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Anthony Gardner v. James Wynder

April 27, 2011

ANTHONY GARDNER
PETITIONER,
v.
JAMES WYNDER, ET AL. RESPONDENTS.



The opinion of the court was delivered by: Slomsky, J.

OPINION

I. INTRODUCTION*fn1

On January 26, 2007, Petitioner Anthony Gardner filed with this Court a petition for habeas corpus pursuant to 28 U.S.C. § 2254. (Civ. No. 07-360, Doc. No. 1). On July 23, 2007, former Chief Judge James T. Giles denied the Petition. (Civ. No. 07-360, Doc. No. 12.)

On February 18, 2010, well over two years after Judge Giles denied Petitioner's habeas petition, Petitioner filed a Motion uniquely titled: "Application to Raise a Question of Law Pursuant to 28 U.S.C.A. § 1331, for an Analysis of the Extent of the United States Supreme Court Holding: For Re Characterization, in, Castro v. United States; with Consolidated Motion for Relief Pursuant to Rule 60(b)(4), (5), and (6)" (the "Application") (Civ. No. 07-360, Doc. No. 20; Civ. No. 08-2419 Doc. No. 14). Thereafter, on August 2, 2010, this Court referred the Application to United States Magistrate Judge David R. Strawbridge for a Report and Recommendation. (See Civ. No. 07-360, Doc. No. 23; Civ. No. 08-2419, Doc. No. 15). On October 22, 2010, Magistrate Judge Strawbridge issued a Report and recommended that Petitioner's Application be denied. (Civ. No. 07-360, Doc. No. 24; Civ. No. 08-2419, Doc. No. 16.) On November 5, 2010, Petitioner filed objections to the Report and Recommendation. (Civ. No. 07-360, Doc. No. 25; Civ. No. 08-2419, Doc. No. 17.)

The Court has considered the record, including Petitioner's Application (Civ. No. 07-360, Doc. No. 20), Magistrate Judge Strawbridge's Report and Recommendation (Civ. No. 07-360, Doc. No. 24), and Petitioner's Objections to Judge Strawbridge's Report and Recommendation (Civ. No. 07-360, Doc. No. 25), and will approve and adopt Magistrate Judge Strawbridge's Report and Recommendation (Civ. No. 07-360, Doc. No. 24) and deny Petitioner's Application. (Civ. No. 07-360, Doc. No. 20).

II. SUMMARY OF FACTUAL AND PROCEDURAL BACKGROUND*fn2

Petitioner is incarcerated at SCI-Dallas, serving a life sentence. Over nineteen years ago, on March 23, 1991, a jury in the Philadelphia Court of Common Pleas convicted Petitioner of Third Degree Murder and possession of an instrument of crime. This was Petitioner's second murder conviction. According to 42 Pa. Cons. Stat. § 9715(a):

(a) Mandatory life imprisonment.--Notwithstanding the provisions of section 9712 (relating to sentences for offenses committed with firearms), 9713 (relating to sentences for offenses committed on public transportation) or 9714 (relating to sentences for second and subsequent offenses), any person convicted of murder of the third degree in this Commonwealth who has previously been convicted at any time of murder or voluntary manslaughter in this Commonwealth or of the same or substantially equivalent crime in any other jurisdiction shall be sentenced to life imprisonment, notwithstanding any other provision of this title or other statute to the contrary.

42 Pa. C.S. § 9715(a) (emphasis added). In light of this provision, the Honorable Joseph D. O'Keefe of the Philadelphia Court of Common Pleas sentenced Petitioner to a term of life imprisonment.

Petitioner unsuccessfully appealed his conviction and sentence. On November 16, 1992, the Pennsylvania Superior Court affirmed the judgment of sentence and on May 3, 1993, the Pennsylvania Supreme Court denied a petition for allowance of appeal. See Commonwealth v. Gardner, 620 A.2d 1233 (Pa. Super. Ct. 1992) (table); Commonwealth v. Gardner, 625 A.2d 1191 (Pa. 1993) (table). On or about January 9, 1997, Petitioner filed a pro se petition under the Pennsylvania Post-Conviction Relief Act, 42 Pa. Cons. Stat. § 9541, et seq. (PCRA). On October 20, 1997, the PCRA court dismissed the petition as lacking merit. (Civ. No. 07-360, Doc. No. 1 at 5-6.) No appeal was taken from the denial of this PCRA petition.

More than six years later, on or about July 29, 2004, Petitioner filed a second pro se PCRA petition. On May 23, 2005, the PCRA court dismissed the petition as untimely and on April 12, 2006, the Superior Court affirmed the dismissal. Commonwealth v. Gardner, 902 A.2d 976 (Pa. Super. Ct. 2006) (table). On August 2, 2006, the Pennsylvania Supreme Court denied Petitioner allowance of appeal. Commonwealth v. Gardner, 903 A.2d 1232 (Pa. 2006) (table).

On November 1, 2006, Petitioner filed in the Pennsylvania Supreme Court an "Application to File Original Process in the Supreme Court of Pennsylvania" and a "Petition for Writ of Habeas Corpus, In the Supreme Court of Pennsylvania, Eastern District." (Civ. No. 07-360, Doc. No. 1, Exhibit ("Ex.") B.) On December 20, 2006, the Pennsylvania Supreme Court granted the application for leave to file original process and denied the petition for writ of habeas corpus. Gardner v. Corbett, 914 A. 2d 866 (Pa. 2006). (Civ. No. 07-360, Doc. No. 1, Ex. A.)

As already noted, on January 26, 2007, Petitioner filed a petition for a federal writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254. See Premo v. Moore, 131 S. Ct. 733 (2011) (statutory authority of federal courts to issue habeas corpus relief for a person in state custody is found in 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act (AEDPA)). (Civ. No. 07-360, Doc. No. 1.) The purpose of his petition was to challenge the constitutionality of 42 Pa. Cons. Stat. § 9715. (Civ. No. 07-360, Doc. No. 1 at 9.) The late United States Magistrate Judge Peter B. Scuderi prepared a Report recommending that the petition be denied because it was untimely by more than eight years, and on July 23, 2007, Judge Giles denied Petitioner's objections and approved and adopted the Report and Recommendation. (Civ. No. 07-360, Doc. No. 12). Petitioner sought a certificate of appealability, which was denied by the Third Circuit on November 7, 2007. (Civ. No. 07-360, Doc. No. 17.)

On May 20, 2008, Petitioner filed a Motion pursuant to Federal Rule of Civil Procedure 60(b) asking the Court to set aside Judge Giles's July 23, 2007 Order denying Petitioner habeas relief. (Civ. No. 08-2419, Doc. No. 1 at 1.) On July 16, 2008, Judge Giles issued a Memorandum Opinion finding, among other things, that Petitioner's Rule 60(b) claim was potentially viable, and referred the matter to Magistrate Judge Scuderi for a Report and Recommendation. (Civ. No. 8- 2419, Doc. No. 2 at ...


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