BUXTON v. THOMPSON et al
ORDER dismissing Amended Petition, denying certificate of appealability, and adopting 14 Report and Recommendation of Chief Magistrate Judge Kelly as the opinion of the Court. The Clerk shall mark this case CLOSED. Signed by Judge David S. Cercone on 4/13/17. (njt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA
and THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Judge David Stewart Cercone/
Chief Magistrate Judge Maureen P. Kelly
Andy 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)(l), and Local Civil Rules 72.C and D.
Chief 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.
Having 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).
Confronted 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.
First, 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, 2011WL572313, 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)). 1
Nor has 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
We note that Courts routinely conflate the related doctrines of exhaustion and procedural
default. See,~' 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.
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 prose. Commonwealth v.
Buxton, No. CP-02-CR-0012834-2013. 2 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.
Because 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.
Accordingly, after de nova 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.
4 l_l 1_1
Date: _ _
David Stewart Cercone
United States District Judge.
The Honorable Maureen P. Kelly
Chief United States Magistrate Judge
801 Butler Pike
Mercer, PA 16137
(Via First Class Mail)
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
(Site last visited 41101201 7).
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