On appeal from Superior Court of New Jersey, Law Division, Hudson County, Ind. No. 143-01-96.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2007
Before Judges Parrillo and Graves.
Defendant Edward Davis appeals from an order denying his petition for post-conviction relief (PCR) entered on February 21, 2006. We affirm. Following a jury trial, defendant was convicted of murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one); felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); armed robbery, N.J.S.A. 2C:15-1 (count three); conspiracy, N.J.S.A. 2C:5-2 (count four); unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count five); possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six); and receiving stolen property, N.J.S.A. 2C:20-7 (count seven). At sentencing on May 1, 1997, the trial court merged count two into count one and imposed for that crime a life term with thirty years of parole ineligibility; merged counts four, five, and six into count three and imposed for that crime a consecutive twenty-year term with ten years of parole ineligibility; and imposed a consecutive five-year term with two and one-half years of parole ineligibility on count seven. In his direct appeal, defendant claimed he did not receive a fair trial and his sentence was manifestly excessive. In an unpublished decision, we affirmed defendant's convictions, but we remanded "for reconsideration of whether the sentences should run concurrently or consecutively." State v. Davis, No. A-6108- 96 (App. Div. November 4, 1998) (slip op. at 5). During oral argument on February 16, 2006, defendant's PCR attorney alleged that the jury's verdict was unreliable because defendant was dressed in prison clothing during the initial stage of jury selection, and he also claimed that defendant's trial attorney did not effectively cross-examine the State's witnesses:
Mr. Davis asserts that in his attorney's cross-examination of the witnesses -- there were really four main witnesses. One was his ex-girlfriend, one was his sister and the other was a co-defendant. And then I guess it was another co-defendant, a person who allegedly sold the defendants the gun that was used in the homicide.
And Mr. Davis asserts that in cross-examining the witnesses, it was never brought out with regard to any . . . motive of why they may want to lie on the stand, especially with regard to Mr. Haywood (phonetic) and Mr. Pediford (phonetic), as well as any bias, in addition to motive, with regard to his sister who he had a sour relationship with at that point, as well as an ex-girlfriend who he felt would have intentions to lie to send him to State Prison.
And the other issue, Judge, is with regard to the jury selection. Mr. Davis has indicated to me, and I think he included it in his own pro se brief, it was that basically during the initial stage of jury selection, he was forced to sit in his prison clothing which he indicates is similar to the clothing that he has on today. He indicates that he raised that to Mr. Serterides [defendant's trial attorney]. He was concerned that perhaps people would obviously have a negative feeling towards him if they see him in his prison clothing. Mr. Serterides basically indicated again, according to Mr. Davis, that don't worry about it, nobody's going to notice, and it wasn't raised to the trial judge. And because of that, he felt that he wasn't given a fair trial. That he had to sit through the initial stage of jury selection in his prison clothing.
And those are the basic arguments, Judge, on behalf of Mr. Davis.
The PCR judge's reasons for denying defendant's petition were as follows:
Defendant has requested pursuant to Rule 3:22-1 a petition for post-conviction relief. According to R. 3:22-12, there is a time limitation, except or an illegal sentence, of five years after rendition of the sentence unless the defendant can show excusable neglect. This time period commences from the time of conviction if the defendant is challenging same. See State v. Afanador, [151 N.J. 41, 52 (1997)]; and State v. Goodwin, 173 N.J. 583, [594 (2002)].
In this case, the defendant waited six years and ten months before filing the petition, and more than five years after the Appellate Division decision for remand.
The defendant's petition must contain specific facts attributing the delay to excusable neglect in order to relax the five-year bar. State v. Mitchell, 126 N.J. 565[, 579 (1997)].
The defendant only makes assertions that the requests are numerous. He . . . was looking for the discovery and the transcript from the trial attorney. However, he never specifies when these requests were made. Besides, his petition alleges certain matters that are not part of any record or discovery. Thus, there was no need to get ...