January 11, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AL QUAADIR GREEN,*FN1 DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-10-4345.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 12, 2011
Before Judges Messano and Espinosa.
Defendant Al Quaadir Green appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. He raises the following points on appeal:
I. THE PCR COURT ERRED IN DENYING DEFENDANT'S CLAIMS SUMMARILY AND IN DENYING DEFENDANT'S REQUEST FOR AN ADJOURNMENT PENDING THE PUBLIC DEFENDER'S DECISION ON WHETHER IT WOULD AUTHORIZE PCR COUNSEL TO HIRE A HANDWRITING EXPERT
II. THE PCR COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING REGARDING DEFENDANT'S CLAIMS In a pro se supplemental brief, defendant raises the following arguments:
APPELLANT'S PCR ATTORNEY RENDERED REMEDIAL INEFFECTIVE ASSISANCE OF COUNSEL IN NOT INDEPENDENTLY MARSHALLING APPELLANT'S CONSTITUTIONAL VIOLATION ISSUES FROM TRIAL, AS CONTRARY TO STATE V. RUE, INFRA, AND STATE V. WEBSTER, INFRA
APPELLANT WAS DENIED TO PROVE/REFUTE [SIC] HIS LACK OF HANDWRITING ON A CRUCIAL LETTER BECAUSE TRIAL[,] APPELLATE[,] [AND] PCR ATTORNEYS RENDERED REMEDIAL INEFFECTIVE ASSISTAN[CE] OF COUNSEL IN NOT SECURING A HANDWRITITNG EXPERT AGAINST DAMAGING EVIDENCE
TRIAL AND PCR ATTORNEYS BOTH BLUNTLY FAILED TO INVESTIGATE CONTRARY TO APPELLANT'S U.S. CONST. . . . 6TH AMEND. RIGHTS . . .
THE PRISON GARB PREJUDICE[D] APPELLANT['S] RIGHTS TO A FAIR . . . TRIAL MORESO [SIC] BECAUSE THE ATTORNEYS RENDERED INEFFECTIVENESS IN NOT PURSUING IT FURTHER CONTRARY TO THE U.S. CONST. 6TH, 14TH AMEND. RIGHTS WITH DUE PROCESS PROTECTION
TRIAL, APPELLATE AND PCR COUNSELS RENDERED GROSS INEFFECTIVE ASSISTAN[CE] OF COUNSEL WHEN KNOWING APPELLANT NEVER RECEIVED VARIOUS PRETRIAL DISCOVERY FROM THE STATE THAT PREJUDICE[D] A FAIR JURY TRIAL; [THE INEFFECTIVE ASSISTANCE RESULTED IN] DENIAL OF THE U.S. CONST. 6TH AMEND. RIGHT TO CONFRONTATION AND CROSS EXAMINATION
THE FAILURE TO INVESTIGATE BY TRIAL AND PCR COUNSELS OVER APPELLANT'S SCARS ON HIS FACE AND TO SECURE THE WELL ESTABLISHED DOCUMENTS OF SAME WAS NOT A SOUND TACTIC BUT REMEDIAL INEFFECTIVE ASSISTANCE OF COUNSELS. APPELLANT RECEIVED THE CUTS/SLASHES AT THE AGE OF . . . 13 OR 14 YEARS OLD WITH MEDICAL RECORDS TO PROVE SAME
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN THE GRAVE FAILURE TO ACTUALLY READ THE BALLISTIC REPORT OR SECURE AN EXPERT WHERE IT WOULD HAVE BEEN REVEALED THAT BULLETS FROM TWO SEPARATE CASES MATCHED THE QUESTIONABLE GUN
APPELLANT SUBMIT[S] THAT THE ERRORS CONSIDERED IN COMBINATION CAUSED A CUMULATIVE AND SUFFICIENT HARMFUL EFFECT OF REMEDIAL INEFFECTIVE ASSISTANCE OF COUNSELS THAT DEPRIVED APPELLANT [OF] A FAIR JURY AND PUBLIC TRIAL[,] DIRECT APPEAL REVIEW AND PCR CONTRARY TO THE 6TH AMEND.
THE INEFFECTIVENESS OF TRIAL[,] APPELLATE AND PCR ATTORNEYS NOT ADDRESSING PROSECUTORIAL MISCONDUCT DURING SUMMATION IN ATTACKING D. YOUNG'S TESTIMONY, WRITTEN IN HER POLICE REPORT THE VICTIM'S/WITNESS DESCRIPTION "BY A BLACK HISPANIC MALE" WHO  SHOT HER. IN THE PROSECUTOR'S OPINION SHE'S NOT CREDIBLE OVER VICTIM/WITNESS
TRIAL[,] APPELLATE AND PCR COUNSELS RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN NOT INVESTIGATING THAT MR. LATIQUE MAYSE, A/K/A ROCHELLE MAYSE . . . HAD APPELLANT ARREST[ED] ON SOME SIMILAR CHARGES IN 1997, THAT WAS RECANTED AND DISMISS[ED] IN [SIC] MARCH 20, 1998
TRIAL[,] APPELLATE AND PCR ATTORNEYS RENDERED REMEDIAL INEFFECTIVE ASSISTANCE OF COUNSELS FOR FAILURE TO ADDRESS THE CONFLICT OF INTEREST ISSUE WHEN THE VICTIM'S COUSIN WAS PRESENT AT THE PHOTO LINE UP AND THIS COUSIN ACTED, TOO, AS AN INTERPRETER
We have considered these arguments in light of the record and applicable legal standards. We affirm.
