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Marnin v. Zampella

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


decided: February 29, 1972.

JOSEPH MARNIN, APPELLANT,
v.
EDWARD F. ZAMPELLA, ESQ., ET AL.

Maris and Max Rosenn, Circuit Judges, and VanArtsdalen, District Judge.

Author: Per Curiam

Opinion OF THE COURT

This is an appeal from an order of the United States District Court for the District of New Jersey, dismissing a complaint brought under the Civil Rights Act, 42 U.S.C. ยง 1983. Appellant's suit was predicated on the alleged negligence of counsel who represented him and the judge who sentenced him, at a trial held some twenty-five years ago.

In 1946, appellant pleaded guilty, in Hudson County, New Jersey, to an indictment charging him with receiving a stolen automobile. In 1947, appellant pleaded non vult*fn1 to a Union County indictment charging him with larceny of the same vehicle. On January 9, 1969, appellant filed a petition for post-conviction relief in the Union County Court, arguing that his Union County conviction was illegal, since one cannot be convicted both of stealing and receiving the same automobile. The petition was denied on the ground that it was not filed within the time limit specified in R.R. 3:10A-13.*fn2 On appeal, the Superior Court of New Jersey, Appellate Division, reversed, holding that the Union County conviction was without lawful foundation, and therefore capable of being corrected at any time. It noted that convictions for larceny and receiving the same stolen goods were repugnant.

The United States District Court did not reach the merits of appellant's contentions in this civil action, namely the alleged negligence of both appellant's former counsel during the Union County conviction and the judge who presided at that affair. It held that appellant's claims were barred under the applicable statute of limitations.*fn3 This conclusion of the district court is clearly correct. This court has repeatedly held, in similar situations, that the applicable statute of limitations is that of New Jersey, and that it bars the action. Thomas v. Howard, 455 F.2d 228 (3d Cir., filed Feb. 9, 1972); Hughes v. Smith, 389 F.2d 42 (3d Cir. 1968).

The order of the district court will be affirmed.


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