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State v. Kelly

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 19, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
IZEL KELLY, JR., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 92-07-1009.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: May 5, 2010

Before Judges Cuff and Waugh.

Defendant Izel Kelly, Jr. is serving a seventy-year term of imprisonment with a thirty-year period of parole ineligibility following his conviction of felony murder and second degree robbery. The victim was a Mexican émigré who was accosted by defendant and his brother. Defendant appeals from the denial of his third petition for post-conviction relief (PCR).

In a published opinion, we affirmed defendant's conviction, 302 N.J. Super. 145 (App. Div. 1997), certif. denied, 156 N.J. 409 (1998). We also affirmed denial of defendant's first PCR petition, State v. Kelly, No. A-2905-00 (App. Div. May 3, 2002), certif. denied, 175 N.J. 76 (2002).

Defendant filed a petition for habeas corpus in the United States District Court on May 20, 2003. In a comprehensive written opinion issued on October 31, 2005, Judge Chesler denied the petition "for lack of sufficient merit." In addition, the court denied a certificate of appealability. On September 13, 2006, the United States Court of Appeals for the Third Circuit denied a certificate of appealability.

On August 12, 2008, fourteen years after his conviction, defendant filed a second PCR petition. This petition was dismissed.

On April 17, 2009, fifteen years after his conviction, defendant filed a third PCR petition. On April 28, 2009, Judge Mellaci entered an order dismissing the petition. It is from this order that defendant appeals.

On appeal, defendant raises the following argument:

THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTIONS THAT HE WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL AND APPELLANT COUNSEL.

We affirm the April 28, 2009 order substantially for the reasons expressed in Judge Mellaci's April 28, 2009 written opinion. We have reviewed this voluminous record in its entirety. Defendant raises no issue that has not been previously reviewed by state and federal judges. The issues raised by defendant in this appeal from denial of his third PCR petition do not warrant further discussion in a written opinion.

R. 2:11-3(e)(2).

Affirmed.

20100519

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