Opinion
DOCKET NO. A-0548-13T2
04-10-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CALVIN RIGGINS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Maven. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-02-00282. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Calvin Riggins appeals the Law Division's April 25, 2013 order dismissing his petition for post-conviction relief (PCR). We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
In May 2008, following a jury trial, Riggins was convicted of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a), third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), and fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1. The trial judge found Riggins eligible for an extended-term sentence as a persistent offender. N.J.S.A. 2C:43-7 and N.J.S.A. 2C:44-3(a). He sentenced Riggins to a seven-year extended term of imprisonment, with three years of parole ineligibility, on the aggravated assault count, a concurrent one-year term of imprisonment on the obstruction count, and a consecutive five-year term of imprisonment, with two-and-a-half years parole ineligibility, on the possession count.
The jury acquitted Riggins on counts charging him with fourth-degree attempted aggravated assault, N.J.S.A. 2C:12-1(b)(5), and fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5(d). Prior to trial, the State dismissed two counts charging Riggins with possession of drugs with intent to distribute. N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7.
Riggins appealed, arguing that the trial court erred in denying his motion to suppress evidence and his motion for acquittal. He also argued that the judge erred in imposing a consecutive sentence. Riggins further argued the verdict was against the weight of the evidence presented and that the extended term sentence was excessive, illegal and unconstitutional. We found no reversible error and affirmed. State v. Riggins, No. A-5667-07 (App. Div. Oct. 20, 2010). The Supreme Court denied certification. State v. Riggins, 205 N.J. 273 (2010).
In May 2012, Riggins filed the present PCR petition. He alleged that his trial attorney rendered constitutionally ineffective assistance by failing to obtain impeaching and exculpatory evidence and by failing to raise allegations of theft by Jamesburg police officers, whom he alleged planted evidence to cover up their theft. He also alleged failure to obtain Brady material and to raise his claim that the police engaged in racial profiling. Riggins' assigned PCR counsel filed a brief, arguing that Riggins' trial attorney failed to meet with him sufficiently and failed to cross-examine the State's witnesses aggressively. He also alleged that Riggins' trial attorney had a conflict of interest because he was the public defender for Jamesburg and had been deemed ineligible to practice by the Lawyers' Fund for Client Security in September 2008, which was after the trial had taken place.
While the appellate process was pending, Riggins filed a pro se PCR petition, which was dismissed without prejudice pending the disposition of the appeal.
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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The PCR judge heard oral argument on April 25, 2013. Following the argument, he delivered an oral opinion explaining his reasons for dismissing Riggins' PCR petition. After detailing the facts and applicable law, the judge found that Riggins had failed to support his arguments related to poor trial preparation, lack of investigation, and related issues with specific facts and had instead relied on "vague, conclusory, [and] unsubstantiated" allegations. Although the judge deplored some of the language attributed to defense counsel, he found no fault with his strategic advice that a jury was more likely to credit the police testimony than that of someone who had as extensive a record of prior convictions as did Riggins.
The judge found no merit in Riggins' contention that, because his trial attorney was paid by Jamesburg to be its municipal public defender and the police officers were also employees of Jamesburg, the trial attorney was in a conflict position. He pointed to the fact that counsel and the judge in criminal cases are not infrequently public employees paid by the same governmental entity. He found no basis to conclude that defense counsel's loyalty was directed to anyone other than Riggins, his client.
Finally, the judge found no merit in Riggins' argument that his attorney was unqualified because he had been suspended, after the trial, for failure to pay his assessment to the Lawyers' Fund for Client Security. An implementing order was entered the same day. This appeal followed.
II.
Riggins raises the following issues on appeal:
POINT I - DEFENDANT'S CONVICTION MUST BE REVERSED DUE TO TRIAL COUNSEL'S INEFFECTIVENESS DUE TO A CONFLICT OF INTEREST; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVENESS DUE TO TRIAL COUNSEL'S CONFLICT OF INTEREST, INADEQUATE INVESTIGATION AND/OR CONSULTATIONIn a pro se appellate brief, Riggins raises the following issues:
POINT II - THIS MATTER MUST BE REMANDED FOR A NEW PCR HEARING BECAUSE COUNSEL FAILED TO ADVANCE CLAIMS RAISED BY DEFENDANT IN HIS PETITION (Not Raised Below)
POINT ONE: DEFENDANT-PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE ONE, PARAGRAPH TEN OF THE NEW JERSEY STATE CONSTITUTION.
POINT TWO: DEFENDANT WAS DENIED DUE PROCESS UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND EQUAL PROTECTION
UNDER THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION.
POINT THREE: DEFENSE COUNSEL FAILED TO OBJECT TO THE STATE[']S USE OF FALSE EVIDENCE (i.e. S-14) AT DEFENDANT[']S SANDS HEARING AND DURING DEFENDANT[']S TRIAL IN [VIOLATION] OF THE GIGLIO RULE.
POINT FOUR: DEFENDANT DID NOT RECEIVE REPRESENTATION GUARANTEED BY POST-CONVICTION RULE.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).
Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694) (internal quotation marks omitted). Further, because prejudice is not presumed, in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668; see also Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Finally, a defendant seeking post-conviction relief is not entitled to an evidentiary hearing unless he presents a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462-64. "As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Id. at 462-63 (emphasis omitted).
The PCR judge correctly characterized Riggins' arguments concerning failure to communicate, lack of preparation, failure to present an appropriate defense, and related contentions as "vague, conclusory, [and] unsubstantiated." The petition lacked the specific facts necessary to present a prima facie case, Mitchell, supra, 126 N.J. at 579, and failed to demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. We note, with respect to the latter issue, that Riggins was acquitted of two charges by the jury.
The PCR judge appropriately rejected Riggins' argument with respect to his attorney's advice concerning the relative credibility of the police witnesses and risk that someone with Riggins' prior record would be subject to impeachment had he testified. A defense attorney's trial strategy is generally not second-guessed in a PCR proceeding, even if the strategy backfires. State v. Gary, 229 N.J. Super. 102, 115-16 (App. Div. 1988).
Riggins' assertion that there was a conflict of interest because his defense attorney and the testifying police officers were employed by Jamesburg is also without merit. In a criminal case being prosecuted by the Division of Criminal Justice and defended by an employee of the Public Defender, the judge, the prosecutor, and the defense attorney are all State employees, yet there is no inherent conflict in that situation. In this case, Riggins' defense counsel was defending him, just as he defended his clients in the Jamesburg municipal court. In both instances, Jamesburg police officers were witnesses for the prosecution. Again, we find no inherent conflict. There is nothing in the record to provide even prima facie support for Riggins' contention that his defense attorney moderated the level of his defense because he had the same employer, on a part-time basis, as the police officers.
Having reviewed Riggins' remaining allegations in light of the record and the applicable law, we find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION