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State v. Holmes

November 3, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STANLEY HOLMES, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-01-0032.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 14, 2010

Before Judges Axelrad and J. N. Harris.

Defendant Stanley Holmes appeals from the denial of his application for post-conviction relief (PCR) and an evidentiary hearing. We affirm.

In December 2004,*fn1 defendant was convicted by a jury of first-degree armed robbery, N.J.S.A. 2C:15-1 (counts three and four); second-degree burglary, N.J.S.A. 2C:18-2 (count seven); and first-degree kidnapping, N.J.S.A. 2C:13-1(b) (counts ten and eleven). On January 28, 2005, the Law Division imposed an aggregate term of thirty-five years incarceration, subject to the minimum term required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant pursued a direct appeal, which resulted in our affirmance of the convictions and related sentences,*fn2 and the Supreme Court thereafter denied certification. State v. Holmes, No. A-3429-04T4 (App. Div. Aug. 1, 2007), certif. denied, 194 N.J. 268 (2008).

The instant PCR was commenced by defendant's pro se petition in September 2008. In December of that year, assigned counsel submitted an amended petition on defendant's behalf. On January 27, 2009, Judge Donald R. Venezia denied defendant's application without an evidentiary hearing. This appeal followed.

Defendant has presented to this court the following arguments as contained in his appellate brief:

POINT I: THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE EVEN IF NON-DISCLOSURE OF THE TRUE STATUS OF TERRELL'S DEALINGS WITH THE UNITED STATES ATTORNEY DID NOT RESULT IN A BRADY V. MARYLAND VIOLATION, THE MISREPRESENTATION MADE BY THE PROSECUTOR RESULTED IN A VIOLATION OF THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL AND A VIOLATION OF THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION.

POINT II: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE AS A RESULT OF THE PROSECUTOR'S MISREPRESENTATIONS, TRIAL COUNSEL'S PERFORMANCE IN HIS OPENING STATEMENT, DURING HIS CROSS-EXAMINATION OF TERRELL, AND IN HIS SUMMATION, WAS DEFICIENT AND THE ENSUING PREJUDICE TO THE DEFENDANT SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III: DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST CONVICTION RELIEF

(A) TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST FACT-SPECIFIC JURY INSTRUCTIONS ON ACCOMPLICE LIABILITY AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE ON APPEAL.

(B) APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE AS AN ISSUE ON APPEAL THE TRIAL COURT'S RULING DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ...


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