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State of New Jersey v. Fuquan Khalif

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 8, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FUQUAN KHALIF, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 91-01-0437.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 3, 2011

Before Judges Lisa and Alvarez.

Defendant Fuquan Khalif appeals from the denial of his fourth post-conviction relief (PCR) application. For the reasons set forth below, we affirm.

On May 8, 1992, defendant was sentenced to life in prison plus forty years subject to a fifty-year parole disqualifier as the result of guilty verdicts rendered by a jury on charges of first-degree attempted murder, second-degree burglary, second-degree aggravated assault, second-degree possession of a weapon for an unlawful purpose, and murder. His convictions were affirmed, State v. Khalif, No. A-0553-92 (App. Div. Jan. 23, 1995), and certification was denied April 27, 1995. State v. Khalif, 140 N.J. 327 (1995). The denial of his first PCR petition was affirmed on October 29, 1999, and the Supreme Court denied certification on February 16, 2000. State v. Khalif, 163 N.J. 76 (2000). A second application was filed and denied October 15, 2001. State v. Khalif, No. A-1201-00 (App. Div. Oct. 15, 2001). A third application was filed and denied on April 6, 2009. State v. Khalif, No. A-0487-07 (App. Div. Apr. 6, 2009). This is defendant's fourth PCR petition.

Defendant appeals the August 20, 2009 decision denying this fourth petition based on the time bar of Rule 3:22-12(a), which states that no petition may be filed beyond five years of the date of sentence "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." As the PCR judge explained in his written decision, no excusable neglect has been asserted by defendant. In the absence of excusable neglect, defendant's PCR concerns should have been addressed in a petition filed prior to 1998.

Furthermore, on this appeal, defendant has not provided a copy of the indictment, a transcript, or procedural history. See R. 2:6-1; R. 2:6-2. Thus, we cannot determine whether the PCR judge erred by denying the petition as a result of the five-year time bar. It is defendant's obligation, not the court's, to supply the information necessary for meaningful appellate review. See State v. Hild, 148 N.J. Super. 294 (1977).

Affirmed.

20110208

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