NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 6, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 98-09-3008.
Louis Pierce, appellant pro se.
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda S. Shashoua, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fasciale and Maven.
Defendant Louis Pierce appeals from the denial of his second petition of post-conviction relief (PCR) in connection with his conviction for two counts of first-degree attempted murder, N.J.S.A. 2C:5-1 (counts one and two); two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts three and four); third-degree possession of a weapon (firearm) for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b) (count six); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count seven); and fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count eight). He was sentenced to life imprisonment with twenty-nine-and-one-half years without parole. In an opinion dated February 10, 2003, we affirmed defendant's convictions, and the Supreme Court denied certification on June 5, 2003. State v. Pierce (Pierce I), No. A-1221-00 (App. Div. Feb. 10), certif. denied, 177 N.J. 222 (2003).
Defendant's first pro se PCR petition was filed in December 2003, and claimed ineffective assistance based on lack of preparation for trial, failure to investigate and other deficiencies. Assigned counsel raised additional issues of ineffective assistance from both trial and appellate counsel. The petition was denied in September 2007, and we affirmed the denial of the first PCR petition. State v. Pierce (Pierce II), No. A-0907-07 (App. Div. July 26, 2010), certif. denied, 205 N.J. 183 (2011). In that opinion, we specifically noted that we would not consider the two issues raised on appeal concerning the failure to challenge a defense witness appearing in handcuffs and the admission of prejudicial hearsay, because those issues had not been presented to the PCR judge. Nonetheless, we noted that in State v. Artwell, 177 N.J. 526, 539 (2003), the Supreme Court held that "going forward, a trial court may not require a defendant's witness to appear at trial in prison garb." The Artwell case did not assist defendant, whose appeal was decided prior to that case. We held that "defendant is not entitled to retroactive application of Artwell to the issue raised for the first time in his PCR appellate brief." Pierce II, supra, slip op. at 12.
More than one year later, on September 1, 2011, defendant filed his second petition for PCR raising the same two issues that we declined to consider in his first petition "because they had not been raised at the trial court." On March 15, 2012, the PCR judge denied the petition because the issues raised were procedurally barred by Rule 3:22-5.
On appeal, defendant raises the following claims:
I. THE LOWER COURT ORDER MUST BE REVERSED BECAUSE THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF PCR COUNSEL.
A. The PCR Court Erred in Procedurally Barring Defendant's Claim that PCR Counsel Failed to Present the Claim of a Defense Witness Testifying in Handcuffs.
B. The PCR Court Erred in Procedurally Barring Defendant's Claim that PCR Counsel Failed to Present the Claim of Prejudicial Hearsay Testimony ...