May 12, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SAMUEL RODRIGUEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 93-10-1157.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 16, 2011
Before Judges Cuff and Simonelli.
Defendant Samuel Rodriguez appeals from the denial of his second petition for post-conviction relief (PCR) grounded on ineffective assistance of trial, appellate and PCR counsel. We affirm.
Following a jury trial, defendant was convicted of murder, N.J.S.A. 2C:11-3a(2); felony murder, N.J.S.A. 2C:11-3a(3); and robbery, N.J.S.A. 2C:15-1. At sentencing on March 6, 1998, the trial judge merged the felony murder conviction with the murder conviction and imposed a term of life imprisonment with a thirty-year parole-ineligibility period. The judge also imposed a consecutive twenty-year term of imprisonment, with a ten-year parole-ineligibility period for the robbery conviction, and the appropriate assessments.
We affirmed defendant's conviction and sentence in an unpublished opinion. State v. Rodriguez, No. A-5095-97 (App. Div. June 3, 1999). Our Supreme Court denied certification. State v. Rodriquez, 162 N.J. 663 (1999).
On February 3, 2000, defendant filed his first PCR petition contending, in part, that trial counsel was ineffective in failing to request an identification charge, call defense witnesses, present evidence attacking or discrediting his statement to the police wherein he admits he committed the murder,*fn1 and thwarting his desire to testify. Following a hearing, Judge Riva, who was the trial judge, denied defendant's petition. We affirmed in an unpublished opinion, State v. Rodriguez, No. A-6723-00 (App. Div. Mar. 28, 2003), and the Court denied certification, State v. Rodriquez, 177 N.J. 493 (2003).
On March 4, 2004, defendant filed a second PCR petition raising the following claims of ineffective assistance of counsel: (1) appellate and PCR counsel failed to challenge the admission of the statement of defendant's brother, Henry Rodriguez,*fn2 into evidence; (2) trial and PCR counsel failed to challenge the admission and credibility of defendant's statement; (3) trial counsel failed to investigate and present evidence that defendant did not voluntarily waive his Miranda rights, he did not give his statement knowingly and intelligently, and he requested an attorney before giving his statement; (4) trial counsel had a conflict of interest; (5) trial counsel failed to file a motion to suppress defendant's statement or make any arguments at the Miranda hearing; (6) appellate and PCR counsel failed to present substantive constitutional issues; and (7) on appeal from the denial of defendant's first PCR petition, appellate counsel failed to present all grounds advanced by PCR counsel. Defendant also contended he was denied a fair trial and due process by the State's use of Henry's out-of-court statement and Judge Riva abused his discretion in admitting Henry's statement.
Following a hearing, Judge Riva denied the petition. In a written opinion, the judge concluded Rule 3:22-12 procedurally barred the second PCR petition, and defendant failed to establish excusable neglect or an injustice warranting relaxation of five-year time period. See R. 3:22-12(a)(1). The judge also concluded Rule 3:22-5 procedurally barred defendant's challenges to his and Henry's statements because he raised these issues on his direct appeal or the appeal of the denial of his first PCR petition. Addressing the merits, Judge Riva concluded defendant failed to establish the ineffective assistance of trial, PCR and appellate counsel. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I- THE LOWER COURT ORDER MUST BE
REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL DUE TO HIS TRIAL ATTORNEY'S CONFLICT OF INTEREST
A. DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL DUE TO AN ACTUAL CONFLICT OF INTEREST
B. DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL DUE TO A POTENTIAL CONFLICT OF INTEREST WHICH T.K. FAILED TO DISCLOSE IN THE TRIAL RECORD
POINT II- THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL DUE TO HIS TRIAL ATTORNEY'S FAILURE TO PROPERLY CHALLENGE THE ADMISSION AND CREDIBILITY OF A STATEMENT TAKEN FROM DEFENDANT BY THE POLICE
A. DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL DUE TO T.K.'[S] FAILURE TO INVESTIGATE AND PRESENT EVIDENCE THAT THE WAIVER OF MIRANDA RIGHTS WAS NOT KNOWING AND INTELLIGENT
B. DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL DUE TO T.K.'[S] FAILURE TO PRESENT EVIDENCE THAT DEFENDANT'S STATEMENT WAS INVOLUNTARY AND TAKEN IN VIOLATION OF HIS RIGHT TO COUNSEL
POINT III- THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF HIS APPELLATE AND FIRST POST-CONVICTION RELIEF ATTORNEYS DUE TO THEIR FAILURE TO CHALLENGE THE ADMISSION OF HENRY RODRIGUEZ'S PRIOR STATEMENT INTO EVIDENCE POINT IV- THE LOWER COURT ORDER MUST BE
REVERSED IN LIGHT OF ANY ADDITIONAL ERRORS POINT V- THE LOWER COURT ORDER MUST BE REVERSED SINCE THE FIVE-YEAR TIME
BAR OF R.3:22-12 SHOULD NOT BE APPLIED TO BAR DEFENDANT'S CLAIMS
A. THE TIME BAR SHOULD BE RELAXED ON THE GROUNDS OF EXCUSABLE NEGLECT
B. THE TIME BAR SHOULD BE RELAXED IN THE INTEREST OF JUSTICE POINT VI- THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R.3:22-5
We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Riva in his comprehensive, well-reasoned written opinion. However, we make the following brief comments.
Defendant's second PCR petition, filed approximately six years after his conviction and approximately three years after the denial of his first PCR petition, is untimely. R. 3:22-12(a)(1); R. 3:22-12(a)(2)(C).*fn3 There is no tolling of the five-year limitations period of Rule 3:22-12(a) pending appeal. State v. Dugan, 289 N.J. Super. 15, 19 (App. Div.), certif. denied, 145 N.J. 373 (1996).
Also, except for defendant's conflict of interest contention, all of his contentions are procedurally barred either because they were determined on the merits in his prior appeals, Rule 3:22-5; State v. Cusick, 116 N.J. Super. 482, 485 (App. Div. 1971), or they could and should have been raised in defendant's prior appeals, R. 3:22-4; State v. Afandor, 151 N.J. 41, 50 (1997).
Regarding defendant's conflict of interest contention, M.K., Esq. initially represented defendant at the Miranda hearing and cross-examined Detective Humphrey. T.K., Esq. replaced M.K. during the hearing and cross-examined Detective Maute. T.K. also represented defendant at trial and cross-examined both detectives. Defendant claimed that T.K. had a conflict of interest based on his "long-standing personal and professional relationship" with the two detectives. Judge Riva concluded, and we agree, that defendant failed to establish a conflict. As the judge found, defendant never informed T.K. that the detectives had mistreated him; there was no "credible evidence that these detectives engaged in offensive or coercive police practices during [defendant's] interrogation"; defendant did not claim there was any deficiency in M.K.'s or T.K.'s cross-examination of the detectives; and defendant's claim "that T.K.'s knowledge of the detectives resulted in his failure to effectively and meaningfully investigate the circumstances surrounding his [statement], to present [defense] witnesses at the [Miranda] hearing and during the trial, and to make legal arguments that would preserve the issues for appeal is sheer speculation."