March 28, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
E. LEE WHITE,
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 82-06-0804.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:
THE PCR COURT ERRED BY DENYING [DEFENDANT'S] CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
[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.
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 the motion for a new trial sent another lawyer in his stead to present defendant's case in the evidentiary hearing that was held.
Following that evidentiary hearing, Judge Saunders, who had presided at the trial, found that the recantations were "incredible, unbelievable." On appeal, we cited this finding and held: "The record fully supports that conclusion. Defendant failed to satisfy his burden of proving that the recantation of testimony was true and the trial testimony false." White, supra, A-5362-96T4 (slip op. at 4).
In that appeal, we also disposed of an argument again advanced in this appeal as part of defendant's contention that he was not accorded effective representation of counsel on his motion for a new trial. We observed: "Second, we see no prejudice in defendant's absence from the hearing. Defendant never asserted the right to be present. He was not scheduled to testify in support of the motion and no application was made to have him be present at the motion hearing." Ibid. We concluded our opinion thusly:
Finally, we reject defendant's contentions that it was per se ineffective assistance of counsel for the defense counsel retained by defendant not to have been at the motion hearing. An associate was present. Our review of the record reveal[s] that defendant's counsel provided more than adequate representation. There simply is no indication that "but for counsel's unprofessional errors, the result of the proceeding would have been different." [Id. (slip op. at 4-5) (quoting Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).]
On October 28, 2003, following the United States District Court's denial without prejudice of defendant's habeas corpus petition, defendant filed this PCR application. The petition was denied on the merits, on June 7, 2007, following an evidentiary hearing at which the court, on two separated days, heard testimony from defendant and the two attorneys who had represented him in the earlier proceeding on the motion for a new trial based on newly-discovered evidence.
As the PCR hearing began, the two issues before the court were announced. They were the same issues we had addressed in the earlier appeal from the denial of the motion for a new trial: whether defendant had a right to be present at the hearing on the motion for a new trial (also referred to by defendant as the first PCR hearing), and whether he had received adequate representation from counsel at that proceeding. Subsequently, in a written opinion, Judge Caposela expressed the reasons for denying the PCR petition.
Judge Caposela found that the representation afforded defendant by the attorney who appeared on his behalf at the hearing on the motion for a new trial "was not constitutionally deficient," and did not "constitute a breach of the first prong of the Strickland test." He opined that even if "arguendo, there was some moderate deficiency[,] there is no support for the Court to find a reasonable probability that the outcome would have been different." As to this issue, he concluded: "Following review of the trial transcript, the motion hearing and live testimony in an evidentiary hearing, this Court finds no constitutional deficiency in either counsel's assistance."
Judge Caposela then posited, with citations of authority, the principle that a defendant's "presence at [PCR] hearings is within the discretion of the court." He observed, also, that the recanting witnesses were, at the time, testifying in defendant's behalf. He explained further that, although
Rule 3:22-10 entitles a defendant to be present at a [PCR] hearing if new testimony is adduced of which the defendant had personal knowledge . . . , the tenor of this rule is the right of confrontation. Since these witnesses previously offered testimony that was incriminating to [defendant], their purpose at this hearing was to exculpate [him] and testify on his behalf.
As to defendant's contention that he could have testified at the hearing, Judge Caposela noted that defendant had "not propose[d] new testimony, but merely a reiteration of that to which he ha[d] already testified."
Summarizing, Judge Caposela concluded that defendant's "rights were not violated, as he did not have a specific right to be present. As well, he was represented by competent counsel that argued on his behalf; [defendant's] presence at the hearing was not required, nor would it have rendered any cognizable benefit to the proceeding."
The record discloses that Judge Caposela conducted the PCR proceeding with scrupulous regard for defendant's rights and interests. We discern no error or misapplication of discretion in his disposition. We are in substantial agreement with his stated rationale for denying the relief sought.
Having rejected defendant's contentions on the merits, we need not address the State's argument that his petition for PCR was time-barred under Rule 3:22-12 because it "was filed long after five years had passed from the date of the judgment of conviction." Nor do we consider the State's argument that the issues raised in this proceeding are barred by operation of Rule 3:22-5 as having been previously addressed.
We also reject the premise of defendant's second point on appeal. The dismissal of his habeas corpus petition without prejudice by the federal district court was based entirely on defendant's "acknowledg[ment] in his papers that he has not fully exhausted his [State] claims [and his] fail[ure] to present [the federal] Court [with] sufficient facts from which [the] Court may conclude or infer that he is entitled to an exception to the exhaustion doctrine." We discern no basis of support in Judge Greenaway's opinion for defendant's contention that the federal court "identified" two claims "for exhaustion: the insufficiency of evidence and the violation of [defendant's] constitutional rights based on the testimony of co-conspirators."
The trial court's denial of the PCR application is affirmed.
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