On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 92-08-1203.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 25, 2009
Before Judges Axelrad and Parrillo.
Defendant Robert Vandal appeals from a denial of his second post-conviction relief (PCR) petition alleging ineffective assistance of counsel on the basis that the petition was time-barred. R. 3:22-12. We affirm.
Following a jury trial, defendant was convicted of murder on November 17, 1994, and was sentenced to life imprisonment with thirty years of parole ineligibility on February 24, 1995. The trial court also imposed a $100,000 fine and ordered defendant to pay $10,000 to the Victims of Crime Compensation Board (VCCB). On May 12, 1997, we affirmed defendant's conviction and sentence on direct appeal, except to reverse the assessment of the $100,000 fine and to remand for reconsideration of the $10,000 VCCB board penalty. State v. Vandal, No. A-5333-94T4 (App. Div. May 12, 1997). On May 28, 1997, the Supreme Court denied defendant's petition for certification. State v. Vandal, 151 N.J. 76 (1997).
In October 1998, defendant filed his first PCR petition claiming ineffective assistance of trial counsel. In that petition, he asserted that while his trial counsel raised the intoxication and diminished capacity defense, he did not fully develop them at trial. In denying the petition on May 11, 2001, the court noted that these defenses were presented at trial and concluded that there was no basis upon which to hold an evidentiary hearing under State v. Preciose, 129 N.J. 451 (1992). We affirmed denial of defendant's petition. State v. Vandal, No. A-6728-00T4 (App. Div. Jan. 22, 2003). In that opinion we stated:
As this court noted [on direct appeal], "[d]efendant admitted killing Pamela Dare.... The real question in the case was whether defendant was so intoxicated that he could not form the intent necessary for first-degree murder or whether his passions were so aroused as to reduce the level of his culpability." State v. Vandal, supra, slip op. at 6. The centerpiece of defendant's defense was intoxication and diminished capacity. No additional information has been presented which would call for an evidentiary hearing when these very defenses were presented and rejected by the jury.
Insofar as defendant attacks the representation of PCR counsel, we note that an attorney has only limited ammunition and cannot manufacture evidence that does not exist. State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000) (recognizing that an attorney is not required to "craft a defense when none actually exists" to provide effective assistance of counsel).
On May 22, 2003, the Supreme Court denied defendant's petition for certification. State v. Vandal, 176 N.J. 430 (2003). On May 11, 2004, defendant filed a petition for habeas corpus relief. It was denied as untimely in an opinion and order filed November 30, 2005. Robert Vandal v. Roy L. Hendricks, et al., Civil No. 04-2360 (JAP). On June 2, 2006, the Third Circuit Court of Appeals denied defendant's request for a certificate of appealability.
Defendant filed a second PCR petition in September 2007, which was denied by Judge Austin in an order and opinion of December 11, 2007. The court cited Rule 3:22-12, which states:
A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule [for post-conviction relief] more than 5 years after the 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.
The court recognized it could relax the time bar to prevent injustice but only under exceptional circumstances, after consideration of "the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." State v. Afanador, 151 N.J. 41, 52 (1997). The court further noted that "absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." State v. Milne, 178 N.J. 486, 492 (2004) (quoting Afanador, supra, 151 N.J. at 52).
Judge Austin evaluated defendant's petition, particularly noting that the second PCR petition was filed twelve years after defendant's conviction and six years after denial of his first PCR petition. Moreover, defendant provided no explanation as to the reason for his delay. Defendant also raised the same claims of ineffective assistance of his trial counsel that were addressed and rejected in his first PCR petition and the subsequent appeal. Accordingly, Judge Austin concluded there was "no cause for the delay, the merits of ...