June 25, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES JEAN LOUIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 94-07-0789.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 26, 2010
Before Judges Stern and J. N. Harris.
Defendant James Jean Louis appeals from the denial of his application for (1) post-conviction relief (PCR)--filed ten years after his conviction--and (2) an evidentiary hearing. We affirm.
In 1996, defendant was convicted by a jury of first-degree murder, N.J.S.A. 2C:11-3(a)(1); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree robbery, N.J.S.A. 2C:15-1; third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). On May 24, 1996, the Law Division imposed an aggregate sentence of sixty years incarceration with thirty-five years of parole ineligibility.
Along with his three co-defendants, Louis pursued an appeal to this court from that conviction. In a consolidated opinion we affirmed as to all defendants, and the Supreme Court thereafter denied certification. State v. Louis, No. A-1747-96T4; No. A-2717-95T4; No. A-6355-95T2; and A-6807-95T4 (App. Div. Aug. 19, 1999), certif. denied, State v. Louis, 162 N.J. 488 (1999).
On May 26, 2000, almost exactly four years after the entry of the judgment of conviction, defendant filed his first pro se PCR application. On March 19, 2002, after counsel was assigned to represent defendant, the Law Division entered an order dismissing defendant's PCR application without prejudice, upon defendant's request.
Thus, instead of pursuing the then-pending PCR application to its natural conclusion, defendant was advised by his appointed PCR counsel to move for a new trial in the Law Division on the ground of newly discovered evidence. In March 2002, PCR counsel wrote defendant advising him of the "withdraw[al]" of the PCR application, and explained that an attorney in the Union County Office of the Public Defender would contact defendant "within the next few weeks." The letter also expressly stated, "[p]lease contact me if you have further questions or concerns or if you do not hear from the Union [Region] Public Defender's Office after [three] weeks or so."
True to PCR counsel's letter, but several weeks beyond the promised three-week time frame, an Assistant Deputy Public Defender assigned to the Union Region contacted defendant on May 23, 2002, by mail. The public defender's letter of that date explicitly stated that after an investigation and consultation with defendant, "[defense counsel] cannot file a motion for a new trial based upon newly discovered evidence" (emphasis in the original). The letter alluded to a communication between the letter writer and the former PCR attorney, stating "[PCR counsel] advised me that you must refile your post-conviction relief petition."
Another four years elapsed before a PCR application on defendant's behalf was actually filed in the Law Division. Although the record includes copies of correspondence that had been exchanged between defendant and the Office of the Public Defender, it was not until December 14, 2006, that defendant finally filed another pro se application for PCR. An attorney was again appointed to represent defendant in what his PCR brief referred to as "a second motion for [p]ost-conviction relief."*fn1
On July 17, 2007, and without an evidentiary hearing, Judge Stuart L. Peim entered an order denying defendant's application for PCR "on the grounds that all claims in this PCR are time-barred by Rule 3:22-12." This appeal ensued.
Defendant has presented to this court the following concise arguments as contained in his appellate brief:
THE COURT MISAPPLIED THE APPLICABLE LEGAL STANDARDS IN RULING THAT THE DEFENDANT WAS PROCEDURALLY BARRED FROM RAISING THE ISSUE OF INEFFECTIVE ASSISTANCE OF COUNSEL IN POST-CONVICTION RELIEF.
THE COURT'S RULING THAT THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS PROCEDURALLY BARRED, WITHOUT GIVING THE DEFENDANT AN ADEQUATE OPPORTUNITY TO PRESENT ORAL ARGUMENT ON THE ISSUES, WAS CONTRARY TO THE CRITERIA CONTROLLING R. 3:22-12, R. 3:22-4, THE "EXCUSABLE NEGLECT" DOCTRINE, AND THE "RELATION BACK" DOCTRINE.
THE COURT MISAPPLIED R. 3:22-4.
TRIAL COUNSEL'S FAILURE TO OBJECT TO IMPROPER REMARKS IN THE PROSECUTOR'S OPENING STATEMENT AND SUMMATION; TRIAL COUNSEL'S FAILURE TO OBJECT TO TESTIMONY THAT THE DEFENDANT WAS A DRUG DEALER; TRIAL COUNSEL'S FAILURE TO REQUEST A JURY INSTRUCTION ON THE AFFIRMATIVE DEFENSE TO FELONY MURDER; AND TRIAL COUNSEL'S FAILURE TO OBJECT TO THE CONFUSING JURY VERDICT SHEET SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
THE DEFENDANT SATISFIED THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.
THE DEFENDANT SATISFIED THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.
APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ISSUE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL ON APPEAL.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION.
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN PCR COUNSEL'S BRIEF AND "SUPPLEMENTAL BRIEF" AND IN DEFENDANT'S PRO SE BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.
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We have additionally considered the following points as contained in PCR counsel's Law Division brief:
POINT ONE-THE DEFENDANT HAS A CONSTITUTIONAL RIGHT TO POST-CONVICTION RELIEF PURSUANT TO R.3:22-2(a).
A. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO PREJUDICIAL COMMENTS BY THE PROSECUTION IN OPENING STATEMENTS.
B. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO PREJUDICIAL EVIDENCE THAT PETITIONER SOLD DRUGS.
C. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO MANY REFERENCES TO GANG ACTIVITY.
D. PETITIONER'S TRIAL AND APPELLATE ATTORNEYS RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO DISCUSS TRIAL STRATEGY WITH THEIR CLIENT.
E. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO PREJUDICIAL COMMENTARY BY THE PROSECUTOR IN SUMMATIONS.
F. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO ASK THE COURT TO ADVISE THE JURY OF THE AFFIRMATIVE DEFENSE CONTAINED IN N.J.S.A. 2C:11-3(a)(3).
G. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO ARGUE THAT THE VERDICT SHEET WAS CONFUSING TO THE JURY.
Finally, we have reviewed the legal argument made in defendant's "Supplemental Post-[C]onviction Relief Letter Brief":
THE DEFENDANT WAS DENIED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS, TO RECEIVE DUE PROCESS OF LAW, EQUAL PROTECTION UNDER THE LAW, AND HIS RIGHT TO RECEIVE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND APPELLATE COUNSEL, UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND UNDER ARTICLE 1, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION. (1)
TRIAL COUNSEL FAILED TO OBJECT TO THE INADEQUATE ACCOMPLICE LIABILITY JURY INSTRUCTIONS, (2) TRIAL COUNSEL FAILED TO MAKE A MOTION TO THE TRIAL COURT REQUESTING FOR A SEVERANCE, SO THAT DEFENDANT WOULD NOT BE PREJUDICE[D] BY CO-DEFENDANT, AT TRIAL.
Having carefully reviewed each of defendant's contentions made at varying stages during this litigation, we conclude that they are all without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
The Law Division dismissed the second PCR application because it was not timely filed within the five-year window afforded by Rule 3:22-12(a). Although the initial pro se application in 2000 was indubitably timely in light of Rule 3:22-12(a)'s five-year mandate, once defendant voluntarily changed the course of his litigation to instead pursue a motion for a new trial--an event that would be beyond the five-year bar--he became exposed anew to the running of the limitations period. By the time he got around to finally filing the 2006 PCR application, more than a decade had passed since the original judgment of conviction was entered against him. In this posture, defendant was obligated to explain the delay and allege facts showing excusable neglect. R. 3:22-12(a). "The concept of excusable neglect encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Defendant in this case did neither, and Judge Peim was correct in his assessment of defendant's timeliness problem for the current PCR application.
The five-year time period is not tolled while the matter is under review in the appellate courts, and ignorance of the applicable law does not constitute excusable neglect. See State v. DiFrisco, 187 N.J. 156, 166-67 (2006) (holding that the reason the five-year time period is generally neither stayed nor tolled by an appellate or other proceeding is to "ensure that the passage of time does not prejudice the State's retrial of a defendant" and "to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation") (citing State v. Mitchell, 126 N.J. 565, 575-76 (1992)); State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002) ("Ignorance of the law and rules of court does not qualify as excusable neglect."), aff'd, 365 N.J. Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
We also observe that many of the claims presented are barred by Rule 3:22-4, which prohibits a defendant from raising issues in PCR proceedings that could have been raised in a prior proceeding. See State v. McQuaid, 147 N.J. 464, 484 (1997). A petition for PCR is not a "substitute for appeal from conviction or for motion incident to the proceedings in the trial court." R. 3:22-3.
As for defendant's multiple claims of ineffective assistance of counsel, we conform to the principle that in order to establish ineffective assistance of counsel, a defendant must prove not only that counsel's performance was objectively lacking, but that the identified deficiencies unduly prejudiced the defense and adversely affected the outcome. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Allah, 170 N.J. 269, 283 (2002). This two-pronged test, as first enunciated by the United States Supreme Court in Strickland--adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987)--requires a defendant to show:
First, . . . that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, . . . that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.]
Unsupported assertions--without any factual support--are not sufficient to establish an ineffective assistance of counsel claim. See State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999). Defendant's assertion that each of his prior attorneys was ineffective lacks merit; the outcome would not have been different even if we assume counsel failed to perform according to defendant's lofty standards of perfection.
We also disagree with defendant's argument that the judge should have granted an evidentiary hearing as defendant has failed to meet the threshold for such a hearing. When issues of defective performance of counsel are raised that involve disputed facts outside the record, the appropriate procedure for their resolution is to hold a hearing only if a prima facie showing of remediable ineffectiveness is made. State v. Preciose, 129 N.J. 451, 460-61 (1992). Here, there has been no such showing, and defendant is therefore not entitled to an evidentiary hearing.
We find no basis for relaxing Rule 3:22-12 pursuant to the provisions of Rule 1:1-2. It is entirely appropriate to enforce the five-year time bar, as defendant's claims were or could have been previously adjudicated in prior proceedings. See Preciose, supra, 129 N.J. at 476; State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.) (noting that although relaxation may not be routinely afforded to avoid application of a rule, "[w]here there is a true injustice, R. 1:1-2 is available to correct it."), certif. denied, 162 N.J. 199 (1999). No such injustice is present here.
Lastly, we have considered whether the time bar should be relaxed because the public defender should have promptly moved to reinstate the first PCR application or designated counsel on the second PCR application should have argued that application was timely filed because defendant never had adequate representation on the first when it was recommended for dismissal and the basis for the recommendation proved to be unwarranted. See State v Rue, 175 N.J. 1 (2002). We assume that the public defender believed at that point in time defendant had to file the second application himself because the assignment of counsel was required before she could continue to act on his behalf. See N.J.S.A. 2A:158A-5; R. 3:22-6(a),(b). We do not consider the issue at length in this case because it is not raised before us and because defendant waited more than four years to file his 2006 PCR application after being advised by the public defender to file another PCR, following being told that the motion for new trial could not be filed.