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State v. Bryant

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 9, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALTON BRYANT, A/K/A RASHAD MCKNIGHT, ALQUAN MUSLIM, DICK DICK, AND QUAN, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-11-3839.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 16, 2008

Before Judges Parker and Yannotti.

Defendant Alton Bryant appeals from an order entered by Judge Harold W. Fullilove on March 16, 2007, denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged under Essex County Indictment No. 96- 11-3839 with conspiracy to commit murder, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count one); murder of Rodney Hutchins in violation of N.J.S.A. 2C:11-3a(1) and (2) (count two); attempted murder of Mary Francis, in violation of N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (count three); aggravated assault upon Mary Francis, in violation of N.J.S.A. 2C:12-1b(4) (count four); unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-3b (count five); and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a (count six).

Defendant was tried to a jury. At the trial, the State presented evidence that, on the evening of August 25, 1996, Mary Francis and Carol Hutchins were sitting in Rodney Hutchins' car in Newark when Rodney approached them on a bicycle. Rodney was speaking with the women and defendant approached on foot. He pulled out a sawed-off shotgun, pointed it at Rodney, and told him to put his hands up. Rodney told the women to run. Carol Hutchins got out of the car and began to run. Mary Francis remained in the car.

Defendant's brother, co-defendant Patrick Bryant, exited a car, and struck Rodney in the face. Rodney knocked the gun out of defendant's hands and began to run. Patrick said, "[g]et that mother fucker, kill that mother fucker." Defendant chased Rodney and shot him in the back. Defendant returned to the car, pointed the shotgun at Mary, and began pumping it. Patrick told defendant to leave her alone and Patrick and defendant drove away. Rodney died as a result of the gunshot wounds in his back.

In addition to presenting testimony from eyewitnesses to the shooting, the State presented testimony from Cantrell Wilkes, who stated that on the evening before the shooting, he saw Rodney and defendant talking "face to face" at the Club Safari in Newark. Wilkes said that Rodney appeared frustrated.

The State additionally presented testimony from Cleveland Barlow, who stated that sometime in the summer of 1996, he saw Patrick with a shotgun that was similar to the gun used in the shooting. Barlow also said that he saw defendant rob certain drug dealers. Barlow testified that Rodney was a known drug dealer. Barlow further testified that in August 1997, while he and defendant were incarcerated in the Essex County jail, defendant admitted that he shot Rodney because defendant wanted what belonged to him, which Barlow understood to mean money. Defendant was found not guilty on count three (attempted murder) but he was found guilty of the remaining charges. Judge Fullilove sentenced defendant on November 12, 1997. The judge merged count one (conspiracy) and count six (possession of a weapon for an unlawful purpose) with count two (murder). On count two, the judge imposed a life sentence, with a thirty- five-year period of parole ineligibility. On count five (unlawful possession of a weapon), the judge sentenced defendant to a consecutive term of five years with a two-and-one-half-year period of parole ineligibility. The judge imposed a consecutive eighteen-month term on count four (aggravated assault). The judge additionally imposed appropriate penalties and assessments.

On direct appeal, defendant argued:

POINT I

THE TRIAL COURT ERRED BY REFUSING TO EXCUSE FOR CAUSE JUROR [H.M.] SINCE SHE WAS A CORRECTIONS' OFFICER AT THE ESSEX COUNTY JAIL.

POINT II

MR. BRYANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE TRIAL COURT ALLOWED CLEVELAND BARLOW TO TESTIFY ABOUT OTHER CRIME EVIDENCE INCLUDING THAT IN THE PAST BARLOW HAD SEEN DEFENDANT ROB DRUG DEALERS, AND THAT THE CO-DEFENDANT WAS A SEMI-DRUG DEALER WHOM BARLOW HAD SEEN ON THE STREET WITH A SHOTGUN SIMILAR TO THE MURDER WEAPON.

