Gambino v. Warden of N.J. State Prison
| Decision Date | 02 January 2013 |
| Docket Number | Civil Action No. 11-4221 (SDW) |
| Parties | GIUSEPPE A. GAMBINO, Petitioner, v. WARDEN OF NEW JERSEY STATE PRISON, Respondent. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
This matter comes before this Court upon Giuseppe A. Gambino's ("Petitioner") application seeking a writ of habeas corpus, pursuant to 28 U.S.C. § 2254(a) ("Petition"), and challenging his judgment of conviction entered by the Superior Court of New Jersey. For the reasons detailed below, the Petition will be DENIED, and no certificate of appealability will issue.
Addressing Petitioner's application for post-conviction relief ("PCR"), the Superior Court of New Jersey, Appellate Division ("Appellate Division"), summarized the facts as follows:
Petitioner was convicted of murdering his downstairs neighbor Richard Wighard. The killing appeared to be the culmination of a long standing dispute between [Petitioner], who rented an apartment upstairs, and the victim and his brother, John Wighard, who lived downstairs. [Petitioner] contended that the brothers, who controlled the temperature for the building, kept his apartment too hot and that they were causing noxious fumes to enter his apartment. On August 25, 2000, John Wighard was awakened by gun shots and found his brother lying onthe floor in their apartment. The victim had gun shot wounds in his abdomen and back. John . . . immediately suspected [Petitioner] of the shooting, due to threats [Petitioner] had previously made [and informed the police accordingly]. Matthew Puzio, who was visiting a friend in the neighborhood, also heard the shots; he heard someone say, "I had enough of this fuckin' shit"; and then he heard a car drive away. The victim had been shot with two .22 caliber bullets; the police found .22 caliber ammunition and a gun holster . . . . At trial, [Petitioner's] business associate and friend George Imperatore testified that on the evening [of the murder, Petitioner] said that he "couldn't take it anymore" and that "I shot him[,] I shot him and then when he fell down I shot him in the back." Imperatore understood [Petitioner] to be referring to his downstairs neighbor. Imperatore then drove [Petitioner] to a bridge over the Hackensack River where [Petitioner] threw away a gun. The following morning [Petitioner] told Imperatore that he had shot the victim and that he was glad he had done it. Linda Roll, a neighbor and friend of [Petitioner], received a telephone call from [Petitioner] shortly after the shooting. According to Roll, [Petitioner] told her that he "could not take it any more" and that "I shot him." She testified that prior to the shooting, [Petitioner] had arguments with the Wighards. [Petitioner] thought the Wighards were trying to kill him with excessive heat and fumes, and [Petitioner] said [to Roll] that he was going to shoot one of them.
State v. Gambino, 2009 WL 735836, at *1 (N.J. Super. Ct. App. Div. Mar. 23, 2009) (original ellipses omitted); see also Docket Entry No. 14-15, at 2-3 ().
Petitioner testified at trial, maintaining that he had no involvement in Richard's murder. He also insisted that he had no gun and, thus, could not dispose of any gun. (Docket Entry No. 14-15, at 3.) In addition, Petitioner stated that he had no idea how the .22 caliber ammunition, found by the police in his apartment, could have gotten into the apartment, but he stressed that the Wighards had keys to his residence, thus suggesting that the ammunition might have been placed there by John. See id. He also contended that the gun holster the police found in his apartment belonged to a certain federal marshal whom Petitioner knew. See id. After weighing all the physical evidence and testimony presented at trial, the jury convicted Petitioner of firstdegree murder and various gun-possession charges. See id. at 4. The trial judge sentenced him to thirty-five years of imprisonment, with thirty years of parole disqualifier. See id.
On direct appeal, Petitioner raised three claims, asserting that: (1) the jury charge given by his trial judge was "fatally flawed"; (2) "the trial judge erred in excluding the victim's criminal history"; and (3) Petitioner's sentence was excessive. (Docket Entry No. 14-7, at 5.) The Appellate Division dismissed Petitioner's challenges and affirmed his conviction and sentence. (See id. at 12.) Petitioner failed to file a timely application for certification by the Supreme Court of New Jersey, but the New Jersey Supreme Court allowed said application nunc pro tunc. (See Docket Entry No. 14-10.) Addressing that untimely application on merits, the Supreme Court of New Jersey denied Petitioner's request for certification. (See Docket Entry No. 14-11.)
