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State of New Jersey v. E. Lee White

March 28, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
E. LEE WHITE,
DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 82-06-0804.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 31, 2011

Before Judges Kestin and Newman.

Defendant, E. Lee White, appeals from the trial court's denial of his petition for post-conviction relief. R. 3:22. He advances two related arguments on appeal:

POINT ONE

THE PCR COURT ERRED BY DENYING [DEFENDANT'S] CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT TWO

[DEFENDANT] IS ENTITLED TO A REMAND BECAUSE THE PCR COURT DID NOT PROPERLY ADDRESS TWO CLAIMS IDENTIFIED BY THE [UNITED STATES] DISTRICT COURT FOR EXHAUSTION: THE INSUFFICIENCY OF EVIDENCE AND THE VIOLATION OF [DEFENDANT'S] CONSTITUTIONAL RIGHTS BASED ON THE TESTIMONY OF CO-CONSPIRATORS.

We affirm.

Defendant is serving a life term of imprisonment with twenty-five years of parole ineligibility for murder and related crimes. The sentence was imposed in February 1985 following a forty-seven-day trial. We affirmed the convictions in 1988, in an unreported decision, State v. White, No. A-3226-84T4 (App. Div. April 18, 1988); and the Supreme Court denied certification in an order reported at 113 N.J. 651 (1988).

In 1992, defendant moved for a new trial based on newly-discovered evidence. He has consistently, since, referred to that motion also as a petition for post-conviction relief (PCR). In 1994, the motion was denied and, in 2000, in another unreported decision, State v. White, No. A-5362-96T4 (App. Div. January 16, 2000), we affirmed. The Supreme Court denied certification in an order reported at 164 N.J. 560 (2000).

In 2001, defendant filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. That application was dismissed without prejudice after defendant "acknowledge[d] in his papers that he ha[d] not fully exhausted his claims." In its order, entered June 28, 2002, the District Court observed that defendant had "failed to present to this Court sufficient facts from which this Court may conclude or infer that he is entitled to an exception to the exhaustion doctrine. This Court concludes that [defendant] is best served by exhausting his claims in the state courts."

The underlying facts of the matter and the various procedural histories were fully set out in the various orders and opinions that have issued throughout this matter, including in our opinions in the prior appeals. There is no need to repeat them in this opinion except to note that the motion for a new trial involved recantations by two witnesses who had, in the initial trial, provided testimony that supported the State's case against defendant. Also, the attorney retained by defendant to represent him on ...


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