On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 96-04-0488.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and R. B. Coleman.
Defendant Joseph Post appeals from the Law Division's May 5, 2010 order denying his second petition for post-conviction relief (PCR) and request for an evidentiary hearing. Defendant renews his argument that trial counsel was ineffective in failing to call a rebuttal witness and appellate counsel was ineffective in failing to raise issues of trial error on direct appeal. We affirm.
The record reflects that defendant was convicted by a jury in 1997 of first-degree murder and two weapons offenses in the stabbing death of Andrew Whited. The recitals of the State's witnesses, co-defendants Michael Levering and Nicholas Migliaccio, both eyewitnesses, though differing in detail, related an unprovoked stabbing of the victim by defendant. The in-court testimony of the State's witness, co-defendant Brus Post, defendant's brother and also an eyewitness, exonerated defendant of the killing and exculpated Levering and Migliaccio. However, in an earlier statement to police, Post related that he saw defendant standing behind the victim with a knife in his hands and attempting to stab the victim. The stories of the eyewitnesses were corroborated by blood stains found in the apartment and in the car used to dispose of the victim's body, as well by the location and physical condition of the body when found about a month later.
Defendant was sentenced on June 21, 1997, to life imprisonment with a thirty-year period of parole ineligibility. We affirmed defendant's conviction and sentence in an unpublished opinion.*fn1 State v. Post, No. A-0628-97 (App. Div. Jan. 24, 2001). The Supreme Court denied certification. State v. Post, 169 N.J. 605 (2001).
Defendant filed his first PCR petition in July 2001, which he withdrew and was granted leave to re-file. On July 26, 2002, defendant re-filed his PCR petition alleging ineffective assistance of trial counsel in failing to: (1) request a correction of an allegedly erroneous jury instruction based on contradictory testimony of co-defendants; (2) investigate two potential witnesses, Harry Washington and Curtis Jordan, whose names were allegedly made available to him; and (3) make a number of specific objections during trial. Defendant also made an unspecified claim of ineffective assistance of appellate counsel. In support of his application, defendant proffered the alleged exculpatory statements of Washington and Jordan on the basis that the failure to call these witnesses to advance a theory of self-defense resulted in the conclusion that trial counsel was ineffective.
The court conducted an evidentiary hearing in which defendant's trial counsel Jerome Ballarotto testified. On August 11, 2003, the judge issued a written opinion denying defendant's PCR petition. We affirmed in an unreported opinion. State v. Post, No. A-0603-03 (App. Div. Nov. 14, 2005). The Supreme Court denied certification. State v. Post, 186 N.J. 256 (2006). Defendant then filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey, which was denied on November 7, 2008. On July 14, 2009, the United States Court of Appeals for the Third Circuit denied defendant's application for issuance of a "certificate of appealability."
On March 31, 2010, defendant filed his second PCR petition seeking an
evidentiary hearing. Defendant argued his claims were not procedurally
barred by Rule 3:22-4 as they raise constitutional issues.*fn2
He alleged that trial counsel was ineffective in failing to
secure the testimony of a "vital defense witness," Ajene Drew, and
appellate counsel was ineffective in failing to raise this issue on
direct appeal. Defendant certified that Drew was willing to give
testimony "about statements made to him by  Migliaccio" which
establish that Migliaccio and Levering "are lying about what happened
night of  Whited's death," and would "exculpate" defendant in
Whited's murder. According to the certifications of defendant and
Drew, defendant was aware of Drew in 1996 as an exculpatory witness
and told this to Ballaratto, who apparently subpoenaed him, but never
called him to testify at trial. According to Drew's January 17, 2010
certification, although he spoke with Ballaratto on the phone and
requested he visit him in prison, Drew was never interviewed by him or
by any attorney. Defendant further certified he provided the same
information to his first PCR attorney and claimed he wanted him to
raise the current issue and to find Drew and call him to testify at
his PCR hearing. According to defendant, however, his attorney did not
investigate the claim, nor did he raise the issue on his first PCR
Defendant further certified that after he lost his first PCR petition he "started to look for [Drew] with the help of [his] family and friends." He further claimed it was not "until January 2010 when [he] finally located [Drew] at the New Jersey State Prison, in Trenton[,] New Jersey, under the name Tyrone Miller."
In a written decision of May 4, 2010, memorialized in an order filed the following day, the court denied defendant's PCR petition as procedurally barred under Rule 3:22-12. This Rule provides, in pertinent part:
[N]o second or subsequent petition shall be filed more than one year after the latest of:
(B) the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through ...