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Paladino v. Bonds

United States District Court, D. New Jersey

June 15, 2018

BRIAN J. PALADINO, Petitioner,
WILLIE BONDS, et al., Respondents.


          Madeline Cox Arleo, U.S.D.J.


         This matter has been opened to the Court by Petitioner's filing of a petition for a writ of habeas corpus ("Petition") pursuant to 28 U.S.C. § 2254, and an application to proceed in forma pauperis ("IFP application"). The Court will grant Petitioner's 1FP application and screen the Petition for dismissal pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. For the reasons stated below, the Court will dismiss Grounds Two and Four of the Petition with prejudice because the claims asserted are not cognizable in habeas proceedings. The Court will dismiss Ground Five of the Petition without prejudice to Petitioner's filing of a § 1983 action. The Court will dismiss the remaining claims without prejudice as untimely and provide Petitioner with 45 days to provide a basis for equitable tolling.


         The Court recounts only the facts necessary to this Opinion. The following facts regarding Petitioner's conviction and state court proceedings are taken from the Appellate Division Opinion affirming the denial of Petitioner's first petition for postconviction relief ('"first PCR"):

On May 3, 2001, a Bergen County Grand Jury indicted defendant on charges of first degree murder, N.J.S.A. 2C:11-3a(1)(2); fourth degree credit card theft, N.J.S.A. 2C:21-6c; third degree fraudulent use of credit cards, N.J.S.A. 2C:21-6h; third degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3; and third degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4d.
The charges arose out of the stabbing death of defendant's roommate, Nicholas Frega, and defendant's use three days later of a credit card owned by a different victim. After killing Frega by stabbing him in the back of his neck near the base of his skull, defendant and a co-defendant dumped Frega's body into the Passaic River, disposed of the murder weapon, and disposed of other evidence. When arrested, defendant confessed to killing Frega and told police where he disposed of the evidence.
On April 13, 2004, defendant entered an unconditional guilty plea to all counts of the indictment except the count involving the co-defendant. In return for the plea and defendant's agreement to testify truthfully against the co-defendant, the State recommended a maximum sentence of thirty years without parole, the sentence on each count of the indictment to run concurrently. Following a plea colloquy, the trial court found defendant had pled guilty freely, voluntarily, and without any duress or coercion. The trial court also found that defendant understood the nature and consequences of the plea. Finally, the trial court found that despite long-term medical treatment, defendant was "lucid, cognitive of the surroundings, and was fully aware of the words being spoken today." The trial court commented that defendant was pleasant and articulate when he spoke. When asked by the court if he was satisfied with his attorney, defendant responded that his attorney had been excellent.
On May 27, 2004, the trial court sentenced defendant. After appropriate merger of charges, the court sentenced defendant to the term recommended by the State, namely, thirty years imprisonment without parole for first degree murder. The court sentenced defendant to concurrent terms of four years imprisonment on the remaining charges of hindering apprehension and fraudulent use of a credit card.
Defendant filed an untimely notice of appeal on September 20, 2006. He also filed a motion to file the appeal as within time. On December 18, 2006, the motion was denied without prejudice because defendant had not certified he had advised his pool attorney about his desire to appeal. Defendant did not re-file the appeal, but instead filed a PCR petition on December 10, 2007.
Defendant alleged his trial counsel was ineffective and the trial court erred in denying his pre-trial motions. PCR counsel was assigned and submitted a supplemental brief. Defendant asserted in the supplemental brief that his guilty plea was not voluntary and that his trial counsel was ineffective because counsel pressured defendant into accepting a plea agreement, did not share or meaningfully discuss discovery with defendant, did not investigate information that may have led to development of defenses or mitigating factors at sentencing, and did not explore with defendant the option of proceeding to trial.
On June 5, 2009, after oral argument on defendant's petition, the PCR judge found that defendant's plea was voluntary, knowing, and intelligent. The PCR judge noted that defense counsel had pursued a psychiatric defense and obtained at least one expert who issued a report. Additionally, the PCR judge noted that defense counsel filed numerous motions to suppress physical and testimonial evidence. Finally, the PCR judge found that even if defense counsel's performance was ineffective, it would not have changed the outcome due to the overwhelming evidence, including defendant's confession. Consequently, the PCR judge denied the PCR petition in an order dated June 5, 2009. On November 5, 2009, defendant filed this appeal.

State v. Paladino, No. A-1282-09T4, 2010 WL 5109940, at *1 ( N.J.Super.Ct.App.Div. Dec. 16, 2010). On December 16, 2010, the Appellate Division affirmed the denial of the first PCR. Id. at 6. The Supreme Court of New Jersey denied certification on May 12, 2011. State v. Paladino, 206 N.J. 65 (2011).

         In 2012, Petitioner obtained new documents describing the murder victim's background.[1](ECF No. 1, Pet. at 12, App. Div. decision dated Dec. 9, 2016, at 2.) On April 14, 2014, Petitioner filed his second petition for postconviction relief ("second PCR"), alleging that his trial attorney was ineffective for failing to file an appeal as directed, properly evaluate the plea offer, interview witnesses, and disclose discovery. He further alleged that his first PCR attorney was ineffective for failing to order transcripts, investigate or raise issues as directed, properly communicate, and disclose discovery. The trial court denied the petition as untimely and alternately denied it on the merits. (Id. at 13, App. Div. decision at 2-3.) Petitioner appealed, and, on December 9, 2016, the Appellate Division affirmed the denial of Petitioner's second PCR as untimely and declined to reach the merits. (Id. at 15, App. Div. decision at 6.). Petitioner appealed and the Supreme Court of New Jersey denied certification on June 27. 2017. State v. Paladino, 230 N.J. 505 (2017).

         Petitioner submitted the instant Petition for filing on February 28, 2018. The Petition raises five claims for relief, and Petitioner has been notified that he must include all claims in his one all-inclusive Petition. (ECF No. 1, Pet. at 17-25, 30.) This is not Petitioner's first habeas petition, as he filed a request for an extension of time to file a habeas petition, which was docketed on February 27, 2012; he subsequently submitted a habeas petition dated April 20, 2012. (See Civil Action No. 12-1211, ECF Nos. 1, 9.). On April 8, 2013, the Court dismissed Petitioner's ineffective assistance of PCR counsel claim, and issued an Order to Show Cause directing Petitioner to show cause as to why the remaining claims should not be dismissed as untimely. (Civ. Act. No. 12-1211, ECF No. 11.) Petitioner requested to withdraw the Petition on April 29, 2013, and the Court granted that request on May 10, 2013. (Civ. Act. No. 12-1211, ECF Nos. 14-15.)

         III. STANDARD FOR ...

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