REPORT AND RECOMMENDATION

MAUREEN P. KELLY, Magistrate Judge.

I. RECOMMENDATION

For the reasons that follow, it is respectfully recommended that the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the "Petition"), be dismissed as moot because it is undisputed that the relief Petitioner sought in the Petition, i.e., a corrected sentencing order from the state court accurately providing him credit for a specific period of time against his sentence, has now been awarded him.

II. REPORT

Kevin R. Shay ("Petitioner"), submitted the Petition for filing and was granted leave to proceed in forma pauperis. ECF No. 3. In the Petition, Petitioner raised one Ground for Relief, challenging the calculation by the sentencing court of the credits due against his sentences in two cases, namely, Commonwealth v. Shay, CP-02-CR-0000290-2006 (Court of Common Pleas Allegheny County) and Commonwealth v. Shay, CP-02-CR-0000918-2007 (Court of Common Pleas Allegheny County), both of which are now assigned to the Honorable Jill Rangos (the "Sentencing Court"). ECF No. 4 at 1 (listing the dockets of the case numbers being challenged). Petitioner alleged that when the Sentencing Court resentenced him, the Sentencing Court failed to order that he receive credit against these sentences for a period of time that he was incarcerated under these convictions. Specifically, Petitioner sought credit for the time period from October 29, 2013 to December 11, 2015. Id. at 5; ECF No. 4-3 at 3.

During the pendency of this Petition, and at the request of the Respondents, the Sentencing Court issued a revised sentencing order that directed Petitioner was to receive the very credit of time he sought herein against his sentences. Petitioner concedes that he received this credit from the Sentencing Court. ECF No. 33 ¶ 1 ("Ultimently [sic] respondent took this concern before the trial court and the trial court credited the said dates[.]").

As a consequence, this Court ordered Petitioner to show cause why, given the facts of this case, the Petition was not rendered moot by the granting of the credit by the Sentencing Court, which was the very relief sought in the Petition. ECF No. 39. Petitioner's response to the Order to Show Cause was due no later than December 2, 2019. Petitioner's Response, while ostensibly signed on November 28, 2019, was not postmarked until December 2, 2019 and not received by the Clerk of Court and docketed until December 4, 2019. ECF No. 40. In his Response, Petitioner concedes that the Sentencing Court has issued the sentencing credit to which he claimed entitlement in the Petition before this Court. He complains, however, that the Central Office of the Department of Corrections ("DOC") has, as of November 28, 2019, not yet issued a revised internal DOC form (i.e., DC-16E) reflecting the new sentencing order by the Sentencing Court, which issued the credit that Petitioner had sought. Petitioner includes as an exhibit to the Response an "Inmate's Request to Staff Member" form, asking why a revised DC16E form, reflecting the new credits against his sentence had not been issued yet. ECF No. 40-3. Petitioner ostensibly signed the Inmate Request to Staff Member form on November 12, 2019. A staff member replied to Petitioner noting "I emailed Central Office the sentencing order for 918-2007. It shows that they received it on November 6. Once they have updated your DC16E I will send you a copy. Please be patient[.]" Id.1

Far from establishing that the Petition is not moot, Petitioner's Response establishes that it is moot. Petitioner sought to have the Sentencing Court issue him a revised sentencing order, giving him credit that he sought in the Petition. Petitioner concedes that he has obtained such an order. But he now complains that the Department of Corrections has not yet reflected the new sentencing credits and that this "fact" causes his Petition to not be moot. Petitioner is mistaken.

Petitioner has received all the relief he could have obtained herein, a sentencing order awarding him the credits that he sought. Insofar as any complaints that he may have regarding whether the DOC will issue the proper form to reflect the Sentencing Court's new sentence, it should be obvious that any such claim was not in existence at the time of the filing of this Petition and hence could not have formed the basis for any request for relief in the Petition. The Response is yet another attempt by Petitioner to add a new claim to the Petition, i.e., that the DOC is not complying fast enough with the Sentencing Court's newly issued sentencing order. Such a claim could not have formed part of this Petition because at the time of the filing of the Petition no such claim was possible. Petitioner is in effect, seeking to amend the Petition to add a new and distinct and later-arising claim, i.e., that the DOC is not obeying the Sentencing Court's new sentencing order. Such a claim, having just arisen, is self-evidently not exhausted and, accordingly, cannot be added to the current Petition due to Petitioner's failure to exhaust such a claim.

Accordingly, Petitioner, having received all of the relief that he was entitled to receive in this Petition, namely having the state Sentencing Court issue a new sentencing order providing him the credits that he sought herein, Petitioner fails to show why the Petition is not now rendered moot.

III. CONCLUSION

Petitioner, having been given an opportunity to show why the Petition is not moot, and having failed to do so, it is respectfully recommended that the instant Petition be dismissed as moot for the reasons stated herein.

In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.