July 19, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DONALD M. HENRY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 88-02-0268.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 13, 2007
Before Judges Coburn and R. B. Coleman.
Defendant, Donald M. Henry, appeals from the May 22, 2006 letter denying his most recent petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
On August 8, 1989, a jury found defendant guilty of murder, N.J.S.A. 2C:11-3a(1) and (2), two counts of felony murder, N.J.S.A. 2C:11-3a(3), and two counts of possession of handguns for an unlawful purpose, N.J.S.A. 2C:39-4a. Another panel of this court affirmed defendant's convictions, but merged the felony murder convictions with the murder conviction by unpublished opinion State v. Henry, Docket No. A-1705-89T4 (App. Div. December 16, 1992). As the factual basis underlying defendant's convictions are set out fully in that opinion, we need not repeat them here. The Supreme Court of New Jersey denied defendant's petition for certification on February 25, 1993. State v. Henry, 133 N.J. 435 (1993).
Defendant filed his first petition for PCR on or about December 10, 1996. Deeming the petition time-barred, the Law Division denied the petition without an evidentiary hearing. Another panel affirmed that determination by an unpublished opinion dated January 9, 2001, and the Supreme Court denied certification. State v. Henry, Docket No. A-6502-47T4 (App. Div. 2001), certif. denied, 168 N.J. 290 (2001). Defendant thereafter filed a second petition for PCR on February 28, 2002, and he filed a federal habeas corpus petition in March 2002. The record does not disclose the outcome of the second petition for PCR. The federal petition was dismissed as untimely on October 12, 2005.
Subsequently, defendant filed the petition which is the subject of this appeal. On May 22, 2006, the court denied this petition, without a hearing, finding no basis on which to grant defendant relief due to his prior petitions for PCR. On appeal defendant argues:
POINT I: THE DEFENDANT IS ENTITLED TO A FULL HEARING TO ESTABLISH THE MERITS OF HIS PETITION FOR POST CONVICTION RELIEF.
POINT II: THE DEFENDANT'S PETITION IS NOT PROCEDURALLY BARRED BECAUSE THE ISSUES RAISED THEREIN WERE NOT EITHER PREVIOUSLY RAISED ON APPEAL, OR COULD NOT HAVE BEEN RAISED ON DIRECT APPEAL.
POINT III: (A) THE DEFENDANT, DONALD HENRY, WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHICH RESULTED IN HIS CONVICTION AND SEVERE SENTENCE WHEN TRIAL COUNSEL FAILED TO CALL ANY WITNESSES - INCLUDING THE DEFENDANT TO THE WITNESS STAND TO SUPPORT THE DEFENSE OF "RENUNCIATION," CONTRARY TO STATUTORY LAW, CASE LAW, IN VIOLATION OF BOTH THE SIXTH AND FOURTEENTH AMENDMENTS TO THE STATE AND FEDERAL CONSTITUTIONS, REQUIRING THE REVERSAL OF THE CONVICTION AND AN ORDER GRANTING DEFENDANT A NEW TRIAL.
(B) THE DEFENSE COUNSEL CANNOT MAKE THE DECISION WHETHER OR NOT TO CALL THE DEFENDANT TO THE WITNESS STAND. THAT IS THE ULTIMATE DECISION OF THE DEFENDANT. DEFENSE COUNSEL CAN ONLY ADVISE.
POINT IV: THE DEFENDANT, DONALD HENRY, WAS DENIED HIS RIGHT TO TRIAL BY JURY WHEN THE COURT FAILED TO CHARGE THE JURY ON N.J.S.A. 2C:2-3, CAUSATION, WHICH RESULTED IN HIS CONVICTIONS FOR MURDER, FELONY MURDER AND KIDNAPPING.
Pursuant to R. 3:22-12, any petition for PCR must be filed no later than "5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that delay beyond said time was due to defendant's excusable neglect." Defendant's judgment of conviction and order of commitment were entered on September 29, 1989. Therefore any timely petition would have had to have been filed no later than 1994. Defendant's most recent petition is far beyond that timeframe and defendant has given no excuse for such delay. Moreover, defendant's current arguments seek to challenge decisions about witnesses, the failure to call witnesses at trial and the failure to request a particular jury charge.
These are all strategic or tactical decisions that could have been, and should have been, raised either on direct appeal or in a prior petition for PCR. Defendant fails to show that he was unable, due to excusable neglect, to raise his current arguments in an earlier petition for PCR. Consequently, his petition is procedurally barred. R. 3:22-4. The trial court properly rejected defendant's current petition for PCR.
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