CASILLA v. STATE OF NEW JERSEY et al
Filing
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OPINION filed. Signed by Judge Freda L. Wolfson on 10/1/2013. (jjc)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BIENVENIDO CASILLA,
Civil No. 13-5681 (FLW)
Petitioner,
OPINION
v.
STATE OF NEW JERSEY, et al.,
Respondents.
APPEARANCES:
BIENVENIDO CASILLA, #355308C
South Woods State Prison
215 Burlington Road South
Bridgeton, New Jersey 08302
Attorneys for Petitioner
WOLFSON, District Judge:
Bienvenido Casilla filed a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. §
2254, challenging a judgment of conviction filed in the Superior Court of New Jersey, Middlesex
County, on January 23, 2004, resentencing him to a 55-year aggregate sentence.
Having
thoroughly reviewed Casilla’s voluminous submissions, this Court’s docket, see Casilla v. Ricci,
Civ. No. 08-3546 (FLW), 2009 WL 4827519 (D.N.J. filed Dec. 10, 2009), certificate of
appealability denied, C.A. No. 10-2719 (3d Cir. Aug. 2, 2010), cert. denied, No. 10-6800 (Dec. 6,
2010), and the electronically available state court opinions, this Court will dismiss the Petition for
lack of jurisdiction as a successive petition, see 28 U.S.C. 2244(b)(3)(A), and deny a certificate of
appealability.
I. BACKGROUND
In June 2000, a jury sitting in the Superior Court of New Jersey, Middlesex County, Law
Division, found Casilla guilty of the first-degree murder of Eddie Acevedo, kidnapping of
Acevedo, felony murder of the same victim, racketeering, conspiracy to commit racketeering,
conspiracy to commit kidnapping, attempted theft by extortion, theft by extortion, terroristic
threats, possession of a weapon for an unlawful purpose, two counts of tampering with evidence,
and two counts of hindering apprehension or prosecution. See State v. Casilla, No. A-4838-10T4,
2012 WL 5381779 (N.J. Super. Ct., App. Div., Nov. 5, 2012). In July 2000, the Law Division
sentenced Petitioner to an aggregate term of 70 years in prison, with over 50 years of parole
ineligibility. Id. On March 4, 2003, the Appellate Division of the Superior Court of New Jersey
affirmed the convictions and sentences for murder and hindering apprehension, reversed the
convictions for racketeering and theft by extortion, remanded for a retrial on those charges,
vacated the first-degree kidnapping conviction and remanded for resentencing as a second-degree
kidnapping offense. See State v. Casilla, 362 N.J. Super. 554 (App. Div.), certif. denied, 178 N.J.
251 (2003). The state did not retry Casilla on the racketeering and theft by extortion charges, but
on January 23, 2004, the Law Division resentenced him on the second-degree kidnapping charge
to a 10-year term of imprisonment, consecutive to the original murder sentence. See Casilla,
2012 WL 5381779 at *1.
Casilla filed his first state post-conviction relief petition; the Law Division denied it on
January 3, 2006. See Casilla, 2012 WL 5381779 at *2. The Appellate Division affirmed on
June 11, 2007, and the New Jersey Supreme Court denied certification on September 26, 2007.
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See State v. Casilla, No. No. A-2994-05T4, 2007 WL 1661462 (N.J. Super. Ct., App. Div., June
11, 2007), certif. denied, 192 N.J. 482 (2007) (table).
On July 14, 2008, Casilla filed his first § 2254 petition in this Court. See Casilla v. Ricci,
Civ. No. 08-3546 (FLW), 2009 WL 4827519 (D.N.J. Dec. 10, 2009). On December 10, 2009, the
undersigned dismissed the petition on the merits with prejudice and denied a certificate of
appealability. Id. On August 2, 2010, the United States Court of Appeals for the Third Circuit
denied Casilla’s application for a certificate of appealability, and on December 6, 2010, the
Supreme Court denied his petition for certiorari. See Casilla v. Ricci, C.A. No. 10-2719 (3d Cir.
Aug. 2, 2010), cert. denied, No. 10-6800 (Dec. 6, 2010).
On May 4, 2010, Casilla filed a motion in the Law Division to compel discovery, and in
January 2011, he filed his second PCR petition. See State v. Casilla, No. A-4838-10T4, 2012 WL
5381779 at *2. By order filed May 31, 2011, the Law Division denied the second PCR petition as
untimely, and on November 5, 2012, the Appellate Division affirmed. Id. On June 28, 2013, the
New Jersey Supreme Court denied certification. See State v. Casilla, 214 N.J. 119 (2013) (table).
Casilla filed his second § 2254 petition, which is presently before this Court, on September
4, 2013. (Petition, ECF No. 1.) On the face of the Petition, Casilla challenges the judgment of
conviction of the Superior Court of New Jersey, Middlesex County, which resentenced him on
January 23, 2004. He asks this Court to vacate his New Jersey sentence and order his release on
the following grounds:
Ground One: PETITIONER FILES AS PRO SE LITIGANT [AND] SEEKS
PROCEDURAL DUE PROCESS.1
Ground Two: EXHAUSTION OF REMEDIES ARE NOT REQUIRED ON
COL[L]ATERAL ATTACK AGAINST THE CONVICTION.
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This Court will follow Petitioner’s typeface conventions in recounting his claims.
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Ground Three: PETITION IS FILED TIMELY, PRIOR TO THE EXPIRATION
PERIOD OF STATUTES OF LIMITATIONS.
Ground Four:
PETITIONER’S PETITION CANNOT BE DISMISSED
BECAUSE THE STATE AND RESPONDENT ARE NOT ENTITLED TO
ELEVENTH AMENDMENT SOVEREIGN IMMUNITY, THE STATE HAS
WAIVED ALL IMMUNITIES.
Ground Five: DEFENDANT WAS ILLEGALLY BROUGH[T] TO TRIAL IN
STATE OF NEW JERSEY, COURTS FROM SAME CRIME THAT THE STATE
OF NEW YORK ON CHARGES THAT W[]ERE BEING PROSECUTED, TO
ALLOW STATE OF NEW JERSEY [TO] MERGE OTHER CHARGES AND
PROSECUTE TO ACHI[E]VE MULTIPLE PUNISHMENT IN VIOLATION TO
DEFENDANT’S FIFTH, ELEVENTH, AND FOURTEENTH AMENDMENT
TO THE UNITED STATES CONSTITUTION.
Ground Six:
FATAL DEFECTS IN THE STATE OF NEW JERSEY
GOVERNMENT’S CHARGING INSTRUMENT.
Ground Seven: DEFENDANT WAS DEPRIVED OF HIS RIGHT [TO BE
PRESENT] DURING VOIR DIRE. THE TRIAL COURT DENIED THE
DEFENDANT HIS RIGHT TO BE PRESENT AT SIDE BAR, THIS VIOLATED
HIS RIGHTS UNDER U.S. CONST. AMEND. 6; N.J. CONST. ART. 1, PAR. 10
CAUSING BIAS AND PREJUDICE TO DEFENDANT BY INEFFECTIVE
ASSISTANCE OF COUNSEL.
Ground Eight: PETITIONER’S CRIMINAL CONVICTION IS AT ISSUE.
A. Petitioner Was not convicted to “murder” by the Jury, et al., facts Petitioner
Adopt[s] By Reference, to Reargue The Facts, Law and Evidence on Appeal for
Second Post Conviction Relief.
B. The No Early Release Act, is inapplicable to instant Petitioner infers to false
Imprisonment [sic]
C. Double jeopardy
C. Deprivation by a[n] Indictment not from the Grand jury
E. The Indictment was “amended”
Ground Nine: EXPIRED SENTENCE.
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Ground Ten:
DEFENDANT’S JUDGMENT SHOULD BE VACATED
BECAUSE
TRIAL
COUNSEL
AND
APPELLATE
COUNSEL
INEFFECTIVELY REPRESENTED DEFENDANT.
Ground Eleven: NO OTHER CONCLUSION CAN BE REACHED BUT THAT
THE EFFECT OF CUMULATIVE TRIAL ERRORS, COMBINED WITH
TRIAL COUNSEL’S OMISSIONS, DURESS, AND PREJUDICE, DEPRIVED
DEFENDANT OF A FAIR TRIAL.
(Petition, Grounds, ECF No. 1 at 20-29.)
II. DISCUSSION
A. Jurisdiction
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), which governs a district court’s adjudication of a second or successive § 2254
petition. Specifically, § 2244(b)(3)(A) of Title 28 provides: “Before a second or successive
application permitted by this section is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court to consider the application.”
