May 28, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
MARVIN WORTHY, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2013
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 02-09-1247.
Marvin Worthy, appellant pro se.
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Sarah M. Mielke, Special Assistant Prosecutor, on the brief).
Before Judges Messano and Ostrer.
Defendant Marvin Worthy appeals from an order entered September 30, 2011, denying, without an evidentiary hearing, his second petition for post-conviction relief (PCR). Defendant collaterally challenges his July 2004 judgment of conviction of conspiracy to commit murder, N.J.S.A. 2C:5-2,  first-degree murder, N.J.S.A. 2C:11-3, and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a). We affirm.
On direct appeal, we affirmed defendant's conviction in an unpublished opinion, but we remanded to merge the weapons conviction into the murder conviction. State v. Worthy, No. A-1846-04 (App. Div. Dec. 22, 2006). The Supreme Court denied defendant's petition for certification. State v. Worthy, 190 N.J. 396 (2007).
In his first PCR petition, timely filed in June 2009, defendant claimed his trial counsel provided ineffective assistance by failing to conduct a reasonable pre-trial investigation that would have enabled him to obtain exculpatory statements from co-defendants Renato Santos and James Irwin, as well as non-defendants Steven Bennett and Jem Salamanca. The trial court denied the petition in October 2009 without an evidentiary hearing. We affirmed the trial court's order on March 30, 2011. State v. Worthy, No. A-2346-09 (App. Div. Mar. 30, 2011).
We shall not review at length here the roles that these various individuals played in the murder of the victim, Rashon Roy. We reviewed the facts in detail in our prior opinions. Suffice it to say that we denied defendant's first PCR petition because it was grounded in "bald assertions." Id. at slip op. at 14 (quoting State v. Cummings, 321
N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). Defendant presented nothing but conclusory claims of what the uncalled witnesses would have said, unsupported by affidavits or certifications on personal knowledge as required.
While defendant's appeal from the denial of his first PCR petition was pending, he filed his second petition on October 4, 2010, alleging ineffective assistance of PCR counsel. Defendant alleged his PCR counsel was ineffective because he failed to submit evidence in support of his petition. The trial court dismissed the petition without prejudice on October 27, 2010. The trial court concluded that defendant could not pursue a second petition while the first was pending appeal.
Almost six months after we affirmed the denial of defendant's first petition, defendant refiled his second petition, on August 3, 2011. The trial court, by a different judge, denied that second petition by order entered September 30, 2011. In a short letter opinion, the court explained the petition was time-barred because it was filed more than one year after denial of the first petition, citing Rule 3:22-12(a)(2); the filing of the appeal of the first PCR petition did not toll the one-year period; and defendant failed to re-file his second petition within ninety days of our 2011 decision, citing Rule 3:22-12(a)(3). Without discussing the merits of the petition in detail, the court also stated that defendant had failed to state a cause of action warranting relaxation of the time bar and assignment of counsel.
Defendant appeals and presents the following point for our consideration:
[THE] TRIAL COURT DECISION DISMISSING [THE] POST CONVICTION [PETITION] PURSUANT TO [RULES] 3:22-12(a) AND 3:22-6(b) IS CONTRARY TO THE PROVISIONS SET FORTH IN RULES GOVERNING [A] POST CONVICTION RELIEF APPLICATION AND SHOULD BE REVERSED.
For the reasons set forth below, we do not deem defendant's second petition to be time-barred. However, proceeding to consider the merits, denial was warranted because defendant has not demonstrated a prima facie case for relief.
We turn first to the procedural status of defendant's petition. Rule 3:22-12 imposes time limitations for filing second and subsequent petitions for PCR. A second or subsequent petition must be filed within one year of: declaration of a newly recognized constitutional right, Rule 3:22-12(a)(2)(A); the discovery of a "factual predicate" that a reasonably diligent petitioner could not have discovered earlier, Rule 3:22-12(a)(2)(B); or "the date of denial of the first or subsequent application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief is being alleged." R. 3:22-12(a)(2)(C).
