On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 94-01-0133.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 22, 2011
Before Judges Kestin and Newman.
Defendant James Leak appeals from an order denying his second petition for post-conviction relief (PCR). We affirm.
By way of background, defendant was tried by Judge Wertheimer and a jury. He was found guilty and sentenced to life with a thirty-year parole disqualifier for murder, and a consecutive five years subject to two and one-half years of parole ineligibility on an unlawful possession of a weapon charge.
Defendant's conviction was affirmed by this court on direct appeal, State v. Leak, No. A-1988-94 (App. Div. Jan. 23, 1996), and the Supreme Court denied his petition for certification, 144 N.J. 337 (1996). Defendant later filed a petition for PCR, the denial of which was upheld by this court. State v. Leak, No. A-2973-99 (App. Div. Jan. 6, 2003). In affirming, this court noted that defendant was not precluded "from pursuing any relief which may be available by filing a motion for a new trial under R. 3:22-4." Id. at 9. The Supreme Court denied certification. 177 N.J. 221 (2003).
Defendant then filed a motion for a new trial on the basis of newly-discovered evidence contending that a number of the State's witnesses perjured themselves and he should be entitled to a new trial. That motion for a new trial was denied by Judge Wertheimer. This court affirmed the denial of the motion for a new trial. State v. Leak, No. A-3485-05 (App. Div. Feb. 4, 2008). The Supreme Court denied certification. 195 N.J. 421 (2008).
In his second petition for PCR, in pertinent part, defendant argued that the court should have considered certifications alleging that the [S]tate's witnesses perjured themselves and that counsel for his first PCR should have submitted the certifications regardless of the court's refusal to accept them. He sought a reversal of his conviction and the granting of a new trial or a full evidentiary hearing.
The essential facts surrounding the murder conviction, which were summarized in this court's opinion affirming the denial of defendant's first PCR petition, Leak, supra, A-2973-99, slip op. at 2-7, itself quoting from this court's opinion affirming his conviction on direct appeal, were that defendant acted as an enforcer for a drug dealer. That dealer, Anthony Martin, was shot and sought revenge, directing that defendant shoot one "Antoine." Id. at 4. Defendant then proceeded to shoot Antoine Phillips in the back with four shots, which was actually witnessed by various persons, as well as others who saw him flee from the scene. Id. at 3-4. Unfortunately for Phillips, defendant shot the wrong Antoine. Id. at 4. Based on Martin's direction, defendant should have retaliated against Antoine Adams, a rival drug operator, who was selling drugs at a higher price than that of Martin. Ibid.
Initially, Judge Wertheimer signed an order on September 14, 2009, directing the Office of Public Defender to assign representation to defendant on his second PCR petition. The PCR unit of the Public Defender's office sought clarification of the September 14, 2009 order, noting its public funding limitations and the finding of good cause necessary for assignment of counsel, given the appellate history, the prior PCR, and the new-trial motion, and the appeal thereof pursued by defendant.
On reconsideration, Judge Wertheimer found that good cause for the assignment under Rule 3:22-6(b) was not established. As Judge Wertheimer put it,
The arguments that defendant has raised in this PCR are substantially equivalent to those in his prior PCR, as well as his prior motion for a new trial. The issue of the certifications regarding testimony of state witnesses has already been addressed both directly and on appeal. As a result, ...