Opinion
DOCKET NO. A-4465-12T1
01-14-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RAHMAN HERRILL, Defendant-Appellant.
Rahman Herrill, appellant pro se. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-07-1917. Rahman Herrill, appellant pro se. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Rahman Herrill appeals from the Law Division's denial of his second petition for post-conviction relief (PCR), R. 3:22-1 to -13, without oral argument or an evidentiary hearing. In his petition, he claimed his trial counsel was ineffective because counsel never informed him he was facing a life sentence with consecutive terms for additional weapons charges if convicted of murder after trial. According to defendant, had he known that fact, he would have accepted a plea offer to first-degree aggravated manslaughter instead of facing murder charges at trial. In his appeal, he repeats these arguments and adds the PCR court erred by denying him an evidentiary hearing on his claims. See R. 3:22-10(b); State v. Preciose, 129 N.J. 451, 462 (1992). We have considered these arguments in light of the record and we affirm essentially for the reasons stated in Judge Joseph C. Cassini, III's April 23, 2013, written opinion finding defendant's claims both procedurally and substantively barred.
A jury convicted defendant in 2001 of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), and third-degree weapons charges, N.J.S.A. 2C:39-5(b) and 39:-4(a). The court sentenced him to life with a thirty-year parole disqualifier. We affirmed his conviction but required a modification to part of his sentence. State v. Herrill, No. A-6380-01 (App. Div. October 6, 2003). The Supreme Court denied his petition for certification. State v. Herrill, 178 N.J. 455 (2004). Defendant filed his first PCR petition in 2004, which the Law Division denied in 2006. We affirmed that decision in 2010. See State v. Herrill, No. A-2846-06 (App. Div. April 9, 2010). The Court again denied certification. State v. Herrill, 203 N.J. 440 (2010). Defendant also filed a petition for a writ of habeas corpus in federal court. See Herrill v. Ricci, No. 10-3575(ES), 2011 U.S. Dist. Lexis (D. N.J. October 24, 2011). In that application, defendant attempted to raise the identical issues he raised in his later second PCR petition. Id. at *1. The United States District Court denied his application to include those claims as defendant failed to pursue them first in state court. Id. at *4-*5.
We summarized the facts supporting defendant's conviction in our earlier opinion, State v. Herrill, supra, slip op. at 5-9, and need not repeat them here for purposes of our opinion in this appeal.
In 2012, defendant filed this, his second PCR petition, raising the same claims he attempted to argue in his habeas petition. He relied upon the United States Supreme Court's decision in Lafler v. Cooper, 566 U.S. ___, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012) and specifically argued his trial counsel was ineffective by failing to properly advise defendant, during alleged plea negotiations, if he was convicted he would be facing life in prison with a thirty year parole disqualifier. According to defendant's petition, counsel's failure violated the court's rules and "deprived the defendant of his constitutional right to due process of law." As discussed in his written opinion, Judge Cassini denied defendant's petition initially because it was "not timely, and fail[ed] to allege on its face a basis to preclude dismissal."
The PCR court mistakenly referred to the petition as defendant's third petition instead of his second.
Lafler, supra, dealt with a claim that the alleged ineffective assistance of counsel, as defined by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), "result[ed] in a rejection of [a] plea offer and the defendant [was] convicted at the ensuing trial." Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406.
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On appeal defendant argues:
POINT I
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ADVISE DEFENDANT THAT IF HE WENT TO TRIAL [AND WAS CONVICTED OF MURDER] THAT HE WAS FACING LIFE AND [A] CONSECUTIVE SENTENCE FOR WEAPONS POSSESSIONS. THEREFORE [DEFENDANT] COULD NOT ENTERTAIN PLEA BARGAINING THUS, CONTRARY TO LAFLER V. COOPER, 132 S.CT. 1378 (2012).
POINT II
THE TRIAL COURT'S FAILURE TO ADVISE THE DEFENDANT THAT HE WAS FACING LIFE WITHOUT THE POSSIBILITY OF PAROLE UNTIL AFTER FIRST SERVING 30 YEARS IMPRISONMENT, AND A CONSECUTIVE SENTENCE FOR WEAPON POSSESSION DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW. U.S. CONST. AMEND. VI; XIV; N.J. CONST. (1947) ARTICLE I, PARAGRAPHS 1, 5, 9, AND 10.
POINT III
SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, HE WAS AT LEAST ENTITLED TO AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTIONS RELATING THERETO.
As the judge correctly explained in his opinion, defendant's second PCR petition was governed by Rule 3:22-4 and 22-12(a)(2):
Bar of Grounds Not Raised in Prior Proceedings; Bar of Second or Subsequent Petitions; Exceptions
. . . .
(b) Second or Subsequent Petition for Post-Conviction Relief. A second or subsequent petition for post-conviction relief shall be dismissed unless:
(1) it is timely under R. 3:22-12(a)(2); and
(2) it alleges on its face either:
(A) that the petition relies on a new rule of constitutional law, made retroactive to defendant's petition by the United States Supreme Court or the Supreme Court of New Jersey, that was unavailable during the pendency of any prior proceedings; or
(B) that the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted; or
(C) that the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief.
[R. 3:22-4.]
Limitations
(a) General Time Limitations.
. . . .
(2) Second or Subsequent Petition for Post-Conviction Relief. Notwithstanding any other provision in this rule, no second or subsequent petition shall be filed more than one year after the latest of:
(A) the date on which the constitutional right asserted was initially recognized by the United States Supreme Court or the Supreme Court of New Jersey, if that right has been newly recognized by either of those Courts and made retroactive by either of those Courts to cases on collateral review; or
(B) the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence; or
(C) the date of the 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.]
Judge Cassini found defendant failed to meet the requirements for a court to consider defendant's second petition. The judge explained, contrary to defendant's argument, and in reliance on the United States Circuit Court of Appeals for the Eleventh Circuit's holding in In re Perez, 682 F.3d 930, 932 (11th Cir. 2012), the Supreme Court's decision in Lafler, supra, did not announce a new rule but "instead, . . . 'merely an application of the Sixth Amendment's right to counsel . . . .'" The judge also noted defendant failed to explain why his grounds for PCR — his attorney's alleged failure to advise him he faced a life sentence — were not included in his first petition for PCR. Finally, the judge concluded that even if defendant filed a timely PCR petition, the facts alleged by defendant did "not raise a reasonable probability that trial counsel was ineffective" because if defendant accepted a plea offer, had one existed, "he still would have faced up to 30 years."
We conclude, as did Judge Cassini, that defendant's PCR petition was barred because it was untimely, R. 3:22-4(b)(1), and also because he failed to establish a basis satisfying the exceptions in Rule 3:22-4(b)(1) or (2) permitting review of a second PCR petition. Accordingly, the petition must be denied. R. 3:22-4(b). First, neither the United States nor New Jersey Supreme Court announced a new rule of constitutional law upon which defendant could rely. Sanchez v. Burns, 24 F. Supp.3d 441, ___ (E.D. Pa. 2014) (holding Lafler, supra, "did not recognize a new constitutional right" and noting that the majority of federal circuit courts have uniformly held Lafler was "'merely an application of the Sixth Amendment right to counsel, as defined in Strickland, to a specific factual context.'") (quoting Perez, supra, 682 F.3d at 932). Second, defendant never explained why he did not raise in his earlier appeals or first PCR petition his trial counsel's alleged failure to properly advise him of the consequences of going to trial. Without providing any legal or factual basis to avoid the rule's time-bar, we have no reason to disturb the PCR court's order.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION