PALADINO v. BONDS et al

Filing 20

MEMORANDUM OPINION & ORDER denying 18 Petitioner's motion for an evidentiary hearing and appointment of counsel without prejudice. Petitioner may file a traverse within 60 days of the date of this Order. Failure to file the traverse or seek an extension of time may result in the dismissal of the Petition as untimely. (Copy of Memorandum Opinion & Order sent to Petitioner by reg mail). Signed by Judge Madeline Cox Arleo on 7/30/20. (jc, )

Case 2:18-cv-03199-MCA Document 20 Filed 07/30/20 Page 1 of 6 PageID: 1674

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

BRIAN J. PALADINO,

Civil Action No. 18-3199 (MCA)

Petitioner,
v.
MEMORANDUM OPINION
& ORDER

WILLIE BONDS, et al.,
Respondents.

This matter has been opened to the Court by Petitioner’s filing of a motion for an
evidentiary hearing and for appointment of counsel. (See ECF No. 18.) For the reasons
explained below, the Court denies the motion without prejudice at this time and directs Petitioner
to file his traverse within 60 days of the date of this Memorandum and Order.
The Court recounts only the facts necessary to resolve the motion. Petitioner submitted
his Petition for filing on February 28, 2018. (ECF No. 1.) By Opinion and Order dated June 15,
2018, the Court screened the petition for dismissal and dismissed Grounds Two and Four of the
Petition with prejudice because the claims asserted (ineffective assistance of PCR counsel) are
not cognizable in habeas proceedings. (ECF Nos. 2-3.) The Court also dismissed Ground Five
of the Petition without prejudice to Petitioner’s filing of a § 1983 action. (Id.)
The Court then addressed Ground One and Three and found them untimely. Id. As the
Court explained, Petitioner’s Judgment of Conviction was entered on May 27, 2004, and,
although Petitioner filed an appeal, he did not perfect his notice of appeal, which was dismissed
without prejudice on December 18, 2006. See id. Thus, even if the Court gave Petitioner the
benefit of the time during which his appeal was pending, more than eleven months of the one-

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year limitations period elapsed before Petitioner filed his first PCR on December 10, 2007.1 (Id.)
The Court then assumed that Petitioner would be entitled to statutory tolling for the time his first
PCR was pending. Id. The Court found that the limitation period began to run again on May 13,
2011, the day after the Supreme Court of New Jersey denied certification on his first PCR and
continued to run for nearly three years2 until Petitioner filed his second PCR on April 14, 2014.
(See id.) The PCR Court subsequently rejected the second PCR as untimely, and the Appellate
Division affirmed the trial Court’s dismissal of the second PCR as untimely and declined to
reach the merits. (See ECF No. 1, App. Div. Dec. 9, 2016 decision at 5.) The Supreme Court of
New Jersey denied certification on June 27, 2017. State v. Paladino, 230 N.J. 505 (2017).
As explained in the Court’s prior Opinion, Petitioner is not entitled to statutory tolling for
the period the second PCR was pending because the Appellate Division found the second PCR
untimely.3 See 28 U.S.C. § 2244(d)(2). It is well established that a petition for state postconviction relief that was rejected by the state courts as untimely is not “properly filed” under §
2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a postconviction relief
petition is untimely under state law, that [is] the end of the matter for purposes of § 2244(d)(2)”)
(internal quotation marks and citation omitted); see also Allen v. Siebert, 552 U.S. 3 (2007).

The Appellate Division did not accept Petitioner’s appeal as within time; if the Court were to
discount the time during which Petitioner’s appeal was pending, Petitioner’s conviction became
final on July 12, 2004, 45 days after his Judgment of Conviction was entered on May 27, 2004,
and the entire limitations period ran before Petitioner filed his first PCR on December 10, 2007.

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2

The Court notes that Petitioner filed a federal habeas that was pending for part of this time
period, but it was ultimately withdrawn.
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The fact that Petitioner allegedly discovered the factual predicate for at least one of his claims
in 2012, thus delaying the accrual of that claim, see 28 U.S.C. § 2241(d)(1)(D), does not change
the Court’s analysis. Petitioner is not entitled to statutory tolling for that claim because it was
raised in Petitioner’s second PCR, which the Appellate Division rejected as untimely.
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Because Grounds One and Three were untimely, and because Petitioner had not
sufficiently alleged a basis for equitable tolling, which requires a showing that Petitioner was
pursuing his rights diligently throughout his state court proceedings and some extraordinary
circumstance(s) stood in his way, the Court dismissed Grounds One and Three of the Petition
without prejudice and provided Petitioner with 45 days to provide a basis for equitable tolling.
(Id.) The Court explained that “[i]f Petitioner chooses to provide facts and evidence in support
of equitable tolling, he must address all relevant gaps discussed in this Opinion.” (Id. at 11
(emphasis added).)
On September 25, 2019, Petitioner submitted a motion asking the Court to find that he is
entitled to equitable tolling and seeking the appointment of counsel and limited discovery to
permit Petitioner to show that he is entitled to equitable tolling. (ECF No. 7). Petitioner’s
supporting brief asserted that equitable tolling is warranted due to Petitioner’s history of
overmedication with antipsychotic medication and other significant health problems, errors by
his appointed counsel, and restrictive prison conditions, including lack of access to legal
assistance.4 (See id.)
As summarized by the Supreme Court, “[g]enerally, a litigant seeking equitable tolling
[of the AEDPA’s one-year statute of limitations] bears the burden of establishing two elements:
(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance

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Among his exhibits, Petitioner has provided a Memorandum from Flora DeFilippo dated March
16, 2015, which states that Petitioner had a diagnosis of schizoaffective disorder from June 14,
2000 until January 26, 2010 until it was removed because (1) Petitioner’s behavior was better
explained by his malingering psychotic symptoms, (2) because numerous “psych meds provided
minimal, if any change”, and (3) because Petitioner engaged in “med seeking behavior in active
diagnosis of polysubstance dependence.” Dr. DeFilippo further stated that “we do not see any
symptoms indicative of a psychotic disorder, and thus, the diagnosis was “ruled out.” (ECF No.
7-1.)
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stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citing Irwin v. Dep't of
Veterans Affairs, 498 U.S. 89, 96 (1990)); Jenkins v. Superintendent of Laurel Highlands, 705
F.3d 80, 89 (3d Cir.2013); Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011); Ross v. Varano,
712 F.3d 784, 798–99 (3d Cir. 2013). In light of Petitioner’s arguments and his pro se status,
however, the Court reserved judgment and directed Respondents to file a full answer to Grounds
One and Three of the Petition and directed Respondents to address Petitioner’s arguments in
support of equitable tolling to the extent they asserted that the petition is untimely. (See ECF
No. 2.) The Court also directed Petitioner to submit a reply brief once he received Respondents’
Answer addressing equitable tolling and the merits of Grounds One and Three. See id.
The Court also denied without prejudice Petitioner’s requests for appointment of counsel
and limited discovery, noting that there is no Sixth Amendment right to appointment of counsel
in habeas proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“Our cases
establish that the right to appointed counsel extends to the first appeal of right, and no further.”);
Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997) (noting no statutory or constitutional
right of counsel conferred upon indigent civil litigants); Reese v. Fulcomer, 946 F.2d 247, 263
(3d Cir. 1991) (“There is no ‘automatic’ constitutional right to counsel in federal habeas corpus
proceedings.”), superseded on other grounds by statute, 28 U.S.C. § 2254(d). After reviewing
the factors set out in Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir. 1993), the Court found the
requests for counsel and discovery premature, as it was not clear that an evidentiary hearing
would be required or that the issue of equitable tolling would not be capable of resolution on the
record provided. (See ECF No. 10.) The Court also noted that Petitioner sought discovery and
appointment of counsel because the New Jersey Department of Corrections allegedly withholds
all psychiatric records as a matter of policy and will not provide them to inmates without a court

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order, and explained that the Court could sua sponte appoint counsel for a hearing and/or direct
Respondents to provide records if needed to resolve the issue of equitable tolling. See id.
On May 28, 2019, Respondents filed their full Answer. (See ECF No. 13.) Petitioner
requested several extensions of time within which to file his traverse, which were granted by the
Court. (ECF Nos. 14-17.) On December 4, 2019, however, Plaintiff filed the instant motion in
lieu of filing a traverse. (See ECF No. 18.)
In light of the procedural history of this case, the Court will deny the motion without
prejudice because Petitioner has filed the instant motion for an evidentiary hearing and
appointment of counsel in lieu of filing his traverse and has not provided sufficient facts showing
that he is entitled to equitable tolling during the periods as explained above and as outlined in the
Court’s prior Opinion. In this regard, Petitioner repeats his earlier arguments for discovery and
appears to assert that Respondents have not met their burden on the issue of equitable tolling. It
is Petitioner, however, who must ultimately establish his entitlement to equitable tolling and
“bears the burden of establishing two elements: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way.” Pace, 544 U.S. at
418 (citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990)). The facts
regarding Petitioner’s diligence and any extraordinary circumstances are within Petitioner’s
knowledge, and he must provide all facts within his knowledge to the Court so the Court may
assess whether he was diligently pursuing his rights and whether extraordinary circumstances
stood in his way. Until Petitioner submits his traverse and establishes a factual basis for
equitable tolling during the relevant periods of time, any requests for counsel, discovery, or an
evidentiary hearing are premature.
The Court will provide Petitioner with an opportunity to submit a traverse to

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Respondents’ Answer within 60 days of the date of this Order. If Petitioner submits his traverse
and the Court is unable to resolve the issue of equitable tolling (or the merits) on the papers, the
Court will sua sponte appoint counsel and/or direct Respondents to provide any necessary
discovery.
IT IS THEREFORE, on this 30th day of July 2020,
ORDERED that Petitioner’s motion for an evidentiary hearing and appointment of
counsel (ECF No. 18) is DENIED WITHOUT PREJUDICE; and it is further
ORDERED that Petitioner may file a traverse within 60 days of the date of this Order;
and it is further
ORDERED that failure to file the traverse or seek an extension of time may result in the
dismissal of the Petition as untimely; and it is further
ORDERED that the Clerk of the Court shall send a copy of this Memorandum Opinion
& Order to Petitioner at the address on file.

s/Madeline Cox Arleo
Madeline Cox Arleo, U.S.D.J.

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