December 29, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAHID ALLEN, A/K/A MYRON HUGHLEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-09-2948.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 9, 2009
Before Judges Cuff and C.L. Miniman.
Defendant Shahid Allen appeals from the denial of his petition for post-conviction relief (PCR). He is serving an aggregate term of sixty years with a thirty-year period of parole ineligibility following his conviction of first degree murder, third degree possession of a handgun without a permit, and second degree possession of a weapon for an unlawful purpose. We affirm.
The charges arise from the shooting death of Sabir Kendrick on July 2, 1999, in the area of the Felix Fuld Housing Project in Newark. According to the witnesses presented by the State, defendant and the victim argued "about some drugs, a drug transaction." One witness overheard defendant ask the victim "where's my money." When the victim responded that he left the money at a woman's house, the witness heard defendant state to the victim he would "blow [the victim's] brains... blow [the victim] away" when he returned.
Later that evening, occupants of an apartment in the housing project heard an argument between two men outside the kitchen window about ten minutes prior to a shooting. The argument was about money. A few minutes later, these witnesses heard six or seven gun shots. One of the occupants of the apartment observed defendant shoot a gun and then jump into a nearby brown Maxima. This witness ran outside and discovered that Sabir Kendrick had been shot. The four occupants of the apartment on that night readily admitted that they were drinking some beer and smoking marijuana at the time they overheard the initial argument.
The gun shots were also heard by two Newark police officers. They responded immediately to the scene and encountered the victim. Although he had been shot multiple times, he was still alive and told one of the officers, "Alpo had shot me," and the dispute was over money. Alpo is not defendant, but the victim told another officer who responded to the scene that Alpo was accompanied by Black. The State submitted testimony that defendant was known as Black. One of the occupants of the apartment, who had overheard the initial argument, identified defendant through a photo array as the person arguing with the victim earlier in the day. Another occupant of the apartment identified defendant through a photo array and in court as the shooter.
In an unreported opinion, we affirmed the conviction. State v. Allen, No. A-3336-00 (App. Div. Nov. 27, 2002). The Supreme Court denied defendant's petition for certification. State v. Allen, 177 N.J. 223 (2003). Defendant asserts he filed a petition for PCR in October 2003. An amended petition was filed on March 29, 2004. Due to difficulties encountered in obtaining the file, the petition was dismissed without prejudice.
When the petition was restored, defendant argued that he was denied effective assistance of counsel because the trial judge failed to provide a curative instruction following the re-cross-examination of a witness who made an ambiguous statement about the involvement of the victim and defendant in drug transactions. Defendant also contended that he did not receive effective assistance of counsel at sentencing. In addition, he insisted that trial counsel provided ineffective assistance of counsel because he did not pursue an adjournment and did not request an instruction about the impairment of the witnesses. Finally, defendant argued that the sentence was excessive and based on factors not found by the jury. Defendant filed three pro se briefs in support of his petition. He requested an evidentiary hearing, argued that trial and appellate counsel were ineffective, and contended that violations of evidence rules caused an "adverse affect" on the grand jury decision.
Judge Donald Goldman denied the petition without an evidentiary hearing. In his comprehensive June 30, 2008 opinion, the judge held that the primary focus of the petition, the ambiguous reference by a witness to drug transactions during re-cross-examination, was also a primary argument on appeal and had been resolved against him. In addition, the sentencing argument was presented and resolved on direct appeal.
Therefore, both issues were barred by Rule 3:22-5, which precludes relitigation of issues decided on direct appeal.
Judge Goldman also found that defendant failed to provide sufficient evidence to establish a prima facie case of ineffective assistance of counsel on the grand jury issue presented by him. As to the other instances of ineffective assistance of counsel presented by defendant, the judge addressed these claims as follows:
Petitioner's primary complaint on the PCR is his contention that he was deprived of effective assistance of counsel due to various failings of trial counsel. Specifically, in his pro se argument, Petitioner contends that his trial counsel erred by not calling the supposed alibi witnesses Abdul Jackson and Malik Crenshaw. The fact is that Abdul Jackson was present the first day of jury selection, interviewed by both the State and defense investigators but never called as a witness. Petitioner utterly fails to submit any information to show that Jackson and Crenshaw were ready, willing, and able to provide an alibi at the time of trial. In fact, he is unable to show that even now [eight] years later that they are so willing. He also says that there might have been witnesses or a security camera tape that might have shown him at a skating rink, at an Exxon gas station, or at a White Castle restaurant at a crucial time; however, he has not provided statements of such witnesses' nor shown that such a security tape ever existed, much less than it might be exculpatory. Of course, he never identified precisely where he was (skating rink, Exxon station, or White Castle) because he never gave an alibi notice.
Judge Goldman also noted that the record was replete with references to a defense investigator, thereby undermining the contention that no investigation had been performed by trial counsel. The judge also observed that neither defendant nor his attorney were able to produce either Jackson or Crenshaw or prove what they may have offered at trial even at the time of oral argument on this petition.
Judge Goldman addressed the other instances of ineffective assistance of counsel, trial and appellate, asserted by defendant. Ultimately, he concluded that defendant "failed to demonstrate by a preponderance of the evidence that had appellate counsel raised the issues Petitioner now asserts, the result of the appeal would have been different. Prejudice must be proved, and this Petitioner has failed to prove any."
Finally, Judge Goldman held that the sentencing argument raised by defendant concerned the excessiveness of the sentence rather than the legality of the sentence. As such, this argument was not cognizable in the context of PCR. R. 3:22-2(c).
On appeal, counsel for defendant raises the following argument:
DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS.
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.
In a pro se supplemental brief, defendant raises the following arguments:
APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO CONDUCT A MEANINGFUL PRETRIAL INVESTIGATION PRIOR TO TRIAL.
A: TRIAL COUNSEL'S INCOMPETENCE RESULTED
IN APPELLANT'S ALIBI WITNESSES BEING PRECLUDED FROM TESTIFYING, WHICH RESULTED IN THE VIOLATION OF HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO HAVE HIS WITNESSES HEARD.
B: APPELLANT WAS DENIED HIS FOURTEENTH
AMENDMENT RIGHT TO PRESENT ALIBI WITNESSES AT HIS MURDER TRIAL WHO COULD HAVE PROVEN THAT HE WAS ELSEWHERE OTHER THAN THE SCENE OF THE CRIME.
We have reviewed the record in its entirety. We are satisfied that defendant has not marshaled the requisite proofs to satisfy the Strickland*fn1 /Fritz*fn2 standard, and we affirm the June 30, 2008 order denying defendant's petition for PCR substantially for the reasons expressed by Judge Goldman in his comprehensive and well-reasoned opinion of the same date.