Rule 3:22-12(a)(2) imposes the one-year limitation "[n]otwithstanding any other provision in this rule." Thus, we find inapplicable the provision of the rule that permits the refiling of a petition dismissed without prejudice within ninety days of a judgment on direct appeal. By its plain terms, that provision deals with the dismissal of a first petition while the direct appeal from the conviction is pending.
A petition dismissed without prejudice pursuant to R. 3:22-6A(2) because a direct appeal, including a petition for certification, is pending, shall be treated as a first petition for purposes of these rules if refiled within 90 days of the date of judgment on direct appeal, including consideration of a petition for certification, or within five years after the date of the entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged.
Consequently, we believe the trial court erred when it dismissed defendant's second petition in October 2010 on the grounds that the appeal from the denial of the first petition was pending. Rule 3:22-6A(2) states: "If a direct appeal, including a petition for certification, is pending, . . . the petition shall be dismissed without prejudice." See also R. 3:22-3 (stating a PCR petition is "not . . . a substitute for appeal from conviction . . . and may not be filed while such appellate review . . . is pending"). We recognize prosecution of the second petition while the appeal from the first petition's denial is pending may create the possibility of duplicative or unnecessary proceedings. However, the PCR rules do not contemplate dismissals without prejudice of timely-filed second petitions while appeals from first petition denials are pending. Rule 3:22-12(a)(2) provides that the one-year deadline for second and subsequent petitions cannot be extended or avoided. Inasmuch as the trial court erred in dismissing defendant's second petition when filed in 2010, defendant's petition was not time-barred when refiled in August 2011.
Turning to the merits, "there can be no question that a defendant is entitled to effective and competent assistance of counsel" when counsel is appointed for a PCR petitioner. State v. McIlhenny, 333
N.J.Super. 85, 87 (App. Div. 2000). "Rule 3:22-6(d) imposes an independent standard of professional conduct upon an attorney representing a defendant in a PCR proceeding." State v. Hicks, 411
N.J.Super. 370, 376 (App. Div. 2010); see also State v. Webster, 187 N.J. 254, 257 (2006) (stating that PCR counsel must investigate claims urged by a client and "should advance all of the legitimate arguments that the record will support"); State v. Rue, 175 N.J. 1, 18 (2002) (recognizing "the critical nature of faithful and robust representation of a defendant at a PCR proceeding").
We have recognized the right to competent PCR counsel notwithstanding that there may be no federal constitutional right to PCR counsel. Cf. McIlhenny, supra, 333
N.J.Super. at 87 n.1 (stating unqualifiedly "there is no federal constitutional right to counsel 'in state collateral proceedings after exhaustion of direct appellate review'") (quoting Coleman v. Thompson, 501 U.S. 722, 756, 111 S.Ct. 2546, 115 L.Ed.2d 640, 673 (1991)). If there is no constitutional right to counsel in a post-conviction proceeding, then "a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings." Coleman, supra, 501 U.S. at 752, 111 S.Ct. at 2566, 115 L.Ed.2d at 671.
Although the panel of our court in McIlhenny stated definitively that there is no federal constitutional right to counsel in PCR proceedings, the United States Supreme Court has recognized that the issue is still open as it pertains to issues that a defendant is barred from raising on direct appeal. Martinez v. Ryan, 566 U.S. __, __, 132 S.Ct. 1309, 1315, 182 L.Ed.2d 272, 282 (2012). For example, our Court has expressed "a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). But see State v. McQuaid, 147 N.J. 464, 484 (1997) (noting instances in which an ineffective assistance claim is raised on direct appeal).