POINT III

THE STATE'S MISCONDUCT DEPRIVED THE DEFENDANT OF A FAIR TRIAL, NECESSITATING REVERSAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10 (Partially Raised Below)

POINT IV

DEFENDANT'S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED BECAUSE OF THE DISRUPTIVE BEHAVIOR ENGAGED IN BY THE STATE'S WITNESS MARY FRANCIS WHICH DIVERTED THE JURORS' ATTENTION AWAY FROM THE EVIDENCE, MAKING IT IMPOSSIBLE FOR DEFENDANT TO RECEIVE AN IMPARTIAL VERDICT AND A FAIR TRIAL.

POINT V

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURORS THAT BEFORE THEY COULD CONSIDER DEFENDANT'S ALLEGED OUT-OF-COURT ORAL STATEMENTS TO CLEVELAND BARLOW THEY MUST FIRST FIND SUCH STATEMENTS TO BE CREDIBLE BEYOND A REASONABLE DOUBT, AND ITS FAILURE TO CAUTION THE JURY AS TO THE UNRELIABLE NATURE OF TESTIMONY ATTESTING TO SUCH STATEMENTS, SINGULARLY AND CONJUNCTIVELY DEPRIVED DEFENDANT OF H[IS] FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND TO DUE PROCESS OF LAW. U.S. CONST. AMENDS. V, VI, and IV; NEW JERSEY CONST. (1947) Art. I, pars. 1, 10 and 12. (Not raised below).

POINT VI

THE TRIAL JUDGE ERRED IN ADMITTING HEARSAY EVIDENCE UNDER THE "PRESENT SENSE IMPRESSION" EXCEPTION TO THE HEARSAY RULE.

POINT VII

DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTRODUCE THE SWORN POLICE STATEMENT OF LIMONIQUE SCOTT*fn1 AN EYEWITNESS TO THE HOMICIDE WHO WAS UNAVAILABLE TO TESTIFY BECAUSE HIS WHEREABOUTS WERE UNKNOWN TO DEFENDANT.

POINT VIII

THE JUDGE IMPROPERLY DENIED THE REQUEST FOR A [STATE v. CLAWANS, 38 N.J. 162 (1962)] CHARGE.

POINT IX

DEFENDANT'S SENTENCE OF LIFE WITH A MINIMUM PAROLE DISQUALIFIER OF 38 1/2 YEARS WAS GROSSLY EXCESSIVE AND CONTRARY TO THE GUIDELINES GOVERNING CRIMINAL SENTENCES IN THIS STATE.

We rejected these contentions and affirmed defendant's convictions and sentences. State v. Bryant, No. A-5662-97 (App. Div. Oct. 20, 1999). Defendant thereafter filed a petition for certification with the Supreme Court, seeking review of our judgment. The Court denied the petition. State v. Bryant, 163 N.J. 74 (2000).

II.

Thereafter, defendant filed his first petition for PCR. He argued that that his conviction should be set aside on the following grounds: 1) newly discovered evidence of an eyewitness, Lorenzo Biera; 2) the trial judge should have recused himself; 3) the instructions to the jury violated defendant's right to a fair trial; and 4) the ineffective assistance of counsel. On September 15, 2003, Judge Fullilove denied the petition.

Defendant appealed and raised the following arguments:

POINT I

THE JUDGE BELOW ERRED IN HOLDING THAT THE DEFENDANT FAILED TO ESTABLISH THAT HE HAD RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF POST CONVICTION RELIEF COUNSEL FOR FAILURE TO ARGUE THAT THE IMPOSITION OF THE DISCRETIONARY OFFENDER EXTENDED TERM VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHT TO TRIAL BY JURY AND DUE PROCESS OF LAW.