Petitioner then filed a PCR application with the trial court, which was dismissed. After the dismissal, he filed an appellate brief with counsel supplemented by a submission executed pro se. In Petitioner's counseled appellate brief, he argued a single point, - that the trial court erred by not affording him an evidentiary hearing during his PCR proceedings to address his contention that his trial counsel provided him with constitutionally inadequate legal assistance. (See Docket Entry No. 14-12, at 2.) Petitioner's argument contained two sub-points, one discussing the state law as to the propriety of evidentiary hearings and another asserting that Petitioner presented a prima facie case of ineffective assistance of counsel. (See id.)
In his supplemental brief filed pro se, Petitioner added one more point. (See Docket Entry No. 14-13, at 2.) Specifically, he argued as follows:
[M]y [c]ounsel, Mr. Constantine Loukedis, Esq. was provided with key facts [which, I believe could] have turned up the evidence needed to exonerate me . . . . One [such] fact is the Easy Pass device that was seized as "evidence" from my car. The device records my movement through toll plazas that do not fit the timeline of the murder . . . The second is of the Decedent's brother, John . . . [ who could] have [a] motive to commit the crime, [and] opportunity also. [John] had a [o]ne [m]illion dollar policy on [Richard] of which he had immediate access to. If investigated, it [c]ould [have been] found that he paid a gentleman only known as "Pablo" $80,000 of the first spendings of that money. One would think that it was money owed, but through investigation, it [c]ould [have] turn[ed] up that . . . [it was payment for] committing this crime and . . . setting me up for the crime. The other piece of "evidence", the .22 cal. bullets seized from my apartment were planted there. The Wighard's had a key to my apartment and could easily access the apartment because being that I own restaurants in various parts of New York City and have many business dealing to attend, I am never home. . . . Now Mr. George Imperator [sic] was the other key witness for the Prosecution. Through investigation, it [c]ould [have] turn[ed] up that he ha[d] a motive to lie . . . [because] I loaned Mr. Imperatore unbelievable amounts of money because he was constantly in financial binds. He had no way of paying me. When I met him . . . [on the night of the murder], it wasn't . . . to get rid of the "weapon", it was to discuss a meeting that was I scheduled to attend [in] Florida . . . [which] involved approximately $7 [m]illion dollars . . . [K]eep in mind that after I allegedly told [Imperatore] about the murder, he invited me to stay . . . with not only him, but also his wife and children[.] That does not make any sense. . . . None of this was ever checked out [by my counsel].
(Docket Entry No. 14-13, at 3-4.)
The Appellate Division affirmed the dismissal of Petitioner's PCR application, noting that: (a) Petitioner, through his in-court testimony, informed the jurors of the Wighard's access to his apartment and, thus, of Petitioner's position that the ammunition was "planted," and the jurors rejected Petitioner's position; and (b) the remainder of Petitioner's assertions presented merely bold, self-serving conclusions lacking any documentary support.1 See State v. Gambino,2009 WL 735836, at *4. On June 19, 2009, Petitioner's application for certification of his PCR claims was denied by the Supreme Court of New Jersey. See State v. Gambino, 199 N.J. 543 (2009).
On August 5, 2009, the Clerk received Petitioner's federal habeas application executed on July 31, 2009. (See Gambino v. Ricci, Civil Action No. 09-3872 (KSH), Docket Entry No. 1, at 19.) That application stated the following three grounds in support of Petitioner's challenges:
Petitioner's Civil Action No. 09-3872 was assigned to Judge Katharine S. Hayden ("Judge Hayden"), who advised Petitioner of his rights under Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000). (See Gambino, Civil Action No. 09-3872, Docket Entry No. 2.) Judge...
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