KEVIN CONLEY v. MICHAEL PAUL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0347-09T1

KEVIN CONLEY,

Plaintiff-Appellant,

v.

MICHAEL PAUL,

Defendant-Respondent.

________________________________________________________________

June 3, 2011

Submitted March 29, 2011 - Decided

Before Judges Payne and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10853-07.

Kevin Conley, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Peter A. Tabisz, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Kevin Conley is serving a term of life imprisonment with a thirty-year period of parole ineligibility following his convictions of murder, aggravated sexual assault, felony murder, possession of a weapon for an unlawful purpose and burglary. The victim was an eighty-six year old woman who was beaten, stabbed, sexually assaulted and strangled in her own home. The proofs at trial relied heavily on DNA and fingerprint evidence. We affirmed the convictions on direct appeal. State v. Conley, No. A-6120-96 (App. Div. Mar. 9, 2000), certif. denied, 165 N.J. 490 (2000). Plaintiff filed a pro se petition for post-conviction relief (PCR) with the Law Division on March 22, 2002. After initially assigning Conley a staff attorney, on February 10, 2006, the Office of the Public Defender substituted defendant Michael Paul as pool counsel to represent Conley on his PCR application. We affirmed the denial of Conley's PCR petition. State v. Conley, No. A-3829-07 (Jan. 8, 2010), certif. denied, 201 N.J. 499 (2010).

On December 26, 2007, plaintiff filed a civil suit against defendant, his PCR trial attorney, for fraud, breach of contract, ethical violations, intentional infliction of emotional distress, official misconduct, violations of plaintiff's state and federal constitutional rights and other torts. He now appeals the July 17, 2009 order denying his motion seeking, on the basis of a change in the law, to vacate a prior July 3, 2008 order of dismissal with prejudice for failure to file a notice of claim as required by the Tort Claims Act. N.J.S.A. 59:8-3; N.J.S.A. 59:8-8. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff raises the following arguments on appeal,

POINT ONE

THE COURT BELOW ERRED BY NOT REOPENING AND STAYING AND/OR GRANTING A DISMISSAL OF THE COMPLAINT WITHOUT PREJUDICE SINCE THE PLAINTIFF HAS BEEN DENIED THE OPPORTUNITY FOR A DISMISSAL OF HIS COMPLAINT WITHOUT PREJUDICE DUE TO THE CIRCUMSTANCES SURROUNDING PLAINTIFF'S COMPLAINT AND THE CHANGE IN LAW. U.S. CONST. AMEND, VII; XIV; N.J. CONST. ART. 1 PAR. 1 & 9.

A. The Circumstances And Material Change In The Law Warrant Reopening On Equitable Grounds

B. Denial Of The Motion Is Contrary To The Spirit And The Letter Of The Policy Of Liberal Amendments To Pleadings And Liberal Construction Of Pro Se Pleadings

C. Lack Of Prejudice To Defendant Paul

POINT TWO

THE DENIAL OF THE MOTION TO REOPEN INFRINGES ON PLAINTIFF'S RIGHT TO PETITION GOVERNMENT FOR REDRESS AND/OR ACCESS TO COURT SINCE THE CURRENT DISMISSAL PREJUDICES PLAINTIFF'S RIGHT TO SUE DEFENDANT PAUL AFTER PLAINTIFF OBTAINS RELIEF IN HIS CRIMINAL LITIGATION. U.S. CONST. AMEND. I; VII; XIV; N.J. CONST. (1947) ART. 1 PAR. 1; ART. 1 PAR. 9,10.

Plaintiff alleges in his complaint that, among other lapses, defendant failed to follow through with his promise to obtain an expert witness in DNA analysis to rebut the State's trial proof that the semen stains found on the victim's bed were sufficiently consistent with plaintiff's DNA to connect him with the crime. In affirming the denial of plaintiff's PCR petition, we indicated:

Moreover, this record does not support a contention that PCR counsel was ineffective for not having presented new evidence to question the forensic evidence presented at trial. PCR counsel requested access to the forensic evidence and appointment of an expert, but his request to the Office of the Public Defender for an expert witness to support the petition was denied.

[State v. Conley, supra, slip op. at 10.]

A few months after plaintiff's complaint was dismissed with prejudice, the Supreme Court decided McKnight v. Office of the Pub. Defender, 197 N.J. 180, 182 (2008), holding that in a legal malpractice action against a criminal defense attorney, the cause of action does not accrue until the client is in some way exonerated. Exoneration could include dismissal of a charge, "or any disposition more beneficial to the criminal defendant than the original judgment." Ibid. (citation and internal quotation marks omitted). Thus, in his subsequent motion to vacate the dismissal, or modify it to a dismissal without prejudice, plaintiff argued that his cause of action had not yet accrued when it was dismissed for failure to file a notice of claim. We need not address that argument as any cause of action regarding PCR counsel's representation evaporated in 2010 when plaintiff exhausted all state appeals without any form of exoneration.1 He thus has no colorable claim against defendant.

Affirmed.

1 Should plaintiff later in some way obtain "exoneration," he may file an application for relief under Rule 4:50-1.