United States District Court, E.D. Pennsylvania
JESSE A. GARDNER, JR.
COMMONWEALTH OF PENNSYLVANIA, et al.
R. SANCHEZ, C.J.
NOW, this 3rd day of September, 2019, upon careful and
independent consideration of Petitioner Jesse A. Gardner
Jr.'s pro se Petition for Writ of Habeas Corpus Under 28
U.S.C. § 2254 (the Petition), and upon de novo review of
the Report and Recommendation of United States Magistrate
Judge Richard A. Lloret and Gardner's objections thereto,
it is ORDERED:
Gardner's objections (Document 16) are OVERRULED.
Report and Recommendation (Document 14) is APPROVED and
Gardner's Petition (Document 1) is DENIED.
certificate of appealability shall not issue, as Gardner has
not made a substantial showing of the denial of a
constitutional right nor demonstrated that reasonable jurists
would debate the correctness of the procedural aspects of
this ruling. See 28 U.S.C. § 2253(c)(2); Slack v
McDaniel, 529 U.S. 473, 483-84 (2000).
On June 4, 2018, Petitioner Jesse
A. Gardner Jr. filed the instant pro se Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. The Court
referred the Petition to United States Magistrate Judge
Richard A. Lloret for a report and recommendation (R&R).
On November 19, 2018, Judge Lloret issued an R&R
recommending the Petition be denied and dismissed with
prejudice as untimely. Gardner did not file any objections to
the R&R. Rather, he directly appealed the R&R to the
Third Circuit Court of Appeals. In his notice of appeal,
Gardner objected to Judge Lloret's statutory tolling
calculation with regard to whether his petition was timely
filed within the one-year limitation. The Third Circuit
dismissed Gardner's appeal for failure to timely
prosecute. However, because this Court never adopted the
R&R, Gardner's appeal was a premature appeal of a
non-final order, see Siers v. Morrash, 700 F.2d 113,
114-115 (3d Cir. 1983), and the Court must now decide whether
to adopt the R&R in this case. Accordingly, in the
interest of justice, the Court will construe Gardner's
arguments in his notice of appeal as objections to the
R&R. Pursuant to 28 U.S.C. § 636(b)(1), this Court
reviews de novo "those portions of the report or
specified proposed findings or recommendations to which
objections are made." Because the procedural history of
Gardner's case is directly at issue in determining the
statutory tolling period, the Court outlines it
On June 4, 2015, Gardner pled guilty in the Court of
Common Pleas of Montgomery County to one count of stalking.
On the same day, Gardner also pled guilty to twenty counts of
theft and receiving stolen property. Gardner was sentenced on
September 15, 2015, to ninety-one days in confinement, three
years of county parole, and four years of probation. See
Mont. Co. Crim. Docket No. CP-46-CR-0000381-2015. Gardner
also received a sentence of up to twenty-three months and
five years of probation on the theft convictions. See
Mont. Co. Crim. Docket No. CP-46-CR-0001753-2015. The
two sentences were to run concurrently. Although Gardner pled
guilty to and was sentenced on both convictions
simultaneously, in this Petition, Gardner only challenges the
stalking conviction and sentence.
Gardner did not directly appeal his stalking
conviction and therefore it became final on October 15, 2015.
On June 10, 2016, Gardner timely filed a petition for relief
under Pennsylvania's Post-Conviction Relief Act (PCRA) in
the Court of Common Pleas of Montgomery County in which he
challenged both his stalking and theft convictions. The
Common Pleas Court issued its notice of intent to dismiss
Gardner's PCRA petition without a hearing pursuant to
Pennsylvania Rule of Criminal Procedure 907 on March 1, 2017.
Before the court issued a final order dismissing
Gardner's PCRA petition, Gardner filed a petition for
allowance of appeal to the Pennsylvania Supreme Court,
pursuant to Pennsylvania Rule of Appellate Procedure 1311 and
1316, on March 21, 2017. The Common Pleas Court then issued
its final order dismissing Gardner's PCRA petition on
March 27, 2017. The Pennsylvania Supreme Court denied and
dismissed Gardner's petition for allowance of appeal on
July 6, 2017.
On October 25, 2017, Gardner filed a petition for
federal habeas corpus relief pursuant to § 2254,
challenging the conviction and sentence of the twenty theft
charges. See Pet. for Writ of Habeas Corpus, Gardner v.
Attorney General, No. 17-4801 (K.D. Pa. Oct. 25, 2017),
ECF No. 1. This petition did not mention or challenge his
stalking conviction or sentence. This Court denied and
dismissed his first habeas corpus petition on September 12,
2018. See Order, Gardner v. Attorney General, No.
17-4801 (E.D. Pa. Sep. 12, 2018), ECF No. 24.
Gardner subsequently filed a second PCRA petition on
April 26, 2018, which the Court of Common Pleas dismissed on
May 25, 2018. Gardner did not appeal the dismissal of his
second PCRA petition. Finally, on June 4, 2018, Gardner filed
the instant Petition.
Gardner objects to Judge Floret's calculation of
statutory tolling regarding his "properly filed"
appeal of his first PCRA petition. Specifically, Gardner
argues that Appellate Rule 1316 permits his petition for
allowance of appeal to the Pennsylvania Supreme Court on
March 21, 2017, to be treated as a timely notice of appeal of
his PCRA as required by Appellate Rule 902. If Appellate Rule
1316 applies, then his one-year limitation period continued
to toll until his appeal became final, i.e., thirty days
after the Pennsylvania Supreme Court issued its dismissal on
July 6, 2017. Gardner also states "the limitation
period, therefore, resets itself from the date of the