Collester, Lynch and Michels. The opinion of the court was delivered by Michels, J.A.D.
[128 NJSuper Page 365] Defendant appeals from a denial of his petition for postconviction relief. Defendant was found guilty of murder and armed robbery and sentenced on September 23, 1970 to State Prison for the remainder of his natural life. The Appellate Division affirmed his conviction on January 25, 1972, and the Supreme Court denied his petition for certification on March 14, 1972. On July 10, 1972 defendant filed a petition for post-conviction relief contending that his constitutional rights were violated because of the alleged systematic exclusion of blacks from the grand jury which indicted him, and because he was denied the effective assistance of counsel in that his retained attorney failed to move to dismiss the indictment in spite of his request to do so. The trial judge dismissed the petition without a hearing on the ground that the relief sought could have been raised in the prior proceeding. Defendant appeals contending (1) that his indictment was produced by a highly and
unconstitutionally selective system for choosing grand jurors which resulted in the exclusion of blacks; (2) that the trial court erred in determining that the ground for relief asserted in his petition could have been raised in a prior proceeding; and (3) that he was denied effective assistance of counsel for his post-conviction relief petition.
We have reviewed carefully the arguments raised by defendant and find them totally lacking in merit.
Defendant did not challenge the array of the grand jury before trial as required by R. 3:6-2, and thereby waived that defense. See R. 3:10-2; State v. Laws, 50 N.J. 159, 182-183 (1967), on reargument modified on other grounds 51 N.J. 494 (1968), cert. den. 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968); United States ex rel. Laws v. Yeager, 448 F. 2d 74, 86 (3 Cir. 1971). Moreover, the ground asserted by defendant in his petition for post-conviction relief could reasonably have been raised in the prior proceeding, and therefore defendant is barred from asserting that ground in this proceeding under the express language of R. 3:22-4.
The system of selecting grand jurors discussed in State v. Rochester, 54 N.J. 85 (1969), was publicized when that case was decided on May 19, 1969. Defendant had seven months before he entered his plea on December 23, 1969 within which to challenge the array of the grand jury. He had ample time to investigate any alleged constitutional defects and raise any objection to the grand jury array, which he failed to do. See Shotwell Mfg. Co. v. United States, 371 U.S. 341, 363, 83 S. Ct. 448, 9 L. Ed. 2d 357 (1963), reh'g den. 372 U.S. 950, 83 S. Ct. 931, 9 L. Ed. 2d 975 (1963).
The argument advanced by defendant, that he cannot be considered to have waived his right to challenge the array of the grand jury because such right is a constitutional right which can only be waived by "an intentional relinquishment or abandonment of a known right or privilege," was considered and rejected in Davis v. United States, 411 U.S. 233, 93 S. Ct. 1577, 36 L. Ed. 2d 216 (1973). There, a habeas
corpus proceeding was brought by a federal prisoner on the ground of unconstitutional discrimination in the composition of the grand jury that indicted him. This was the first time that defendant raised this issue. He argued that his collateral attack on his conviction could be precluded by Rule 12(b)(2) of the Federal Rules of Criminal Procedure only after a hearing in which it was established that he "deliberately by-passed" or "understandingly and knowingly" waived his claim of unconstitutional grand jury composition. Rule 12(b)(2) provides, as does New Jersey R. 3:10-2, that "[d]efenses and objections based on defects in the institution of the prosecution or in the indictment * * * may be raised only by motion before trial," and that failure to do so "constitutes a waiver thereof, but the court for good cause shown may grant relief from the waiver." The Supreme Court of the United States in the Davis case followed its earlier opinion in Shotwell Mfg. Co. v. United States, supra, and held that Rule 12(b)(2) precludes untimely challenges to grand jury arrays, even when such challenges are on constitutional grounds.
The court in Davis expressly held that no more lenient standard of waiver should apply to a claim raised after a conviction simply because the claim is asserted under the habeas corpus statute rather than in the criminal proceeding itself.
The reasoning of the court in upholding the waiver provision was set forth as follows:
The waiver provisions of Rule 12(b)(2) are operative only with respect to claims of defects in the institution of criminal proceedings. If its time limits are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses and the parties have gone to the burden and expense of a trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate ...