On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 95-06-00574 and 95-06-00576.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman and Waugh.
Defendant Robert Lee Terry appeals from a letter opinion dated May 8, 2009, denying his fourth application for post-conviction relief (PCR). Under Indictment No. 95-06-00576, a jury convicted defendant on June 26, 1996, of second-degree possession of a weapon by certain persons not to have weapons, contrary to N.J.S.A. 2C:39-7, on which a term of nine years in prison was imposed with four years to be served without parole. Also on June 26, 1996, the same jury convicted defendant under Indictment No. 95-06-00574 of first-degree murder, contrary to N.J.S.A. 2C:11-3a; fourth-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(4); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b.
Defendant was sentenced to five years on the third-degree unlawful-weapons offense with thirty months to be served without parole, to be served consecutively to the sentence imposed under Indictment No. 95-06-00576. He was also sentenced to a term of life in prison on the murder conviction, with thirty-five years to be served without parole, to be served consecutively to the five years on the third-degree crime. The second-degree crime was merged into the murder conviction for sentencing purposes. Finally, defendant was sentenced to eighteen months on the aggravated-assault conviction, to be served without parole and consecutive to the sentence on the murder conviction. The sentences on the two indictments combined required defendant to serve forty-three years without parole.
Defendant appealed his conviction and sentence; we affirmed the convictions but remanded for resentencing on the murder conviction, as extended-term sentencing for murder was not available at the time the crime was committed. State v. Terry, Nos. A-3371-96 and A-3382-96 (App. Div. July 1, 1998) (slip op. at 4, 23) (Terry I). We also found that the sentencing judge had not articulated the criteria necessary for the imposition of consecutive terms and remanded for reconsideration. Id. at 27. The Supreme Court denied certification. State v. Terry, 156 N.J. 426 (1998).
Defendant filed an amended petition for PCR in August 1999. State v. Terry, No. A-4207-99 (App. Div. Apr. 15, 2002) (slip. op. at 5) (Terry II). The PCR judge denied relief, id. at 6, and we affirmed, id. at 8. The Supreme Court denied certification. State v. Terry, 174 N.J. 364 (2002). Defendant filed his second PCR petition on March 19, 2003. State v. Terry, No. A-2334-03 (App. Div. Apr. 18, 2005) (slip op. at 3) (Terry III). The PCR judge denied relief, id. at 4, and we affirmed, id. at 6-7.
Defendant then filed a petition for a writ of habeas corpus under 28 U.S.C.A. § 2253(c)(2), which was dismissed as untimely by order and opinion of August 16, 2006. Terry v. Cathel, No. 05-4644(DRD) (D.N.J. Aug. 16, 2006) (slip op. at 1), appeal denied, No. 06-4212 (3d Cir. Apr. 19, 2007) (Terry IV). No certificate of appealability was issued because "jurists of reason would not find it debatable whether the [p]etition is time-barred." Id. at 11. The United States Court of Appeals for the Third Circuit denied defendant's subsequent application for a certificate of appealability by order of April 19, 2007, because it was time-barred. Terry v. Cathel, No. 06-4212 (3d Cir. Apr. 16, 2007). Defendant's sur-petition for en banc rehearing was denied as well. Terry v. Cathel, No. 06-4212 (3d Cir. Jun. 6, 2007). The United States Supreme Court then denied defendant's petition for a writ of certiorari. Terry v. Ricci, 552 U.S. 1024; 128 S.Ct. 616; 169 L.Ed. 2d 397 (2007). Defendant subsequently filed an application to file a second or successive petition under 28 U.S.C.A. § 2254, which was denied. In re Terry, No. 08-1795 (3d Cir. May 22, 2008) (Terry V).
Defendant promptly filed his third PCR petition with the Law Division on June 10, 2008--almost twelve years after his convictions. He argued in his petition:
POINT I - DEFENDANT IS ACTUALLY INNOCENT OF THE GREATER CRIME OF MURDER AND THEREFORE PREVAILS IN SATISFYING THE TWO PRONGS UNDER THE STRICKLAND*fn1 STANDARD REQUIRING THAT IF NOT FOR ATTORNEY'S INEFFECTIVENESS THE OUTCOME OF TRIAL WOULD HAVE BEEN DIFFERENT. POINT II -- CONSTITUTIONAL CLAIMS, BOTH STATE AND FEDERAL IN THE INTEREST OF JUSTICE REQUIRE RELAXING THE PROCEDURAL BAR.
On May 8, 2009, the PCR judge issued the following decision:
Your letter in support of a change of sentence has been referred to me for review. Please note, however, th[at] N.J.S.A. 2C:44-5(a) states:
... when multiple sentences of imprisonment are imposed on a defendant for more than one offense... such multiple sentences shall run concurrently or consecutively as ...