October 1, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDWARD DAVIS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 In an unpublished decision, we affirmed defendant's convictions, but we remanded "for reconsideration of whether the sentences should run concurrently or consecutively."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 those items before filing the petition. Therefore, no excusable neglect has been shown.
The defendant has failed to show any exceptional circumstances which is the only other exception to the five-year bar.
The failure of the defense attorney to investigate any bias of four witnesses known by the defendant for four years prior to their testimony without the defendant specifically identifying reasons for their potential bias clearly demonstrates the bogus allegations or arguments in this case.
The defendant's . . . argument of lack of proper attire on the first day of trial before a very experienced trial judge makes this argument or contention extremely suspect. But again, a matter that could clearly have been raised before the five-year limitation period.
The defendant's claim of lack of legal knowledge is no excuse. State v. Cummings, 321 N.J. Super. 154 (App. Div.)[, certif. denied, 162 N.J. 199 (1999)].
The petitioner is time-barred. Now getting to the merits of the petition. The petition must show that his attorney's conduct was so deficient as to fall beyond the range of professional competence and must demonstrate prejudice. Strickland v. Washington, [466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed. 2d 674, 695 (1984)].
With the overwhelming evidence in this case, confessions by the defendant to his girlfriend or ex-girlfriend and sister, and the testimony of two co-defendants, the defendant fails to demonstrate how this lack of obtaining defense witnesses, or the defendant's appearance on the first day of trial, could have materially contributed to defendant's conviction.
Therefore, there is no need to determine if . . . those alleged allegations expressed by the defendant against his trial attorney actually occurred.
So, at this time, I'm denying the petition.
On appeal to this court, defendant presents the following arguments:
POINT I THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND PCR COUNSEL DEPRIVED DAVIS OF A FAIR TRIAL AND RENDERED THE JURY'S VERDICT AS FUNDAMENTALLY UNRELIABLE.
POINT II THE PCR COURT ERRED IN FAILING TO DETERMINE WHETHER DAVIS VOLUNTARILY WAIVED HIS RIGHT TO WEAR CIVILIAN CLOTHING AT TRIAL WHICH WAS A VIOLATION OF DAVIS'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL UNDER THE DUE PROCESS CLAUSE.
POINT III THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO ADDRESS THE CLAIMS RAISED BY DAVIS.
POINT IV DAVIS'S MOTION FOR POST-CONVICTION RELIEF SHOULD NOT HAVE BEEN BARRED BY PROCEDURAL CONSIDERATIONS.
After considering these contentions in light of the record, the applicable law, and the trial court's findings and conclusions, we conclude defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Theemling in his oral decision on February 16, 2006, with only the following comments. A defendant alleging ineffective assistance of counsel must establish that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, supra, 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed. 2d at 692-93. New Jersey has adopted the standards set out in Strickland.
[A] defendant whose counsel performed below a level of reasonable competence must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
[State v. Fritz, 105 N.J. 42, 60-61 (1987) (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).]
To establish an ineffective assistance of counsel claim, defendant must meet both prongs of the Strickland-Fritz test. First, he must demonstrate that his counselor's performance was deficient by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must show "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).
In the present matter, Judge Theemling correctly concluded that defendant's PCR petition was filed well beyond the five- year period allowed by R. 3:22-12, and that defendant failed to show relaxation of this time bar was required either because his delay was due to "excusable neglect" or because the "interests of justice" demand such relaxation. See State v. Goodwin, 173 N.J. 583, 594-95 (2002). Nonetheless, Judge Theemling addressed the merits of defendant's petition, and we concur with his conclusions. We agree that the evidence of defendant's guilt---- including testimony from two co-defendants, defendant's sister, and his former girlfriend----was "overwhelming." We also agree defendant's vague and unsubstantiated allegations were "suspect." Thus, defendant was not entitled to an evidentiary hearing because he failed to present a prima facie claim of ineffective assistance of counsel. State v . Preciose, 129 N.J. 451, 462-64 (1992); Cummings, supra, 321 N.J. Super. at 169-70.
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