United States District Court, D. New Jersey
MICHAEL VAZQUEZ, UNITED STATES DISTRICT JUDGE
before the Court is the second petition pursuant to 28 U.S.C.
§ 2254 (“the Second Petition”) (ECF No. 1)
of Michel Fuscaldo (“Petitioner”). Petitioner is
currently serving an aggregate term of life imprisonment with
thirty years of parole ineligibility. This imprisonment
follows his 1996 trial in which a jury found him guilty of:
first degree murder, second degree possession of a handgun
for an unlawful purpose, third degree unlawful possession of
a handgun, and fourth degree unlawful disposal of a firearm.
(ECF No. 1-4 at 8; State v. Fuscaldo, No.
A-3951-12T3, 2014 WL 9883917, at *1 ( N.J.Super.Ct.App.Div.
Oct. 16, 2015).)
reasons stated herein, the Court denies the Second Petition
with prejudice and no certificate of appealability shall
9, 1993, a Hudson County Grand Jury charged Petitioner with
the murder of Craig Haddock (“the Victim”) in
violation of N.J. Stat. Ann. § 2C:11-3a(1)-(2); third
degree unlawful possession of a handgun in violation of N.J.
Stat. Ann. § 2C:39-5b; second degree possession of a
handgun for an unlawful purpose in violation of N.J. Stat.
Ann. § 2C:39-4a; first degree conspiracy to murder the
Victim in violation of N.J. Stat. Ann. § 2C:5-2; and
fourth degree unlawful disposal of a firearm in violation of
N.J. Stat. Ann. § 2C:39-9d. Fuscaldo, 2014 WL
9883917, at *1.
was tried before a jury. The evidence against him was
circumstantial. State v. Fuscaldo, 2010 WL 2990813,
at *2 ( N.J.Super.Ct.App.Div. Aug. 2, 2010), certif.
denied, 15 A.3d 21 (N.J. 2011). The Victim was last seen
at about 3:15 a.m. on Saturday, January 22, 1993, leaving a
bar in a vehicle driven by Petitioner. Nicholas DiNorscio was
also a passenger in the vehicle. When the Victim did not
return home that night or the next day, his girlfriend and
family members sought to locate him. Petitioner's
subsequent conduct was evasive and inconsistent with his
being a good friend of the Victim. He refused to assist the
Victim's girlfriend and family members in filing a
missing persons report. He claimed he did not feel well.
There was also some evidence that Petitioner was jealous of
the friendship between his wife and the Victim.
Petitioner's story about when he had last seen the Victim
was also inconsistent with the State's evidence.
addition, bullets were secured from the Victim's body and
shell casings were found in the vicinity of his body.
Although Petitioner initially denied to the police that he
had a weapon, law enforcement learned that Petitioner owned a
nine-millimeter Glock model 19 firearm that he had purchased
in 1991. Instructions for the use of a Glock firearm, its
owner's manual, and other related materials were found in
Petitioner's home during a search conducted pursuant to a
warrant. The gun though was never located. Id.
trial, two ballistics experts testified. Sergeant John Meyers
testified that the shell casings found by the body had been
fired from a Glock model 19 firearm because they had
rectangular markings that were unique to that firearm. As to
the bullets found in the body, James Dobak, a firearm
identification technician (ECF No. 15-3 at 12), opined that
only a Glock firearm produces the polygonal rifling evidenced
on the bullets. Fuscaldo, 2014 WL 9883917, at *1.
April 4, 1996, a jury found Petitioner guilty of first degree
murder, second degree possession of a handgun for an unlawful
purpose, third degree unlawful possession of a handgun, and
fourth degree unlawful disposal of a firearm. Id.
The jury acquitted him of first degree conspiracy to murder.
The trial court denied Petitioner's motion for a judgment
of acquittal or alternatively for a new trial. On May 10,
1996, the court sentenced Petitioner to an aggregate term of
life imprisonment with thirty years of parole ineligibility.
Fuscaldo, 2014 WL 9883917, at *1.
appealed, arguing the evidence presented by the State was
legally insufficient to sustain his conviction. He claimed
that the State did not prove he actually killed the Victim.
Id. He also argued that: the trial court violated
his constitutional right to a fair trial by barring
cross-examination on possible mob involvement in the
Victim's murder; the trial court erred in admitting
evidence about one of Petitioner's statements elicited in
violation of his Fifth Amendment rights; and the trial court
erred in failing to charge the jury on passion/provocation.
(ECF No. 1-4 at 10-11.) The Appellate Division rejected these
arguments and affirmed Petitioner's conviction in an
unpublished opinion. Fuscaldo, 2014 WL 9883917, at
November 17, 1998, Petitioner filed with this Court his first
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 (“First Petition”). (ECF No. 1-3 at
10.) The First Petition asserted three claims: (1)
Petitioner's conviction was obtained with
constitutionally insufficient evidence; (2) the trial court
violated Petitioner's constitutional right to a fair
trial by barring cross-examination implicating Tommy
DiNorscio as the actual shooter; and (3) Petitioner's
conviction was obtained by using statements obtained in
violation of his Fifth Amendment rights. Id. On July
16, 1999, this Court denied the First Petition. (Id.
at 1, 12.) On October 23, 2000, the United States Court of
Appeals for the Third Circuit denied Petitioner's request
for a certificate of appealability. (ECF No. 1-5 at 1;
Fuscaldo, 2014 WL 9883917, at *1.)
April 30, 2001, Petitioner, represented by private counsel,
filed his first PCR petition. He asserted ineffective
assistance of counsel (“IAC”) claims. In support,
Petitioner claimed his trial attorney was “saddled with
a monumental conflict of interest” involving
co-defendant DiNorscio, rendering counsel ethically incapable
of providing independent representation. Fuscaldo,
2014 WL 9883917, at *1. The PCR court conducted an
evidentiary hearing on November 7, 2002. A total of five
witnesses testified, including Petitioner, his trial counsel,
and the attorney who represented DiNorscio. Id.
February 13, 2003, the PCR judge issued an oral opinion
denying Petitioner's PCR petition. The PCR judge found
Petitioner's trial counsel and DiNorscio's trial
counsel occupied a common professional office area and at
times shared clerical support staff. Despite this
association, Petitioner did not present sufficient competent
evidence establishing his trial counsel had a conflict of
interest during the time he represented Petitioner.
Id. Applying the standard established by the New
Jersey Supreme Court in State v. Bellucci, 410 A.2d
666 (N.J. 1980), the PCR judge concluded Petitioner had not
presented any grounds requiring a new trial.
Fuscaldo, 2014 WL 9883917, at *1-2. The PCR judge
also denied as untimely Petitioner's request that the
identity of the confidential informant be revealed.
Id. In an unpublished per curiam opinion, the
Appellate Division affirmed the PCR judge's decision.
Id. The New Jersey Supreme Court denied
certification. State v. Fuscaldo, 851 A.2d 649 (N.J.
2004); ECF 1-5 at 36.
about February 8, 2008, Petitioner filed a second PCR
petition. Appearing pro se, he once again claimed IAC by
trial counsel. This time though, Petitioner specifically
listed a number of alleged errors committed by trial counsel.
He again requested an evidentiary hearing. Fuscaldo,
2014 WL 9883917, at *2. In support, Petitioner included an
affidavit from James Edward Hamby. Hamby holds a Ph.D. in
forensic science-firearms identification and contradicted
Dobak's testimony. Fuscaldo, 2010 WL 2990813, at
*2. Hamby stated that a Glock is not the only weapon that
uses polygonal rifling. Petitioner's second PCR petition
argued that his trial counsel was ineffective for failing to
obtain a ballistics expert to present this contrary
testimony. He also claimed that his appellate and PCR
attorneys were ineffective for failing to raise this issue.
order dated September 24, 2008, the same judge who decided
the first PCR petition denied Petitioner's second PCR
application. Fuscaldo, 2014 WL 9883917, at *2; ECF
No. 1-6 at 23-24. In a letter attached to the September 24
order, the judge advised Petitioner that his second PCR
petition was time-barred under New Jersey Rule of Court
3:22-12(a). It was untimely because Petitioner filed it more
than five years after his May 13, 1996 judgment of
conviction. The judge stated that Petitioner had not
presented any evidence “demonstrating [that] your
failure to timely file this petition was due to excusable
neglect.” Fuscaldo, 2014 WL 9883917, at *2.
The judge reminded Petitioner that “you raised, and
then later withdrew, your [IAC] contention in your first
[PCR] application (May 2001)[.]” Id. Under
these circumstances, the judge concluded Petitioner was not
entitled to court-appointed counsel to prosecute his second
PCR petition. Id.
appealed the denial of his second PCR petition, raising the
following arguments: the trial court should have considered
his second PCR application on the merits; Petitioner's
IAC claims were meritorious; Petitioner was entitled to an
evidentiary hearing on his IAC claims; the trial judge had
not made sufficient findings of fact; the trial court should
have granted his motion for discovery and counsel
appointment; N.J. Ct. R. 3:22-4 allows for time-bar
relaxation; the State mischaracterized the grounds upon which
Petitioner sought relief; Petitioner stated prima facie IAC
claims; and grounds existed to vacate his sentence.
Fuscaldo, 2010 WL 2990813, at *1-2. On August 2,
2010, the Appellate Division affirmed the PCR court's
decision rejecting the second PCR petition.
Fuscaldo, 2010 WL 2990813, at *1. The Appellate
Division noted at the outset that Petitioner's second PCR
petition was untimely. Id. at *3. Petitioner filed
it almost twelve years after his conviction, and he did not
demonstrate extraordinary circumstances to excuse his
[D]efendant has not presented a sufficient reason for the
delay to justify this extraordinary relief. He knew at the
time of his trial and certainly after his conviction the
importance of the ballistics evidence, and nothing precluded
him from obtaining a rebuttal report in the five years after
his conviction as he has done now. Thus, we do not find
Fuscaldo, 2010 WL 2990813, at *3. The Appellate
Division also specifically rejected Petitioner's
arguments attacking alleged deficiencies in the State's
ballistics evidence at trial. Id. at *4
(“[T]he shell casings still provide unrefuted evidence
that the murder was accomplished with a Glock weapon”);
Fuscaldo, 2014 WL 9883917, at *2. On October 15,
2010, the Appellate Division denied reconsideration. (ECF No.
1-6 at 35-36.)
April 13, 2012, Petitioner, represented by counsel, filed a
“Notice of Motion for an Order Vacating the Convictions
and Dismissing the Indictment; [or, ] Alternatively, Granting
the Motion for a New Trial [‘2012 Motion'].”
Fuscaldo, 2014 WL 9883917, at *2. The 2012 Motion
challenged the State's ballistic evidence. Following oral
argument, the same judge who decided Petitioner's two
previous PCR petitions concluded that, despite
Petitioner's label, the 2012 Motion was actually a third
PCR petition. After hearing argument, the PCR court denied
the third PCR petition. The judge gave a detailed oral
explanation in support. Specifically, the judge stated:
It was not a calculation of mathematical probabilities that
led the jury to conclude that the defendant's weapon was
the murder weapon and that the defendant was guilty of the
murder. Rather, it was the substantial, credible, and
persuasive circumstantial evidence that led to the
defendant's conviction. The ballistics evidence ... was
but one of many interlocking items of evidence that, taken in
combination, established this defendant's guilt.
Fuscaldo, 2014 WL 9883917, at *2-3. Ultimately, the
state court rejected Petitioner's third PCR petition as
untimely under N.J. Ct. R. 3:22-12(a). Id. at *3.
appealed the denial of his third PCR petition. He raised the
following two arguments:
 The Defendant Should Be Granted A New Trial Based Upon
Newly Discovered Evidence; The Court Below Erred In Denying
The Motion And By Incorrectly Interpreting The Motion As A
Petition For Post-Conviction Relief [referred to as the
“Third PCR's New Evidence Claim”]; and
 The Order Of The Court Below Should Be Reversed As The
State's Use Of False And/Or Perjured Expert Testimony
(That It Knew Or Should Have Known Was False) To Establish
Defendant's Guilt Violated His Right To Due Process Under
The Fifth, Sixth, And Fourteenth Amendments Mandating A
Vacation Of His Convictions And Dismissal Of The Indictment
Or, At The Very Least, A New Trial [referred to as the
“Third PCR's Expert Testimony Claim”].
Fuscaldo, 2014 WL 9883917, at *3.
both arguments, the Appellate Division stated that the PCR
court's characterization of the 2012 Motion as a third
PCR petition was not dispositive, although the PCR court was
correct under state law. Rather, the Appellate Division was
“satisfied [that Petitioner's] application was
correctly rejected.” Id. at *3. Petitioner had
not demonstrated under state law that he was entitled to a
new trial based on newly discovered evidence:
Our [New Jersey] Supreme Court has recently reaffirmed the
standard a court must use in deciding whether to grant or
deny a motion for a new trial based on newly discovered
evidence: “Evidence is newly discovered and sufficient
to warrant the grant of a new trial when it is: (1) material
to the issue and not merely cumulative or impeaching or
contradictory; (2) discovered since the trial and not
discoverable by reasonable diligence beforehand; and (3) of
the sort that would probably change the jury's verdict if
a new trial were granted.”
Fuscaldo, 2014 WL 9883917, at *4 (quoting State
v. Nash, 58 A.3d 705, 723 (N.J. 2013) (citing State
v. Carter, 426 A.2d 501, 508 (N.J. 1981)). Applying this
standard, the Appellate Division found Petitioner's
“latest attempt at overturning his conviction” to
be “without merit.” Fuscaldo, 2014 WL
9883917, at *4. Plaintiff had not demonstrated the
three-pronged state law standard. Instead, Petitioner's
“affidavit or report of the ballistics expert merely
rehashes what has been presented and rejected at least twice
before by the trial court and this court.” Id.
Accordingly, the Appellate Division affirmed denial of
Petitioner's third PCR petition. Id. On November
6, 2015, the New Jersey Supreme Court denied certification.
State v. Fuscaldo, 125 A.3d 391 (N.J. 2015).
18, 2016, Petitioner, represented by counsel, filed a motion
to file a second or successive § 2254 petition with the
Third Circuit. (ECF 1 at 30-31; ECF No. 1-1 at 1-50; ECF No.
1-2 at 1-13; ECF No. 1-7 at 47.) On June 30, 2016, the Third
Circuit granted his application. The Third Circuit
“stress[ed], ” however, that its decision to do
so was “tentative”:
[T]he District Court must dismiss the habeas petition for
lack of jurisdiction if it finds that the requirements for
filing such a petition have not in fact been met.
[S]ee § 2244(b)(4) (“A district
court shall dismiss any claim presented in a second or
successive application that the court of appeals has
authorized to be filed unless the applicant shows that the
claim satisfies the requirements of this section”).
Additionally, the District Court is required to determine in
the first instance all relevant issues, including timeliness,
exhaustion, and procedural default.
(ECF No. 1-8 at 1 (other internal citations omitted).)
12, 2016, Petitioner filed his § 2254 Second Petition
with this Court. (ECF No. 1.) In it, he asserts two grounds
 The [Petitioner] should be granted a new trial based upon
newly discovered evidence (the affidavit of the defense
ballistics expert that contradicts the State's theory of
the case); the [Petitioner's] Fourteenth Amendment right
to due process [of] a fair trial and Sixth Amendment right to
effective counsel ...