On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 96-10-1215.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 25, 2009
Before Judges Miniman and Simonelli.
Defendant Guillermo Febles appeals from the denial of his second pro se petition for post-conviction relief (PCR). We affirm.
On January 15, 1998, a jury convicted defendant of first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (count one), and third-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4d (count two). At sentencing, the trial judge merged count two into count one and sentenced defendant to a thirty-year term of imprisonment with a mandatory thirty-year period of parole ineligibility. The judge also imposed the appropriate assessments and penalties.
Defendant appealed, and we affirmed. State v. Febles, No. A-6115-97 (App. Div. October 7, 1999). Our Supreme Court denied certification. State v. Febles, 163 N.J. 12 (2000). Sometime thereafter, defendant filed his first pro se PCR petition. Although the petition and transcript of Judge DeVesa's decision have not been supplied on appeal, the order denying the petition, entered on March 4, 2003, indicates that defendant contended that the verdict was contrary to the weight of the evidence, and that the sentence was excessive. The order also indicates that in denying the petition Judge DeVesa found, in relevant part, that: (1) defendant's conviction was affirmed on direct appeal; (2) defendant had not set forth with specificity the facts upon which his claim for relief was based; (3) defendant's claim that the verdict was against the weight of the evidence and that the sentence was excessive were not grounds for post-conviction relief and that such claims can be raised only on a direct appeal; and that (4) defendant's claims could and should have been raised on direct appeal.
Defendant did not appeal from the March 4, 2003 order. Instead, on or about September 4, 2008, he filed a second PCR petition, contending that the petition was not procedurally barred, that the trial judge failed to charge the jury on causation, and that trial counsel was ineffective for failing to call witnesses, to challenge certain oral and written statements and to assert a passion-provocation defense.
Judge DeVesa denied the petition, finding that defendant's ineffective assistance of counsel claim did not meet the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987), that defendant's claim about the jury instruction is inappropriate for review on a PCR petition and should have been raised on direct appeal, that there were no grounds to relax the time limitations of Rule 3:22-12(a), and that defendant failed to demonstrate good cause. This appeal followed.
On appeal, defendant raises the same arguments he raised in his second PCR petition. Based on our careful review of the record, we conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we add the following brief comments.
There is no question that defendant's second PCR petition, filed ten years after the judgment of conviction, is untimely. State v. Dugan, 289 N.J. Super. 15, 19 (App. Div. 1996), certif. denied, 145 N.J. 373 (1996); R. 3:22-12(a). Although defendant argues that his private attorney's failure to timely file the petition constitutes excusable neglect, defendant did not retain that attorney until 2006, three years after his time to file had already expired. Accordingly, defendant has failed to demonstrate excusable neglect for not timely filing his second PCR petition. State v. Milne, 178 N.J. 486, 492 (2004); R. 3:22-12(a).
Defendant's jury instruction contention could and should have been raised on his direct appeal. Also, there has been a prior adjudication on defendant's direct appeal of his challenge to the jury instruction on the substantive crimes. R. 3:22-4; R. 3:22-5.