On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 86-02-0794.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 24, 2010
Before Judges Axelrad and Fisher.
Defendant Walter Green appeals from the November l2, 2008 order of the Law Division denying his second petition for post-conviction relief (PCR) alleging ineffective assistance of trial and appellate counsel and a purportedly "illegal" sentence. We affirm.
The record reveals that, in l987, defendant was convicted of felony murder, first-degree robbery, and two weapons offenses, and sentenced to a thirty-year prison term with no parole eligibility. Defendant appealed, challenging the method of jury selection, admission of other-crimes evidence by the State, aspects of cross-examination by the State, and admission of defendant's statement. We affirmed. State v. Green, No. A-4677-86T4 (App. Div. October 5, 1989). The Supreme Court denied defendant's petition for certification. 121 N.J. 613 (l990).
Defendant filed a first PCR petition challenging on federal constitutional grounds the method of jury selection, which was denied by the trial court on October 20, 1992. We affirmed the PCR denial as procedurally barred by Rule 3:22-4 and time-barred by Rule 3:22-12. State v. Green, No. A-1412-92T4 (App. Div. May 5, 1994). The Supreme Court denied certification. 137 N.J. 312 (1994).
Defendant filed a variety of habeas corpus petitions, which were denied by the United States District Court in l992 and l995. In January l996 the United States Court of Appeals for the Third Circuit denied defendant's request for a certificate of probable cause. In May l996, the United States Supreme Court denied defendant's application for a writ of certiorari.
On August l7, 2007, defendant filed his second PCR petition, arguing his trial attorney was ineffective within the meaning of the Sixth Amendment because he: (1) consented to the reconstruction of the record of jury instructions, which circumvented defendant's right to appeal; (2) allowed testimony to be admitted in violation of Bruton v. United States, 39l U.S. 123, 88 S.Ct. 1620, 20 L.Ed. 2d 476 (l968); (3) improperly let other-crimes evidence be admitted; (4) and should not have called defendant as a witness because of his learning disabilities. Defendant claimed his appellate attorney provided ineffective assistance of counsel because he did not couch the issue of the jury selection process employed by the trial court as a constitutional violation and agreed to the reconstruction of the record of the jury instructions. Defendant further challenged his sentence as "illegal" and argued he was unconstitutionally deprived of commutation and work credits, which he reasonably expected would be applied to reduce his sentence.
Judge St. John denied defendant's application without conducting an evidentiary hearing, memorialized in an order and written opinion of November l2, 2008. On appeal, defendant renews the arguments he made to the PCR judge, that: (1) due to "excusable neglect," the procedural bars should have been relaxed where enforcement would result in a manifest denial of justice and violation of his state and federal constitutional rights; (2) he was denied ineffective assistance of trial and appellate counsel; and (3) his sentence is illegal because the statute upon which it is based is unconstitutional.
We affirm substantially for the reasons articulated by the PCR judge in his comprehensive written opinion. R. 2:11-3(e)(2). As the court explained, defendant's petition is time-barred under Rule 3:22-12 as filed, without excusable neglect, substantially more than five years after rendition of the judgment or sentence that defendant sought to attack. Moreover, the second PCR petition is procedurally barred as defendant's arguments regarding the effectiveness of counsel either could have been raised on direct appeal, R. 3:22-4, or were raised in slightly different words and rejected. Moreover, on substantive grounds, defendant cannot meet the two-prong Strickland/Fritz test of demonstrating both that counsel's performance was seriously deficient and that the defect in performance prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2964, 2068, 80 L.Ed. 2d 674, 693, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey).
Defendant's sentence is not illegal; he was sentenced in accordance with N.J.S.A. 2C:ll-3b in effect in l987. We note that defendant's challenge to the application of commutation and work credits should have been brought before the Department of Corrections, not the Law Division, and, as such, it is not properly before us. Nevertheless, we reject defendant's arguments as without merit. Merola v. Dep't of Corrs., 285 N.J. Super. 501 (App. Div. l995), certif. denied, l43 N.J. 519 (1996).
We do not address the issue raised in defendant's reply brief regarding the complaint and arrest warrant as it was not raised in his primary brief. A litigant cannot add new issues for review in his reply brief. State v. Smith, 55 N.J. 476, 488 (1970); A.D. ...