On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 92-09-03096.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fuentes.
Defendant Wade Johnson appeals from the denial of his motion for reconsideration from the denial of his second petition for post-conviction relief (PCR). Defendant is serving life imprisonment with a thirty-year period of parole ineligibility for conspiracy to commit murder, knowing or purposeful murder, unlawful possession of a handgun, and possession of a handgun for unlawful purposes. We affirmed his conviction and sentence, State v. Johnson, 287 N.J. Super. 247 (App. Div. 1996); the Supreme Court denied certification, 144 N.J. 587 (1996). Defendant filed his first petition for PCR, which was denied following an evidentiary hearing on June 6, 1997. We affirmed, State v. Johnson, No. A-7087-96 (App. Div. December 31, 1998); the Supreme Court denied certification, 160 N.J. 91 (1999). Defendant's second petition for PCR was denied on April 21, 2011.*fn1 Defendant filed a motion for reconsideration, which was denied in a written decision on August 11, 2011. It is from this order that defendant now appeals.
On April 21, 2011, Judge Patricia K. Costello issued an opinion in which she ruled that all of defendant's claims, including ineffective assistance of counsel, were barred pursuant to Rule 3:22-5 because the Appellate Division had "conclusively determined" them. The judge also found that "defendant's pleadings are wholly inadequate," due to their failure to name any errors by defendant's first PCR counsel and their failure to "show that counsel's conduct prejudiced his defense." The judge entered an order denying defendant's second PCR the same day.
On May 4, 2011, defendant moved for reconsideration. On August 11, 2011, Judge Costello ruled that defendant's claims of ineffective assistance of trial counsel were barred by Rule 3:22-5 as matters previously decided. The remaining claims, which did not allege error by trial counsel or prior PCR counsel, were barred by Rule 3:22-4(b)(2)(B) for the failure to allege facts that could not have been discovered earlier through reasonable diligence. Judge Costello filed an order denying the motion for reconsideration on the same day.
Defendant filed this appeal from the August 11, 2011 order. While he nominally challenges the denial of reconsideration, his legal arguments focus instead on the denial of his second petition on the merits. He claims that trial counsel was ineffective for failing to request an instruction that would have limited consideration of a jailhouse informant's testimony to the subject of defendant's consciousness of guilt, and for failing to present evidence that would have discredited the witness who identified him as the perpetrator. He also claims that counsel on his first PCR petition was incompetent for failing to press those claims.
In addition, defendant raises two points that argue in nearly identical ways the claim that the jury charge failed to distinguish the required elements of murder from those of manslaughter. Finally, he claims that his sentence is illegal because life imprisonment is not a "specific term of years" as N.J.S.A. 2C:11-3(b)(1) requires.
The State argues that all of defendant's claims on appeal are barred by Rules 3:22-4 and 3:22-5. It also argues that the second petition was untimely.
On appeal, defendant raises the following arguments:
Point I: The PCR Judge Erred in Denying the
Motion for Reconsideration of its Denial of the Petition for ...