July 22, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 On direct appeal, we affirmed by an unpublished opinion on April 4, 1997, but we remanded for the purpose of the trial court amending the judgment of conviction to reflect that the robbery convictions were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:
THE COURT BELOW ERRED BY ENFORCING THE PROCEDURAL BARS, WHERE MATTERS WHICH LAY OUTSIDE THE RECORD REPRESENTED A MANIFEST DENIAL OF JUSTICE.
DEFENDANT'S RIGHTS TO A FAIR TRIAL AND PROCESS OF LAW WERE VIOLATED BECAUSE DETECTIVE MILLER WAS ALLOWED TO TESTIFY THAT HE INCLUDED DEFENDANT'S PICTURE IN A PHOTOGRAPHIC ARRAY SHOWN TO A WITNESS BECAUSE HE DEVELOPED DEFENDANT AS A SUSPECT "BASED UPON INFORMATION RECEIVED" CONSTITUTED INADMISSIBLE HEARSAY, AND VIOLATED DEFENDANT'S CONFRONTATION RIGHTS.
THE DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED WHEN THE PROSECUTOR VOUCHED FOR THE CREDIBILITY OF THE STATE'S WITNESSES. [U.S. CONST. amends. 6, 14; N.J. CONST. art. 1, ¶ 9 AND 10].
DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED BY THE PROSECUTOR AND AS A RESULT OF BOTH THE DANIELS*fn1 CASE AND FEAL*fn2 CASE; DEFENDANT STATES THAT HIS CASE MERITS ATTENTION BY THIS COURT DUE TO THE PIPELINE RETROACTIVITY THAT WAS ESTABLISHED BY OUR NEW JERSEY SUPREME COURT.
DEFENDANT'S RIGHTS TO A FAIR TRIAL WERE VIOLATED WHEN THE TRIAL JUDGE FAILED TO ADEQUATELY INSTRUCT THE JURY ON THE COUNTS OF ROBBERY.
A. THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY ON THE LESSER-INCLUDED ELEMENTS OF "THEFT" AND [ITS] FAILURE TO INSTRUCT ON "ATTEMPT" ALSO DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS OF LAW AND THE EQUAL PROTECTION OF THE LAW.
The State counters that defendant's petition is time barred, R. 3:22-12(a), and procedurally barred because the arguments either have already been raised or should have been raised by defendant in his prior direct appeals or in his prior petition for PCR.
R. 3:22-4 and -5.
We have considered defendant's arguments in light of the record and applicable law and conclude that none of them are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant has failed to assert any factual or legal basis to overcome the time constraint for the filing of his petition contained in Rule 3:22-12(a) or the procedural barriers contained in Rules 3:22-4 and -5.