July 24, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WINSTON ROACH A/K/A HASSAN SHAKUR, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 91-11-4687.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 7, 2009
Before Judges Fisher and Gilroy.
In this appeal, we consider defendant's argument that the trial judge erred in denying his petition for post-conviction relief (PCR), wherein he argued that his confession was involuntary because he was removed from jail against his will and taken to the prosecutor's office, where he gave the statements in question. We affirm the denial of defendant's PCR petition because of defendant's failure to raise the argument previously.
Following a trial, defendant was convicted of felony murder, aggravated manslaughter, armed robbery, conspiracy and possession of weapons for unlawful purposes. He was sentenced to two consecutive life terms with periods of parole ineligibility aggregating sixty years. In his direct appeal, defendant argued, among many other things, that his confession and waiver of his Miranda*fn1 rights were involuntary and should have been excluded. By way of an unpublished opinion, we rejected these arguments and affirmed. State v. Roach, No. A-5801-91T4 (App. Div. May 9, 1995).
The Supreme Court granted certification and affirmed defendant's conviction, but remanded to the trial judge to determine whether the disparity between the consecutive life sentences imposed on defendant and the concurrent life sentences imposed upon his confederate were justifiable. State v. Roach, 146 N.J. 208, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996).
Following the Court's remand, the trial judge imposed the same sentence. In the interim, defendant had sought post-conviction relief, arguing he was deprived of the effective assistance of counsel. Defendant also moved for a new trial based upon newly-discovered evidence. Those motions and applications were denied, as was a motion for reconsideration.
Defendant appealed the trial court's orders. We consolidated those appeals and affirmed by way of an unpublished opinion. State v. Roach, Nos. A-1625-97T3 and A-3218-98T3 (App. Div. July 7, 2000). The Supreme Court granted certification, reversed the sentence and, in exercising original jurisdiction, ordered that defendant's terms run concurrently, like his confederate, and not consecutively. State v. Roach, 167 N.J. 565, 570-71 (2001).
Defendant filed his second PCR petition on November 21, 2005, relying upon N.J.S.A. 2A:67-4, and arguing, among other things, that he was unlawfully removed from the jail and taken to the prosecutor's office for questioning prior to providing inculpatory statements used against him at trial. He claims that his attorney was ineffective in failing to present this contention in seeking the suppression of his statements. The trial judge,*fn2 by way of a written opinion of April 8, 2008, found that this second PCR petition was time-barred and, also, that the claim that defendant was unlawfully removed from the jail for questioning and that his prior trial and appellate counsel should have raised that argument previously were without merit.
Defendant appealed, raising the following arguments for our consideration:
I. THE PCR COURT ERRED IN DENYING APPELLANT'S POST-CONVICTION RELIEF WHICH RAISED CONSTITUTIONAL ISSUES THAT MANDATED AN EVIDENTIARY HEARING.
II. APPELLANT'S REMOVAL FROM THE CUSTODY OF THE ESSEX JAIL ANNEX IN CALDWELL AND TRANSFERRED INTO THE CUSTODY OF THE ESSEX COUNTY PROSECUTOR'S OFFICE IN NEWARK WITHOUT A LEGAL WRIT OR ARREST WARRANT VIOLATED THE FEDERAL AND STATE CONSTITUTION, IN VIOLATION OF U.S.C.A. CONST. AMEND.4, 14 AS WELL AS N.J. CONST. ART. 1 PAR.7 AND N.J.S.A. 2A:67-4.
(a) APPELLANT'S DUE PROCESS RIGHTS WAS VIOLATED BY UNLAWFULLY REMOVING AND TRANSFERRING HIM FROM CUSTODY WITHOUT A LEGAL WRIT;
(b) DETECTIVE AND INVESTIGATOR FAILED TO OBTAIN A COMPLAINT-WARRANT (CDR-2) OR AN AFFIDAVIT OF PROBABLE CAUSE;
(c) APPELLANT'S RIGHTS WAS VIOLATED BY USING HIS STATEMENT SECURED FROM THE UNLAWFUL REMOVAL-SEIZURE.
III. APPELLANT WAS SUBSTANTIVELY DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL THROUGHOUT HIS CRIMINAL PROCEEDINGS, SINCE THEY BOTH FAILED TO RAISE OR LITIGATE HIS FOURTH AMENDMENT AND DUE PROCESS OF LAW CLAIMS ON HIS UNCONSTITUTIONAL CONVICTION UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONST., AS WELL AS N.J. CONST. ART. 1 PAR. 7.
Defendant's judgment of conviction was entered on May 28, 1992, and this petition was filed on November 21, 2005, more than eight years beyond the time prescribed by Rule 3:22-12(a). The trial judge found, and we agree, that defendant failed to demonstrate the presence of any exceptional circumstances for his failure to seek relief in a timely fashion.
Moreover, we agree that the failure of prior counsel to present an argument that defendant was unlawfully removed from the jail for questioning, in these circumstances, does not constitute an omission that would warrant relief pursuant to the Strickland/Fritz test of effectiveness.*fn3 Counsel previously provided forceful arguments both at trial and on appeal regarding defendant's claim that his inculpatory statements were involuntarily provided. If there was a technical deprivation of defendant's right to remain in the jail, rather than being brought to the prosecutor's office for questioning against his will -- a matter we need not decide -- it would only go to the question of whether defendant voluntarily waived his Miranda rights and voluntarily gave the statements attributed to him. Since those more substantive issues were argued and addressed in prior proceedings, we conclude that any omission by counsel in failing to argue that defendant should not have been removed from the jail for questioning was of no moment in the overall circumstances surrounding the statements.
We find defendant's other arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).