July 23, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS KELLY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 93-04-0046.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 30, 2012
Before Judges Messano and Kennedy.
Defendant Thomas Kelly appeals from the denial of his second petition for post-conviction relief (PCR). We glean the prior procedural history from Judge Raymond A. Reddin's written opinion.*fn1
Defendant was convicted after trial of various crimes, including multiple counts of first-degree robbery, N.J.S.A. 2C:15-1, and second-degree kidnapping, N.J.S.A. 2C:13-1(b) or -
2. He was sentenced to an aggregate term of forty-six years imprisonment with a sixteen-year period of parole ineligibility.
We affirmed his conviction. Defendant filed a PCR petition which was denied on October 20, 2004, and we affirmed that decision on January 31, 2007.
On December 7, 2009, defendant filed a pro se letter brief in support of his "motion for leave to file a successive PCR." In a single point heading, defendant argued:
BECAUSE THE EXISTING RECORD PROVES CUMULATIVE ERROR[S] VIOLATED PETITIONER'S CONSTITUTIONAL RIGHTS AND HAD THE CAPACITY TO HAVE IMPACTED THE OUTCOME, RELAXATION OF PROCEDURAL BARS AND REVERSAL ARE WARRANTED
Defendant contended that counsel at all levels provided ineffective assistance.
Trial counsel neglected to properly respond to other-crimes prejudice, confrontation violations, and additional record-proven issues . . ., and direct [appeal] counsel neglected to raise both preserved and plain-error issues that were ripe for direct review. PCR counsel neglected to fully cite how trial and appellate counsel were ineffective . . ., and counsel on appeal of the denial of PCR neglected to cite any of the issues raised below.
Defendant requested "relaxation of the procedural bars, appointment of counsel, and reversal of the conviction." He also sought, "[a]lternatively," "permi[ssion] to amend these filings beyond this good-cause letter brief."
In his written decision, Judge Reddin noted that "[i]n order to bring a subsequent PCR[,] a petitioner must allege one of . . . three grounds for relief[.]" Rule 3:22-4(b) provides:
Second or Subsequent Petition for Post-Conviction Relief. A second or subsequent petition for post-conviction relief shall be dismissed unless:
(2) it alleges on its face either:
(A) that the petition relies on a new rule of constitutional law, made retroactive to defendant's petition by the United States Supreme Court or the Supreme Court of New Jersey, that was unavailable during the pendency of any prior proceedings; or
(B) that the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted; or
(C) that the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief.
Judge Reddin noted that defendant did not allege any facts supporting a claim under subsections (A) or (B). Although defendant made a claim that PCR counsel was ineffective, he "proffer[ed] no evidence of ineffective assistance of counsel."
Judge Reddin concluded defendant's claims were "merely bare allegations . . . unsupported in the record[,]" and dismissed the petition.
Defendant now raises the following point on appeal:
BECAUSE DEFENDANT FILED A MOTION FOR LEAVE TO FILE A SUCCESSIVE PCR, AND FILED ONLY A GOOD-CAUSE BRIEF IN SUPPORT OF A REQUEST FOR COUNSEL, THE LOWER COURT ERRED BY NOT ALLOWING DEFENDANT TO FILE THE ACTUAL PCR PETITION, WHICH WAS PREMATURELY DENIED
Having considered this argument in light of the record and applicable legal standards, we conclude it lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2). We add only the following.
Rule 3:22-6(b) provides:
Assignment of Counsel on Cause Shown. Upon any second or subsequent petition filed pursuant to this Rule . . . , the matter shall be assigned to the Office of the Public Defender only upon application therefor and showing of good cause. For purposes of this section, good cause exists only when the court finds that a substantial issue of fact or law requires assignment of counsel and when a second or subsequent petition alleges on its face a basis to preclude dismissal under R. 3:22-4.
However, defendant was not required to seek leave to file a second PCR petition or demonstrate good cause before doing so. More importantly, Judge Reddin correctly determined that the petition failed to "allege on its face" any colorable claim that PCR counsel was ineffective. R. 3:22-6. Defendant argues that his claims against PCR counsel "were 'not listed as ineffectiveness claims . . . during the appeal of the PCR court's rulings.'" That is not independently confirmed by the current appellate record, but, even if true, that assertion does not establish a prima facie case under Rule 3:22-4(b)(2)(C). We reject defendant's argument now made before us that his "claims were never fully advanced" because he mistakenly believed he needed to seek leave of court.