Following a jury trial, defendant was convicted of the first-degree felony murders, and knowing and purposeful murders, of Juana Osuna and Christian Made, N.J.S.A. 2C:11-3(a)(1)(2) and (3); first-degree attempted murder of Sofia Rodriguez, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; first-degree robbery of Rodriguez, Osuna, Made, and Marisol Rosario, N.J.S.A. 2C:15-1; and other crimes. On January 20, 2006, the judge imposed an aggregate sentence of two consecutive life terms, each with a thirty-year period of parole ineligibility. We affirmed defendant's convictions and sentence on direct appeal. State v. Green, No. A-4154-05T4 (App. Div. Aug. 7, 2008) (Green I). His petition for certification was denied. State v. Green, 196 N.J. 601 (2008).
On December 18, 2008, defendant filed a pro se PCR petition alleging, without specificity, "various ineffective [assistance of counsel] claims" regarding his trial and appellate attorneys.
In a supplemental certification submitted by assigned PCR counsel, defendant listed 18 alleged deficiencies demonstrating trial counsel's ineffective assistance. Defendant also claimed appellate counsel provided ineffective assistance "as he did not have sufficient contact with [defendant] to make use of [his] knowledge of the matter, and therefore did not bring up the . . . issues on appeal." Lastly, defendant made three specific allegations of "Judicial Misconduct," as well as three allegations of prosecutorial misconduct.
At oral argument on the petition, PCR counsel noted he had "been in dialog with the Public Defender's Office" regarding the retention of a handwriting expert to examine "a handwritten note . . . admitted at trial." PCR counsel requested an adjournment, but otherwise relied upon his brief and the materials submitted by defendant in his pro se brief.
The judge concluded that as "to any issue regarding handwriting analysis, . . . it will have to await the decision of the Public Defender's Office and [could be considered] . . . if that analysis is in fact done and . . . submitted to the Court under the rubric of newly discovered evidence . . . ., [b]ut there's nothing before the Court at th[is] time." The judge refused to "address" the issue further.
As to the other points raised by the petition, the judge concluded that many "were either raised or should have been raised on direct appeal," except for the claim of ineffective assistance of counsel which was the "only issue . . . that could not be reasonably and properly raised on direct appeal." As to that issue, the judge found that defendant's specific claims "[we]re merely bold face allegations which do not rise to the level of ineffective assistance because . . . defendant fails to satisfy the two[-]prong test . . . under Strickland."*fn2 The judge further noted that while defendant "cite[d] numerous instances of what trial counsel did not do, . . . he [did not] indicate what the result would have been if counsel pursued those matters[,] and secondly, how that would have significantly impacted . . . the result [of] the trial."
The judge denied the petition and entered the order under review. This appeal followed.
Defendant alleges it was error for the judge to deny: 1) his petition in a summary fashion with little explanation of his legal conclusions; and 2) his request for an adjournment while the Public Defender considered retention of a handwriting expert to review a letter introduced by the State at trial. Defendant also argues that the judge should have held an evidentiary hearing.
We referred to the letter at issue in our earlier opinion:
In October 2002, while defendant remained in jail awaiting trial, the prosecutor's office, in connection with an entirely unrelated matter, conducted a search of an apartment . . . occupied by Narique Wilson. The search uncovered a letter addressed to Wilson. The envelope bore defendant's name, inmate number and cell number and the address of the Essex County Jail. The jury heard the following redacted version of the letter:
Little Bro, when me and O. was home we made some bad moves. This is where I need your help. That little bitch Ky is telling on me.
If you got love for me, push her. That's the only person that's stopped me from coming home. Do that, Dog, I want to come home.
According to the record, the word "push" means "kill" in street vernacular.
Omar Auston*fn3 was tried before defendant and was convicted as an accomplice. Kysheal Ivery testified at Auston's trial . . . . She . . . said that she had seen defendant shoot one of the victims . . . .
At defendant's trial, . . . [Ivery] denied being at the scene of the shootings . . . . [Green I, supra, (slip op. at 6-7).]
On direct appeal, defendant challenged the admission of the letter, id. (slip op. at 8), and, in a pro se submission, claimed that trial counsel was ineffective because he failed to retain a handwriting expert. Id. (slip op. at 20). We concluded that the letter was properly admitted into evidence, Id. (slip op. at 16). Moreover, we held that defendant "ma[de] no showing that such [expert] report w[as] available and thus [could not] satisfy the Strickland standard." Id. (slip op. at 27).
