On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 89-03-0381.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 24, 2010
Before Judges Payne and C.L. Miniman.
Defendant Patrick Lanzel appeals from a June 2, 2008, order denying post-conviction relief (PCR). Because defendant's petition is barred by various subsections of Rule 3:22, we affirm.
Defendant was convicted on January 13, 1992, of two counts of murder, contrary to N.J.S.A. 2C:11-3a; conspiracy to commit murder, contrary to N.J.S.A. 2C:5-2 and 2C:11-3a; and four counts of attempted murder, contrary to N.J.S.A. 2C:5-2 and 2C:11-3a(1). We have previously discussed the evidence supporting these convictions in detail and need not repeat it for purposes of this decision. State v. Lanzel, No. A-3951-91 (App. Div. Mar. 8, 1995) (slip op. at 4-17), certif. denied, 141 N.J. 97 (1995). Suffice it to say that defendant conspired with Laura Kaldawy, his cousin, to murder her parents in exchange for a division of her expected inheritance. In the course of murdering Samir Kaldawy and Georgette Kaldawy, defendant attempted to murder his nine-year-old cousin, Gregory Kaldawy, causing him grievous brain injuries. Defendant was sentenced to an aggregate term of 120 years in prison, sixty without parole, consisting of two consecutive terms of fifty years for the murders, thirty each without parole, and a consecutive term of twenty years for the attempted murder. Defendant appealed his conviction and we affirmed. Id. at 1, 30. The Supreme Court denied his petition for certification. State v. Lanzel, 141 N.J. 97 (1995).
Defendant filed his first PCR petition on October 16, 1995, and re-filed the petition on February 19, 1999. That petition was denied on June 18, 1999; we affirmed the denial; and the Supreme Court denied certification. State v. Lanzel, No. A-6848-98 (App. Div. Oct. 19, 2000) (slip op. at 4, 14), certif. denied, 167 N.J. 633 (2001).
Defendant filed his first habeas corpus petition with the United States District Court for the District of New Jersey on June 20, 2001, and on November 23, 2004, the District Court judge denied all relief and declined to issue a certificate of appealability. The Court of Appeals subsequently declined to hear his appeal.*fn1
Defendant filed his second PCR petition on August 3, 2006. Defendant filed additional supporting certifications on February 21, March 17, and July 28, 2007. He filed a supplemental letter brief on December 13, 2007. On March 14, 2008, Judge Patrick J. Roma heard counsel's arguments regarding defendant's petition. On March 25, 2008, defendant filed a pro se petition returnable three days later seeking reassignment of counsel and a rehearing of the PCR petition. On March 28, Judge Roma issued a letter opinion and order denying the second PCR petition. Characterizing the motion seeking reassignment of counsel and a rehearing as a third PCR petition, Judge Roma denied the requested relief on June 2, 2008. On June 27, 2008, defendant filed a notice of appeal from the March 28, 2008, order only.
In his written decision, Judge Roma determined that defendant's petition was not filed within five years of his conviction and was, therefore, barred under Rule 3:22-12. He also found that the exceptions to the five-year bar contained in Rule 3:22-12(a) did not apply, that the majority of the issues defendant raised had been previously raised and adjudicated, and that his claims of ineffective assistance of counsel were facts known to him years before and could easily have been raised previously. The judge found that the issues raised were barred by Rule 3:22-5, which precludes consideration of issues previously adjudicated. Finally, he found the petition was barred under Rule 3:22-4, because the issues raised could have been raised in prior proceedings. He found that defendant could not show excusable neglect under the latter rule and that it would be unjust to allow him to pursue the petition. Furthermore, he found that no evidentiary hearing was required under Rule 3:22-10 because defendant's claims were time barred. He carefully considered each of the issues raised by defendant and explained why each issue was barred under Rule 3:22.
Defendant presents the following issues for our consideration:
POINT I: DEFENDANT'S SECOND PCR PETITION SHOULD NOT HAVE BEEN TIME-BARRED BECAUSE THERE EXISTED "EXCUSABLE NEGLECT" FOR THE UNTIMELY FILING; IN THE ALTERNATIVE, ADHERENCE TO THE FIVE-YEAR PRESCRIPTION FOR FILING THE SECOND PCR PETITION WOULD CONSTITUTE "AN INJUSTICE."
POINT II: DUE TO DEFENDANT'S NOT HAVING BEEN REPRESENTED BY COUNSEL ON HIS FIRST PCR PETITION, WHICH WAS FILED TIMELY, THIS MATTER MUST BE REMANDED SO THAT DEFENDANT BE AFFORDED EFFECTIVE RESPRESENTATION ON HIS FIRST PCR PETITION.
POINT III: THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE ...