On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 94-10-1604.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2011
Before Judges Messano and Espinosa.
Following trial, a jury convicted defendant of the first-degree murder of Christopher Shrimpton, N.J.S.A. 2C:11-3(a)(1) and (2), and second-degree possession of a rifle for an unlawful purpose, N.J.S.A. 2C:39-4(a). On May 24, 1996, after merging the two convictions, the judge sentenced defendant to imprisonment for life with a thirty-year period of parole ineligibility. We affirmed defendant's conviction on appeal, noting, "[i]n short, the voluminous record fairly reeks of defendant's guilt." State v. Corbett, No. A-7123-95 (App. Div. Feb. 17, 1999) (slip op. at 3). Defendant's petition for certification to the Supreme Court was denied. State v. Corbett, 160 N.J. 478 (1999).
Defendant filed his first PCR petition on June 23, 1999, which was denied by the trial judge. Defendant again appealed, and we affirmed. State v. Corbett, No. A-0569-03 (App. Div. Nov. 5, 2004). Defendant's petition for certification was again denied. State v. Corbett, 182 N.J. 430 (2005).
On March 31, 2010, defendant filed his second PCR petition raising two specific claims of trial counsel's ineffective assistance. He argued that counsel failed to present evidence of defendant's left-handedness, a fact defendant claims demonstrates that he "handled the rifle with his non-dominant hand and . . . the rifle was unlikely to have been aimed or discharged purposely or knowingly." Defendant attached certifications from his father, mother and brother attesting that he was left-handed.
Defendant also attached the reports of John Brick, Ph.D., a biological psychologist, and Kenneth J. Weiss, M.D., a forensic psychiatrist, provided to trial counsel in 1995 and 1996 respectively. Essentially, these experts opined that defendant was intoxicated when he shot and killed Shrimpton and could not have acted "purposely." Defendant claimed that trial counsel provided ineffective assistance by not raising a diminished capacity defense.
The second PCR judge disposed of the petition on the papers. In a brief written statement of reasons that accompanied the order, the judge noted that pursuant to Rule 3:22-6(b), "a second petition for post-conviction relief requires a finding of good cause for the assignment of counsel." The judge found that defendant had not demonstrated good cause for assignment of counsel, and, "under R. 3:22-6(b), counsel may not be assigned when a second petition is time-barred." The judge concluded that defendant's petition was time-barred pursuant to Rule 3:22-12(a)(2).
Defendant now appeals and raises the following issues for our consideration:
TRIAL COUNSEL'S FAILURE TO PRESENT EVIDENCE ESTABLISHING DEFENDANT'S LEFT-HANDEDNESS DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS
TRIAL COUNSEL'S FAILURE TO PRESENT EXPERT TESTIMONY FROM JOHN BRICK, PH.D., AND KENNETH J. WEISS, M.D., DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER ...