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State v. Ashford

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 20, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GREGORY ASHFORD, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 01-08-0829.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: July 20, 2010

Before Judges R.B. Coleman and C.L. Miniman.

Defendant Gregory Ashford appeals from the denial of his petition for post-conviction relief (PCR) following his September 16, 2002, conviction of conspiracy to commit armed robbery, contrary to N.J.S.A. 2C:5-2 and 2C:15-1; armed robbery, contrary to N.J.S.A. 2C:15-1; unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b; and possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a. The jury determined that defendant committed a violent crime within the meaning of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was sentenced to ten years in prison with an eighty- five-percent parole ineligibility term on the armed-robbery conviction. He received a concurrent five-year term on the possession of a weapon for an unlawful purpose, a concurrent four-year term for conspiracy to commit armed robbery, and a concurrent four-year term for unlawful possession of a weapon.

We affirmed defendant's conviction but reversed and remanded for resentencing and correction of the judgment of conviction. State v. Ashford, No. A-2399-02 (App. Div. Nov. 17, 2004) (slip op. at 3) (Ashford I), certif. denied, 184 N.J. 210 (2005) (Ashford II). We now affirm the denial of PCR.

Around two a.m. on May 4, 2001, Manuel Marchaney drove to his home in New Brunswick. As he approached his neighborhood, he stopped at the corner of Rutgers Street and Lee Avenue where he noticed an old Buick flash its lights. Marchaney turned right onto Lee Avenue and then right onto Ellen Street. As he pulled into his driveway, he noticed the car driving by slowly and making a u-turn. As he got out of his car, two men approached him and asked for the time. One man was about five feet eight inches tall, and the other was about six feet tall.

The shorter man, who was wearing a black shirt, pulled out a gun, pointed it at Marchaney's head, and demanded money. Marchaney started to retrieve his wallet when the shorter man hit him on the head with the gun. As Marchaney fell to his knees, the taller man, who was wearing dark jeans and a dark shirt, took the wallet from his pocket. Marchaney testified that he could see the face of the shorter man as he held the gun to his head and could see the face of the taller man as he pulled the wallet from his pocket.

The two men fled in the direction of Lee Avenue. Marchaney went inside his home and called 9-1-1. Using a cordless telephone, Marchaney went back outside as he was speaking to the 9-1-1 operator. Marchaney crossed the street and went behind a building on the corner of Lee and Ellen. He told the dispatcher that the robbers had a gun and were in a white Cadillac. After the white Cadillac drove away, Marchaney saw two males standing by a blue Buick, one of whom was by the trunk of the car.

Police officers arrived within five minutes of the 9-1-1 call and arrested both men, defendant and his co-defendant, Michael Akins. The wallet was not with the two robbers but was found on the top of a tire on a nearby car. On a tire of another nearby car, the officers found the gun. Both cars were very close to the location where Marchaney saw the two robbers. One of the police officers saw defendant walk past the car where the wallet was found.

In the meantime, Marchaney had returned home to await an ambulance. At the hospital, the police told Marchaney that the suspects were in custody and that they were looking for the gun and wallet. Later the police returned to the hospital and showed Marchaney two sets of photographs from which he identified pictures of the defendant and Akins. He identified defendant as the short man with dreadlocks*fn1 who had the gun, and he identified Akins as the taller man who took his wallet. Upon release from the hospital, Marchaney gave a taped statement to the police. In that statement he admitted that, due to poor lighting conditions, he could not see the faces of the two men while they were robbing him in his driveway.

Marchaney also testified at trial that the male he saw standing by the trunk of the Buick was checking his wallet, but on cross-examination admitted he did not actually see the wallet in the man's hands. Also, during his direct testimony, Marchaney identified a photograph of the perpetrator who had dreadlocks as being the one who had the gun, but when questioned by the court, testified that the taller man had the dreadlocks.

He reaffirmed this testimony on redirect examination.

Defendant took the stand and testified that Akins met him at his home on the evening in question. After some time, they decided to go to Akins' home in Rahway to spend the night. On the way, they had a flat tire on Lee Avenue. Akins got out of the car to get the jack from the trunk. While sitting in Akins' car, defendant observed two men get into a white car that was parked somewhere between Akins' car and the next intersection; they drove off. Defendant walked down to the intersection of Lee and Rutgers Street to look for someone to help them. He saw a police car approaching on Rutgers and intended to flag it down, but he saw the police car stop by Akins' car and started walking back to it. One of the policemen approached him and placed him under arrest.

Prior to summations, defense counsel moved to preclude the prosecutor from representing during her Power-Point presentation that the shorter actor had dreadlocks. Counsel urged that such a representation was contrary to the testimony of Marchaney, who had testified on multiple occasions that the taller man had the dreadlocks. The judge denied this motion. Consequently, there were two occasions during the prosecutor's summation when she represented that Marchaney testified the shorter actor had the dreadlocks. During the summation, defense counsel objected, and the court overruled the objection, stating that the jury was to rely on its own recollection.

After summations, trial counsel's motion for a mistrial or a curative instruction was denied. Trial counsel's post-verdict motion for a new trial or judgment of acquittal notwithstanding the verdict was also denied. That motion was based on Marchaney's testimony that the short robber with the gun had a bandana on his head and the tall robber who pulled out his wallet had the dreadlocks.

On his direct appeal, defendant's appellate counsel raised the following issues:

POINT I -- THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY THAT PRIOR INCONSISTENT STATEMENTS COULD BE USED TO IMPEACH THE CREDIBLITY OF WITNESSES CONSTITUTES REVERSIBLE ERROR BECAUSE THE INSTRUCTION WAS BOTH SPECIFICALLY REQUESTED BY DEFENSE COUNSEL AND CRITICAL TO THE DEFENSE.

POINT II -- THE TRIAL COURT'S FAILURE TO CHARGE "MERE PRESENCE" DEPRIVED DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).

POINT III -- THE CONSPIRACY CONVICTION SHOULD HAVE BEEN MERGED WITH THE CONVICTION FOR THE SUBSTANTIVE CRIME (NOT RAISED BELOW).

POINT IV -- THE FINE IMPOSED UPON DEFENDANT MUST BE VACATED AS IT WAS NOT IMPOSED IN COMPLIANCE WITH THE CODE OF CRIMINAL JUSTICE.

In a pro se supplemental brief, the defendant raised the following issues, which we have renumbered to run consecutively to appellate counsel's points on appeal:

POINT V -- THE STATE FAILED TO ESTABLISH THEIR BURDEN OF PROOF AND THE TRIAL COURT FAILED TO PROTECT DEFENDANT'S RIGHT TO A FAIR TRIAL BY ALLOWING THE BURDEN TO SHIFT FROM THE PROSECUTION TO THE DEFENSE.

POINT VI -- THE TRIAL COURT ERRED BY DENYING DEFENSE COUNSEL'S REQUESTS TO HAVE THE VICTIM'S TESTIMONY READ BACK TO THE JURY.

POINT VII -- IMPROPER REMARKS AND THE KNOWING PRESENTMENT OF FALSE AND MISLEADING EVIDENCE BY THE PROSECUTOR DURING SUMMATION WERE HIGHLY PREJUDICIAL TO THE DEFENDANT AND THE FAIRNESS OF THE TRIAL, CONSTITUTING HARMFUL ERROR.

POINT VIII -- DENIAL OF DEFENSE COUNSEL'S APPLICATION FOR A MISTRIAL WAS ERRONEOUS.

We affirmed the convictions on all counts, but remanded for resentencing and merger of the conspiracy conviction with the armed robbery conviction for purposes of sentencing. Ashford I, supra, slip op. at 6-11. We did not mention the issues raised by defendant pro se, although we addressed each of the arguments presented by defendant's appellate counsel. We presume that the panel in Ashford I found these issues to be so lacking in merit that discussion in the written opinion was not warranted.

Defendant filed his PCR petition on September 19, 2007, and raised the following issues:

POINT I -- A REASONABLE JURY COULD NOT HAVE FOUND GUILT BEYOND A REASONABLE DOUBT.

A. STATEMENTS CONTEMPORANEOUS TO THE EVENT AFFIRMATIVELY CONTRADICTED TRIAL TESTIMONY.

B. THE PHYSICAL EVIDENCE WAS INCONSISTENT WITH THE DEFENDANT'S GUILT.

C. THE STATE'S PROOFS WERE INHERENTLY UNRELIABLE.

POINT II -- THE VERDICT OF THE JURY WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT III -- PROSECUTOR MISCONDUCT IN SUMMATION.

