September 15, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DWAYNE KNIGHT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-11-5153.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 26, 2008
Before Judges Payne and Alvarez.
Defendant, Dwayne Knight, convicted of murder and other crimes and sentenced on May 21, 1991 to a term of life with a thirty-year parole disqualifier, appeals from the denial of his second petition for post-conviction relief (PCR), without a hearing, because it was untimely and raised issues that could have been presented on direct appeal or in his first PCR. See R. 3:22-12 and 3:22-4. On appeal from that denial, defendant raises the following arguments:
THE PCR COURT ERRED WHEN IT BARRED DEFENDANT FROM RAISING HIS ISSUES IN A SECOND PETITION FOR POST-CONVICTION RELIEF PURSUANT TO RULE 3:22-4 AND RULE 3:22-12.
THE PCR COURT ERRED WHEN IT CONCLUDED THE TRIAL COURT'S FAILURE TO INSTRUCT AND DEFINE THE MEANING OF ATTEMPT AS IT RELATES TO THE ROBBERIES DID NOT VIOLATE DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW.
THE PCR COURT ERRED WHEN IT CONCLUDED THAT THE DEFENDANT WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL DURING HIS PLEA NEGOTIATION PHASE.
Having reviewed defendant's arguments in light of the record in this matter and applicable law, we affirm.
The record discloses that defendant, along with co-defendants Leon Durham and Thomas Dollard, accosted two persons in the stairway of an apartment building on Irving Turner Boulevard in Newark, unsuccessfully sought to rob them, and then forced them to accompany the three defendants while they conducted a home invasion for the purpose of armed robbery and to obtain drugs. During the home invasion, one of the residents was fatally shot in the chest by Dollard, using a sawed-off shotgun carried to the residence by Knight. At the conclusion of the incident, Knight sought to kill one of the two people that the three defendants had initially accosted. However, the victim escaped by diving through a closed window, breaking his wrist. Defendant was identified as one of the perpetrators when the bag he had utilized to carry the shotgun was traced to the son of defendant's girlfriend. He subsequently confessed to his participation in the crime.
Following a lengthy trial of charges against all three defendants, defendant Knight was convicted of second-degree burglary, N.J.S.A. 2C:18-2 (Count One); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (Count Two); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Three); first-degree robbery, N.J.S.A. 2C:15-1a (Counts Four and Six); felony murder, N.J.S.A. 2C:11-3a(3) (Count Seven); purposeful, knowing murder, N.J.S.A. 2C:11-3a(1)(2) (Count Eight); third-degree possession of a weapon, a sawed-off shotgun, N.J.S.A. 2C:39-3b (Count Nine); third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5c(1) (Count Ten); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Eleven); third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b (Count Twelve); and second-degree possession of a weapon, a handgun, for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Thirteen). Defendant was acquitted of one count of first-degree robbery as set forth in Count Five of the indictment.
We affirmed defendant's conviction and sentence in an unreported opinion. State v. Knight, No. A-5681-90T4 (App. Div. December 15, 1993). Certification was denied. State v. Knight, 136 N.J. 296 (1994). Thereafter, defendant sought post-conviction relief, and was denied that remedy on September 19, 1996. We again affirmed the trial court's decision in an unreported opinion, and certification was once more denied. State v. Knight, 157 N.J. 646 (1999). Thereafter, defendant sought relief in the federal courts through a writ of habeas corpus, and when that was unsuccessful, on February 16, 2007, defendant filed his second PCR petition, which was denied on June 21, 2007.
Rule 3:22-12 bars a PCR petition filed "more than five years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." As the motion judge noted, the record contains no evidence to suggest a basis for a finding of such neglect. Moreover, as the motion judge also noted, defendant's arguments could have been raised in his initial appeal or his initial PCR application, and for that reason, are barred by Rule 3:22-4.
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