On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 02-09-1247.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2011
Before Judges A.A. Rodriguez and LeWinn.
Defendant appeals from the August 4, 2009 order denying his second petition for post-conviction relief (PCR). We affirm. Tried to a jury in 2003, defendant was convicted of purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) or (2), and second-degree conspiracy to commit murder, N.J.S.A. 2C:11- 3(a)(1) or (2) and 2C:5-2. He was sentenced to a term of thirty years imprisonment with a thirty-year parole ineligibility period. Defendant appealed his convictions, raising numerous claims of trial error. We affirmed. State v. Maples, No. A- 6934-03) (App. Div. May 12, 2005). The Supreme Court denied certification. State v. Maples, 185 N.J. 295 (2005).
Defendant filed his first PCR petition on April 20, 2006, raising eleven claims of ineffective assistance of counsel, and a contention that the trial court lacked jurisdiction due to the issuance of a defective warrant. Counsel was assigned and, after hearing oral argument, a judge denied that petition by an order entered on March 9, 2007. Defendant appealed, and we affirmed. State v. Maples, No. A-5227-06 (App. Div. April 6, 2009). The Supreme Court denied certification. State v. Maples, 199 N.J. 541 (2009).
Defendant filed his second PCR petition on July 14, 2009, He raised claims of ineffective assistance of trial counsel for failure to (1) interview witnesses, (2) move for a mistrial, (3) cross-examine his co-defendant and (4) argue "third-party guilt"; he also claimed prosecutorial misconduct in having his co-defendant testify in prison garb, and asserted that the trial judge had an "exparte communication when he spoke to a juror over the phone[.]"
On August 4, 2009, the judge issued a written decision denying defendant's petition as barred by Rule 3:22-4 because the issues presented could have been raised in his first PCR petition. The judge noted that defendant's first petition had been "denied after a full hearing" in March 2007. On appeal, defendant presents the following contentions for our consideration:
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE, AND P.C.R. COUNSEL IN VIOLATION OF HIS [SIC] FOURTEENTH AND SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION, AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
A. COUNSEL FAILED TO INVESTIGATE INDEPEND[E]NT EYEWITNESS MS. BARBARA MCKINNON WHO'S [SIC] STATEMENT WOULD HAVE IMPEACHED PROSECUTOR'S STAR WITNESS ERNESTO BARBER.
B. COUNSEL FAILED TO INVESTIGATE MS. ANN CORMARTIE'S CLAIM OF BEING IN CONTACT WITH STEVEN BENNETT A PARTICIPANT IN THE SHOOTING, AND BENNETT HAVING OFFERED HER HIS CLOTHES IN EXCHANGE FOR A RIDE.
C. COUNSEL FAILED TO EFFECTIVELY CROSS-EXAMINE CO-DEFENDANTS MARVIN WORTHY AND RENATO SANTOS.
D. COUNSEL FAILED TO ARGUE A [SIC] THIRD-PARTY GUILT WHEN COUNSEL HAD ESSENTIAL EVIDENCE OF OTHER ...