April 14, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL CHAVIS A/K/A BRANCH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 86-11-4005-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 15, 2010
Before Judges Lisa and Baxter.
Defendant appeals from an order denying his post-conviction relief (PCR) petition, and an order denying his motion for reconsideration. Defendant is serving a term of life imprisonment, subject to a thirty-year parole disqualifier, for murder and related offenses. He committed the crime in 1986 and was convicted and sentenced in 1987. We affirmed his conviction and sentence in 1990, State v. Chavis, No. A-4365-87 (App. Div. April 30, 1990), and the Supreme Court denied certification.
State v. Chavis, 122 N.J. 384 (1990). Defendant's first PCR petition was denied; we affirmed, State v. Chavis, A-0988-92 (App. Div. October 19, 1995); the Supreme Court denied certification. State v. Chavis, 144 N.J. 378 (1996).
Defendant's petition for a writ of habeas corpus was denied by the U.S. District Court on June 26, 1998, and the Third Circuit Court of Appeals denied defendant's motion for a certificate of appealability and his request for an en banc hearing on January 8, 2001. Defendant's second PCR petition was denied on June 20, 2006. The matter now before us is defendant's third PCR petition.
Defendant set forth the following arguments in his initial brief:
WHEN THE EVIDENCE CLEARLY SHOWS THAT A DEFENDANT HAS UNINTENTIONALLY KILLED SOMEONE, THEN THAT DEFENDANT SHOULD NOT BE CHARGED WITH THE SAME TYPE OF MURDER AND/OR SENTENCE TO THE SAME SENTENCE AS DEFENDANTS WHO HAS EXHIBITED A DIABOLICAL OR EVIL OR INTENTIONAL STATE OF MIND WHEN THEY KILLED THEIR VICTIM. CONSEQUENTLY, DEFENDANT ASKS THE APPELLATE COURT TO GRANT HIS REQUEST FOR LENIENCY AND DOWNGRADE THE STATE'S CONVICTION FROM MURDER TO AGGRAVATED MANSLAUGHTER ON THE GROUNDS THAT DEFENDANT WHO CAUSED THE DEATH OF HIS VICTIM AS A CONSEQUENCE OF THE COLLATERAL RESULTS FROM SHOOTING THE VICTIM IN THE ARM. NOT RAISED BELOW.
BECAUSE N.J.S.A. 2C:11-3(1),(2) IS WRITTEN SO BROADLY, MEANS THAT FACTORS OUTSIDE OF THE EVIDENCE, SUCH AS RACE AND/OR CLASS CAN AFFECT WHICH DEFENDANTS ARE CHARGED WITH MURDER PURSUANT TO N.J.S.A. 2C:11-3(1),(2) OR CHARGED WITH AGGRAVATED MANSLAUGHTER PURSUANT TO N.J.S.A. 2C:11-4. NOT RAISED BELOW.
THE MURDER STATUTE 2C:11-3(1),(2) IS TRIVIALIZED BECAUSE IT IS WRITTEN SO BROADLY THAT UNINTENTIONAL KILLINGS SUCH AS FELONY MURDER & AGGRAVATED MANSLAUGHTER KILLINGS COULD BE CLASSIFIED AS FIRST DEGREE MURDER. NOT RAISED BELOW.
DEFENDANT ASKS THE APPELLATE COURT TO DISPENSE WITH ANY PROCEDURAL RULES PURSUANT TO R. 1:1-2 SO THAT THESE ARGUMENTS CAN BE ADDRESSED. NOT RAISED BELOW.
In an amended brief, defendant added the following argument:
THE DEFENDANT-PETITIONER POST CONVICTION RELIEF APPLICATIONS SHOULD NOT BE TIME BARRED BECAUSE THE EXCEPTIONAL CIRCUMSTANCES OF THE CASE AMOUNT TO EXCUSABLE NEGLECT. AND THE INTERESTS OF JUSTICE REQUIRE A RELAXATION OF RULE 3:22-12. CONTRARY TO THE FIFTH, SIXTH AND FOURTEENTH CONST. AMEND. OF U.S. AND N.J. CONST. ART. 1. PAR. 10.
Defendant's arguments are plainly lacking in merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2).
We affirm substantially for the reasons expressed by Judge St. John in his initial written decision of November 21, 2008, and his written decision of January 2, 2009 denying defendant's reconsideration motion.
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