KAPLAN v. UNITED STATES OF AMERICA
Filing
26
OPINION filed. Signed by Judge Noel L. Hillman on 12/15/2015. (drw)
*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICHARD KAPLAN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Civil No.
13-2554 (NLH),
13-5295 (NLH),
14-1007 (NLH)
OPINION
APPEARANCES:
Richard Kaplan, # 28621-050
F.C.I. Otisville
P.O. Box 1000
Otisville, NY 10963
Petitioner, Pro se
HILLMAN, District Judge
Presently before the Court is the motion of Petitioner Richard
Kaplan
“directing
all
Courts
to
Reverse
[their]
Erroneous
Decision[s] Based Upon Government Informant John Garafalo being a
Government Agent,” which is essentially a motion seeking relief
from this Court’s judgments dismissing as time barred Petitioner’s
three motions to vacate his sentences for public corruption and
murder for hire charges brought pursuant to Rule 60(b) of the
Federal Rules of Civil Procedure, which Petitioner filed in all
three of his prior federal habeas cases.
(Docket No. 13-2554 at
ECF No. 17; Docket no. 13-5295 at ECF No. 23; Docket No. 14-1007
at ECF No. 13).
Also before this Court are numerous motions Petitioner has
filed in Docket No. 13-2554 which are either directly or indirectly
related to Petitioner’s Rule 60(b) motion including: two motions
to correct IFP status (Docket No. 12-2554 at ECF Nos. 15, 16), a
motion for a full and fair hearing on Petitioner’s Rule 60(b)
motion (Docket No. 13-2554 at ECF No. 18), two motions for a
teleconference (Docket No. 13-2554 at ECF Nos. 19, 24), a motion
for transportation to any hearing on the 60(b) motion (Docket No.
13-2554 at ECF No. 20), a motion to intervene in any hearing on
the 60(b) motion (Docket No. 13-2554 at ECF No. 21), and a motion
to appoint counsel in relation to the 60(b) motion. (Docket No.
13-2554 at ECF No. 22).
For the following reasons, this Court
denies Petitioner’s Rule 60(b) motion, and will in turn deny
Petitioner’s remaining motions.
I.
BACKGROUND
Because of the nature of Petitioner’s motion, only a brief
recitation
of
the
background
facts
surrounding
Petitioner’s
convictions and three motions to vacate is necessary here.
The
Honorable Joseph E. Irenas summarized the basic facts underlying
Petitioner’s criminal convictions in a related case Petitioner
2
brought pursuant to 42 U.S.C § 1983:
[Petitioner] is a federal prisoner currently
incarcerated at FCI Otisville, New York. In
2007, [Petitioner] pled guilty to a one-count
information charging him with violating 18
U.S.C. § 666 by receiving corrupt cash
payments and other services in exchange for
official
action
on
his
part
as
a
rehabilitation construction inspector in New
Brunswick, New Jersey.
While in prison
following
his
guilty
plea,
[Petitioner]
attempted to engage the services of a hit man
to commit murder for hire with the help of a
fellow inmate[, John Garafalo]. This fellow
inmate contacted authorities and acted as a
cooperating witness, introducing Plaintiff to
an undercover law enforcement officer posing
as a hit-man. [Petitioner] then attempted to
hire this undercover officer to murder [his]
spouse. As a result, [Petitioner] was charged
with
and
pled
guilty
to
a
one-count
information for murder for hire [on August 18,
2008]. [Petitioner] was thereafter sentenced
and remains in prison.
Kaplan v. Holder, No. 14-1740, 2015 WL 1268203, at *1 (D.N.J. Mar.
18, 2015) (record citations omitted); see also Kaplan v. United
States, Nos. 13-5295 and 14-1007, 2015 WL 1268194, at *1-2 (D.N.J.
Mar. 18, 2015); Kaplan v. United States, No. 13-2554, 2013 WL
3863923, at *1 (D.N.J. July 24, 2013).
On or about April 22, 2013, Petitioner filed a motion to
vacate his sentence for murder for hire under Docket Number 132554. (Mot. To Vacate, Docket No. 13-2554 at ECF No. 1).
On July
24, 2013, Judge Irenas entered an order and opinion dismissing
3
that motion as time barred.
*3.
See Kaplan, 2013 WL 3863923 at *2-
Petitioner filed a motion to amend the judgment in that
matter, which Judge Irenas denied on November 25, 2013. (Docket
No. 13-2554 at ECF No. 9).
Petitioner appealed, 1 and the Third
Circuit denied him a certificate of appealability and dismissed
his appeal on April 9, 2014. (Order of USCA, Docket No. 13-2554 at
ECF No. 14).
On or about September 3, 2013, Petitioner filed another motion
to vacate, this time aimed at correcting his first sentence for
receiving corrupt payments. (Mot. To Vacate, Docket No. 13-5295 at
ECF No. 1).
