November 10, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RADAME L. LUNA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 94-11-0516.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2009
Before Judges Graves and J.N. Harris.
Defendant Radame L. Luna appeals from an order dated June 12, 2008, denying his second petition for post-conviction relief (PCR). We affirm.
Judge Edward M. Coleman presided over defendant's jury trial, which took place in 1996. Defendant was convicted of second-degree conspiracy to distribute cocaine, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:5-2 (count one), and first-degree possession with intent to distribute cocaine in a quantity of five ounces or more, contrary to N.J.S.A. 2C:35- 5(a)(1) and N.J.S.A. 2C:35-5(b)(1) (count two). Prior to sentencing, the State's motion to impose a mandatory extended term for a repeat drug offender under N.J.S.A. 2C:43-6(f) was granted. At defendant's sentencing on May 31, 1996, count one was merged into count two, and the court imposed an extended custodial term of fifty years with sixteen years and eight months of parole ineligibility.
In an unreported decision, this court affirmed defendant's convictions and his sentence, State v. Luna, No. A-6020-95T5 (App. Div. May 21, 1998), and the Supreme Court denied defendant's petition for certification, State v. Luna, 160 N.J. 89 (1999). The facts established at defendant's trial were summarized in our prior decision and need not be repeated here. This court also affirmed an order denying defendant's first PCR petition, State v. Luna, No. A-1728-00T4 (App. Div. Dec. 11, 2002), and defendant's petition for certification was denied. State v. Luna, 177 N.J. 221 (2003). In that opinion, we specifically rejected defendant's claim that "he was denied the effective assistance of counsel at trial and the effective assistance of appellate counsel in not raising the issues which should have been raised on the direct appeal, including the failure of trial counsel to effectively represent defendant at trial."
On December 2, 2007, more than eleven years after he was sentenced, defendant filed the present PCR petition, asserting that he had been subjected to "racial profiling and selective enforcement" by Officer John Komanitsky of the Warren Township Police Department. Judge Coleman denied defendant's petition for the reasons stated in the order dated June 12, 2008, and a subsequent letter dated September 30, 2008, which includes the following:
The defendant over the years has had the assistance of numerous attorneys who counseled with the defendant. All of them would have been aware of the racial profiling issue in this case prior to the last PCR application. More importantly the defendant was riding in a vehicle on Interstate 78 in the middle of the night at approximately 11 PM, September 1, 1994. The defendant was not able to explain how the officer could possibly see the race of the individuals in a car that [was] driving by on an interstate highway. As noted in prior opinions filed in this case, the local police officer made a motor vehicle stop because of noted motor vehicle violations, a taillight that was out of service. In denying the present application for post-conviction relief, the defendant was informed that the mere existence of racial profiling as admitted by the New Jersey State Police did not apply to local law enforcement authorities, [and] that he had not made the necessary showing in order to obtain a post-conviction relief hearing.
On appeal, defendant presents the following arguments:
POINT I THE LOWER COURT ERRED IN ITS DETERMINATION THAT DEFENDANT COULD NOT STATE HOW HE COULD DETERMINE THAT THE OFFICER WAS ABLE TO KNOW WHO WAS IN THE VEHICLE WHEN IN FACT IT WAS LATE AT NIGHT AND DARK AT THE TIME.
POINT II PETITIONER IS NOT PROCEDURALLY BARRED IN SEEKING POST CONVICTION RELIEF, BASED ON EXCEPTIONS (b) AND (c) OF RULE 3:22-4, AND THE ARGUMENTS SET FORTH HEREIN COULD NOT HAVE BEEN PRESENTED TO THE APPELLATE DIVISION AT THE TIME OF DIRECT APPEAL.
POINT III PETITIONER'S ILLEGAL STOP, BASED ON RACIAL PROFILING, AND SELECTIVE PROSECUTION IN VIOLATION OF THE FOURTH AMENDMENT TO BOTH THE NEW JERSEY AND FEDERAL CONSTITUTIONS WAS AND REMAINS UNCONSTITUTIONAL CONTRARY TO DUE PROCESS OF LAW, EQUAL PROTECTION AND FUNDAMENTAL FAIRNESS, REQUIRING THE INDICTMENT AND ALL CONVICTIONS THAT DERIVED FROM THE ILLEGAL STOP DISMISSED AS THEY WERE THE PRODUCT OF "FRUIT FROM A POISONOUS TREE" WHICH IS CONTRARY TO OUR STATE AND FEDERAL CONSTITUTIONS.
POINT IV DEFENSE COUNSEL WAS INEFFECTIVE FOR HIS FAILURE TO SEEK DISCOVERY ON THE RACIAL PROFILING THAT WAS PLAGUING NEW JERSEY, THUS DENYING RADAME L. LUNA HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
POINT V REVERSAL IS REQUIRED BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS AND THE INEFFECTIVENESS ADVANCED IN POINT II.
We reject these arguments and affirm the denial of defendant's petition substantially for the reasons stated by Judge Coleman. As he noted, defendant's petition was time- barred under Rule 3:22-12(a), and defendant failed to show that the time bar should be relaxed due to either "excusable neglect" or "exceptional circumstances." State v. Afanador, 151 N.J. 41, 52 (1997). In addition, he concluded defendant's racial profiling claim was barred by Rule 3:22-4 because it could have been raised in a prior proceeding. Nonetheless, Judge Coleman addressed the merits of defendant's petition and correctly concluded that no hearing was necessary because defendant's allegations were insufficient to establish that trial counsel's performance was deficient. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) ("[T]o establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel."), certif. denied, 162 N.J. 199 (1999). Moreover, the record refutes defendant's racial profiling claim.
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