May 31, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALEX ABDALLA, SR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 88-10-01912.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 22, 2012 -
Before Judges Fisher and Nugent.
In 1989, defendant was convicted of first-degree murder and third-degree possession of a weapon for an unlawful purpose and, following merger, was sentenced to prison for life subject to a thirty-year period of parole ineligibility. We affirmed the judgment of conviction, State v. Abdalla, No. A-3811-89 (App. Div. Feb. 26, 1993), rejecting all defendant's arguments, including his claim that he was denied the effective assistance of counsel.*fn1 The Supreme Court denied certification. 133 N.J. 443 (1993).
On December 22, 1994, defendant filed a petition for post- conviction relief (PCR) and, on June 30, 1995, moved for a new trial based on a claim of newly-discovered evidence. These applications were denied on August 14, 1995. On July 8, 1996, defendant filed a pro se motion for reconsideration, which was denied on March 4, 1997. Defendant then filed an appeal of the denial of his motion for reconsideration. We affirmed, State v. Abdalla, No. 4543-96 (App. Div. June 4, 1998), and the Supreme Court denied certification, 157 N.J. 542 (1998).*fn2
Defendant filed a second PCR petition on January 27, 2009.*fn3 His pro se petition argued defendant's entitlement to a new trial based on newly-discovered evidence. The trial court determined that the second PCR petition contained arguments not presented in the first PCR petition and directed the appointment of counsel, who filed a brief arguing the following points:
I. THE FAILURE OF TRIAL COUNSEL TO PRODUCE EYEWITNESSES TO THE FIGHT TO REBUT THE PROSECUTION CASE DENIED PETITIONER HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL AND TO PRESENT A DEFENSE.
II. TRIAL COUNSEL FAILED TO MAKE A CLEAR REQUEST FOR AN ACCOMPLICE LIABILITY CHARGE THAT GAVE THE JURY THE OPTION OF CONSIDERING
"BODILY INJURY" ASSAULT; THIS WAS INEFFECTIVE ASSISTANCE OF COUNSEL; SUBSEQUENTLY, THERE WAS NO EXPRESS ADJUDICATION OF THE ISSUE ON DIRECT APPEAL OR IN POST-CONVICTION RELIEF AND IT IS NOT BARRED.
III. PRIOR POST-CONVICTION RELIEF AND APPELLATE COUNSEL FAILED TO COMPLETELY PRESENT ABDALLA SR.'S CLAIMS; THIS WAS INEFFECTIVE ASSISTANCE OF COUNSEL AND THE CLAIMS ARE NOW NOT BARRED.
IV. PETITIONER'S PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLES HIM TO AN EVIDENTIARY HEARING UNDER STATE V. PRECIOSE[, 129 N.J. 451 (1992)].
V. COMPLIANCE WITH STATE V. WEBSTER[, 187 N.J. 254 (2006)].
This most recent PCR petition was denied by order entered on August 23, 2010. Defendant appeals; the brief filed by defendant's attorney presents the following arguments:
I. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel was ineffective in failing to investigate and to call favorable witnesses to testify at trial.
B. Trial counsel was ineffective in failing to request a lesser-included assault charge.
C. Trial counsel failed to request a charge on self-defense.
II. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF PCR AND APPELLATE COUNSEL.
III. THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.
IV. THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS.
V. THE LOWER COURT ORDER MUST BE REVERSED SINCE THE FIVE-YEAR TIME BAR OF R.3:22-12 SHOULD NOT BE APPLIED TO BAR DEFENDANT'S CLAIMS.
A. The Time Bar Should Be Relaxed On The Grounds Of Excusable Neglect.
B. The Time Bar Should Be Relaxed In The Interest Of Justice.
VI. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R.3:22-5.
VII. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R.3:22-4.
VIII. THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
Defendant also filed a pro se supplemental brief, which presents the following argument:
THE PCR COURT WAS WITHOUT AUTHORITY TO HOLD THAT DEFENDANT'S PETITION WAS TIME BARRED BECAUSE NEWLY DISCOVERED EVIDENCE CAN BE PRESENTED TO THE COURT "AT ANY TIME." R. 3:20-2.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2).