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Kevin Conley v. Michael Paul

June 3, 2011

KEVIN CONLEY, PLAINTIFF-APPELLANT,
v.
MICHAEL PAUL, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10853-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 29, 2011

Before Judges Payne and Koblitz.

Plaintiff Kevin Conley is serving a term of life imprisonment with a thirty-year period of parole ineligibility following his convictions of murder, aggravated sexual assault, felony murder, possession of a weapon for an unlawful purpose and burglary. The victim was an eighty-six year old woman who was beaten, stabbed, sexually assaulted and strangled in her own home. The proofs at trial relied heavily on DNA and fingerprint evidence. We affirmed the convictions on direct appeal. State v. Conley, No. A-6120-96 (App. Div. Mar. 9, 2000), certif. denied, 165 N.J. 490 (2000). Plaintiff filed a pro se petition for post-conviction relief (PCR) with the Law Division on March 22, 2002. After initially assigning Conley a staff attorney, on February 10, 2006, the Office of the Public Defender substituted defendant Michael Paul as pool counsel to represent Conley on his PCR application. We affirmed the denial of Conley's PCR petition. State v. Conley, No. A-3829-07 (Jan. 8, 2010), certif. denied, 201 N.J. 499 (2010).

On December 26, 2007, plaintiff filed a civil suit against defendant, his PCR trial attorney, for fraud, breach of contract, ethical violations, intentional infliction of emotional distress, official misconduct, violations of plaintiff's state and federal constitutional rights and other torts. He now appeals the July 17, 2009 order denying his motion seeking, on the basis of a change in the law, to vacate a prior July 3, 2008 order of dismissal with prejudice for failure to file a notice of claim as required by the Tort Claims Act. N.J.S.A. 59:8-3; N.J.S.A. 59:8-8. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff raises the following arguments on appeal,

POINT ONE

THE COURT BELOW ERRED BY NOT REOPENING AND STAYING AND/OR GRANTING A DISMISSAL OF THE COMPLAINT WITHOUT PREJUDICE SINCE THE PLAINTIFF HAS BEEN DENIED THE OPPORTUNITY FOR A DISMISSAL OF HIS COMPLAINT WITHOUT PREJUDICE DUE TO THE CIRCUMSTANCES SURROUNDING PLAINTIFF'S COMPLAINT AND THE CHANGE IN LAW. U.S. CONST. AMEND, VII; XIV; N.J. CONST. ART. 1 PAR. 1 & 9.

A. The Circumstances And Material Change In The Law Warrant Reopening On Equitable Grounds

B. Denial Of The Motion Is Contrary To The Spirit And The Letter Of The Policy Of Liberal Amendments To Pleadings And Liberal Construction Of Pro Se Pleadings

C. Lack Of Prejudice To Defendant Paul

POINT TWO

THE DENIAL OF THE MOTION TO REOPEN INFRINGES ON PLAINTIFF'S RIGHT TO PETITION GOVERNMENT FOR REDRESS AND/OR ACCESS TO COURT SINCE THE CURRENT DISMISSAL PREJUDICES PLAINTIFF'S RIGHT TO SUE DEFENDANT PAUL AFTER PLAINTIFF OBTAINS RELIEF IN HIS CRIMINAL LITIGATION. U.S. CONST. ...


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