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Fuscaldo v. Nogan

United States District Court, D. New Jersey

October 4, 2019

MICHAEL FUSCALDO, Petitioner,
v.
PATRICK NOGAN, THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, and STEPHANIE DAVIS-ELSON, Respondents.

          OPINION

          JOHN MICHAEL VAZQUEZ, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Presently 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).)

         For the reasons stated herein, the Court denies the Second Petition with prejudice and no certificate of appealability shall issue.

         II. BACKGROUND[1]

         On June 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.

         Petitioner 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. Id.

         In 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.

         At 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.

         On 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.

         Petitioner 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 *1.

         On 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.)

         On 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.

         On 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.

         On or 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. Id.

         By 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.

         Petitioner 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 delay[2]:

[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 excusable neglect.

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.)

         On 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.

         Petitioner appealed the denial of his third PCR petition. He raised the following two arguments:

[1] 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
[2] 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.

         Rejecting 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).

         On June 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).)

         On July 12, 2016, Petitioner filed his § 2254 Second Petition with this Court. (ECF No. 1.) In it, he asserts two grounds for relief:

[1] 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 ...

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