice or actual innocence exceptions to the procedural
default rule are not applicable to the exhaustion
requirement. In fact, if the court were to adopt
Johnson's approach, the exhaustion requirement would be
eviscerated, allowing the federal court to preempt ongoing
state court proceedings. The Supreme Court has been clear
that the state courts are to be given the 'the first
opportunity to review a claim, and to correct any
constitutional violation in the first instance.'
Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388,
1401, 179 L.Ed.2d 557 (2011)."); Saunders v.
Comm'r, Dep't of Correction. No. 10 CV 410 MRK,
2011 WL 572313, at *3 (D. Conn. Feb. 15, 2011) ("While
there is no Second Circuit decision that directly addresses
the possibility of an 'actual innocence' exception to
the exhaustion requirement, other courts have held that while
a claim of actual innocence might avoid a procedural default,
it will not excuse a defendant from exhausting available
state remedies-remedies, the Court might add, that Mr.
Saunders has invoked." (citing inter alia, Lambert
v. Blackwell, 134 F.3d 506 (3d Cir.1997)).
Petitioner presented any compelling reason to excuse
exhaustion. Petitioner asserts that he cannot exhaust because
transcripts were not provided to him or his attorney. We note
that the criminal docket in Petitioner's case shows that
no formal motion requesting the transcripts was made until
March 13, 2017 by Petitioner himself pro se. Commonwealth
v. Buxton, No. CP-02-CR-0012834-2013. Hence, Petitioner
cannot establish that he has been denied transcripts and he
most assuredly cannot establish that at the time he initiated
these federal habeas proceedings (which is the relevant time
period for measuring exhaustion) he was not provided
transcripts given that no formal request for such was made.
Petitioner concededly has not exhausted his state court
remedies and because there is nothing that shows exhaustion
should be excused, the Amended Petition will be dismissed.
after de novo review of the Report and the
Objections and the record of this case, it is hereby ORDERED
that the Report is adopted as the opinion of the Court and we
hereby ORDER that the Amended Petition be dismissed. A
certificate of appealability is DENIED.
 We note that Courts routinely conflate
the related doctrines of exhaustion and procedural default.
See, e.g.. Lines v. Larkins 208
F.3d at 160 n.9 ("The considerable confusion swirling
around habeas review of state convictions is exacerbated by
the interrelationship of procedural default and
exhaustion."); Clemons v. Delo, 100 F.3d 1394,
1402 (8th Cir. 1996) ("The District
Court's opinion does state that the claim 'has not
been exhausted before the Missouri courts, and has,
therefore, been waived as procedural error under state law,
' slip op. 7, but we read this statement as simply an
informal way of saying that the claim was never properly
raised in the state courts and is therefore now procedurally
barred."), vacated on other grounds upon
rehearing, 124 F.3d 944 (8th Cir. 1997),
cert, denied, 523 U.S. 1088 (1998). The case of
Houck v. Stickman, 625 F.3d 88, 93 (3d Cir. 2010) is
an example of using language of exhaustion and procedural
default interchangeably. Id. ("there is a
narrow class of cases in which, in order to avoid a
fundamental miscarriage of justice, evidence of a
petitioner's actual innocence can excuse his failure to
exhaust his state court remedies. McCleskey v. Zant,
499 U.S. 467, 494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517
(1991); Hubbard, 378 F.3d at 338. A case in which a
petitioner seeks to excuse his procedural default by
advancing a claim of actual innocence is known as a
'gateway" case.") (footnote omitted). In light
of the context and the cases cited, i.e., McCleskey
and Hubbard, both of which concerned procedural
defaults, it is clear that the Court in Houck meant
that there is an actual innocence exception to the procedural
default doctrine, and not to the exhaustion doctrine.
The Court takes judicial notice of the
criminal docket of the Court of Common Pleas of Allegheny
County in Petitioner's case which is available at