Before that matter was decided, Petitioner filed a
second motion to vacate challenging that same conviction on or
about February 14, 2014. (Mot. To Vacate, Docket No. 14-1007 at
1
Petitioner initially neither filed an application to proceed in
forma pauperis nor paid the fee for this appeal. (Docket No. 132554 at ECF Docket Sheet Entry for ECF No. 10). Petitioner
thereafter filed for and was granted in forma pauperis status on
appeal. (Docket No. 13-2554 at ECF no. 13). In June of 2015,
Petitioner filed two motions seeking to correct the notes on the
docket sheet noting his initial failure to pay the fee or file
an application to proceed in forma pauperis on appeal in both
his § 2255 matter and his related criminal cases. (Mots. To
Correct IFP Status, Docket No. 13-2554 at ECF Nos. 15, 16). The
notes on the docket sheet, however, remain factually correct in
so much as no fee had yet been paid at the time the notes were
written. Because the notes were accurate when written, and
because the ECF Docket notes in no way prejudice Petitioner,
Petitioner’s motions to correct the docket sheet are without a
proper basis and will be denied.
4
ECF No. 1).
In a consolidated opinion issued on March 18, 2015,
Judge Irenas dismissed both motions as time barred.
2015 WL 1268194, at *3-6.
Circuit
affirmed
by
See Kaplan,
Petitioner appealed, and the Third
denying
Petitioner
a
certificate
of
appealability on October 13, 2015. (Order of USCA, Docket No. 135295 at ECF No. 24).
On or about February 10, 2015, Petitioner filed a civil
complaint raising civil rights claims against numerous individuals
including informant John Garafolo, an FBI agent, the Governor of
New Jersey, and a prison in which Petitioner had been housed.
(Comp., Docket No. 15-1150 at ECF No. 1).
In that action,
Petitioner filed motions for a teleconference, an evidentiary
hearing, and service of process.
ECF Nos. 5-7).
(Mots., Docket No. 15-1150 at
On August 27, 2015, Magistrate Judge Clark denied
those motions without prejudice as Petitioner’s complaint had not
yet been screened pursuant to 28 U.S.C. § 1915A.
(Order, Kaplan
v. Garafalo, Docket No. 15-1150 at ECF No. 8).
In that order,
Magistrate Judge Clark noted that § 1915A applies in any civil
action where a prisoner seeks redress against a governmental
entity, officer, or employee.
misunderstood
Judge
Clark’s
(Id.).
statement
Petitioner apparently
to
suggest
that
John
Garafalo, Petitioner’s former cellmate who acted as an informant
5
against him, must be a government agent, when in fact Judge Clark
merely noted that because Petitioner was suing government entities
and employees including a prison, the governor of New Jersey, and
agents of the FBI, his complaint was subject to screening under
the statute.
(Id.).
On or about October 6, 2015, Petitioner filed his Rule 60(b)
motion in all three of his federal habeas cases. (Mot., Docket No.
13-2554 at ECF No. 17; Docket no. 13-5295 at ECF No. 23; Docket
No. 14-1007 at ECF No. 13).
The motions filed in all three cases
are essentially identical.
(Id.).
In his motion, Petitioner
asserts that all prior orders dismissing his § 2255 motions must
be overturned as John Garafalo was actually a federal agent, and
not an informant as previously stated.
(Id. at 3-4).
In support
of this assertion, Petitioner provides only his own base assertion
that he has conducted his own investigation and “uncovered” that
Garafalo was paid “$75,000,00 [sic]” to entrap him and Judge
Clark’s order, which Petitioner asserts “INDIRECTLY states that
John Garafalo is a Government agen[t] [FBI].”
II.
A.
(Id.).
DISCUSSION
Petitioner’s Rule 60(b) Motion
Petitioner
seeks
relief
from
6
this
Court’s
prior
orders
dismissing his § 2255 motions as time barred on the basis of
allegedly newly discovered evidence and alleged fraud on the part
of the Government.
“Rule 60(b) allows a party to seek relief from
a final judgment, and request reopening of his case, under a
limited set of circumstances including fraud, mistake, and newly
discovered evidence.” Gonzalez v. Crosby, 545 U.S. 524, 528 (2005).
“The remedy provided by Rule 60(b) is extraordinary, and special
circumstances must justify granting relief under it.” Jones v.
Citigroup, Inc., Civil Action No. 14-6547, 2015 WL 3385938, at *3
(D.N.J. May 26, 2015) (quoting Moolenaar v. Gov’t of the Virgin
Islands, 822 F.3d 1342, 1346 (3d Cir. 1987).
Where a motion is based on an assertion of newly discovered
evidence, Rule 60(b)(2) “requires that the new evidence (1) be
material
and
discovered
not
before
merely
trial
cumulative,
through
the
(2)
could
exercise
not
have
been
of
reasonable
diligence and (3) would probably have changed the outcome of the
trial.
Any party requesting such relief bears a heavy burden.”
Floorgraphics Inc. v. News Am. Mktg. In-Store Servs., 434 F. App’x
109, 111 (3d Cir. 2011) (quoting Compass Tech., Inc. v. Tseng
Labs., Inc., 71 F.3d 1125, 1130 (3d Cir. 1995)).
