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State of New Jersey v. James Davis

January 18, 2013

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES DAVIS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-10-2045.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 15, 2012

Before Judges Sabatino and Fasciale.

Defendant James Davis appeals from the denial of his petition for post-conviction relief ("PCR") with respect to his 2004 conviction of attempted sexual assault, endangering the welfare of a child, and other related offenses.

The facts are described at length in our published opinion affirming defendant's conviction on direct appeal, and need not be repeated here. See State v. Davis, 390 N.J. Super. 573 (App. Div.), certif. denied, 192 N.J. 599 (2007). Briefly, defendant, a former Holmdel police officer, was found to have engaged in sexual conversations with an undercover agent posing as a fourteen-year-old girl, and planned a meeting with her. He also possessed child pornography on diskettes in his apartment. Defendant claimed that he was only "fantasy role-playing" with women he thought were over sixteen, and that his possession of the child pornography was inadvertent.

After a nine-day trial, the jury found defendant guilty on all charges presented to it. At sentencing, the trial judge imposed a seven-year custodial term, forfeiture of defendant's public employment, and Megan's Law requirements.

In his PCR petition, defendant claimed that his retained trial attorney, who had also represented him on direct appeal, was constitutionally ineffective in several ways, including:

(1) failing to call additional character witnesses who would have vouched for him; (2) failing to bring out more positive opinions from the character witnesses that testified on his behalf; and (3) failing to move to have the trial judge disqualified based on the judge's relationship with the assistant prosecutor who tried the case.

The trial court rejected defendant's PCR application without an evidentiary hearing. The court found that certain of defendant's claims were procedurally barred because they either involved issues that were already adjudicated on direct appeal, or could have been raised on direct appeal but were not. See R. 3:22-4 to -5. The court also found no merit to defendant's substantive arguments.

On his present appeal, defendant raises the following contentions:

POINT ONE

THE COURT MISAPPLIED ITS DISCRETION BY DENYING THE DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM, ...


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