POINT IV -- THE ABDICATION OF THE RESPONSIBILITY OF THE TRIAL COURT TO ASSURE THE DEFENDANT HIS RIGHT TO A FAIR TRIAL BY ALLOWING THE PROSECUTOR TO MAKE FALSE AND MISLEADING ARGUEMENTS [SIC] TO THE JURY ON A CRITICAL ITEM OF TESTIMONY REGARDING THE VICTIM'S DESCRIPTION OF HIS ASSAILANTS.

POINT V -- THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY THAT PRIOR INCONSISTENT STATEMENTS COULD BE USED TO IMPEACH THE CREDIBLITY OF WITNESSES.

POINT VI -- THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS, ONE[-]SIDED, PREJUDICIAL INSTRUCTION ON THE LAW OF CIRCUMSTANTIAL EVIDENCE.

POINT VII -- THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS AND PREJUDICIAL INSTRUCTION TO THE JURY ON THE LAW OF CONSTRUCTIVE POSSESSION.

POINT VIII -- THE TRIAL COURT'S FAILURE TO CHARGE "MERE PRESENCE" DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT IX -- THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY THAT PRIOR INCONSISTENT STATEMENTS COULD BE USED TO IMPEACH THE CREDIBLITY OF WITNESSES CONSTITUTES REVERSIBLE ERROR BECAUSE THE INSTRUCTION WAS BOTH SPECIFICALLY REQUESTED AND CRITICAL TO THE DEFENSE.

POINT X -- THE STATE FAILED TO ESTABLISH THEIR BURDEN OF PROOF AND THE TRIAL COURT FAILED TO PROTECT DEFENDANT'S RIGHT TO A FAIR TRIAL BY ALLOWING THE BURDEN TO SHIFT FROM THE PROSECUTION TO THE DEFENSE.

POINT XI -- THE TRIAL COURT ERRED BY DENYING DEFENSE COUNSEL'S REQUESTS TO HAVE THE VICTIM'S TESTIMONY READ BACK TO THE JURY DEPRINING [SIC] THE DEFENDANT OF A FAIR TRIAL.

POINT XII -- THE PROSECUTOR WAS NO MORE THAN A ROGUE PROSECUTOR IN THIS CASE AND HER ROGUE TACTICS AND COURT BEHAVIOR JUST TO GET A CONVICTION VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL AND EQUAL PROTECTION UNDER THE LAW.

POINT XIII -- IMPROPER REMARKS AND THE KNOWING PRESENTMENT OF FALSE AND MISLEADING EVIDENCE BY THE PROSECUTOR DURING SUMMATION WERE HIGHLY PREJUDICIAL TO THE DEFENDANT AND THE FAIRNESS OF THE TRIAL, CONSTITUTING HARMFUL ERROR AND DEPRIVING DEFENDANT OF A FAIR TRIAL.

POINT XIV -- DENIAL OF DEFENSE COUNSEL'S APPLICATION FOR A MISTRIAL WAS ERRONEOUS AND DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER THE LAW.

POINT XV -- INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PART OF TRIAL LAWYER, JACK VENTURI.

POINT XVI -- INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PART OF APPELLATE LAWYER, BARBARA A. HEDEEN.

POINT XVII -- PROSECUTOR FAILED TO PRESENT EXCULPATORY EVIDENCE OF WHICH SHE WAS AWARE TO THE GRAND JURY VIOLATING DEFENDANT'S RIGHT TO DUE PROCESS OF LAW.

POINT XVIII -- THE TRIAL COURT FAILED TO PROTECT DEFENDANT'S RIGHTS OF DUE PROCESS OF LAW AND KNOWINGLY WAIVED THE DEFENDANT'S RIGHT TO HAVE AN EVIDENTIARY HEARING BEFORE PLEADING IN THE COURT.

Additionally, defendant's PCR counsel raised the following issues in support of defendant's petition, which we have renumbered to run consecutively to the points raised by defendant pro se:

POINT XIX -- BECAUSE TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL, AND BECAUSE THE PETITIONER WAS PREJUDICED THEREBY, THE COURT SHOULD GRANT HIS MOTION FOR POST-CONVICTION RELIEF; IN THE ALTERNATIVE, BECAUSE THE PETITIONER HAS PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAD BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD GRANT HIM AN EVIDENTIARY HEARING ON THIS ISSUE.

