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 Motion for equitable tolling, appointment of
counsel, and limited discovery. For the reasons explained in
this Memorandum Opinion, The Court will deny the motion
without prejudice and will direct Respondents to
file a full answer to Grounds One and Three of the
Petition and raise any appropriate defenses, including
timeliness and exhaustion.
recounts only the facts necessary to this Memorandum Opinion.
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.) In its prior Opinion, the Court screened
the petition for dismissal and dismissed Grounds Two and Four
of the Petition with prejudice because the claims
asserted (ineffective assistance of PCR counsel) are not
cognizable in habeas proceedings. (ECF Nos. 2-3.) The Court
also dismissed Ground Five of the Petition without prejudice
to Petitioner's filing of a § 1983 action.
(Id.) Because the remaining claims appear untimely
and Petitioner had not sufficiently alleged a basis for
equitable tolling, which requires a showing that Petitioner
was pursuing his rights diligently throughout his state court
proceedings and some extraordinary circumstance(s) stood in
his way, the Court dismissed Grounds One and Three of the
Petition without prejudice and provided Petitioner
with 45 days to provide a basis for equitable tolling.
requesting and receiving an extension of time, Petitioner
submitted a motion asking the Court to find that he is
entitled to equitable tolling; the motion also seeks the
appointment of counsel and limited discovery to permit
Petitioner to show that he is entitled to equitable tolling.
(ECF No. 7). Petitioner's supporting brief states that
equitable tolling is warranted due to Petitioner's
history of overmedication with antipsychotic medication and
other significant health problems, errors by his appointed
counsel, and restrictive prison conditions, including lack of
access to legal assistance. (See ECF No. 7.)
summarized by the Supreme Court, "[g]enerally, a
litigant seeking equitable tolling [of the AEDPA's
one-year statute of limitations] bears the burden of
establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way." Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005) (citing Irwin
v. Dep't of Veterans Affairs, 498 U.S. 89, 96
(1990)); Jenkins v. Superintendent of Laurel
Highlands, 705 F.3d 80, 89 (3d Cir.2013); Pabon v.
Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011); Ross v.
Varano, 712 F.3d 784, 798-99 (3d Cir. 2013).
time, the Court will reserve judgment on the issue of
equitable tolling and direct Respondents to file a full
answer to Grounds One and Three of the Petition. To the
extent Respondents also assert that the petition is untimely
in their answer, they shall address Petitioner's
arguments in support of equitable tolling. Upon receipt of
Respondents' answer, Petitioner may submit a reply brief.
also seeks appointment of counsel and limited discovery.
There is no Sixth Amendment right to appointment of counsel
in habeas proceedings. See Pennsylvania v. Finley,
481 U.S. 551, 555 (1987) ("Our cases establish that the
right to appointed counsel extends to the first appeal of
right, and no further."); Parham v. Johnson,
126 F.3d 454, 456-57 (3d Cir. 1997) (noting no statutory or
constitutional right of counsel conferred upon indigent civil
litigants); Reese v. Fulcomer, 946 F.2d 247, 263 (3d
Cir. 1991) ("There is no 'automatic'
constitutional right to counsel in federal habeas corpus
proceedings."), superseded on other grounds by
statute, 28 U.S.C. § 2254(d). In determining
whether the interests of justice require appointment of
counsel, the Court considers whether the petitioner has
presented a meritorious claim. See Biggins v.
Snyder, Civ. No. 99-188, 2001 WL 125337, at *3 (D. Del.
Feb. 8, 2001) (citing Reese v. Fulcomer, 946 F.2d
247, 263-64) (3d Cir. 1991) (other citations omitted)). Next,
the Court must determine whether the appointment of counsel
will benefit both the petitioner and the Court by examining
the legal complexity of the case and the petitioner's
ability to present his claims and investigate facts. See
Biggins, 2001 WL 125337, at *3 (citing Reese,
946 F.2d at 264; Parham, 126 F.3d at 457-58;
Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir. 1993))
(other citations omitted). "Where these issues are
straightforward and capable of resolution on the record, or
when the petitioner has a good understanding of the issues
and the ability to present forcefully and coherently his
contentions, the court would not abuse its discretion in
declining to appoint counsel." Biggins, 2001 WL
125337, at *3 (citations and internal quotation marks
Court will deny without prejudice Petitioner's
requests for counsel and limited discovery as premature, as
it is not clear that an evidentiary hearing will be required
or that the issue of equitable tolling is not capable of
resolution on the record provided. An appropriate Order
 Among his exhibits, Petitioner has
provided a Memorandum from Flora DeFilippo dated March 16,
2015, which states that Petitioner had a diagnosis of
schizoaffective disorder from June 14, 2000 until January 26,
2010 until it was removed because (1) Petitioner's
behavior was better explained by his malingering psychotic
symptoms, (2) because numerous "psych meds provided
minimal, if any change", and (3) because Petitioner
engaged in "med seeking behavior in active diagnosis of
polysubstance dependence." Dr. DeFilippo further stated
that "we do not see any symptoms indicative of a
psychotic disorder, and thus, the diagnosis was "ruled
out." (ECF No. 7-1.)
 To be clear, Respondents must file a
full answer addressing the merits of Grounds One and
Three of the Petition and provide the relevant record, and
may not move to dismiss the petition as untimely. In the full
answer, Respondents may, however, assert that the Petition is
untimely, that Petitioner is not entitled to equitable
tolling, and/or any other relevant defenses.
 It appears that Petitioner seeks
limited discovery and appointment of counsel because New
Jersey Department of Corrections allegedly withholds all
psychiatric records as a matter of policy, and will not
provide them to inmates without a court order. Petitioner
also appears to believe that an evidentiary hearing is
required to resolve the issue of equitable tolling. To the
extent the issue of equitable tolling cannot be resolved
without a hearing and/or requires discovery that is not
provided by Respondents in their answer, the Court will