On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-10-0052.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 3, 2012
Before Judges Axelrad and Nugent.
Defendant Bienvenido Casilla appeals from denial of his second petition for post-conviction relief (PCR) and denial of his motion to compel discovery. Judge Mathias Rodriguez denied the PCR petition as procedurally time-barred and denied defendant's discovery motion as too broad, untimely, and moot. We affirm.
Defendant was involved in drug-related activities, including collecting debts owed to Colombian drug dealers. In June 2000, he was convicted by a jury of purposeful or knowing murder, kidnapping, felony murder, racketeering, conspiracy to commit racketeering, conspiracy to commit kidnapping, theft by extortion, attempted theft by extortion, terroristic threats, possession of a weapon for an unlawful purpose, two counts of tampering with physical evidence, and two counts of hindering apprehension.
On July 17, 2000, defendant was sentenced to a thirty-year term of imprisonment, with thirty years of parole ineligibility on the murder count; a consecutive twenty-five year term, subject to an 85% NERA parole disqualifier on the kidnapping count; and a consecutive term of fifteen years on the racketeering count. The court also imposed concurrent custodial terms of seven years on the attempted theft by extortion count and four years on the two counts of hindering apprehension or prosecution conviction. The court merged the remaining counts.
Defendant filed a direct appeal, arguing: (1) his right to due process was violated when the court failed to submit the element of jurisdiction to the jury; (2) the court committed reversible error on the murder count when it responded to a jury question with a supplemental instruction that defendant could be found to be an accomplice; (3) the court should have granted his motion to suppress the wiretaps; (4) his sentencing on the kidnapping charge was illegal; and (5) the court abused its discretion in imposing a third consecutive sentence for racketeering when that conviction was based on the same conduct as the murder and kidnapping counts. We affirmed defendant's convictions and sentences for murder and hindering apprehension on appeal, but reversed defendant's convictions for racketeering and theft by extortion "because the trial court failed to instruct the jury concerning the territorial elements of those offenses," and remanded for a retrial on those charges. State v. Casilla, 362 N.J. Super. 554, 561 (App. Div.), certif. denied, 178 N.J. 251 (2003). Additionally, we vacated defendant's conviction for first-degree kidnapping because the court submitted this charge to the jury as a second-degree offense, and remanded for resentencing as a second-degree offense. Ibid. The State did not retry defendant on the racketeering and theft by extortion charges.
On January 23, 2004, the court resentenced defendant on the second-degree kidnapping charge to a consecutive term of ten years imprisonment subject to an 85% NERA parole disqualifier. On appeal to an ESOA calendar, R. 2:9-11, by order of September 22, 2004, we affirmed the consecutive sentencing but remanded to the trial court to consider the applicability of NERA and for consideration of the constitutional issues raised in the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). State v. Casilla, No. A-3709-03 (App. Div. September 30, 2004). Following a remand, on December 15, 2005, the court imposed the identical sentence.
On October 14, 2005, defendant filed his first PCR petition, alleging ineffective assistance of trial counsel in failing to: (1) file motions challenging the legality of his arrest and to suppress his confession; (2) ensure the jurors understood or spoke Spanish; (3) object to the jury instruction on accomplice liability as to the murder count; (4) challenge the validity of the indictment; and (5) object to hearsay evidence. Defendant also alleged appellate counsel failed to argue on direct appeal that his confession should have been suppressed as the fruit of an illegal arrest. By order of January 3, 2006, the court denied defendant's PCR petition. We affirmed in an unreported opinion. State v. Casilla, No. A-2994-05 (App. Div. June 11, 2007). On September 26, 2007, the Supreme Court denied certification. State v. Casilla, 192 N.J. 482 (2007).
On July 14, 2008, defendant filed a petition for habeas corpus in the United States District Court. District Judge Freda L. Wolfson dismissed the petition and denied defendant's certificate of appealability because defendant had not made "'a substantial showing of the denial of a constitutional right' under 28 U.S.C. § 2253(c)(2)." Casilla v. Ricci, No. 08-3546, 2009 U.S. Dist. Lexis 115182, at *37 (D.N.J. Dec. 10, 2009). On August 2, 2010, the United States Court of Appeals for the Third Circuit denied defendant's application for a certificate of appealability and dismissed defendant's appeal for lack of jurisdiction. On December 6, 2010, the United States Supreme Court denied defendant's petition for a writ of certiorari. Casilla v. Ricci, 2010 U.S. Lexis 9466, 131 S. Ct. 799, 178 L. Ed. 2d 535 (2010).
On May 4, 2010, defendant filed a motion in the Law Division to compel discovery, and in January 2011, defendant filed a second petition for PCR.*fn1 On May 16, 2011, Judge Rodriguez heard oral argument and denied defendant's second PCR petition as untimely under Rule 3:22-12(a)(2), memorialized in an order of May 31, 2011. The judge referenced the procedural history of the case and noted that defendant did not contend there was any change in the law or new evidence that he did not previously have access to, thus he did not fall within the exceptions to the procedural time-bar. By written opinion and order of the same date, Judge Rodriguez also denied defendant's motion to compel discovery, finding defendant had not made a showing of good cause to support the application. He explained, defendant's motion sets forth in very general terms a list of discovery items that he wishes to inspect. Defendant provides this Court with no reasons to support this request and fails to tie the request to any cognizable claim he may have in a petition for PCR. The Court is therefore convinced that defendant's motion is nothing more tha[n] a request to go on a fishing expedition in order to investigate possible claims for future appeals. This is exactly what our case law has sought to prevent.
This appeal ensued. On appeal, ...