A. THERE ARE NO PROCEDURAL BARS.

B. COUNSEL FAILED TO COMMUNICATE WITH HIS CLIENT AS REQUIRED BY THE RULES OF PROFESSIONAL RESPONSIBILTY OF THE STATE OF NEW JERSEY.

C. COUNSEL FAILED TO MOVE FOR RELIEF FROM PREJUDICIAL JOINDER.

D. APPELLATE COUNSEL WAS INEFFECTIVE BY NOT RAISING A WINNING ISSUE: THE IDENTIFICATION ISSUE, RAISED BY TRIAL COUNSEL.

E. APPELLATE COUNSEL WAS INEFFECTIVE BY NOT RAISING ERROR ON THE PART OF THE TRIAL COURT IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AND FOR A NEW TRIAL BASED UPON THE FACT THAT THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT XX -- THE PROSECUTOR ENGAGED IN MISCONDUCT.

POINT XXI -- THE TRIAL COURT ERRED DURING THE TRIAL[,] WHICH RESULTED IN A DENIAL OF A FAIR TRIAL FOR THE DEFENDANT.

A. THE COURT ERRED BY ALLOWING LATE DISCOVERY INTO THE TRIAL TO THE DEFENDANT'S PREJUDICE.

B. THE COURT ERRED BY PERMITTING PHOTOGRAPHIC EVIDENCE[,] WHICH WAS NOT PROVEN TO ACCURATELY AND FAIRLY REFLECT WHAT WAS CONTAINED IN THE PHOTOGRAPHS.

C. THE TRIAL COURT ERRED BY NOT ALLOWING A READBACK TO THE JURY OF THE IDENTIFICATION EVIDENCE BY THE VICTIM.

D. THE TRIAL COURT ERRED BY ALLOWING THE BURDEN OF PROOF TO SHIFT TO THE DEFENDANT WITH REGARD TO THE IDENTIFICATION ISSUE.

POINT XXII -- APPELLATE COURT ERRED BY AFFIRMING DEFENDANT'S CONVICTION.

POINT XXIII -- THE RECORD IS REPLETE WITH ERROR.

First, in addressing these issues, the PCR judge found that defendant had failed to prove either prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the two-part test of Strickland in New Jersey). The judge found that all issues of trial error that had been raised on direct appeal were procedurally barred by Rule 3:22-5. Next, the judge found that all issues that were not raised on direct appeal were procedurally barred by Rule 3:22-4 because they could have been raised on direct appeal. Finally, the PCR judge found that he was precluded from considering the "winning" identification issue, which had not been raised on direct appeal, because it involved an issue of fact and he could not "act as a [thirteenth] juror and rehash findings of facts," citing Dolson v. Anastasia, 55 N.J. 2 (1969). The judge entered an order denying PCR on June 6, 2008. This appeal followed on October 20, 2008. Defendant raises four issues for our consideration on appeal:

POINT I -- THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE COURT MISAPPLIED THE PROCEDURAL BARS OF R. 3:22-4 AND R. 3:22-5.

POINT II -- THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE COURT APPLIED AN IMPROPER "OUTCOME DETERMINATIVE" STANDARD FOR PREJUDICE INSTEAD OF APPROPRIATE R. 3:22-2 CRITERIA IN FINDING THAT APPELLATE COUNSEL WAS NOT INEFFECTIVE.

POINT III -- THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION.

POINT IV -- DEFENDANT REASSERTS ALL OTHER ISSUES RAISED [IN] DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.

We review the legal conclusions of a PCR judge de novo.

State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens- Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Id. at 420 (citing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S.Ct. 3055, 120 L.Ed. 2d 921 (1992)), and accord deference to credibility determinations, id. at 420-21 (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997), cert. denied, 522 U.S. 1119, 118 S.Ct. 1059, 140 L.Ed. 2d 121 (1998)). However, where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Ibid. Where no credibility determinations have been made, "we invoke our original jurisdiction in the review of th[e] matter." Ibid.

Such a review is appropriate here as there was no evidentiary hearing and no credibility determinations were made. PCR is governed by Rule 3:22. The Rule specifically describes the grounds that are cognizable for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law if raised together with other grounds cognizable under paragraph (a), (b), or (d) of this rule. Otherwise, a claim alleging the imposition of sentence in excess of otherwise not in accordance with the sentence authorized by law shall be filed pursuant to R. 3:21-10(b)(5).

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

[R. 3:22-2.]

The issues raised by defendant fall exclusively within Subsection (a) of the Rule. However, the scope of the issues that can be raised under Rule 3:22-2 are limited by other provisions of Rule 3:22. First, PCR "is not . . . a substitute for appeal from conviction or for motion incident to the proceedings in the trial court, and may not be filed while such appellate review or motion is pending." R. 3:22-3.

Second, a ground for relief that was not raised in the conviction proceedings or any appeal from the conviction "is barred from assertion in a proceeding under this rule." R. 3:22-4(a). There are, however, three exceptions to the general rule if "the court on motion or at the hearing finds:"

(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or

(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or

(3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.

A ground could not reasonably have been raised in a prior proceeding only if defendant shows that the factual predicate for that ground could not have been discovered earlier through the exercise of reasonable diligence.

[Ibid.]

Third, "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings." R. 3:22-5.

In addition to these substantive limitations, there are also time limitations. See R. 3:22-12. In pertinent part, the Rule provides that:

no petition shall be filed pursuant to this rule more than 5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true[,] enforcement of the time bar would result in a fundamental injustice.

[R. 3:22-12(a)(1).]

Additionally, Rule 3:22-12(c) provides that "[t]hese time limitations shall not be relaxed, except as provided herein." Moreover, the Supreme Court has emphasized the importance of adhering to the procedural bars. State v. Echols, 199 N.J. 344, 357 (2009); State v. Goodwin, 173 N.J. 583, 594 (2002). Defendant's PCR petition was filed more than five years after entry of the judgment of conviction and is thus barred under Rule 3:22-12(c) unless his petition alleges facts constituting excusable neglect and there is a reasonable probability that enforcement of the time bar "would result in a fundamental injustice." Ibid. In his verified petition, defendant avers that he was sentenced on September 16, 2002, and thus he knew that his September 19, 2007, petition was out of time. He further knew that we had decided his appeal because he alleged ineffective assistance of appellate counsel. Yet, he did not explain why his PCR petition was not filed within time.

There simply is no account given of the time that elapsed after his September 16, 2002, conviction and our decision on June 21, 2005 and thereafter. As such, defendant's petition is time barred, and neither the PCR judge nor this court could extend the time to file a petition.

Even were this not so, defendant's petition in large measure is barred by Rules 3:22-4 and -5, as the PCR judge held. With respect to the latter rule, the issues raised before the PCR judge in defendant's Points III, IV, V, VIII, IX, X, XI, XIII, and XIV, are barred as these issues were previously adjudicated. Ashford I, supra, slip op. at 6-11. Furthermore, the issues raised before the PCR judge in defendant's Points I, II, VI, VII, XII, XX, XXI, and XXIII are all issues that could and should have been raised on direct appeal from defendant's conviction and are barred by Rule 3:22-4(a). Additionally, none of the exceptions to the Rule have been established here. See Rule 3:22-4(a)(1) to (3). As such, consideration of these issues was properly barred. State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998), aff'd and remanded, 162 N.J. 240 (2000); State v. Morales, 120 N.J. Super. 197, 200 (App. Div.) certif. denied, 62 N.J. 77 (1972); State v. Odom, 113 N.J. Super. 186, 189 (App. Div. 1971).

With respect to defendant's Points XVII and XVIII, there is no evidence before us that supports defendant's claims that the prosecutor failed to present exculpatory evidence to the grand jury or that the trial judge "knowingly waived the defendant's right to have an evidentiary hearing before pleading in the court." Bare allegations without supporting certifications or evidence of record cannot support PCR. State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.), certif. denied, 162 N.J. 199 (1999).

With respect to PCR counsel's Point XXII, the Supreme Court denied certification of our disposition of defendant's appeal. Ashford II, supra, 184 N.J. at 210. Our disposition is no longer subject to review and constitutes the law of the case. State v. Hale, 127 N.J. Super. 407, 410-11 (App. Div. 1974). We will not reconsider it.

Defendant's remaining Points XV, XVI and XIX all assert claims of ineffective assistance of trial and appellate counsel. The PCR judge concluded that defendant had not made a prima facie showing that his trial and appellate counsel were ineffective. We conclude that defendant's arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We would affirm substantially for the reasons expressed by the PCR judge in his oral opinion delivered on June 6, 2008.

Affirmed.


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