DAVID STEWART CERCONE, District Judge.
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)(1), 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
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. . . ."
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.
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 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.
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