Opinion
DOCKET NO. A-3813-12T1
10-21-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RAKEEM KELLUM, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Haas. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-03-1075. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Rakeem Kellum appeals from the July 6, 2012 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Following a jury trial, defendant was convicted of fourth-degree possession of less than one ounce of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) (count one), and third-degree possession of less than one ounce of marijuana with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count two). The trial judge merged count one into count two, and sentenced defendant to an extended term of ten years in prison, with a five-year period of parole ineligibility. Defendant appealed his conviction and sentence. We affirmed, and our Supreme Court denied certification. State v. Kellum, No. A-2232-07 (App. Div. May 19, 2009), certif. denied, 200 N.J. 473 (2009).
In September 2011, defendant filed a PCR petition, contending in part that his trial counsel rendered ineffective assistance of counsel by failing to argue that the police officer who testified against him had engaged in "racial[] profiling and wrote false charges about seeing me involved in a drug transaction." Defendant did not present any evidence to corroborate this bald allegation. He attached excerpts from two newspaper articles to his petition that discussed several police officers who had stolen money from drug dealers. The officer who testified at defendant's trial was not one of the officers involved in the thefts.
On July 6, 2012, Judge Michael J. Kassel denied defendant's petition. In a thorough oral opinion, the judge found that defendant failed to demonstrate that his attorney "was in any way ineffective." Defendant did not present any evidence that he was targeted in the investigation because of his race. There was also nothing to indicate that he advised his attorney of any witness who could corroborate his allegation. The judge found that defendant's attorney "brought out much of what was consistent with the defendant's theory concerning what the defendant perceived to be problems with the State's case" and presented "a very professional, workman-like defense." The judge further observed that defendant's attorney "didn't have a magic wand" and, therefore, could not "simply change the State's facts. The State's facts were that the defendant was selling marijuana and got caught. . . . [T]he evidence was quite overwhelming, quite overwhelming." This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR THE PCR COURT TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW CONCERNING THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF RACIAL PROFILING AND RACIAL PROFILING RESULTS IN PER SE PREJUDICE UNDER THE SECOND PRONG OF THE TEST.
POINT II
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing and the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462.
To establish a prima facie claim of ineffective assistance of counsel, the defendant is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066; 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, the defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.
We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Kassel in his well-reasoned July 6, 2012 oral opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION