STATE OF NEW JERSEY v. BIENVENIDO CASILLA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4838-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BIENVENIDO CASILLA,

Defendant-Appellant.

_________________________________

November 5, 2012

Submitted: October 3, 2012 - Decided:

Before Judges Axelrad and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-10-0052.

Bienvenido Casilla, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Bienvenido Casilla appeals from denial of his second petition for post-conviction relief (PCR) and denial of his motion to compel discovery. Judge Mathias Rodriguez denied the PCR petition as procedurally time-barred and denied defendant's discovery motion as too broad, untimely, and moot. We affirm.

Defendant was involved in drug-related activities, including collecting debts owed to Colombian drug dealers. In June 2000, he was convicted by a jury of purposeful or knowing murder, kidnapping, felony murder, racketeering, conspiracy to commit racketeering, conspiracy to commit kidnapping, theft by extortion, attempted theft by extortion, terroristic threats, possession of a weapon for an unlawful purpose, two counts of tampering with physical evidence, and two counts of hindering apprehension.

On July 17, 2000, defendant was sentenced to a thirty-year term of imprisonment, with thirty years of parole ineligibility on the murder count; a consecutive twenty-five year term, subject to an 85% NERA parole disqualifier on the kidnapping count; and a consecutive term of fifteen years on the racketeering count. The court also imposed concurrent custodial terms of seven years on the attempted theft by extortion count and four years on the two counts of hindering apprehension or prosecution conviction. The court merged the remaining counts.

Defendant filed a direct appeal, arguing: (1) his right to due process was violated when the court failed to submit the element of jurisdiction to the jury; (2) the court committed reversible error on the murder count when it responded to a jury question with a supplemental instruction that defendant could be found to be an accomplice; (3) the court should have granted his motion to suppress the wiretaps; (4) his sentencing on the kidnapping charge was illegal; and (5) the court abused its discretion in imposing a third consecutive sentence for racketeering when that conviction was based on the same conduct as the murder and kidnapping counts. We affirmed defendant's convictions and sentences for murder and hindering apprehension on appeal, but reversed defendant's convictions for racketeering and theft by extortion "because the trial court failed to instruct the jury concerning the territorial elements of those offenses," and remanded for a retrial on those charges. State v. Casilla, 362 N.J. Super. 554, 561 (App. Div.), certif. denied, 178 N.J. 251 (2003). Additionally, we vacated defendant's conviction for first-degree kidnapping because the court submitted this charge to the jury as a second-degree offense, and remanded for resentencing as a second-degree offense. Ibid. The State did not retry defendant on the racketeering and theft by extortion charges.

On January 23, 2004, the court resentenced defendant on the second-degree kidnapping charge to a consecutive term of ten years imprisonment subject to an 85% NERA parole disqualifier. On appeal to an ESOA calendar, R. 2:9-11, by order of September 22, 2004, we affirmed the consecutive sentencing but remanded to the trial court to consider the applicability of NERA and for consideration of the constitutional issues raised in the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). State v. Casilla, No. A-3709-03 (App. Div. September 30, 2004). Following a remand, on December 15, 2005, the court imposed the identical sentence.

On October 14, 2005, defendant filed his first PCR petition, alleging ineffective assistance of trial counsel in failing to: (1) file motions challenging the legality of his arrest and to suppress his confession; (2) ensure the jurors understood or spoke Spanish; (3) object to the jury instruction on accomplice liability as to the murder count; (4) challenge the validity of the indictment; and (5) object to hearsay evidence. Defendant also alleged appellate counsel failed to argue on direct appeal that his confession should have been suppressed as the fruit of an illegal arrest. By order of January 3, 2006, the court denied defendant's PCR petition. We affirmed in an unreported opinion. State v. Casilla, No. A-2994-05 (App. Div. June 11, 2007). On September 26, 2007, the Supreme Court denied certification. State v. Casilla, 192 N.J. 482 (2007).

On July 14, 2008, defendant filed a petition for habeas corpus in the United States District Court. District Judge Freda L. Wolfson dismissed the petition and denied defendant's certificate of appealability because defendant had not made "'a substantial showing of the denial of a constitutional right' under 28 U.S.C. 2253(c)(2)." Casilla v. Ricci, No. 08-3546, 2 009 U.S. Dist. Lexis 115182, at *37 (D.N.J. Dec. 10, 2009). On August 2, 2010, the United States Court of Appeals for the Third Circuit denied defendant's application for a certificate of appealability and dismissed defendant's appeal for lack of jurisdiction. On December 6, 2010, the United States Supreme Court denied defendant's petition for a writ of certiorari. Casilla v. Ricci, 2010 U.S. Lexis9466, 131 S. Ct. 799, 178 L. Ed. 2d 535 (2010).

On May 4, 2010, defendant filed a motion in the Law Division to compel discovery, and in January 2011, defendant filed a second petition for PCR.1 On May 16, 2011, Judge Rodriguez heard oral argument and denied defendant's second PCR petition as untimely under Rule 3:22-12(a)(2), memorialized in an order of May 31, 2011. The judge referenced the procedural history of the case and noted that defendant did not contend there was any change in the law or new evidence that he did not previously have access to, thus he did not fall within the exceptions to the procedural time-bar. By written opinion and order of the same date, Judge Rodriguez also denied defendant's motion to compel discovery, finding defendant had not made a showing of good cause to support the application. He explained,

defendant's motion sets forth in very general terms a list of discovery items that he wishes to inspect. Defendant provides this Court with no reasons to support this request and fails to tie the request to any cognizable claim he may have in a petition for PCR. The Court is therefore convinced that defendant's motion is nothing more tha[n] a request to go on a fishing expedition in order to investigate possible claims for future appeals. This is exactly what our case law has sought to prevent.

This appeal ensued. On appeal, defendant argues:

POINT I

THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIX[TH] AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW GUARANTEED TO HIM BY THE SIXTH AND FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES WERE VIOLATED WHEN COURT[] CLERK AFTER RECEIVING JURY'S VERDICT OF NOT GUILTY TO THE CHARGE FO[]R "MURDER" . . . CONTINUED ASKING QUESTIONS SIX, SEVEN, EIGHT, ELEVEN[] . . . IRONICALLY, AT THIS POINT, CLERK DECIDED TO RE-WRITE AND/OR CHANGE THE NO[T] GUILTY JURY'S VERDICT, AND WITHOUT ANY WARNING AND/OR CLARIFICATION TO THE JURY AND/OR COURT, MAKING A[] 180 DEGREE TURN, WENT BACK TO REPEAT QUESTION NUMBER FOUR, ADDING TO IT THE ACCOMPLICE OPTION PREVIOUSLY OMITTED WHEN QUESTION [ONE WAS] ASKED . . . . THIS ADDED PORTION WAS NEVER CHARGED ON INDICTMENT. CONSEQUENTLY, CAUSING JURY TO RETURN THE IRRECONCILABLY INCONSISTENT ANSWERS, PARTICULARLY, TO OVERLAPPING QUESTIONS, ORDINARILY REQUIRES REVERSAL OF THE VERDICT . . . . IT SHOULD BE UNDERLINED THAT JUDGE REPEATEDLY FAILED TO PROVIDE JURY WITH COPY OF ACCOMPLICE LIABILITY CHARGE, INSTEAD, JUDGE KEPT RECITING THE MURDER CHARGE.

POINT III

DEFENDANT'S CONSECUTIVE SENTENCE ON COUNT[S] FIVE AND SIX IS ILLEGAL IN THAT THE SENTENCING COURT ABUSED ITS DISCRETION BY NOT FOLLOWING THE SENTENCING GUIDELINES . . ., NEW JERSEY'S CODE OF CRIMINAL JUSTICE AND WITH JUDICIAL GUIDELINES, AND IN BASING ITS DETERMINATIONS ON THE FINDING OF FACTS IT KNEW OR SHOULD HAVE KNOWN TO BE ERRONEOUS AND MUST BE VACATED OR REVERSED PURSUANT TO Rule 3:22-2(c).

POINT IV

THE COURT VIOLATED APPELLANT'S DUE PROCESS RIGHT GUARANTEED TO HIM BY THE SIX[TH] AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES, BECAUSE HE WAS CONVICTED AS AN ACCOMPLICE TO FELONY MURDER WITHOUT EVER BEING INDICTED FOR THIS SPECIFIC CRIME, AND WITHOUT THE COURT SPECIFICALLY CHARGING ACCOMPLICE LIABILITY TO THE JURY IN CONNECTION WITH FELONY MURDER.

POINT V

THE DEFENDANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW GUARANTEED TO HIM BY THE CONSTITUTION OF THE UNITED STATES WAS VIOLATED WHEN ON THIRD COUNT MULTIPLE CRIMES WERE GROUPED TOGETHER UNDER SAME STATUTE IN VIOLATION OF Rule 3:7-3(1.3).

POINT VI

DEFENDANT'S RIGHTS UNDER ARTICLE 36 OF THE VIENNA CONVENTION ON CONSULAR RELATIONS WAS WRONGFULLY DENIED.

POINT VII

TRIAL COURT VIOLATED DEFENDANT['S] DUE PROCESS RIGHTS WHEN IT FAILED TO INSTRUCT JURISDICTION AS SUBSTANTIVE ELEMENT OF THE CHARGES OF MURDER AND FIRST DEGREE KIDNAPPING.

POINT VIII

PROCEDURAL BAR PREVENTING RULING O[N] DEFENDANT'S ISSUES . . . WOULD CONSTITUTE FUNDAMENTAL INJUSTICE. THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATION.

POINT IX

BY ARBITRARILY FAILING TO RULE ON MERITS OF APPELLANT'S SECOND POST-CONVICTION RELIEF PETITION, PCR COURT FLAGRANTLY VIOLATED APPELLANT'S RIGHT TO DUE PROCESS OF LAW, INCLUDING BUT NOT LIMITED TO: (1) TO PETITION THE GOVERNMENT FOR A REDRESS OF GRIEVANCE; (2) ACCESS TO COURT; (3) ASSISTANCE OF COUNSEL, GUARANTEED TO HIM BY THE FIRST, SIXTH AND FOURTEENTH AMENDMENTS OF THE CONSTITUTION OF THE UNITED STATES.

