GALLICCHIO v. BONNER et al

Filing 2

OPINION. Signed by Judge Stanley R. Chesler on 2/4/10. (jd, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

NICHOLAS J.

GALLICCHIO, Civil Action No. Petitioner,
v. : OPINION

10--0405

(SRC)

MR.

BONNER,

et al., Respondents.

APPEARANCES:

Petitioner se Nicholas J. Gallicchio 355 Thomas Blvd., Apt. 9A Orange, NJ 07050--4158

CHESLER,

District Judge Gallicchio, a former prisoner

Petitioner Nicholas J.

currently under parole supervision,

has submitted a petition for § 2254.' The named

a writ of habeas corpus pursuant to 28 U.S.C. Respondents are Mr. of New Jersey.

Bonner and the Attorney General of the State

Section 2254 provides in relevant part: (a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

Because it appears from a review of the Petition that Petitioner Nicholas J. the writ, Gallicchio is not entitled to issuance of

this Court will order Petitioner to show cause why the See 28 U.S.C.

Petition should not be dismissed as time--barred. § 2243. I.
In December 1993,

BACKGROUND Law

in the Superior Court of New Jersey,

Division,

Essex County,

Petitioner was convicted of first-degree He was

racketeering and second-degree theft by extortion.

sentenced to an extended term of fifty years incarceration for the racketeering count and a concurrent term of seven years for the extortion offense. On direct appeal, Appellate Division, He is presently under parole supervision. the Superior Court of New Jersey, On

affirmed the conviction and sentence.

This procedural history is iecited in State v. Gallicchio, 2008 WL 2404168 (N.J. Super. App.Div. June 16, 2008) This Court will take judicial notice of the dockets of other courts in cases related to this Petition. See Fed.R.Evid. 201; Southern Cross Overseas Agencies, Inc. v. Wah Kwonp Shipping Group Ltd., 181 F.3d 410, 426-27 (3d Cir. 1999) (federal court, on a motion to dismiss, may take judicial notice of another court's opinion, not for the truth of the facts recited therein, but for the existence of the opinion, which is not subject to reasonable dispute over its authenticity) In addition, this Court notes that, pursuant to 28 U.S.C. § 2254(e) (1), wIn a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 2

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2008 WL 2404168.

On October

6,

2008,

the Supreme Court of New Gallicchio, 196 N.J. 596

Jersey denied certification. (2008) This Petition,

State v.

dated September 25, 2010. Here,

2009, was received in Petitioner asserts claims in

this Court on January 22,

of ineffective assistance of trial and appellate counsel, violation of his rights under the Sixth and Fourteenth Amendments, Point 1 as
-

follows. TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN FAILING TO RAISE AND PURSUE THE ISSUE OF GRAND JURY TAIN ARISING FROM THE INFLAMMATORY, IRRELEVANT STATEMENT BEFORE THE GRAND JURY OF ALLEGED VICTIM GRIMALDI TO THE EFFECT THAT DEFENEANT WAS A "COP KILLER." APPELLATE DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN FAILING TO PRESENT FOR APPELLATE CONSIDERATION THE ISSUE OF CONTAMINATION OF THE GRAND JURY PROCESS AND TRIAL DEFENSE COUNSEL'S FAILURE TO CHALLENGE, IN THE CIRCUMSTANCES, THE INTEGRITY OF THE GRAND JURY PROCESS WHICH RESULTED IN THE INDICTMENT AGAINST DEFENDANT. TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN FAILING TO UNDERTAKE CROSS-- EXA1INATION OF ALLEGED VICTIM GRIMALDI AND PRINCIPAL STATE WITNESS DETECTIVE DENNIS MASUCCI ON THE ISSUE OF THE ABSENCE OF A COMELAINT OR REPORT CONCERNING GRIMALDI'S ALLEGATION OF VIOLENT CONFRONTATION WITH DEFENDANT IN CONNECTION WITH COLLECTION OF ILLICIT DEBT. CREDIBILITY OF THESE WITNESSES MATERIALLY IMPACTED THE VALIDITY OF
...

Point 2

-

Point

3

-

"[A] pro se prisoner's habeas petition is deemed filed at the moment he delivers it to prison officials for mailing to the district court." Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (citing Houston v. Lack, 487 U.S. 266 (1988)). 4

THE CHARGES ON WHICH DEFENDANT WAS CONVICTED,

Point 4

-

APPELLATE DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN FAILING TO PRESENT FOR APPELLATE CONSIDERATION THE INEFFECTIVENESS OF TRIAL DEFENSE COUNSEL IN FAILING TO CONDUCT APPROPRIATE CROSSEXAMINATION OF ALLEGED VICTIM GRIMALDI AND DETECTIVE DENNIS NASUCCI AS TO MATERIAL QUESTIONS OF FACT UNDERPINNING DEFENDANT'S CONVICTIONS FOR THEFT BY EXTORTION AND RACKETEERING. TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN FAILING TO SUMMON CATHY GALLICCHIO AS A WITNESS ON BEHALF OF DEFENDANT, NOTWIThSTANDING THAT TRIAL DEFENSE COUNSEL WAS AWARE THAT MS. GALICCH1O COULD PROVIDE INFORMATION EXCULPATORY OF DEFENDANT ON THE CHARGE OF THEFT Y EXTORTION ALLEGED AGAINST HIM. APPELLATE DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN FAILING TO PRESENT FOR APPELLATE CONSIDERATION THE ISSUE OF TRIAL DEFENSE COUNSEL'S FAILURE TO SUMMON A DEFENSE WITNESS PIVOTAL TO DEFENDANT'S CASE.

Point

5

-

Point

6

-

Point

7

-

TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN FAILING TO TEST THE SUFFICIENCY OF THE STATE'S PROOFS WITH RESPECT TO CHARGES AGAINST DEFENDANT BY FILING A TIMELY MOTION FOR JUDGMENT OF ACQUITTAL. APPELLATE DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN FAILING 10 PRESENT FOR APPELLATE CONSIDERATION TRIAL DEFENSE COUNSEL'S INEFFECTIVENESS IN FAILING TO TEST THE STATE'S PROOFS AT TRIAL BY TIMELY MOTION FOR JUDGMENT OF ACQUITTAL ON BEHALF OF DEFENDANT. TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN FAILING TO TAKE TIMELY EXCEPTION TO THE TRIAL COUFT'S CHARGE TO THE JURY ON THE ISSUE OF APPROPRIATE INSTRUCTIONS 5

Foint

8

-

Point

9

-

ON THE CRIME OF THEFT BY EXTORTION. TRIAL DEFENSE COUNSEL'S FAILURE REQUIRED THE ISSUE TO BE CONSIDERED ON THE "PLAIN ERROR" STANDARD TO THE SUBSTANTIAL PREJUDICE OF THE DEFENDANT. Point 10- APPELLATE DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN FAILING TO PRESENT FOR APPELLATE CONSIDERATION THE TRIAL COURT'S DENIAL OF TRIAL DEFENSE COUNSEL'S TIMELY MOTION FOR MISTRIAL ON THE STATE'S PRESENTATION OF "SURPRISE TESTIMONY" OF STATE'S WITNESS DAVID LEE. 11- APPELLATE DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN FAILING TO APPROPRIATELY "FRAME THE ISSUE" AS TO THE SUFFICIENCY OF THE EVIDENCE TO SUSTAIN DEFENDANT'S CONVICTION FOR THEFT BY EXTORTION. attached Index to Memorandum of Law.)

Point

(Petition,

It appears that this Petition is untimely. II. STANDARDS FOR A SUA SPONTE DISMISSAL Section 2243 provides in

United States Code Title 28, relevant part as follows:

A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto. A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. U.S. 97, 106 (1976); Haines v. Kerner, Estelle v. 519, Gamble, 520 429

404 U.S.

(1972)

A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. 6 Royce

v.

Hahn,

151 F.3d 116, 878 F.2d 714, 414 F.2d 552,
.

118

(3d Cir.

1998);

Lewis v. Attorney United States v. denied, 399

General, Brierley, U.S. 912

721--22 555

(3d Cir.

1989);

(3d Cir.

1969),

cert.

(1970)

Nevertheless,

a federal district court can

dismiss a habeas corpus petition if it appears from the face of the petition that the petitioner is not entitled to relief. Lonchar v. F.2d 37, 45 Thomas, 517 U.S. 1985), 314, cert. 2254, 320 (1996); Siers v. Ryan, 773

(3d Cir.

denied, 2255.

490 U.S.

1025

(1989)

See also 28 U.S.C.

§ 2243,

Although it appears that this Petition is untimely,

this

Court will grant Petitioner an opportunity to show cause why the Petition should not be dismissed. III. ANALYSIS

The limitation period for a § 2254 habeas petition is set forth in 28 U.S.C. 1 § 2244(d), which provides in pertinent part:

(1) A 1-year period of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-- (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed,

The limitations period is applied on a claim-by-claim basis. See Fielder v. Verner, 379 F.3d 113 (3d Cir. 2004), cert. denied, 543 U.S. 1067 (2005); Sweger v. Chesney, 294 F.3d 506 (3d Cir. 2002). 7

if the applicant was prevented from filing by such State action; (c) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (d) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this section. Here, all of Petitioner's claims were known to him by the Thus, evaluation of the

time the judgment became final.

timeliness of this § 2254 petition requires a determination of, first, when the pertinent judgment became "final," and, second,

the period of time during which an application for state postconviction relief was "properly filed" and "pending." A state--court criminal judgment becomes "final" within the meaning of § 2244(d) (1) by the conclusion of direct review or by including the 90-

the expiration of ti.me for seeking such review,

day period for filing a petition for writ of certiorari in the United States Supreme Court. 419 Cir. (3d Cir. 1999); 2000); Morris v. U.S. Sup. Ct. R. See Swartz v. Horn, 13. 1997, The Meyers, 204 F.3d 417, (3d

187 F.3d 333,

337 n.j

Petitioner's direct appeal was concluded on July 11, when the Supreme Court of New Jersey denied certification.

