July 2, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
KIERON JACKSON, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 5, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-01-0079.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Vando Cardoso, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Fisher, Alvarez and St. John.
Defendant Kieron Jackson appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
We briefly summarize the relevant procedural history and the facts based on the record before us.
Indictment No. 0079-01-2003, charged defendant with eight counts of first-degree armed robbery, N.J.S.A. 2C:15-1, and other offenses, arising out of a spree of armed robberies at various Chinese restaurants in Jersey City and Bayonne between November 28, 2001 and December 28, 2001. Defendant was tried before Judge Callahan and a jury. One of the armed robbery counts was dismissed. Defendant was convicted of six of the seven armed robbery counts that were tried, one count of conspiracy to commit armed robbery, and one count of aggravated assault. The jury acquitted him of one count of armed robbery.
The judge imposed concurrent sentences on most counts, but sentenced one armed robbery count consecutive to another armed robbery count, each with a twenty-year term subject to an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2. Therefore, defendant's aggregate sentence was forty years imprisonment, of which he must serve at least eighty-five percent, or thirty-four years, before being eligible for parole. Defendant appealed, and in an unreported decision we affirmed his conviction, but remanded for reconsideration of sentence in accordance with State v. Natale, 184 N.J. 458 (2005). State v. Jackson, No. A-4684-03T4 (App. Div. Nov. 10, 2005). On remand, the same sentence was imposed.
On February 1, 2006, defendant filed his first PCR petition alleging ineffective assistance of trial and appellate counsel. Defendant's petition was denied by Judge Venable on September 28, 2006. Defendant filed an appeal and we affirmed the order denying PCR. State v. Jackson, Docket No. A-1934-06 (App. Div. Jan. 8, 2009).
Defendant filed his second PCR petition on July 13, 2009. Judge Venable denied defendant's petition on the basis that it was procedurally barred because every claim advanced should have been raised on direct appeal, R. 3:22-3, or in his first PCR petition, R. 3:22-4.
Defendant filed his third PCR petition on February 8, 2010, and filed an amended PCR petition on July 22, 2010. Judge Venable again denied defendant's petition, finding his arguments procedurally barred by Rule 3:22-5, Rule 3:22-4(b), and Rule 3:22-12(a)(2). It is from this decision that defendant appeals.
On appeal, defendant raises the following issues for our consideration:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel was ineffective since he failed to request appropriate jury instructions.
B. Trial counsel failed to file a severance motion.
C. Trial counsel failed to file a motion to suppress the ski mask.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF PCR COUNSEL.
A. PCR counsel failed to challenge defendant's confession.
B. PCR counsel failed to challenge defendant's failure to testify at trial.
C. PCR counsel failed to raise the issue concerning the disputes which arose between defendant and trial counsel.
THE LOWER COURT ORDER DENYING THE PETITION
MUST BE REVERSED SINCE DEFENDANT RECEIVED
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL ON THE DIRECT APPEAL.
THE LOWER COURT ERRED IN NOT ENTERTAINING ORAL ARGUMENT ON THE PETITION AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
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 bar should be relaxed in the interest of justice.
THE SENTENCE WAS ILLEGAL AND DEFENDANT MUST BE RESENTENCED.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
We reject the arguments raised by defendant as lacking sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(2). We add the following brief comments.
In his first PCR petition, denied in 2006, defendant unsuccessfully argued that trial counsel was ineffective. Thus, the one-year period for filing subsequent PCR petitions would run from 2006 pursuant to Rule 3:22-12(a)(2)(C), unless defendant demonstrated he could not have discovered "the factual predicate for the relief sought" in his subsequent petition "through the exercise of reasonable diligence" until after that date, pursuant to Rule 3:22-12(a)(2)(B). He cannot.
Defendant's allegations predicated on the ineffectiveness of trial counsel should have been discovered through the exercise of due diligence and raised in defendant's first PCR petition. Defendant's assertions that his PCR counsel was ineffective, are similarly procedurally barred. Defendant in effect alleges that PCR counsel was ineffective for failing to allege certain deficiencies of trial counsel, however, we previously addressed the issue of trial counsel's failings, thus those arguments are procedurally barred by Rule 3:22-5 and Rule 3:22-4. Additionally, defendant's first PCR petition was denied in September 2006, therefore his claims of ineffectiveness of PCR counsel are also time-barred by Rule 3:22-12(a)(2)(B) because the alleged infectiveness of PCR counsel should have been discovered through the exercise of due diligence before February 2010 when defendant filed his third PCR petition.
Moreover, even on the merits, defendant is unable to demonstrate ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 698 (1984).