Defendant filed a pro se supplemental brief, in which he presented the following issues:

POINT I

THE JUDGE ERRED IN DENIAL OF DEFENDANT['S PETITION FOR] POST CONVICTION RELIEF AFTER DEFENDANT ESTABLISH[ED] THAT HE HAD RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS GUAR[A]NTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT II

THE TRIAL JUDGE SHOULD HAVE RECUSED HIMSELF FROM PRESIDING OVER PETITIONER'S TRIAL AND POST CONVICTION RELIEF[,] THEREBY DENYING DEFENDANT'S RIGHT TO A FAIR TRIAL [AS] GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT III

PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARICLE 1 PARAGRAPH 10 OF THE NEW JERSEY [CONSTITUTION].

POINT IV

THE ROOTS OF THE RIGHT TO EFFECTIVE COUNSEL AND THE APPLICABLE STANDARD OF REVIEW.

POINT V

THE JURY INSTRUCTION ON IDENTIFICATION WAS INSUFFICIENT AND UNBALANCED IN FAVOR OF THE STATE THEREBY DENYING DEFENDANT'S RIGHT TO A FAIR TRIAL [AS] GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY [CONSTITUTION].

POINT VI

THE STATE'S KNOWING USE OF PERJURED TESTIMONY CONSTITUTES A BRADY VIOLATION AND ACCORDINGLY, A VIOLATION OF DEFEN[D]ANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS [AS] GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT VII

THE TRIAL COURT'S ERROR IN PRESENTING A CHARGE OF CONSPIRACY TO MURDER WHEN THERE WAS INSUFFICIENT EVIDENCE TO PROVE CONSPIRACY TO MURDER WHICH VIOLATED DEFENDANT'S RIGHTS THAT ARE GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY [CONSTITUTION].

POINT VIII

THE JUDGE VIOLATED DEFENDANT'S RIGHTS TO A FAIR TRIAL BY [GIVING] A CHARGE OF RENUNCIATION AS TO [THE] ATTEMPT[ED] MURDER OF MARY FRANCIS[;] THIS CHARGE SHIFTED THE BURDEN OF PROOF TO DEFENDANT AND STRENGTHEN[ED] THE MISIDENTIFICATION OF MS[.] FRANCIS AND PLACE[D] DEFENDANT AT [THE] CRIME SCENE WHEN DEFENDANT REPEATEDLY EXPRESSED HIS COMPLETE INNOCEN[CE]. BY THIS CHARGE DEFENDANT AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION WAS VIOLATED [AS WELL AS] ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY [CONSTITUTION].

POINT IX

DEFENDANT SHOULD HAVE BEEN ALLOWED TO INTRODUCE THE SWORN TESTIMONY OF LIMONIQUE SCOTT AN EYE WITNESS WHO WAS UNAVAILABLE. AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT X

THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL [AS] GUARANTEE[D] BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION DUE TO APPELLATE COUNSEL['S] FAILURE TO RAISE OBVIOUS ISSUES OF TRIAL ERRORS.

Defendant filed a second pro se supplemental brief in which he raised twelve additional points:

POINT I

THE JUDGE ERRED IN DENIAL OF APPELLANT['S] POST CONVICTION RELIEF AFTER APPELLANT ESTABLISH[ED] THAT HE HAD RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II

DEFENDANT SHOULD NOT BE PROCEDURALLY-BARRED [FROM] ASSERTING THAT THE TRIAL JUDGE SHOULD HAVE RECUSED HIMSELF FROM PRESIDING AT DEFENDANT'S TRIAL AND PCR HEARING.

POINT III

TRIAL COUNSEL PROVIDED [IN]EFFECTIVE REPRESENTATION; THE PCR COURT ERRED WHEN IT DENIED DEFENDANT'S PCR APP[L]ICATION.

POINT IV

TRIAL COUNSEL PROVIDED INCOMPETENT REPRESENTATION; THE PCR COURT ERRED WHEN IT DENIED PCR RELIEF.

POINT V

[DEFENDANT] SHOULD NOT BE PROCEDURALLY BARRED FROM RAISING THE ISSUE OF IMPROPER JURY INSTRUCTIONS ON PCR.