Based on our review of the record and applicable law, we are not persuaded by any of defendant's arguments and affirm substantially for the reasons articulated by the judge in his oral and written decisions. R. 2:11-3(e)(2). We add the following brief comments.

Defendant asserted the following specific claims of ineffective assistance of trial counsel:

failed to effectively challenge Court Clerk's actions, causing the jury to deliver an irreconcilable and/or inconsistent verdict[; . . .] failed to challenge Court's sentencing for murder charges, a charge for which defendant had been found Not Guilty[; . . . and] failed to effectively challenge conviction for felony murder based on an accomplice liability theory, when in fact accomplice liability had never been charge on indictment in connection with count five, felony murder and accomplice liability was never specifically charge[d] by the judge, among numerous other critical failures.

According to defendant, trial counsel was also "grossly ineffective" at the resentencing in: (1) not challenging the court's imposition of consecutive sentences on felony murder and second-degree kidnapping, which he asserts is an illegal sentence, and (2) allowing him to be convicted as an accomplice to felony murder without having been indicted for that crime and without the court specifically charging that offense in connection with felony murder.

Defendant alleged appellate counsel was "egregiously ineffective" in failing to identify and effectively raise the above instances of trial counsel's ineffectiveness, and "blatantly ineffective" in failing to challenge on appeal the above instances of the court's violation of defendant's constitutionally guaranteed due process rights.

Defendant also alleged ineffective assistance of first PCR counsel in failing "to adequately prepare and exercise normal customary skills in preparation" of his PCR and failing to investigate and properly assert his meritorious claims of ineffective assistance of trial and appellate counsel and the constitutional errors of the court.

Defendant's first PCR petition was denied on January 3, 2006. He did not file his second PCR petition until sometime in January 2011, four years past the deadline required by Rule 3:22-12(a)(2), which provides that no second petition for post-conviction relief shall be filed more than one year after the latest of:

(A) the date on which the constitutional right asserted was initially recognized by the United States Supreme Court or the Supreme Court of New Jersey, if that right has been newly recognized by either of those Courts and made retroactive by either of those Courts to cases on collateral review; or

(B) the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence; or

(C) the date of the denial of the first or subsequent application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief is being alleged.

"These time limitations shall not be relaxed, except as provided herein." R. 3:22-12(c).

None of defendant's claims rely upon new law or new facts, and his claim of ineffective assistance of first PCR counsel is based on the claim that first PCR counsel should have raised or better advanced the claims that form the basis of his ineffective assistance of trial and appellate counsel claim. Moreover, the time limitation for filing a PCR petition is not tolled during appellate proceedings, including federal habeas corpus proceedings. State v. Milne, 178 N.J. 486, 494 (2004). Therefore, Judge Rodriguez correctly denied defendant's second PCR petition as procedurally time-barred.

Additionally, all of defendant's claims raised in this second PCR were either adjudicated in his direct appeal, in his first PCR, or could have been raised in those petitions. See R. 3:22-5 ("A prior adjudication upon the merits of any ground for relief is conclusive . . . in any post-conviction proceeding brought pursuant to this rule . . . or in any appeal taken from such proceedings."); R. 3:22-4 (stating that any matter which could have been, but was not raised in any prior proceeding or on any appeal, cannot be a ground for relief in a PCR proceeding, unless it could not reasonably have been raised prior, or unless denial of relief would be unconstitutional or result in fundamental injustice).

"In defining 'fundamental injustice' the courts will look to whether the judicial system has provided the defendant with fair proceedings leading to a just outcome." State v. Mitchell, 126 N.J. 565, 587 (1992). There is clearly no fundamental injustice here that would justify ignoring the procedural bar. Defendant's sentence is not illegal. The judicial system has provided defendant with multiple fair proceedings leading to a just outcome. Ibid.

The New Jersey Supreme Court concluded that the scope of permissible discovery for a petition for PCR is limited. State v. Herrerra, 211 N.J. 308, 328 (2012). Additionally, the Court found that "[o]nly in the unusual case will a PCR court invoke its inherent right to compel discovery." Ibid. (quoting State v. Marshall, 148 N.J. 89, 270 (1997)). However, the Court also stated that courts have "the inherent power to order discovery when justice so requires." Marshall, supra, 148 N.J. at 269 (internal quotation omitted).

Nonetheless, the Court explained "[t]he filing of a petition for PCR is not a license to obtain unlimited information from the State, but a means through which a defendant may demonstrate to a reviewing court that he was convicted or sentenced in violation of his rights." Id. at 270. There was ample basis for Judge Rodriguez's conclusion that defendant did not establish good cause for the requested discovery at that juncture of the case, and thus the judge properly denied defendant's motion.

Affirmed.

1 None of these documents are contained in our record. We glean defendant's arguments primarily from his pro se appellate brief and reply brief.