March 18, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CALVIN ALEXANDER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-06-2223.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 3, 2009
Before Judges Skillman and Grall.
A jury found defendant Calvin Alexander guilty of murder, N.J.S.A. 2C:11-3a, and he was sentenced to a life-term of imprisonment with no possibility of parole for thirty years.
The judgment of conviction was entered on January 27, 1994. We affirmed defendant's conviction and sentence in an unreported opinion, and the Supreme Court denied defendant's petition for certification. State v. Alexander, No. A-4207-93 (App. Div. March 8, 1996), certif. denied, 146 N.J. 69 (1996). In 1999, we affirmed the denial of defendant's first petition for post- conviction relief, and the Supreme Court denied certification. State v. Alexander, No. A-1665-97 (App. Div. Feb. 4, 1999), certif. denied, 160 N.J. 475 (1999). Subsequently, the United States District Court for the District of New Jersey denied defendant's application for a writ of habeas corpus. Alexander v. Hendricks, No. 99-5610 (D.N.J. Oct. 31, 2000).
Defendant now appeals from the denial of his second petition for post-conviction relief, which was denied on December 15, 2004. On appeal defendant presents the following arguments:
I. DEFENDANT'S CONVICTION OF MURDER IS INVALID BECAUSE ONE OF THE PREDICATES FOR CONVICTION IS INDISTINGUISHABLE FROM AGGRAVATED AND RECKLESS MANSLAUGHTER IN VIOLATION OF DEFENDANT'S RIGHTS TO A FAIR TRIAL. U.S. CONST. [amends. VI, XIV; N.J. CONST. art. 1, ¶¶ 9, 10].
II. DURING SENTENCING THE TRIAL COURT ERRONEOUSLY DOUBLE COUNTED AGGRAVATING FACTORS N.J.S.A. 2C:44-1a(1) and (2).
III. COUNSEL WHO REPRESENTED DEFENDANT DURING HIS DIRECT APPEAL AND COUNSEL WHO REPRESENTED DEFENDANT AT HIS INITIAL PCR HEARING HIM AT HIS PCR [sic] BOTH PROVIDED DEFENDANT INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF U.S. CONST. [amends. VI, XIV; N.J. CONST. art. 1, ¶¶ 9, 10].
IV. DEFENDANT SHOULD NOT HAVE BEEN PROCEDURALLY BARRED FROM PRESENTING POINTS ONE[,] TWO AND THREE ABOVE BECAUSE THE ISSUES RAISED HAVE SUBSTANTIAL MERIT AND IMPOSITION OF A BAR WOULD BE CONTRARY [TO] STATE AND FEDERAL CONSTITUTIONS. U.S. CONST. [amends. VI, XIV; N.J. CONST. art. 1, ¶¶ 9, 10].
Defendant's arguments lack sufficient merit to warrant discussion beyond the brief comments that follow. R. 2:11- 3(e)(2). His objections to the representation provided by his counsel on direct appeal and his first application for post- conviction relief are based on the lawyers' failure to raise the issues he now raises in points one and two of his brief.
Because neither of those issues have any merit, defendant cannot establish "deficient performance" or "a reasonable probability" that the result of his direct appeal or first petition for post- conviction relief would have been different if counsel had provided effective assistance. State v. Preciose, 129 N.J. 451, 462-64 (1992).
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