POINT VI

[DEFENDANT] SHOULD NOT BE PROCEDURALLY BARRED FROM RAISING A BRADY VIOLATION ON PCR.

POINT VII

[DEFENDANT] SHOULD NOT BE PROCEDURALLY BARRED FROM RAISING AN ACQUITTAL OF CONSPIRACY TO COMMIT MURDER CHARGE ON PCR REVIEW.

POINT VIII

[DEFENDANT] SHOULD NOT BE PROCEDURALLY BARRED; THE JUDGE ERRED WHEN HE INSTRUCTED ON THE DEFENSE OF RENUNCIATION TO THE JURY.

POINT IX

[DEFENDANT] SHOULD NOT BE PROCEDURALLY BARRED; LIMONIQUE SCOTT'S STATEMENT TO [THE] POLICE SHOULD HAVE BEEN AD[M]ITTED AT TRIAL.

POINT X

[DEFENDANT] SHOULD NOT BE PROCEDURALLY BARRED FROM RAISING A CLAWANS.

POINT XI

APPELLATE COUNSEL WAS INEFFECTIVE AND DEFENDANT SHOULD BE ENTITLED TO PCR.

POINT XII

[DEFENDANT] SHOULD NOT BE PROCEDURALLY BARRED FROM RAISING A CUMULATIVE ON PCR.

We affirmed the order denying defendant's petition for PCR. State v. Bryant, No. A-4448-03 (App. Div. Jan. 24, 2006).

III.

On May 1, 2006, about eight and one-half years after he was sentenced, defendant filed a second PCR petition, in which he raised the following issues:

POINT I

DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE, AND POST CONVICTION RELIEF COUNSEL FOR FAILURE TO ARGUE THAT THE JUDGE'S CHARGE [WAS ERRONEOUS] WHEN THE JUDGE'S CHARGE IMPROPERLY REDUCED THE STATE'S BURDEN OF PROOF TO A STANDARD LOWER THAN BEYOND A REASONABLE DOUBT AND THEREBY VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART 1, PARS. 1, 9 AND 10).

POINT II

THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION DUE TO APPELLATE COUNSEL'S FAILURE TO RAISE OBVIOUS ISSUES OF TRIAL ERROR.

POINT III

THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF POST CONVICTION COUNSEL GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT IV

THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT V

THE DEFENDANT'S CLAIMS ARE NOT BARRED BY THE PROVISIONS OF RULE 3:22 AS THEY ASSERT CONSTITUTIONAL ISSUES ARISING UNDER THE STATE AND FEDERAL CONSTITUTION[S].

Defendant argued that trial, appellate and PCR counsel were ineffective because they failed to argue that the State had a duty to call Limonique Scott or Lorenzo Biera to testify before the grand jury. Defendant claimed that trial, appellate and PCR counsel were ineffective. Defendant asserted that counsel failed to argue that defendant was precluded from effectively cross- examining Cleveland Barlow and Cantrell Wilkes because the witnesses' criminal case histories had not been turned over to the defense.

Defendant further alleged that trial, appellate and PCR counsel were ineffective because they failed to raise certain issues regarding the jury charges. Defendant asserted that the jury charge on murder was flawed because the judge used the words "homicide" and "shotgun." Defendant claimed that the trial judge had impermissibly shifted the burden of proof from the State. Defendant also asserted that the jury should have been charged on the lesser offenses of aggravated and/or reckless manslaughter.

In addition, defendant alleged that PCR counsel was ineffective because she did not call Mary Bryant Jackson, Norman Jackson, and Tyesha Jackson as witnesses. Defendant asserted that these individuals were alibi witnesses. Defendant asserted that PCR counsel erred by failing to call Tariq Collins as a witness; and failing to interview Armond Brunson. Defendant claimed that PCR counsel erred by failing to raise issues with regard to a sign-in sheet for a religious service. He also claimed that PCR counsel should have argued that the trial judge erroneously charged the jury on conspiracy.

