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Musto v. Pinchak

July 30, 1999

RE: THOMAS JOHN MUSTO V. STEVEN PINCHAK, ADMINISTRATOR, ETC., ET AL.


The opinion of the court was delivered by: Nicholas H. Politan U.S.D.J.

CHAMBERS OF MARTIN LUTHER KING JR. NICHOLAS H. POLITAN FEDERAL BUILDING & COURTHOUSE U.S. JUDGE 50 WALNUT ST., ROOM 5076 P.O. BOX 999 NEWARK, N.J. 07101-0999

NOT FOR PUBLICATION

LETTER OPINION

Dear Litigants:

This matter comes before the Court on the petition of Thomas J. Musto for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This Court has decided this matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. After careful consideration of the papers submitted in support of and in opposition to the petition, the Court concludes that the petition for habeas corpus relief should be DENIED.

STATEMENT OF FACTS & PROCEDURAL HISTORY

On or about April 10, 1984, petitioner was indicted by a grand jury in Hudson County, New Jersey for two counts of murder (Counts One and Two), and possession of a weapon without a permit (Count Three). See Hudson County Indictment, dated April 9-10, 1984 at pages 1-2. Thereafter, defendant's counsel filed a motion to sever Counts One and Two, which was denied on January 5, 1986, by the Honorable Robert F. Cavanaugh, J.S.C. On October 7, 1986, after a fifteen day trial before Judge Cavanaugh, the jury acquitted petitioner of Count One and found petitioner guilty of Counts Two and Three. See Judgment of Conviction, Dismissals and Order for Commitment, dated November 7, 1986. Accordingly, on November 7, 1986, the court sentenced petitioner on Count Two to life in prison with a thirty year period of parole ineligibility and a Violent Crimes Compensation Board penalty of $1,025.00. Id. Petitioner was credited with seventy-nine days spent in custody. Id.

On January 27, 1987, petitioner appealed his conviction directly to the New Jersey Superior Court, Appellate Division, contending that: (1) the motion to sever was erroneously denied and the defendant was highly prejudiced by trial of two unrelated homicides; (2) defense counsel exceeded the bounds of propriety in making derogatory comments to defendant during direct questioning and in summation; and (3) the defendant was denied the effective assistance of counsel. In a per curiam decision, dated November 29, 1988, the Appellate Division found the petitioner's arguments were clearly lacking in merit, and affirmed the convictions of the trial court. See Appellate Division Opinion, dated November 29, 1988. Petitioner then filed an application for certification in the New Jersey Supreme Court, which was denied on March 10, 1989.

Subsequently, petitioner filed a Petition for Post Conviction Relief. On February 18, 1992, the Honorable Kevin Callahan, J.S.C., denied the petition. See Transcript of Proceedings, 16T3-3 to 12-3 and 16T24-3 to 7. The Appellate Division affirmed on February 16, 1994. Thereafter, petitioner sought certification, and on May 12, 1994, the New Jersey Supreme Court denied certification in the matter. See Order Denying Certification, dated May 12, 1994.

On July 29, 1994, petitioner filed a second pro se Petition for Post Conviction Relief. See Petitioner's Brief, dated July 29, 1994. However, the petition was subsequently denied by Judge Cavanaugh. Thereafter, petitioner filed a third pro se Petition for Post Conviction Relief. See Petitioner's Brief, dated August 29, 1995. On October 24, 1995, the petition was denied by the Honorable Mark A. Baber, J.S.C.

Next, the Appellate Division affirmed the judgment of conviction and sentence. Thereafter, petitioner sought an extension of time to file a certification to the New Jersey Supreme Court, which was granted on January 31, 1997, and subsequently on May 21, 1997, the New Jersey Supreme Court denied certification in the matter. See Order Granting Extension of Time to file certification, dated January 31, 1997; see also Order Denying Certification, dated May 21, 1997.

Thereafter, on May 19, 1998, petitioner filed the present habeas corpus petition alleging:

(1) petitioner is entitled to a writ of habeas corpus because the motion to sever was erroneously denied and the petitioner was highly prejudiced by trial of two unrelated homicides;

(2) petitioner is entitled to a writ of habeas corpus because defense counsel exceeded the bounds of propriety in making derogatory comments to petitioner during direct questioning and summation;

(3) petitioner is entitled to a writ of habeas corpus because petitioner was denied the effective assistance of counsel;

(4) petitioner is entitled to a writ of habeas corpus because petitioner's counsel was ineffective during voir dire, and "proceeding guilt and sentencing phase" of his trial, violating petitioner's Sixth Amendment rights:

(a) petitioner was deprived the effective assistance of counsel, in violation of the Sixth and Fourteenth Amendments to ...


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