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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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We affirmed defendant's conviction and sentence in an unpublished opinion.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 We affirmed in an unpublished opinion, State v. Rodriguez, No. A-6723-00 (App.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 ...