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State v. Muse

July 21, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAHMIN DAMON MUSE A/K/A JAMEEL HAWKINS A/K/A JAY MUSER A/K/A GERM MUSE A/K/A JAHMIR R. MUSE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-03-0449.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 24, 2010

Before Judges Baxter and Alvarez.

Defendant Jahmin Damon Muse appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We reject defendant's contentions and affirm.

Defendant was convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count two); second-degree possession of cocaine with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count three); third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count four); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count five); second-degree possession of heroin with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count six); third-degree distribution of heroin, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count seven); and second-degree possession of heroin with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count eight). Defendant was sentenced to an extended term pursuant to N.J.S.A. 2C:44-3a as a persistent offender to an aggregate sentence of life plus fifteen years with twenty-seven and one-half years of parole ineligibility.*fn1

Defendant's direct appeal was denied in an unpublished opinion and his petition for certification was also denied on July 16, 2007. State v. Muse, No. A-3741-05 (App. Div. Feb. 26), certif. denied, 192 N.J. 294 (2007).

Defendant filed a brief in support of his PCR petition pro se on December 28, 2007. He was thereafter assigned counsel from the Office of the Public Defender. Oral argument was conducted on August 1, 2008, and a written decision denying the petition was rendered on August 25, 2008. This appeal followed.

We will not recite the facts at length as they are fully recounted in the direct appeal opinion. Briefly, defendant's convictions result from his arrest after being observed engaging in several hand-to-hand drug transactions. In addition to the seizure of "four glassine envelopes" containing drugs from "the crotch flap of [his] long underwear," defendant directed officers to "a black plastic bag containing forty-four vials of cocaine." A further search disclosed eighty-four folds of heroin and 171.45 grams of cocaine. Defendant insisted on talking to police after being read his Miranda*fn2 rights, although he refused to sign any statements. He provided the arresting officer information regarding both the location of the drugs hidden in the vehicle and a "stash apartment where he was going to pick up a hundred bricks of heroin."

Defendant testified at trial, placing blame on others and denying any connection to the vehicle. Significantly, he also said he "[n]ever touched no drugs," after which he was cross-examined about his prior convictions for drug possession with intent to distribute within 500 feet of public property and possession of a controlled dangerous substance. The proofs were overwhelming, and it can be inferred from the jury's verdict that they found defendant's testimony less than credible.

Defendant asserts the following points on appeal:

POINT I SINCE THE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE BY TRIAL COUNSEL, THE COURT ABUSED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT AFFORDING THE DEFENDANT A FULL EVIDENTIARY HEARING.

POINT II 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.

POINT III DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN THE DEFENDANT'S PRO SE BRIEFS IN SUPPORT OF POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.

Under the familiar test, a defendant must first demonstrate that counsel's performance "fell below an objective standard of reasonableness" on a claim of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). Second, a defendant must demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Without establishing a prima facie case of ineffective assistance of counsel, there is no entitlement to a PCR ...


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