8

judgment became final, later, on October 9,

for purposes of § 2244 Cd) (1), Thus,

ninety days

1997.

Petitioner was required to file 1998, unless the

his federal § 2254 habeas petition by October 9,

limitations period was statutorily or equitably tolled. To statutorily toll the limitations period, a state petition

for post--conviction relief must be "properly filed." An application is "filed," as that term is commonly understood, when it is delivered to, and accepted by the appropriate court officer for placement into the official record. And an application is "properly filed" when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. In some jurisdictions the filing requirements also include, for example, preconditions imposed on particular abusive filers, or on all filers generally. But in common usage, the question whether an application has been "properly filed" is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar. Artuz v. omitted) Bennett, 531 U.s. 4, 8--9 (2000) (citations and footnote

(finding that a petition was not "[im]properly filed"

merely because it presented claims that were procedurally barred under New York law on the grounds that they were previously determined on the merits upon an appeal from the judgment of conviction or that they could have been raised on direct appeal but were not) Where a state court has rejected a petition for post conviction relief as untimely, however, it was not "properly

9

filed" and the petitioner is not entitled to statutory tolling under § 2244(d) (2). Pace v. Diguglielmo, 544 U.S. 408 (2005).

This is so even where,

in the alternative,

the state court

addresses the merits of the petition in addition to finding it untimely. Carey v. Saffold, 536 U.S. 214, 225-26 (2002).

An application for state post-conviction relief is considered "pending" within the meaning of § 2244 Cd) (2), and the

limitations period is statutorily tolled from the time it is "properly filed," during the period between a lower state court's decision and the filing of a notice of appeal to a higher court, Carey v. Saffold, 536 U.S. 214 (2002), and through the time in

which an appeal could be filed, filed, Swartz v. Meyers,

even if the appeal is never However, "the time

204 P.3d at 420--24.

during which a state prisoner may file a petition for writ of certiorari in the United States Supreme Court from the denial of his state post-conviction petition does not toll the one year statute of limitations under 28 U.S.C. § 2244(d) (2)." Stokes v.

District Attorney of the County of Philadelphia, 542 (3d Cir.), cert. denied, 534 U.S. 959 (2001).

247 F.3d 539,

The limitations period of § 2244(d) equitable tolling. cert. 159 denied, Fahy v. 944 Horn, (2001);

also is subject to 244 (3d Cir.), 195 F.3d 153, of

240 F.3d 239,

534 U.S.

Jones v. Morton,

(3d Cir.

1999); Miller v.

New Jersey State Dept.

10

Corrections, applies

145 F.3d 616,

618

(3d Cir.

1998)

.

Equitable tolling

only when the principles of equity would make the rigid Generally, application of a limitation period unfair. n some this will occur when the petitioner has i extraordinary way been prevented from asserting his or The petitioner must show that he or she her rights. xercised reasonable diligence in investigating and e Mere excusable neglect is not bringing the claims. sufficient. Miller, omitted) 145 E.3d at 618--19
.

(citations and punctuation marks the Court of Appeals for

Among other circumstances,

the Third Circuit has held that equitable tolling may be appropriate "if the plaintiff has timely asserted his rights mistakenly in the wrong forum," i.e., if a petitioner has filed a Jones, 183 195 F.3d

timely but unexhausted federal habeas petition. at 159. (Stevens, See also Duncan v. J., Walker, J., 533 U.S. 167,

(2001) ("neither

joined by Souter,

concurring in part)

the Court's narrow holding

[that the limitations period is not

statutorily tolled during the pendency of a premature federal habeas petition], of AEDPA, nor anything in the text or legislative history

precludes a federal court from deeming the limitations 533

period tolled for such a petition as a matter of equity"); U.S. at 192 (Breyer, J., dissenting, joined by Ginsburg,

J.)

(characterizing Justice Stevens's suggestion as "sound") Here, 13, 1998, Petitioner filed his first state PCR petition on July after 276 days of the federal limitations period had

lapsed,

leaving 89 days remaining after the first state PCR 11

petition ceased to be "pending" on October 30,

1998.

Thus,

the

federal limitations period expired on January 27,

1999,

in the

absence of some ground for further equitable or statutory tolling. Petitioner has alleged no facts that would suggest a ground for equitable tolling. Accordingly, 2009, the Petition, which is

deemed filed on September 25,

more than ten years after the 1999, appears

federal limitations period expired on January 27, to be time-barred.
IV.

CONCLUSION it appears that the

For the reasons set forth above, Petition is time-barred.

Petitioner will be ordered to show An appropriate

cause why the Petition should not be dismissed. order follows.

Stanley R. Chsler United States District Judge Dated:

Barring some ground for equitable tolling in the interim, the later state PCR petitions did not toll the federal limitations period, as they were filed after the federal limitations period had expired. 12