PALADINO v. STATE OF NEW JERSEY

Filing 10

OPINION fld. Signed by Judge Dennis M. Cavanaugh on 4/8/13. (sr, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

BRIAN PALADINO,
Civil Action No.

12-1211

(DMC)

Petitioner,
v.
CHARLES WARREN,

OPINION

:

et al.,
Respondents.

APPEARANCES:
Petitioner pyç Se
Brian Paladino
New Jersey State Prison
P.O. Box 861
Third and Federal
Trenton, NJ 08625

CAVANAUGH,

District Judge

Petitioner Brian Paladino,

a prisoner currently confined at

New Jersey State Prison in Trenton,

New Jersey,

has submitted a

petition for a writ of habeas corpus pursuant to 28 U.S.C.
§

2254’ and an application to proceed in forma pauperis pursuant

to 28 U.S.C.

1

§

1915(a).

The named respondents are Warden Charles

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.

Warren,

Gary M.

Lanigan,

and the New Jersey Department of

Corrections.
Based on his affidavit of indigence,

the Court will

grant Petitioner’s application to proceed

forma pauperis and

direct the Clerk of the Court to file the Petition.
appears that the Petition is time-barred,

(1)

Because it

this Court will order

Petitioner to show cause why the Petition should not be dismissed
with prejudice.

See 28 U.S.C.
I.

A.

§ 2243.
BACKGROUND

Factual Background
The relevant facts are set forth in the opinion of the

Superior Court of New Jersey,

2
Appellate Division.

The charges arose out of the stabbing death of
defendant’s roommate, Nicholas Frega, and defendant’s
use three days later of a credit card owned by a
different victim. After killing Frega by stabbing him
in the back of his neck near the base of his skull,
defendant and a co-defendant dumped Frega’s body into
the Passaic River, disposed of the murder weapon, and
disposed of other evidence. When arrested, defendant
confessed to killing Frega and told police where he
disposed of the evidence.
State v.
16,

Paladino,

2010 WL 5109940,

*1

(N.J.

Super. App.Div.

Dec.

2010)

2

Pursuant to 28 U.S.C. § 2254(e) (1), “In 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

B.

Procedural History
A Bergen County grand jury indicted Petitioner on charges of

first degree murder,
credit card theft,
of credit cards,

2C:ll-3a(l),

N.J.S.A.

N.J.S.A.

N.J.S.A.

2C:21-6c;

2C:21-6h;

On April 13,

2004,

fourth degree

third degree fraudulent use

third degree hindering

N.J. S .A.

apprehension or prosecution,

(2);

2C: 29-3; N.J. S .A.

2C: 39-4d.

he entered an unconditional guilty plea

to all the charges against him.
Following a plea colloquy, the trial court found
defendant had pled guilty freely, voluntarily, and
without any duress or coercion. The trial court also
found that defendant understood the nature and
consequences of the plea. Finally, the trial court
found that despite long-term medical treatment,
defendant was “lucid, cognitive of the surroundings,
and was fully aware of the words being spoken today.”
The trial court commented that defendant was pleasant
and articulate when he spoke. When asked by the court
if he was satisfied with his attorney, defendant
responded that his attorney had been excellent.
Statev.

Paladino,

2010 WL 5109940,

*1.

On May 28,

2004,

the

trial court imposed an aggregate sentence of 30 years’
imprisonment,
Ex.,

with a 30-year parole disqualifier.

(Petition,

Judgment of Conviction.)
On September 20,

2006,

Petitioner filed an untimely notice

of appeal, along with a motion to file the appeal as within
3
time.

On December 18,

2006,

the Superior Court of New Jersey,

Pursuant to New Jersey Court Rule 2:4-1(a), the time for
Thus, Petitioner had until
filing a notice of appeal is 45 days.
timely notice of appeal.
July 12, 2004, to file a
3

Appellate Division,

entered an order denying without prejudice

Petitioner’s motion to tile the notice of appeal as within time,
because Petitioner had not certified that he had advised his pool
attorney about his desire to appeal.

Petitioner did not re-file

the appeal or petition the Supreme Court of New Jersey for a writ
of certification.
Petitioner filed a petition for post-conviction relief
(“PCR”)

in the trial court on December 10,

On June 5,

2007.

the trial court denied the PCR petition in its entirety.

2009,

On December 16,
of relief.
App.Div.

2010,

State v.

Dec.

16,

the Appellate Division affirmed the denial
Paladino,

2010).

certification on May 12,

2010 WL 5109940

(N.J.

Super.

