January 20, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MORIBA MZEE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 89-05-2226.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2008
Before Judges Carchman and Simonelli.
Defendant Moriba Mzee, also known as Rayshourn Branch, appeals from a November 7, 2007 order of the Law Division denying defendant's second Petition for Post-Conviction Relief (PCR). We affirm.
Defendant, a juvenile at the time of the incident giving rise to his conviction, was waived to the Law Division to be tried as an adult. On January 22, 1990, following a jury trial, defendant was convicted of first-degree murder, N.J.S.A. 2C:11- 3(a)(1)(2); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). On April 5, 1990, after appropriate mergers, defendant was sentenced to an aggregate term on all charges of forty-years with a thirty-year period of parole ineligibility. Defendant appealed, and we affirmed. The Supreme Court denied certification. State v. Branch, 130 N.J. 20 (1992).
Approximately a year later, defendant filed his first PCR, and in August 1994, his PCR was denied. We again affirmed, and the Supreme Court denied certification. State v. Branch, 151 N.J. 470 (1997). Following the denial of relief in the State Courts, defendant unsuccessfully pursued Habeas Corpus relief in the federal court. In June 2006, sixteen years after his conviction, defendant filed his second PCR. Judge Volkert, sitting in the Law Division, denied relief. This appeal followed.
On this appeal, defendant raises the following issues:
THE LAW DIVISION ERRED WHEN IT RULED POINT TWO, CONTAINED WITHIN DEFENDANT'S SUCESSIVE [sic] PCR PETITION, WAS ALREADY RAISED ON DIRECT APPEAL.
THE LAW DIVISION ERRED WHEN IT DID NOT FIND GOOD CAUSE TO APPOINT COUNSEL DURING DEFENDANT'S SECOND PCR PETITION.
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF A FAIR TRIAL BY A JUROR REMAINING ON THE PANEL WHO HAD A CLOSED MIND DURING DELIBERATIONS AND BY THE COURT'S FAILURE TO GIVE ADEQUATE INSTRUCTIONS.
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF A FAIR TRIAL BY BEING EXCLUDED FROM THE SIGNIFICANT PORTIONS [sic] OF HIS TRIAL.
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL, DURING DIRECT APPEAL, AND DURING APPEAL FROM ORIGINAL PETITION FOR POST CONVICTION RELIEF PROCEEDINGS.
DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL DURING FIRST PCR PROCEEDINGS, THE PROCEDURAL BARS SHOULD HAVE BEEN RELAXED BY THE LAW DIVISION WHERE MATTERS LAY OUTSIDE THE RECORD, AND DENIAL OF RELIEF WOULD RESULT IN MANIFEST DENIAL OF JUSTICE.
THE RETROACTIVE CANCELLATION OF DEFENDANT'S WORK AND COMMUTATION CREDITS, AFTER THEY WERE ALREADY ENTERED ON HIS OFFICIAL CLASSIFICATION RECORDS, VIOLATES THE CONSTITUTIONS OF NEW JERSEY AND THE UNITED STATES.
We have carefully reviewed defendant's submission and we conclude that defendant's arguments are without merit. R. 2:11-3(e)(2). We add the following comments, focusing our attention on Point Three.
Defendant, in his first PCR, complained about a juror who had been a witness to an unrelated incident and was permitted to remain on the jury. Now for the first time, on his second PCR, defendant complains about Juror Number 10, who he asserts should have been removed during deliberations. Although he does not provide the transcript of the colloquy between the juror and the judge, defendant asserts that the juror requested that she be removed. The issue was not raised either on direct appeal or on the first PCR.
Although not addressing the juror question directly, the PCR judge concluded that defendant's claims were procedurally barred. R. 3:22-12. We agree.
R. 3:22-12 provides:
A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 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.
See also State v. McQuaid, 147 N.J. 464, 485 (1997); State v. D.D.M., 140 N.J. 83, 93 (1995); State v. Mitchell, 126 N.J. 565, 575 (1992). The rule serves the important goal of achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation. Mitchell, supra, 126 N.J. at 576.
As time passes after conviction, the difficulties associated with a fair and accurate reassessment of the critical events multiply. Achieving 'justice' years after the fact may be more an illusory temptation than a plausibly attainable goal when memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable.
[McQuaid, supra, 147 N.J. at 485, quoting Mitchell, supra, 126 N.J. at 576; see accord D.D.M., supra, 140 N.J. at 100.]
The Court has noted that the rule should only be relaxed in exceptional circumstances, including as a factor, the extent of the delay. State v. Afanador, 151 N.J. 41, 52 (1997). See also State v. Milne, 178 N.J. 486, 492 (2004) (finding neither injustice nor excusable neglect for such relaxation); State v. Goodwin, 173 N.J. 583, 594-595 (2002) (same); State v. Marshall, 173 N.J. 343, 353-55 (2002), (refusing to find excusable neglect in a death penalty case). No such circumstances are demonstrated here. But there is another compelling reason for denial of the relief.
In his original PCR, defendant raised the issue of Juror 474 (not the same juror challenged on this PCR), who was permitted to remain on the panel despite her involvement as a witness in an unrelated case. The issue was presented in defendant's pro se brief. Defendant now claims, eleven years after his claims were barred, that he was unable to raise this juror issue earlier. No credible explanation is forthcoming for his inability to raise the issue in a timely manner, and we perceive no basis for relaxing the rule sixteen years after this trial was completed and eleven years after the rule precluded such consideration. We decline to intervene.
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