In addition, defendant alleged that trial, appellate and PCR counsel were ineffective because they failed to raise an issue with regard to an alleged plea offer. He claimed that PCR counsel and PCR appellate counsel erroneously failed to advance all of the arguments defendant raised in a pro se brief. He asserted that the trial judge erred by failing to provide a limiting instruction to the jury regarding certain "other crimes" evidence. He also alleged that the judge should not have sentenced him as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). Judge Fullilove filed a letter opinion on March 16, 2007.

The judge concluded that defendant's petition was barred by Rule 3:22-12 because it had been filed more that five years after the entry of the judgment of conviction on November 12, 1997, and defendant failed to establish excusable neglect for failing to raise the issues in a timely manner. The judge also found that defendant's claims were barred by Rule 3:22-4(a) because the issues could have been raised in prior proceedings and were not.

The judge concluded that defendant had not shown that barring the petition would lead to a fundamental injustice. The judge nevertheless considered defendant's claims and found them to be entirely without merit. The judge entered an order dated March 16, 2007, denying PCR. This appeal followed.

IV.

Defendant raises the following issues for our consideration in this appeal:

POINT I

THE DEFENDANT SHOULD NOT BE PROCEDURALLY BARRED DUE TO EXCUSABLE NEGLECT, FUNDAMENTAL INJUSTICE AND INFRINGEMENT ON DEFENDANT'S CONSTITUTIONAL RIGHTS. THE DEFENDANT WAS DENIED [THE] EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE, PCR, AND APPELLATE PCR COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION BY COUNSELS['] FAILURE TO RAISE OR ARGUE PROSECUTORIAL MISCONDUCT BY NOT PRESENTING TO GRAND JURY EXCULPATORY EVIDENCE OF WHICH THE STATE HELD IN THEIR POSSESSION.

POINT II

TRIAL, APPELLATE, AND POST CONVICTION RELIEF COUNSEL AND APPELLATE POST CONVICTION RELIEF COUNSEL WERE INEFFECTIVE DUE TO THEIR FAILURE TO ARGUE OR CHALLENGE [THE] TRIAL JUDGE'S CHARGE IMPROPERLY REDUCED THE STATE'S BURDEN OF PROOF TO A STANDARD LOWER THAN BEYOND [A] REASONABLE DOUBT AND THEREBY VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AND [A] FAIR TRIAL. (U.S. CONST. AMEND. V, VI, AND XIV; N.J. CONST. (1947), ART. I, PARA[S.] 1, 9 AND 10).

POINT III

THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF POST CONVICTION RELIEF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT IV

DEFENDANT SHOULD NOT BE PROCEDURALLY BARRED DUE TO EXCUSABLE NEGLECT, FUNDAMENTAL INJUSTICE, AND THE INFRINGEMENT OF HIS CONSTITUTIONAL RIGHTS. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF PCR COUNSEL AND PCR APPELLATE COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION WHEN COUNSEL FAILED TO ARGUE THAT THE APPELLATE DIVISION JUDGES RULED IN CO-DEFENDANTS CASE THAT THE JUDGE ERRED WHEN HE FORCED THE JURORS TO SPECULATE ON THE EXISTENCE OF A CONSPIRACY TO MURDER, WHICH INDUCED THE JURORS TO CONVICT DEFENDANT OF FIRST DEGREE MURDER.

POINT V

DEFENDANT SHOULD NOT BE P[R]OCEDURALLY BARRED DUE TO EXCUSABLE NEGLECT, FUNDAMENTAL, AND INFRINGES ON THIS DEFENDANT'S CONSTITUTIONAL RIGHTS BECAUSE THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF POST CONVICTION RELIEF COUNSEL, APPELLATE POST CONVICTION RELIEF COUNSEL, TRIAL COUNSEL AND APPELLATE COUNSEL DUE TO THEIR FAILURE TO RAISE AND ARGUE THIS ERROR GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION DUE TO THEIR FAILURE TO ARGUE THAT THE STATE SUPPRESSED CRIMINAL CASE HISTORY[IES] OF STATE WITNESSES AND SECRET DEALS.

