On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 89-12-2517.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2011
Before Judges Yannotti and Skillman.
Defendant David Goodwin appeals from an order entered by the Law Division on January 4, 2010, denying his third petition for post-conviction relief (PCR). We affirm.
Defendant was tried before a jury and found not guilty of knowing and purposeful murder, N.J.S.A. 2C:11-3(a)(1); but guilty of felony murder, N.J.S.A. 2C:11-3(a)(3); armed robbery, N.J.S.A. 2C:15-1; unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). After appropriate mergers, the court sentenced defendant to thirty years of incarceration, with a thirty-year period of parole ineligibility for the felony murder, and a concurrent term of five years for unlawful possession of a weapon.
On direct appeal, we affirmed defendant's conviction and sentence. State v. Goodwin, No. A-3742-90 (App. Div. Mar. 12, 1993). The Supreme Court denied defendant's petition for certification. State v. Goodwin, 134 N.J. 475 (1993).
In January 1994, defendant filed his first petition for PCR, which the trial court denied by order entered on February 23, 1995. Defendant appealed and argued that the PCR judge should have disqualified herself and he was denied the effective assistance of trial, appellate and PCR counsel. We found no merit in these arguments and affirmed the denial of PCR. State v. Goodwin, No. A-3771-94 (App. Div. Nov. 17, 1997). The Supreme Court denied defendant's petition for certification. State v. Goodwin, 153 N.J. 214 (1998).
In August 1998, defendant filed his second petition for PCR. He claimed that he was denied the effective assistance of trial counsel because counsel failed to: properly investigate the circumstances of his original arrest; properly prepare defendant for trial; call character witnesses on defendant's behalf; and challenge the "admissibility" of the State's witnesses. He also claimed that he was denied the effective assistance of PCR counsel because counsel failed to: properly investigate the circumstances of the original arrest; take depositions from potential character witnesses regarding their availability for trial; secure an evidentiary hearing regarding the ineffectiveness of trial counsel; and take depositions of co-defendant and others regarding defendant's plea agreement. In addition, defendant alleged that he was not given a full and fair opportunity to review the trial evidence and present his case in violation of his right to due process.
The trial court entered an order dated July 29, 1999, denying defendant's petition. We reversed the trial court's order and remanded the matter for a hearing on defendant's claim that he was denied the effective assistance of counsel because his trial attorney did not challenge his arrest, the search of his vehicle or subsequent confession. State v. Goodwin, No. A-277-99 (App. Div. May 18, 2001) (slip. op. at 23-24).
The Supreme Court granted the State's petition for certification and reversed. State v. Goodwin, 173 N.J. 583 (2002). The Court held that defendant's second PCR petition was barred by Rule 3:22-12(a) because it had not been filed within five years after entry of the judgment of conviction and because defendant had not established that his failure to raise his claims within the time required was due to "excusable neglect." Id. at 589. The Court additionally determined that relaxation of the time bar was not required because of a some fundamental injustice or constitutional error. Id. at 595.
The Court also found that, even if the petition was not time-barred, the court did not err by denying PCR because defendant failed to establish a prima facie case of ineffective assistance of counsel. Id. at 596. The Court concluded that the police had probable cause to arrest defendant and, therefore, counsel was not ineffective for failing to challenge the arrest, the search of the vehicle or defendant's subsequent confession. Id. at 600-01.
Thereafter, defendant filed his third PCR petition, in which he raised the following contentions:
POINT 1 POST-CONVICTION RELIEF [RULES] 3:22-4 AND 3:22-12 DO NOT BAR THE COURT'S ...