A motion alleging
fraud on the part of an opposing party, however, must prove fraud
or a misrepresentation occurred by clear and convincing evidence
7
and that the fraud or misrepresentation “prevented the moving party
from fully and fairly presenting his case.” Id. at 111-12 (internal
quotations omitted).
Petitioner’s motion must fail because Petitioner fails to
provide any support for his assertion that he has “discovered”
that Garafalo was somehow a government agent.
While Petitioner
asserts that he has conducted his own investigation and that
alleged
investigation
has
confirmed
this
provides no documentation to that effect.
“fact,”
Petitioner
Petitioner fails even
to provide an affidavit setting forth his own beliefs on the
matter.
Instead,
Petitioner
relies
on
his
own
conclusory
allegations and a misreading of Magistrate Judge Clark’s order in
his civil rights action.
To the extent Petitioner relies on that
order, Judge Clark in no way suggested, directly or indirectly,
that Garafalo is a government agent of any kind.
Instead, Judge
Clark’s order merely notes that, because Petitioner sued others
who
are
either
government
employees,
agents,
or
entities,
Petitioner’s complaint was subject to screening pursuant to 28
U.S.C.
§
1915A.
Judge
Clark’s
order
provides
absolutely
no
support for the assertion that Garafalo is a government agent.
Petitioner’s motion is thus completely devoid of factual support.
As such, this Court finds that Petitioner has failed to provide
8
clear and convincing evidence in support of his fraud allegations,
and that Petitioner has likewise failed to show that he has
discovered any “new evidence” whatsoever, let alone new evidence
which would have had a bearing on his underlying cases.
As such,
Petitioner’s motion must be denied on its merits. Floorgraphics
Inc., 434 F. App’x at 111-12.
There is, however, an additional problem with Petitioner’s
motion.
Where a Rule 60(b) motion is based on claims of new
evidence or fraud, a motion brought pursuant to Rule 60(b) must be
made “no more than a year after the entry of judgment or order or
the date of the proceeding.” Fed. R. Civ. P. 60(c)(1).
filed his instant motion in October 2015.
Petitioner
Petitioner’s first §
2255 motion, in Docket Number 13-2554, was decided by way of an
order and opinion dated more than two years earlier on July 24,
2013.
See Kaplan, 2013 WL 3863923 at *2-*3.
Thus, Petitioner’s
Rule 60(b) motion is time barred to the extent that it is raised
in relation to Docket Number 13-2554. See, e.g., GLeS Inc. v. MK
Real Estate Dev. & Trade Co., 530 F. App’x 153, 154 (3d Cir. 2013).
In so much as Petitioner addresses his other two § 2255
motions, Docket Numbers 13-5295 and 14-1007, those cases dealt not
with his conviction for murder for hire, a charge which was based
in part on information provided by Garafalo acting as an informant,
9
but instead with his earlier corrupt payment charges, for which
Petitioner had already been sentenced prior to meeting Garafalo.
See
Kaplan,
2015
WL
1268194,
at
*3-6.
As
such,
even
were
Petitioner to have provided legitimate evidence regarding Garafalo
being a government agent, that evidence would be of absolutely no
value to his challenge to his conviction for receiving corrupt
payments.
Petitioner’s motion is therefore without merit for that
reason as well.
As Petitioner’s motion is without merit, it shall
be denied as to all three of Petitioner’s § 2255 cases in which it
was filed.
B.
Petitioner’s Remaining Motions
The remaining motions Petitioner has filed in Docket Number
13-2554, including his motion for a full and fair hearing (Docket
No. 13-2554 at ECF No. 18), for a teleconference (Docket No. 132554 at ECF No. 19, for transportation (Docket No. 13-2554 at ECF
No. 20), to intervene in the hearing on November 2 (Docket No. 132554 at ECF No. 21), to appoint counsel (Docket No. 13-2554 at ECF
No. 22), and for a further teleconference (Docket No. 13-2554 at
ECF No. 24); are all dependent upon the merits of his Rule 60(b)
motion.
relate
As Petitioner himself notes in those motions, they all
to
his
request
that
this
10
Court
reverse
all
previous
decisions dismissing his various § 2255 motions.
As Petitioner’s
Rule 60(b) motion is patently without merit, it provides no basis
for a hearing, teleconference, the appointment of counsel, or the
transportation
conference.
of
Petitioner
to
New
Jersey
for
a
hearing
or
As Petitioner’s Rule 60(b) motion is without merit,
and as there is in turn no basis to grant Petitioner’s remaining
motions, this Court will deny those motions.
III. CONCLUSION
For the reasons stated above, Petitioner’s motions for relief
from this Court’s judgments under Rule 60(b), for the correction
of
IFP
status,
for
a
teleconference,
for
transportation,
to
intervene, for the appointment of counsel, and for a hearing are
DENIED.
An appropriate order follows.
December 15, 2015
__s/ Noel L. Hillman_
Hon. Noel L. Hillman
United States District Judge
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