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State v. Tyson

September 15, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MIKE TYSON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-09-2720.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 20, 2008

Before Judges A. A. Rodríguez and C. L. Miniman.

Defendant Mike Tyson appeals from the denial of his petition for post-conviction relief (PCR). We affirm.

In 2003, following a jury trial, defendant was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)1. The judge imposed an extended twenty-year term with a ten-year parole disqualifier to be served consecutively to a life term without parole previously imposed upon defendant on an unrelated indictment. We affirmed on direct appeal. State v. Tyson, No. A-4891-02T4 (App. Div. July 13, 2004), certif. denied, 182 N.J. 143 (2004).

Defendant filed pro se a first PCR petition, arguing that the imposition of an extended term violated defendant's constitutional rights to trial by jury and due process of law. Assigned counsel filed an amended petition, raising the following issues: (a) trial counsel was ineffective for having failed to object to statements made by the prosecutor that "exceeded his expertise on matters not in evidence;" and for having failed to object to inflammatory statements made by the prosecutor; (b) the prosecutor committed misconduct by commenting on matters that "were beyond his expertise and which were not in evidence;" and (c) "appellate counsel was ineffective for having failed to brief the superior court on meritorious issues." The judge denied the petition without holding an evidentiary hearing. The judge found that the prosecutorial misconduct issue was previously raised on direct appeal. Thus, it was procedurally barred. The judge also found that defendant did not establish a prima facie case with respect to the issues of ineffective assistance of trial counsel or appellate counsel.

On appeal, defendant contends:

THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS NOT PROCEDURALLY BARRED UNDER RULES 3:22-4 AND 3:22-5 BECAUSE THE DEFENDANT ESTABLISHED CERTAIN CRITERIA WHICH ALLOWED FOR A RELAXATION OF THESE RULES.

We disagree.

Contentions that were raised on appeal and decided cannot be raised again on PCR. R. 3:22-5. Issues that could have been, but were not, raised on direct appeal are also barred from consideration on PCR. R. 3:22-4. Therefore, we will not address defendant's contention that:

THE COMMENTS MADE BY THE PROSECUTOR IN HIS SUMMATION AMOUNTED TO PROSECUTORIAL MISCONDUCT THEREBY DENYING THE DEFENDANT HIS RIGHT TO A FAIR TRIAL. [] U.S. CONST. AMEND. V, VI, XIV; N.J. CONST. ART. I, § 9-10. Defendant also contends that:

THE TRIAL COURT'S DENIAL OF DEFENDANT'S PETITION FOR [PCR] SHOULD BE REVERSED BECAUSE THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, APPELLATE COUNSEL AND [PCR] COUNSEL.

A. The Defendant Was Denied The Effective Assistance of Trial Counsel As Trial Counsel Failed To Object To Improper Comments ...


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