The U.S. Supreme Court explained the basis for arguably finding a constitutional right to counsel in "initial review collateral proceedings":
Coleman v. Thompson, supra, left open, and the Court of Appeals in this case addressed, a question of constitutional law: whether a prisoner has a right to effective counsel in collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial. These proceedings can be called, for purposes of this opinion, "initial-review collateral proceedings." Coleman had suggested, though without holding, that the Constitution may require States to provide counsel in initial-review collateral proceedings because "in [these] cases . . . state collateral review is the first place a prisoner can present a challenge to his conviction." Id. at 755, 111 S.Ct. 2546, 115 L.Ed.2d 640. As Coleman noted, this makes the initial-review collateral proceeding a prisoner's "one and only appeal" as to an ineffective-assistance claim, id. at 756, 111 S.Ct. 2546, 115 L.Ed.2d 640 (emphasis deleted; internal quotation marks omitted), and this may justify an exception to the constitutional rule that there is no right to counsel in collateral proceedings. See id. at 755, 111 S.Ct. 2546, 115 L.Ed.2d 640; Douglas v. California, 372 U.S. 353, 357, 82 S.Ct. 814, 9 L.Ed.2d 811 (1963) (holding States must appoint counsel on a prisoner's first appeal).
[ Martinez, supra, 566 U.S. at __, 132 S.Ct. at 1315, 182 L.Ed.2d at 282.]
However, the Supreme Court declined "to resolve whether that exception exists as a constitutional matter." Ibid.
Likewise, it is not essential for us to determine whether defendant had a constitutional right to effective PCR counsel to prosecute his petition to establish the ineffectiveness of trial counsel. Applying the obligation to provide competent assistance established by our Rule of Court, as recognized in McIlhenny, supra, and Hicks, supra, we find no deprivation.
Defendant asserts that his PCR counsel was ineffective by failing to provide evidence to substantiate his claim that his trial counsel inadequately investigated his case and did not obtain exculpatory testimony from other witnesses. Defendant now provides an affidavit from Santos from 2005 expressing a willingness to testify to exculpate defendant:
Dear Mr. Worthy,
I have constructed this affidavit for purposes of testimony that I have and intend to give of exculpatory nature in your favor and under no duress, coercion, threats, or negative influence of any sort and for the purposes of telling the truth in a court of law.
This is pertaining to the events of April 28, 2002, of which Ind. No. 02-09-1247 stems from. I have full knowledge as to the even[t]s of that day.
However, Santos's offer to testify was not unqualified. He apparently conditioned his willingness to testify upon a grant of immunity. He stated, "I am willing and intend to testify as to the actors, audience, and to the charges of conspiracy providing I be granted my rights to testify and against self-incrimination." (emphasis added).
Santos also did not state what he intended to say, or what Worthy's role was. Defendant attaches a police report of an interview with Santos, which does not illuminate what Santos allegedly would have said to exculpate Worthy. According to the trial evidence, on April 25, 2002, Worthy threatened to kill Roy, brandishing a handgun, and Santos threatened to kill Halim Shabazz. Three days later, Worthy and Santos both occupied a vehicle with Roy. A witness testified that Santos shot Roy while he was seated in the vehicle in front of Worthy. However, evidence was also presented that Worthy's weapon was used to kill Roy. Neither Santos's affidavit, nor the attached police report of his interview, sufficiently undermines the trial proofs against Worthy to establish ineffective assistance.
Defendant also provides police reports of three interviews with Steven Bennett. The interviews occurred on May 1, 2002, November 24, 2003, and December 17, 2003. Bennett gave two versions of his whereabouts and activities on the day of the murder. In his second version of events, provided in his November 24, 2003 interview, Bennett told police that he was standing with defendant next to his Acura in the parking lot while the shooting was committed by two others.
However, this falls short of demonstrating ineffective assistance of PCR counsel or trial counsel. There is no evidence that Bennett was willing to testify on defendant's behalf, or what he would have said — particularly since he gave two different versions of events to police. Moreover, Bennett's claim that he and defendant were bystanders to the shooting would have discredited defendant's own testimony that he was not at the scene at all.
In sum, defendant has failed to establish that his PCR counsel was ineffective.