On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-05-2358.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Yannotti.
Defendant, Roy Dove, appeals pro se from his second petition for post-conviction relief (PCR). We affirm.
In April 1998, following a jury trial, defendant was convicted of first degree aggravated manslaughter, N.J.S.A. 2C:11-4; first degree felony murder, N.J.S.A. 2C:11-3(a)(3); first degree armed robbery, N.J.S.A. 2C:15-1; fourth degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d); and third degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d). The judge denied defendant's motion for a new trial and, after appropriate merger of convictions, imposed an extended term of life imprisonment without parole, pursuant to N.J.S.A. 2C:43-7.1, consecutive to an eighteen-month term. On direct appeal, we affirmed defendant's conviction and sentence, but remanded the matter to amend the judgment of conviction to merge the conviction for unlawful possession of a knife with the conviction for possession of a knife for an unlawful purpose. State v. Roy Dove, No. A-6522-98T4 (App. Div. October 2, 2000), certif. denied, 167 N.J. 88 (2001).
In March 2001, defendant filed pro se his first PCR petition, raising a claim of ineffective assistance of trial counsel. Counsel was assigned to represent defendant on the petition. Judge Thomas R. Vena denied the petition and defendant's request for an evidentiary hearing. We affirmed. State v. Roy Dove, A-0567-04T4 (App. Div. January 30, 2006), certif. denied, 186 N.J. 604 (2006).
Defendant filed a petition for a writ of habeas corpus with the United States District Court for the District of New Jersey.
Judge Faith S. Hochberg denied the petition on August 21, 2007, and ordered that no certificate of appealability will be issued.
In December 2007, more than nine years after the conviction, defendant filed pro se this second PCR petition. The petition alleged trial counsel was ineffective for: (1) "failing to request that the trial judge define the elements of criminal attempt" and (2) "failing to object when the court clerk erroneously asked the jury foreman 'how do you find defendant as to count three attempted robbery while armed.'" Defendant also alleged ineffective assistance of appellate counsel for not raising the jury charge issue. Judge Harold W. Fullilove denied defendant's petition based on the five-year time bar set by Rule 3:22-12 and the procedural bar set by Rule 3:22-4, grounds not raised on direct appeal.
On appeal, defendant contends:
BECAUSE TRIAL [COUNSEL] PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL AND BECAUSE THE PETITIONER WAS PREJUDICED THEREBY THE COURT SHOULD GRANT HIS MOTION FOR [PCR]. IN THE ALTERNATIVE, BECAUSE THE PETITIONER HAS PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAD BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD GRANT HIM AN EVIDENTIARY HEARING.
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST THAT THE TRIAL JUDGE DEFINE THE ELEMENTS OF A CRIMINAL ATTEMPT IN THE COURT'S INSTRUCTION TO THE JURY ON COUNT THREE ARMED-ROBBERY.
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT WHEN THE COURT CLERK ERRONEOUSLY ASKED THE JURY FOREMAN HOW DO YOU FIND THE DEFENDANT "AS TO COUNT ...