The Supreme Court of New Jersey denied
2011.

State v.

Paladino,

206 N.J.

65

(2011)
2012,

By Letter dated February 11,

Petitioner opened this

matter in this Court by requesting an extension of time to file a
petition for writ of habeas corpus under 28 U.S.C.

§ 2254,

alleging that the transcripts of his state court proceedings had
“gone missing” and that he required assistance and
4
representation.

Thereafter,

Petitioner submitted a Petition

Under certain circumstances, a federal district court has
jurisdiction to rule on such a request for extension of the
limitations period or to construe such a request as a petition
Anderson v. Pennsylvania Attorney
for writ of habeas corpus.
Here,
General, No. 01-4065, 82 Fed.Appx. 745 (3d Cir. 2003)
this Court need not decide whether it would have been appropriate
to so construe the Letter because, under any circumstances, the
.

4

dated April 20,

2012.

Here,

Petitioner asserts that the

investigating officers failed to apprise him of his rights under
Miranda v. Arizona,

384 U.S.

436

(1966);

that he received

ineffective assistance of trial counsel in connection with
investigation of potential defenses and in connection with the
guilty plea;

that the guilty plea was not knowing and voluntary;

and that PCR counsel had been ineffective for arguing that
Petitioner did not act in self-defense.
Ineffective assistance of counsel in state post-conviction
relief proceedings is not a ground for relief in a federal habeas
corpus action.

28 U.S.C.

§ 2254(i).

that claim

Because it appears that all

will be dismissed with prejudice.
remaining claims are untimely,

Accordingly,

Petitioner will be ordered to show

cause why they should not be dismissed.
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

Petition is untimely even if it is deemed filed as early as
See Burns v. Morton, 134 F.3d 109, 113 (3d
February 11, 2012.
Cir. 1998) (“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” (citing Houston v. Lack, 487 U.S. 266
(1988)))
5

the applicant or person detained is not entitled
thereto.
Thus,

“Federal courts are authorized to dismiss summarily

any habeas petition that appears legally insufficient on its
McFarland v.

face.”

Scott,

849,

512 U.S.

(1994)

856

.

See also

Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts

(“If it plainly appears from the petition

and any attached exhibits that the petitioner is not entitled to
the judge must dismiss the petition

relief in the district court,
(emphasis added)).

,hI

“[h]abeas corpus petitions must meet heightened

Moreover,

pleading requirements.”

Scott,

McFarland v.

512 U.S.

A

at 856.

petition must “specify all the grounds for relief” and must set
Rule 2(b)

forth “facts supporting each ground.”

of the Rules

Governing Section 2254 Cases in the United States District
Courts.
A pro se pleading is held to less stringent standards than
Estelle v.

more formal pleadings drafted by lawyers.
U.S.

97,

106

Kerner,

(1976) ; Haines v.

404 U.S.

519,

Gamble,
520

429

(1972)

A pro se habeas petition and any supporting submissions must be
construed liberally and with a measure of tolerance.
(3d Cir.

Hahn,

151 F.3d 116,

118

General,

878 F.2d 714,

721-22

v.

Brierley,
U.S.

912

414 F.2d 552,
(1970)

.

555

(3d Cir.

(3d Cir.

Nevertheless,

Lewis v. Attorney

1998);

1989) ;

1969)

,

United States v.

cert.

denied,

399

a federal district court can
6

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.

(3d Cir.

See also 28 U.S.C.

1985)

314,

(1996) ;

,

cert.

denied,

§ 2243,

2254,

Siers v.

Ryan,

773

2255.

III.

A.

320

490 U.S.

1025

(1989)

ANALYSIS

The Statute of Limitations
The limitation period for a § 2254 habeas petition is set

forth in 28 U.S.C.

5
§ 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,
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.

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

(2) The time during which a properly tiled 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,

the factual and legal predicates of all of

Petitioner’s remaining claims were available to him as of the
time judgment was imposed.

Thus,

evaluation of their timeliness

requires a determination of,

first,

became “final,” and,

the period of time during which an

second,

when the pertinent judgment

application for state post-conviction 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

the expiration of time for seeking such review,

including the 90-

day period for filing a petition for writ of certiorari in the
United States Supreme Court.
419
Cir.

(3d Cir.

2000); Morris v.

1999); U.S.

Sup.

Ct. R.

Swartz v. Meyers,
Horn,
13.

187 F.3d 333,

204 F.3d 417,

337 n.l

(3d

A state court’s grant of leave

to file an out-of-time direct appeal resets the date when the
conviction becomes final under § 2244(d) (1).
Quartermain,

555 U.S.

113

Jimenez v.

(2009)

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
8

“properly filed” when its delivery and acceptance are
in compliance with the applicable laws and rules
These usually prescribe, for
governing filings.
example, the form of the document, the time limits upon
its delivery, the court and office in which it must be
In some
lodged, and the requisite filing fee.
jurisdictions the filing requirements also include, for
example, preconditions imposed on particular abusive
But in common
filers, or on all filers generally.
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.
(citations and footnote

(2000)

Artuz v.

Bennett,

omitted)

(finding that a petition was not “[imiproperly filed”

4,

531 U.s.

8-9

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)
An application for state post-conviction relief is
considered “pending” within the meaning of § 2244 (d) (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,

Saf fold,

536 U.S.

214

which an appeal could be filed,
filed,

Swartz v. Meyers,

(2002),

and through the time in

even if the appeal is never

204 F.3d at 420-24.

More specifically,

“The time that an application for state post conviction review is
‘pending’

includes the period between

9

(1)

a lower court’s adverse

determination,
appeal,

and

the prisoner’s tiling of a notice of

(2)

provided that the filing of the notice of appeal is

timely under state law.”

Evans v.

Chavis,

546 U.S.

189,

191

(finding that time between denial of post-conviction

(2006)

relief and filing of appeal was not tolled where appeal was
untimely,

even where state considered untimely appeal on its

merits)

However,

.

“the time 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)

County of Philadelphia,
denied,

534 U.S.

959

Stokes v.

.“

District Attorney of the

247 F.3d 539,

542

cert.
159

denied,

(3d Cir.

Corrections,

cert,

(2001)

The limitations period of § 2244(d)
equitable tolling.

(3d Cir.),

Fahy v.

534 U.S.

944

Horn,

240 F.3d 239,

(2001); Jones v.

1999); Miller v.
145 F.3d 616,

also is subject to

618

244

Morton,

New Jersey State Dept.
(3d Cir.

1998)

.

(3d Cir.),
195 F.3d 153,
of

Equitable tolling

applies
only when the principles of equity would make the rigid
application of a limitation period unfair.
Generally,
this will occur when the petitioner has in some
extraordinary way been prevented from asserting his or
her rights.
The petitioner must show that he or she
exercised reasonable diligence in investigating and
bringing the claims.
Mere excusable neglect is not
sufficient.

10

Miller,
omitted)

145 F.3d at 618-19

(citations and punctuation marks

Among other circumstances,

.

the Court of Appeals for

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

timely but unexhausted federal habeas petition.
at 159.

See also Duncan v, Walker,

(Stevens,

J.,

joined by Souter,

the Court’s narrow holding

533 U.S.

J.,

Jones,

167,

183

195 F,3d

(2001)

concurring in part)

(“neither

[that the limitations period is not

statutorily tolled during the pendency of a premature federal
habeas petition],

nor anything in the text or legislative history

of AEDPA, precludes a federal court from deeming the limitations
period tolled for such a petition as a matter of equity”);
U.S.

at 192

(Breyer,

J.,

dissenting,

joined by Ginsburg,

533

J.)

(characterizing Justice Stevens’s suggestion as “sound”)
Here,

because Petitioner did not file a timely appeal,

judgment became final on July 12,
was entered.

Accordingly,

equitable tolling,

2004,

45 days after judgment

barring some ground for statutory or

he had until July 12,

federal habeas petition.

Instead,

to file his

2012, more than six

Petitioner’s filing of his state petition for

post-conviction relief,
limitations period,

2005,

this federal Petition could be

deemed filed no earlier than February 11,
years out of time,

his

after the expiration of the federal

cannot act to toll or resurrect the federal

11

limitations period that had already expired.

Similarly,

Petitioner has alleged no facts that would provide a ground for
equitable tolling prior to the expiration of the federal
limitations period on July 12,
For the foregoing reasons,

2005.
Petitioner will be ordered to

show cause why the remaining claims should not be dismissed with
prejudice as time-barred.
B.

The Request for Counsel
Petitioner has asked that counsel be appointed to represent

him in this matter.
There is no absolute constitutional right to appointed
counsel in a federal habeas corpus proceeding.
Thompson,
247,

263

501 US.
(3d Cir.

722,
1991),

752

(1991); Reese v.

cert. denied,

Coleman v,

Fulcomer,

503 U.S.

988

superseded on other grounds by statute,

28 U.S.C.

Pursuant to 18 U.S.C.

however,

§ 3006A(a) (2) (B),

946 F.2d

(1992),

§ 2254(d).
this Court may

appoint counsel to represent an indigent habeas petitioner if it
determines “that the interests of justice so require.”
28 U.S.C.