28 U.S.C. § 2244(b)(3)(A). Rule 9 of the Rules Governing Section 2254 Proceedings, entitled
“Second or Successive Petitions,” similarly
provides:
“Before presenting a second or
successive petition, the petitioner must obtain an order from the appropriate court of appeals
authorizing the district court to consider the petition as required by 28 U.S.C. § 2244(b)(3) and
(4).” 28 U.S.C. § 2254 Rule 9.
Thus, a District Court lacks jurisdiction over a second or successive § 2254 petition, absent
authorization from the Court of Appeals. See 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549
U.S. 147, 152 (2007) (“[B]ecause the 2002 petition is a ‘second or successive’ petition that Burton
did not seek or obtain authorization to file in the District Court, the District Court never had
jurisdiction to consider it in the first place”).
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The Petition presently before this Court is a “second or successive” habeas petition for
which Petitioner has not obtained authorization from the Third Circuit to file in this Court.
Petitioner’s first § 2254 petition was denied on the merits by the undersigned in 2009, and the
Third Circuit denied a certificate of appealability in 2010. Petitioner has “twice brought claims
contesting the same custody imposed by the same judgment of a state court. As a result, under
AEDPA, he was required to receive authorization from the Court of Appeals before filing his
[successive] challenge. Because he did not do so, [this] Court [is] without jurisdiction to entertain
it.” Burton, 549 U.S. at 153. Because the Petition before this Court is a second or successive §
2254 Petition filed without authorization from the Third Circuit, this Court will dismiss the
Petition for lack of jurisdiction. See Blystone v. Horn, 664 F.3d 397, 412 (3d Cir. 2011) (“A
petitioner’s failure to seek such authorization from the appropriate court before filing a second or
successive habeas petition ‘acts as a jurisdictional bar’”) (quoting United States v. Key, 205 F.3d
773, 774 (5th Cir. 2000)).
B. Dismissal or Transfer
“When a second or successive habeas petition is erroneously filed in a district court
without the permission of a court of appeals, the district court’s only option is to dismiss the
petition or transfer it to the court of appeals pursuant to 28 U.S.C. § 1631.” Robinson v. Johnson,
313 F.3d 128, 139 (3d Cir. 2002). If this Court were to transfer the § 2254 Petition to the Third
Circuit as an application for authorization to file a second or successive petition, the Third Circuit
could not authorize the filing of a second or successive § 2254 petition unless Petitioner satisfied
the standard set forth in § 2244(b)(2), which provides:
A claim presented in a second or successive habeas corpus application under
section 2254 that was not presented in a prior application shall be dismissed unless
- (A) the applicant shows that the claim relies on a new rule of constitutional law,
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made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable; or (B) (i) the factual predicate for the claim could not have
been discovered previously through the exercise of due diligence; and (ii) the facts
underlying the claim . . . would be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(2).
Here, Casilla does not allege facts indicating that a claim in the present § 2254 Petition
satisfies the gatekeeping requirements of § 2244(b)(2). For example, Casilla does not point to
any new rule of constitutional law, nor does he point to facts that he could not have previously
discovered through the exercise of due diligence. Accordingly, this Court finds that it would not
be in the interest of justice to transfer the Petition to the Third Circuit as an application for
authorization to file a second or successive petition, and will dismiss the Petition for lack of
jurisdiction. Cf. Hatches v. Schultz, 381 F.App’x 134, 137 (3d Cir. 2010) (“In deciding that it
would not be in the interest of justice to transfer the petition to the Fourth Circuit, the District
Court properly considered whether Hatches had alleged facts sufficient to bring his petition within
the gatekeeping requirement of § 2255 permitting ‘second or successive’ petitions based upon
newly discovered evidence or a new rule of constitutional law”).
C. Certificate of Appealability
The AEDPA provides that an appeal may not be taken to the court of appeals from a final
order in a § 2254 proceeding unless a judge issues a certificate of appealability on the ground that
“the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). This Court denies a certificate of appealability because jurists of reason would not
find it debatable that dismissal of the Petition for lack of jurisdiction is correct. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
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III. CONCLUSION
Based on the foregoing, the Court dismisses the Petition for a Writ of Habeas Corpus for
lack of jurisdiction and denies a certificate of appealability.
s/Freda L. Wolfson
FREDA L. WOLFSON, U.S.D.J.
DATED: October 1, 2013
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