On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 88-07-2659.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Sapp-Peterson.
Defendant, Sean Jones, appeals from the October 27, 2008 order denying his third petition for post-conviction relief (PCR). We affirm.
Following a jury trial in 1989, defendant was convicted of purposeful murder, N.J.S.A. 2C:11-3a(1) and (2); unlawful possession of a weapon, N.J.S.A. 2C:39:5b; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, arising out of the 1987 killing of Eric Smith. He was sentenced to a fifty-year custodial term with a thirty-year period of parole ineligibility, along with the imposition of appropriate fines and penalties. We affirmed the conviction but modified the sentence by eliminating the consecutive seven-year sentence on the merged weapons offenses, which we concluded should have been merged into the murder conviction. State v. Jones, No. A-4491-88 (App. Div. December 6, 1990) (slip op. at 5). We also remanded to the trial court for re-sentencing and a statement of reasons on the imposition of a fifty-year base term on the murder conviction. Id. at 6. The Supreme Court denied defendant's petition for certification. 126 N.J. 326 (1991). Pursuant to our remand, the trial court re-sentenced defendant to a thirty-year custodial term without parole.
Defendant then proceeded to file two PCR petitions that were both denied. On appeal of the first denial, we reversed and remanded for "a complete post-conviction relief hearing in the presence of defendant." See State v. Jones No. A-2500-93 (App. Div. January 3, 1995) (slip op. at 3). On remand, the court conducted a full hearing and, at its conclusion, issued a written opinion. The court found that defendant failed to establish a prima facie case of ineffective assistance of counsel based upon how trial counsel handled the investigation of certain witnesses and also based upon trial counsel's failure to seek a severance of his trial from that of his co-defendant. The court also rejected defendant's claims that the jury charge was prejudicial and misleading, confused the jury, failed to properly explain the facts and law as they applied to defendant, and impermissibly directed the verdict against defendant. On appeal, defendant raised the sole issue of ineffective assistance of his PCR counsel. We affirmed the denial substantially for the reasons set forth in the PCR judge's letter opinion. See State v. Jones No. A-2817-96 (App. Div. December 18, 1998). The Supreme Court denied defendant's petition for certification. State v. Jones, 160 N.J. 475 (1999).
Defendant filed his second PCR petition on September 13, 1999. In this petition, he renewed his claim of ineffective assistance of trial counsel and also raised a similar claim against his appellate counsel. Although acknowledging in the petition that his claims were procedurally barred, defendant urged the court to resolve the petition on the merits because he was denied effective assistance of counsel and his Sixth Amendment right to a fair trial. The court found that defendant's claims, which primarily addressed the trial court's jury instructions, were procedurally barred and that while ineffective assistance of counsel claims are ordinarily not subject to a procedural bar, some of defendant's claims were subject to the procedural bar because defendant had previously raised ineffective assistance of trial counsel in his first PCR petition. On appeal, we affirmed the denial of the second petition. See State v. Jones No. A-3279-00 (App. Div. February 25, 2003). The Supreme Court denied defendant's petition for certification. State v. Jones, 177 N.J. 491 (2003).
On June 18, 2004, defendant filed a pro se petition in federal district court seeking habeas corpus relief. That action was dismissed, and on May 12, 2008, defendant then filed his third PCR petition. The trial court denied defendant's application for the appointment of assigned counsel and then denied the petition. The court found that defendant was precluded from revisiting, in his third PCR petition, an issue he raised in his second PCR petition, and that his claim of ineffective assistance of counsel was not only "meritless" but procedurally barred. The present appeal followed. On appeal, defendant raises the following point:
THE MATTER SHOULD BE REMANDED TO THE LAW DIVISION TO ALLOW ARGUMENT AND DETERMINE WHETHER JUSTICE [WAS] MISCARRIED BY A SERIES OF MISHAPS CAUSED BY ERRORS AND INEFFECTIVE ASSISTANCE OF COUNSEL.
We have considered this in light of the applicable legal precedents and have concluded the argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm for the reasons expressed by Judge Jerome M. St. John in his statement of reasons incorporated in his October 27, 2008 order denying defendant's third PCR petition.