February 3, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSE PEREZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 86-05-1734.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2012
Before Judges Carchman, Baxter and Nugent.
Defendant Jose Perez appeals from the April 16, 2010 order that denied his second petition for post-conviction relief (PCR), which he filed more than twenty years after his felony murder conviction. We affirm.
In 1986, a jury convicted defendant of felony murder and other charges. The court sentenced defendant to an aggregate prison term of thirty years without parole eligibility. On direct appeal, we affirmed defendant's conviction but remanded the case because the trial court had improperly calculated jail time credit and had imposed monetary penalties on offenses that had been merged with defendant's murder conviction. State v. Perez, No. A-2810-86 (App. Div. April 5, 1989) (slip op. at 28).
The Supreme Court denied certification. State v. Perez, 117 N.J. 657 (1989).
Defendant filed a PCR petition in December 1993 and the court denied the petition on September 1, 1994. More than two years later, on March 25, 1997, defendant filed an appeal from the denial of his PCR petition. We affirmed, State v. Perez, No. A-0506-94 (App. Div. November 7, 1997), and the Supreme Court denied certification, State v. Perez, 153 N.J. 52 (1998). On December 28, 1998, defendant filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. The District Court limited the reviewable issues to, among other things, the trial court's alleged direction of guilty verdicts and defendant's ineffective assistance of counsel claim. The District Court denied the petition on July 9, 2001.
Nearly eight years later, in March 2009 defendant filed his second PCR petition. In a written opinion dated April 16, 2010, Judge Sherry Hutchins-Henderson denied defendant's petition. The judge concluded that defendant's petition was barred because it was not timely filed and defendant had not established that counsel was ineffective under the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
Defendant raises the following points in this appeal.
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS PROCEDURALLY OUT OF TIME.
A. Defendant's Delay in Filing His Petition for Post-Conviction Relief Is Not Prejudicial to the Prosecution.
B. The Importance of Defendant's Claims Manifest Good Cause to Relax the Time Bar.
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WHEN FINDING THAT DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL HAD BEEN ADJUDICATED IN A FORMER PROCEEDING AND WERE THEREFORE PROCEDURALLY BARRED.
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS DEFENDANT HAS DEMONSTRATED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
THE PCR COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AS DEFENDANT HAS ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF FIRST PCR COUNSEL SUFFICIENT TO REQUIRE REMAND FOR AN EVIDENTIARY HEARING.
DEFENDANT INCORPORATES BY REFERENCE THE ARGUMENTS CONTAINED IN HIS INITIAL VERIFIED PETITION AND IN ANY PRO-SE SUPPLEMENTAL BRIEF.
We affirm substantially for the reasons explained by Judge Hutchins-Henderson in her written opinion. Defendant's arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
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