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State v. Chew

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 21, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN CHEW, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 93-03-00507.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 6, 2010

Before Judges Lisa and Fuentes.

Defendant John Chew appeals from the order of the Law Division, Criminal Part, denying his second post-conviction relief (PCR) petition. We affirm.

This case was originally tried as a capital offense. The factual and procedural history of defendant's conviction is detailed in State v. Chew, 150 N.J. 30, 41-50 (1997) (direct appeal), State v. Chew, 159 N.J. 183, 190-95, cert. denied, 528 U.S. 1052, 120 S.Ct. 593, 145 L.Ed. 2d 493 (1999) (proportionality review of defendant's sentence), and State v. Chew, 179 N.J. 186, 191-202 (2004) (appeal of the denial of defendant's first PCR application).

After the completion of these state court appeals, including the denial of his first PCR petition, the State and defendant entered into an agreement whereby defendant agreed to plead guilty to one count of fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d, from an outstanding indictment. The State would recommend an eighteen-month term of imprisonment for that crime, to run consecutive to a life sentence, with thirty years of parole ineligibility, for the murder charge. This obviated the need for a retrial of the penalty phase of the State's capital charges against defendant.

On June 10, 2004, the court sentenced defendant in accordance with the plea agreement. On November 30, 2004, defendant filed a petition for habeas corpus relief before the United State's District Court of New Jersey. On August 23, 2007, U.S.D.C. Judge Linares denied defendant's habeas petition in an unpublished opinion. Chew v. Hendricks, No. 04-5894(JLL) (D.N.J. Aug. 23, 2007). On January 23, 2008, the Third Circuit Court of Appeals denied defendant's request for a certificate of appealability. Chew v. Hendricks, No. 07-3799 (3d Cir. Jan. 23, 2008).

In August 2008, defendant filed this second PCR petition pro se, generally arguing that he was denied effective assistance of counsel. By order dated October 14, 2008, Judge DeVesa denied this second PCR petition, finding that defendant had failed to establish a prima facie case of ineffective assistance of counsel. In addition to these deficiencies, Judge DeVesa also found defendant's petition was time-barred under Rule 3:22-12. The court subsequently denied defendant's motion for reconsideration.

Defendant now appeals raising the following argument:

POINT ONE

THE TRIAL COURT ABUSED ITS DISCRETION BY ITS SUMMARY DISMISSAL OF PETITIONER'S PCR BEFORE THERE WAS ANY BRIEF FILED ON PETITIONER'S CLAIMS OR ADDRESSING ANY EXCEPTIONS TO ANY POTENTIAL PROCEDURAL BARS AND BEFORE THE MOTION FOR APPOINTMENT OF COUNSEL WAS RULED UPON BY THE COURT THEREFORE THIS MATTER SHOULD BE REMANDED.

Defendant's argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge DeVesa.

Affirmed.

20100721

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