November 13, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HORACE COOPER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 95-04-807.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2007
Before Judges A.A. Rodríguez and C.S. Fisher.
Tried to a jury, defendant was convicted of first-degree possession with the intent to distribute five or more ounces of cocaine, N.J.S.A. 2C:35-5(a)(1), and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). The offenses merged for sentencing purposes and, on January 5, 1999, the trial judge entered a judgment of conviction, which imposed an eighteen-year prison term with a six-year period of parole ineligibility.
In his direct appeal, defendant argued that: (1) double jeopardy principles barred the trial because an earlier mistrial was provoked by prosecutorial misconduct; (2) his right to a fair trial was prejudiced by the erroneous exclusion of exculpatory cross-examination; (3) jury instructions regarding the first-degree offense were erroneous; and (4) the sentence imposed was manifestly excessive. We rejected these arguments and affirmed for the reasons contained in an unpublished opinion filed on September 17, 2002. Docket No. A-4665-98T4. The Supreme Court denied defendant's petition for certification.
175 N.J. 70 (2002).
Defendant filed a pro se petition for post-conviction relief on April 15, 2005. After hearing the argument of counsel, the judge denied the petition. Defendant appealed, raising the following arguments for our consideration:
I. THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
A. THE COURT ABUSED ITS DISCRETION IN APPLYING THE PROCEDURAL BARS OF R. 3:22-4, R. 3:22-5, AND R. 3:22-12 IN DENYING POST-CONVICTION RELIEF.
B. THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
II. THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL (NOT RAISED BELOW).
III. THE COURT ABUSED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT ESTABLISHED BY A PREPONDERANCE OF THE CREDIBLE EVIDENCE THAT HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION WAS VIOLATED.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). The post-conviction relief petition was filed more than five years after entry of the judgment of conviction, R. 3:22-12, and defendant failed to present, or attempt to present, exceptional circumstances for granting relief from that time-bar.
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