United States District Court, D. New Jersey
BRIAN J. PALADINO, Petitioner,
WILLIE BONDS, et al., Respondents.
Madeline Cox Arleo, U.S.D.J.
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.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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
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
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).
2012, Petitioner obtained new documents describing the murder
victim's background.(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).
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.)
STANDARD FOR ...