On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 01-01-0266 and 01-02-0487.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 18, 2011
Before Judges A.A. Rodriguez, Grall and C.L. Miniman.
Defendant Anthony Diggs appeals the denial of his applica- tion for post-conviction relief (PCR) based on a claim that he was denied a fair trial because one of the jurors was acquainted with either the victim or one of defendant's family members and because his trial counsel was ineffective. He asserts that an evidentiary hearing was required with respect to these two claims. We conclude that defendant has failed to establish a prima facie case and affirm.
On January 19, 2001, the Essex County Grand Jury returned an indictment charging defendant and his co-defendant, Thoeoke Jackson, with second-degree conspiracy to commit murder, con- trary to N.J.S.A. 2C:5-2 and 2C:11-3 (count one); first-degree purposeful or knowing murder, contrary to N.J.S.A. 2C:11-3a (count two); third-degree unlawful possession of a handgun, con- trary to N.J.S.A. 2C:39-5b (count three); and second-degree pos- session of a handgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count four). Defendant was also charged in a second indictment with second-degree certain persons not to have weapons, contrary to N.J.S.A. 2C:39-7b.
After the first trial resulted in a hung jury, defendant and Jackson were tried commencing April 29, 2003, before a judge and jury. The jury returned its verdict on May 9, 2003, acquit- ting defendant on counts one, two, and four. The jury convicted defendant of the lesser-included offense of second-degree pas- sion/provocation manslaughter, contrary to N.J.S.A. 2C:11-4b(2).
He was also convicted on count three. Following the jury ver- dict, defendant waived his right to a jury trial on the second indictment, and the judge convicted him of certain persons not to have weapons.*fn1
Defendant moved for a new trial. His motion was denied on July 1, 2003. The judge granted the State's motion to sentence defendant as a persistent offender and imposed concurrent terms aggregating eighteen years subject to the parole disqualifier of the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed defendant's convictions, remanding for resentencing in light of State v. Pierce, 188 N.J. 155 (2006), and State v. Thomas, 188 N.J. 137 (2006), and the Supreme Court denied certification on the State's petition and defendant's cross-petition. State v. Jackson, Nos. A-4082-03 and A-4688-03 (App. Div. Mar. 12, 2007), certif. denied, 192 N.J. 74 & 292 (2007). As of August 19, 2008, defendant had not yet been resentenced.
Because the facts establishing defendant's guilt beyond a reasonable doubt are not relevant to the issues presented on appeal, we need not discuss the evidence presented at trial and incorporate our earlier discussion of the proofs at trial by reference herein. Jackson, supra, slip op. at 3-9. Suffice it to say that defendant and Jackson became involved in a confrontation with the victim, which escalated to gun violence resulting in the victim's death. Further, because the issues raised on this appeal could not have been raised earlier, we need not discuss the issues presented for our resolution on direct appeal. See id. at 20-28.
On February 19, 2008, defendant filed a timely pro se PCR petition. He asserted that he had been denied a fair trial and the effective assistance of counsel. His entire certification follows:
1. I am the defendant in this matter.
2. Following my conviction[,] during a telephone conversation with one of my cousins[,] I learned that one of the jurors, [K.K.], was acquainted ...