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Gardner v. Commonwealth

United States District Court, E.D. Pennsylvania

September 3, 2019

JESSE A. GARDNER, JR.
v.
COMMONWEALTH OF PENNSYLVANIA, et al.

          ORDER

          JUAN R. SANCHEZ, C.J.

         AND 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:

         1. Gardner's objections (Document 16) are OVERRULED. [1]

         2. The Report and Recommendation (Document 14) is APPROVED and ADOPTED.

         3. Gardner's Petition (Document 1) is DENIED.

         4. A 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).

---------

Notes:

[1]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 below.

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 ...


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