POINT VI

THE DEFENDANT SHOULD NOT BE PROCEDURALLY BARRED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL, APPELLATE, PCR, AND APPELLATE PCR COUNSEL FAILED TO RAISE T[H]AT THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER AND RECKLESS MANSLAUGHTER, AND THIS FAILURE CONSTITUTED A VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND [A] FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARA[S]. 1, 9 AND 10.

POINT VII

THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF PCR COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION WHEN COUNSEL FAILED TO PRESENT NEWLY DISCOVERED EVIDENCE.

POINT VIII

DEFENDANT SHOULD NOT BE BARRED PURSUANT TO THE RULE 3:22-4 FROM [RAISING] THE ISSUE THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION WHEN TRIAL COUNSEL FAILED TO CONVEY THE STATE'S PLEA OFFER TO DEFENDANT.

POINT IX

DEFENDANT SHOULD NOT BE PROCEDURALLY BARRED DUE TO FUNDAMENTAL INJUSTICE, AND VIOLATIONS OF HIS NEW JERSEY AND UNITED STATES CONSTITUTIONAL RIGHT TO A FAIR TRIAL, WHEN THE COURT ALLOWED STATE WITNESS CLEVELAND BARLOW TO TESTIFY ABOUT OTHER CRIME EVIDENCE, WHICH INCLUDED, THAT IN THE PAST BARLOW HAD SEEN DEFENDANT ROB DRUG DEALERS. RULE 3:22-12 AND 3:22-5 SHOULD BE RELAXED.

POINT X

THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF PCR COUNSEL AND PCR APPELLATE COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION WHEN COUNSELS FAILED TO ARGUE AND RAISE DEFENDANT'S ISSUES IN HIS PRO SE BRIEF AND SUPPLEMENTAL BRIEF OF HIS FIRST POST CONVICTION RELIEF PETITION AS WELL AS THE ISSUES IN HIS SECOND PETITION FOR POST CONVICTION RELIEF.

We have thoroughly reviewed the record and conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm the order denying defendant's second petition for PCR substantially for the reasons stated by Judge Fullilove in his thorough and comprehensive opinion. We add the following brief comments.

We agree with Judge Fullilove's determination that the claims asserted by defendant in his second PCR petition are either procedurally barred or without merit. With the possible exception of defendant's claims of ineffective assistance of PCR counsel and PCR appellate counsel, defendant's claims are barred by Rule 3:22-12(a) because they were not asserted within five years of the date of the judgment of conviction, or Rule 3:22-4 because they were not raised in prior proceedings.

Judge Fullilove found that defendant had not shown that his failure to pursue the claims in the second PCR petition in a timely manner was due to "excusable neglect." R. 3:22-12(a). The judge also found that the claims could reasonably have been raised in earlier proceedings, enforcement of the procedural bar would not result in a fundamental injustice, and denial of relief would not be unconstitutional. R. 3:22-4(a), (b) and (c). The record supports the judge's findings.

Furthermore, although defendant's claims are, for the most part, procedurally barred, Judge Fullilove carefully considered defendant's contentions and determined that they were meritless. The judge found that defendant was barred from challenging the jury charge on conspiracy, and determined that defendant had not been denied a fair trial by the jury charge on certain evidence relating to "other crimes." The record supports those findings.

Judge Fullilove also applied the test under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), to defendant's claims of ineffective assistance of counsel. The record supports the judge's determination that defendant failed to show that trial, appellate, PCR or PCR appellate counsel were in any way ineffective in their representation of defendant. R. 2:11-3(e)(2).

Affirmed.


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