GARDNER v. WENEROWICZ et al
ORDER THAT FOR PURPOSES OF MAINTAINING A CLEAR RECORD, THE ORDER OF THIS COURT DATED 9/1/16 (DOC. NO. 19) IS HEREBY VACATED; THE REPORT AND RECOMMENDATION (DOC. NO. 17) IS APPROVED AND ADOPTED; PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS (DO C. NO. 1) IS DENIED WITH PREJUDICE; NO CERTIFICATE OF APPEALABILITY SHALL ISSUE; THE CLERK OF COURT SHALL MARK THIS CASE CLOSED.. SIGNED BY HONORABLE C. DARNELL JONES, II ON 3/5/18. 3/6/18 ENTERED AND COPIES MAILED TO PRO SE PETITIONER, E-MAILED TO COUNSEL. (pr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MIKE WENEROWICZ, et al.
AND NOW, this 5th day of March, 2018, upon consideration of Petitioner’s Objections
to Report of Magistrate Judge (Doc. No. 23) and the government’s Response thereto (Doc.
No. 26), it is hereby ORDERED that said Objections are OVERRULED.1
It is further ORDERED as follows:
For purposes of maintaining a clear record, the Order of this Court
dated September 1, 2016 (Doc. No. 19) is hereby VACATED;
The instant habeas petition was filed by Mr. Gardner more than thirteen (13) years beyond the
time limit prescribed by 28 U.S.C. § 2244(d). Although Petitioner claims his ability to comply with
state post conviction relief procedures was thwarted by prison officials, the delay complained of only
comprises a minuscule portion of the numerous years beyond which he was required to file the instant
habeas matter. Even giving Petitioner the benefit of the five-month delay cited with regard to state post
conviction proceedings, he has provided no indication that he exercised any degree of due diligence for
the remaining years that spanned more than an entire decade. Moreover, Petitioner’s reliance on
Trevino v. Thaler, 569 U.S. 413 (2013) to excuse his untimely petition is misplaced. Aside from the fact
that Trevino pertains to the issue of procedural default, Petitioner’s ineffectiveness claim was in fact
raised and considered on direct appeal. (Habeas Pet. Ex. D-11 at 30.) See also Cox v. Horn, 757 F.3d
113, 119 (3d Cir. 2014) (“In Trevino . . . the Supreme Court clarified that the Martinez rule applied not
only to states that expressly denied permission to raise ineffective assistance claims on direct appeal . . .
but also to states in which it was ‘virtually impossible,’ as a practical matter, to assert an ineffective
assistance claim before collateral review.”) (quoting Trevino, 569 U.S. at 417). Clearly, the validity of
Petitioner’s Objections relating to Trevino is belied by the record and his argument that “the interests of
justice” require this Court to disregard the statutory mandates that control this matter, is similarly
baseless. (Objs. 1-2, 4-5.) Because this Court is prohibited from reaching the merits of Petitioner’s
claims, his third Objection is rendered moot.
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The Report and Recommendation of Magistrate Judge Richard A.
Lloret (Doc. No. 17) is hereby APPROVED and ADOPTED;
Petitioner’s Petition for Writ of Habeas Corpus (Doc. No. 1) is
DENIED with prejudice;
No Certificate of Appealability shall issue, because “the applicant has
[not] made a substantial showing of the denial of a constitutional
right[,]” under 28 U.S.C. § 2253(c)(2) and “reasonable jurists” would
find the court’s “assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S.473, 484 (2000); and,
The Clerk of Court shall mark this case CLOSED.
BY THE COURT:
/s/ C. Darnell Jones, II
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