§ 1915(e)

See also

(permitting appointment of counsel for

indigent civil litigants proceeding j forma pauperis).
In exercising its discretion under §3006A,
the district court must first decide if the petitioner
has presented a nonfrivolous claim and if the
appointment of counsel will benefit the petitioner and
the court.
Factors influencing a court’s decision
include the complexity of the factual and legal issues
in the case, as well as the pro se petitioner’s ability
12

to investigate facts and present claims.
Courts have
held, for example, that there was no abuse of a
district court’s discretion in failing to appoint
counsel when no evidentiary hearing was required and
the issues in the case had been narrowed, or the issues
were “straightforward and capable of resolution on the
record,” or the petitioner had “a good understanding of
the issues and the ability to present forcefully and
coherently his contentions.”
Reese,

946 F.2d at 263-4

(citations omitted)

This standard is essentially the same as that applied under
28 U.S.C.
(3d Cir.

§ 1915(e)
1997).

.

See Parham v.

Johnson,

126 F.3d 454,

456-57

In determining whether to appoint counsel to

civil litigants proceeding in forma pauperis,

a court should

consider the following factors:
As a preliminary matter, the plaintiff’s claim must
have some merit in fact and law.
If the district
court determines that the plaintiff’s claim has some
merit, then the district court should consider the
following factors:
(1) the plaintiff’s ability to present his or her
own case;
(2) the complexity of the legal issues;
(3) the degree to which factual investigation will
be necessary and the ability of the plaintiff to pursue
such investigation;
(4) the amount a case is likely to turn on
credibility determinations;
(5) whether the case will require the testimony of
expert witnesses;
(6) whether the plaintiff can attain and afford
counsel on his own behalf.
[Tabron v. Grace, 6 F.3d 147, 155-56, 157 n.5 (3d Cir.
1993) , cert. denied, 510 U.S. 1196 (1994) .]
This list
of factors is not exhaustive, but instead should serve
as a guide post for the district courts.
Correspondingly, courts should exercise care in
appointing counsel because volunteer lawyer time is a
precious commodity and should not be wasted on
frivolous cases.
Id. at 157.
...

13

Parham,

126 F.3d at 457-58.

Analysis of these factors reveals that appointment of
counsel is not appropriate at this time.
matter,

As a preliminary

Petitioner’s application for a writ of habeas corpus

appears dismissible as untimely.
straightforward.

Accordingly,

The timeliness issue appears

there is no reason at this time to

appoint counsel.
C.

Mason Notice
Finally,

414

(3d Cir.

this Court is required by Mason v. Meyers,
2000),

208 F.3d

to notify Petitioner of the consequences of

filing a habeas Petition under the Antiterrorism and Effective
Death Penalty Act

(“AEDPA”)

and to give Petitioner an opportunity

to file one all-inclusive § 2254 habeas Petition.
Under the AEDPA,

as explained above, prisoners challenging

the legality of their detention pursuant to the judgment of a
State court must marshal in one § 2254 Petition all the arguments
they have to collaterally attack the State judgment and,
in extremely limited circumstances,

except

file this one all-inclusive

Petition within one year of the date on which the judgment of
conviction becomes final by the conclusion of direct review or
the expiration of the time for seeking such review.

U.S.C.

See 28

§ 2244(d).

Here,

it does not appear that Petitioner can assert any

claims that are not time-barred.

Nevertheless,

14

if Petitioner

believes that he can assert any claims that are not untimely,

he

has the right to choose not to proceed with the Petition as
filed,

but to withdraw it and file one all-inclusive § 2254

petition subject to the one-year statute of limitations.
Petitioner chooses to proceed with this Petition as filed,

If
he

will not be permitted to file a second or successive petition
under § 2254,

absent certification by the Court of Appeals for

the Third Circuit and extraordinary circumstances.
response to the accompanying Order to show cause,

In his
Petitioner may

advise the Court if he wishes to withdraw the Petition instead of
proceeding,

subject to the conditions noted above.
IV.

CONCLUSION

For the reasons set forth above,

the claim of ineffective

assistance of post-conviction counsel will be dismissed with
prejudice.

Petitioner will be ordered to show cause why all

remaining claims should not be dismissed with prejudice as time
barred,

An appropriate order follows

United States Disi rict Judge
Dated:

15