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State v. James

July 22, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SHADI JAMES A/K/A MARVIN JAMES, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 87-09-3151.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 2, 2009

Before Judges Fuentes and Gilroy.

Defendant Shadi James appeals from the October 26, 2007 order denying his petition for post-conviction relief (PCR). We affirm.

This is defendant's fourth appeal in this matter. Tried to a jury in February and March 1990, defendant was convicted of first-degree felony murder, two counts of second-degree robbery, third-degree unlawful possession of a weapon, and second-degree possession of a weapon for an unlawful purpose. On direct appeal, we reversed the convictions and remanded for a new trial. State v. James, No. A-5826-89 (App. Div. Nov. 30, 1992).

In May 1994, defendant was re-tried and convicted of the same charges. On June 20, 1994, the trial court sentenced defendant to a term of thirty years of imprisonment without parole eligibility on the felony murder conviction and to a consecutive sentence of five years of imprisonment on the conviction for third-degree unlawful possession of a weapon.

The remaining convictions were merged with the conviction for felony murder. On direct appeal, we affirmed by an unpublished opinion on April 4, 1997, but we remanded for the purpose of the trial court amending the judgment of conviction to reflect that the robbery convictions were second degree, not first degree. State v. James, No. A-1175-94 (App. Div. April 4, 1997). On June 30, 1997, the Supreme Court denied defendant's petition for certification. State v. James, 151 N.J. 73 (1997).

On November 17, 1998, defendant filed a pro se petition for PCR, arguing: 1) he was denied effective assistance of trial counsel by his attorney failing to interview defense witnesses; 2) he was denied effective assistance of appellate counsel because the attorney failed to raise issues regarding the trial court's jury instructions; and 3) the trial court: a) failed to instruct the jury regarding the lesser-included offense of theft; b) improperly admitted hearsay testimony; and c) failed to instruct the jury on the definition of attempt. On April 18, 2001, the trial court denied the petition without an evidentiary hearing. On appeal, we affirmed. State v. James, No. A-6820-00 (App. Div. January 31, 2003). On June 5, 2003, the Supreme Court denied defendant's petition for certification. State v. James, 177 N.J. 222 (2003).

On August 4, 2003, defendant filed an application for a writ of habeas corpus with the United States District Court. On January 18, 2006, the District Court not only denied the application, but also directed that a certification of appealability "will not issue because [p]petitioner has not made a substantial showing of the denial of a constitutional right." On September 17, 2007, defendant filed a second pro se PCR petition. The trial court denied the petition without an evidentiary hearing on October 26, 2007.

On appeal, defendant argues:

POINT I.

THE COURT BELOW ERRED BY ENFORCING THE PROCEDURAL BARS, WHERE MATTERS WHICH LAY OUTSIDE THE RECORD REPRESENTED ...


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