"New Jersey long has embraced the notion that [a] motion for an adjournment is addressed to the discretion of the court, and its denial will not lead to reversal unless it appears from the record that the defendant suffered manifest wrong or injury." State v. Hayes, 205 N.J. 522, 537 (2011) (alteration in original) (internal quotation marks and citation omitted).
Here, the Office of the Public Defender was assigned to represent defendant on his pro se PCR petition in December 2008. Although it is unclear when PCR counsel was assigned, we note that he filed his brief and defendant's supplemental certification in July 2009. Oral argument did not occur until three months later. There was nothing before the PCR judge demonstrating a likelihood that a handwriting expert would be retained, or, more importantly, that he would render a favorable report.
Indeed, in his pro se appendix, defendant has included a letter from PCR counsel dated September 29, 2009, one week before oral argument on the petition. In that letter, PCR counsel advises, "It seems that the PD is not agreeing to an expert on the handwriting as the samples you provided were inconclusive as to whether or not they could be compared . . . ." In another letter dated one month earlier, PCR counsel offered his lay opinion that the writing on the letter "could be your writing."
Moreover, the PCR judge decided that in the event defendant obtained a report, he could file a subsequent petition "under the rubric of newly discovered evidence." We note that a second PCR petition is cognizable if filed within one year of "the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence." R. 3:22-12(2)(B). We discern no prejudice to defendant by the denial of the requested adjournment.
Turning to the other arguments raised by PCR appellate counsel, although the judge's analysis was terse, for the reasons that follow, we have no doubt that the judge correctly decided that defendant's claims were either procedurally-barred, or unsupported by competent evidence. Therefore, an evidentiary hearing was not required. We briefly state the standards that guide our review.
As a general proposition, "[a]ny ground for relief not raised in the proceedings resulting in the conviction . . . or in any appeal taken in any such proceedings is barred from assertion in a [PCR] proceeding." R. 3:22-4(a). Furthermore, "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or . . . in any appeal taken from such proceedings."
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he "must show . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693) (internal quotation marks omitted). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Ibid. A defendant must show by "a reasonable probability" that the deficient performance affected the outcome of the trial. Id. at 58 We apply the same standard to defendant's claims of ineffective assistance of appellate counsel that we do to claims of ineffective assistance of trial counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007) (citing State v. Morrison, 215 N.J. Super. 540, 546 (App. Div.), certif. denied, 107 N.J. 642 (1987)), certif. denied, 194 N.J. 444 (2008).
While a "claim of ineffective assistance of . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992). "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2012); see also State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999).
As to claims of ineffective assistance of PCR counsel, the Court has stated:
PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. [State v. Webster, 187 N.J. 254, 257 (2006).]
"The remedy for counsel's failure to meet the[se] requirements . . . is a new PCR proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010) (citing State v. Rue, 175 N.J. 1, 4 (2002)).
Applying these standards, it is obvious that defendant's claims on appeal lack sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(2).
For the reasons already discussed, PCR counsel was not ineffective for failing to marshal all defendant's claims, nor were trial, appellate or PCR counsel ineffective for failing to secure a handwriting expert.
The claims that trial and PCR counsel failed to adequately investigate the case by securing Rodriguez's medical records, Ivery's criminal history, or inquiring about possible favorable treatment provided by the State to Ivery are either bald assertions, Cummings, supra, 321 N.J. Super. at 170, or actually belied by the trial proceedings. The same is true of defendant's claim in Point V of his pro se brief regarding the ineffective assistance of all counsel in securing pre-trial discovery.
Points IV, VI, VII, VIII, and XI of defendant's pro se brief raise issues that were addressed and decided on direct appeal. R. 3:22-4(a); see Green I, supra, at (slip op. 8-14, 18-27) (addressing the prison garb issue, the identification testimony, the expert ballistic testimony, the claim of cumulative error, and the alleged conflict of interest regarding the interpreter).
The claim made in Point IX that trial counsel provided ineffective assistance by failing to argue the prosecutor committed misconduct during his summation could have been raised on direct appeal but was not. R. 3:22-5. To the extent defendant now argues both appellate and PCR counsel were ineffective for failing to raise the issue, the argument lacks any merit. The prosecutor's remarks were legitimate comments on the evidence. See e.g., State v. Morais, 359 N.J. Super. 123, 131 (App. Div.) (prosecutor may respond to defense counsel's arguments as long as comments "do not stray beyond the evidence"), certif. denied, 177 N.J. 572 (2003).
Lastly, the claim raised in Point X could have been made on direct appeal, but was not. R. 3:22-5. Defendant contends all counsel were ineffective because they failed to either adequately cross-examine Mayse or investigate his potential bias. Defendant has failed to demonstrate how the evidence of prior accusations Mayse made against him that were subsequently dismissed, if disclosed to the jury, would have altered the result of the trial.