Opinion
DOCKET NO. A-1329-12T2
08-01-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. THOMAS CROSS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95-08-2755. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Thomas Cross appeals the August 29, 2012 Law Division order denying his third petition for post-conviction relief (PCR) without an evidentiary hearing. We previously reversed and remanded another PCR judge's earlier order denying defendant's application for assignment of PCR counsel and his petition. See State v. Cross, No. A-4278-09 (App. Div. September 21, 2011). On remand, Judge Joseph C. Cassini, III, considered and denied defendant's petition without an evidentiary hearing. We now affirm Judge Cassini's denial of defendant's petition essentially for the reasons stated in the judge's August 28, 2012 written decision.
We held that defendant's petition alleged a prima facie claim of ineffective assistance by his PCR counsel and appellate PCR counsel who represented him for his first PCR petition. Id. (slip op. at 14); See R. 3:22-4(b)(2)(C). "In doing so, we express[ed] no opinion as to whether defendant's [other] claims, as more fully articulated, are procedurally barred or whether PCR should be granted." (slip op. at 14) Moreover, "[w]e recognize[d] the monumental procedural roadblocks that defendant faces in raising the claims that he has at this late date." Id. (slip op. at 13).
The record reveals that on August 23, 1995, an Essex County grand jury charged defendant in a twenty-nine count indictment with numerous offenses including murder, N.J.S.A. 2C:11-3(a)(1), (2), and first-degree carjacking, N.J.S.A. 2C:15-2. The indictment arose from defendant's July 1995 involvement in three separate carjackings, which resulted in the killing of a retired police chief and assaults upon several elderly victims. After a trial, a jury convicted defendant of twenty-three of the twenty-nine counts in the indictment. The judge later sentenced defendant to an aggregate term of life imprisonment plus fifty years, with fifty years of parole ineligibility. Defendant appealed, we affirmed defendant's conviction and sentence, and the Supreme Court subsequently denied certification. State v. Cross, No. A-0675-96 (App. Div. April 20, 1999), certif. denied, 161 N.J. 335 (1999).
Defendant then filed two PCR petitions, which were denied. In both cases, we affirmed the denial of defendant's petition, and the Supreme Court denied certification. State v. Cross, No. A-5610-00 (App. Div. September 19, 2002), certif. denied, 177 N.J. 491 (2003); State v. Cross, No. A-6177-06/M-3411-07 (App. Div. March 19, 2008), certif. denied, 196 N.J. 343 (2008). Defendant also filed a pro se petition for habeas corpus in the United States District Court, which that court ultimately denied on June 23, 2009. Cross v. Ricci, No. 08-3993 (D.N.J. June 23, 2009). Defendant then filed his third petition for PCR and argued:
Point One
BECAUSE THE EXISTING RECORD PROVES CUMULATIVE ERROR[S THAT] VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND DEPRIVED PETITIONER OF A FAIR TRIAL AND EFFECTIVE ASSISTANCE OF COUNSEL, THE CONVICTION MUST BE REVERSED ON
THE EXISTING RECORD PURSUANT TO Strickland v. Washington and Taylor v. Ky.
A. Ineffectiveness Claims Relax Procedural Bars: R. 3:2-4.
B. Ineffective Trial and Post-Trial Counsel.
[1]. Authority on Ineffective-Assistance-of-Counsel Claims.
[2]. Record [-] Proven Ineffective Counsel.
C. The Cumulative Impact of the Developed Claims Warrants Reversal of the Conviction without a Hearing.
1. Other-Crimes Prejudice and Lack of Adequate Instructions.
2. Confrontation Violations and an Impassioned Jury.
3. Denial of Presence and Denial of Public Trial.
4. Ex-Parte Communications Between Trial Judge and a Juror.
5. Inference that Petitioner had Intimidated a Witness.
6. Excessive Police Presence.
7. Unnecessary and Uncured References to Warrant.
8. Inference that Another Trial Had Taken Place.
9. Comments on Petitioner Not Testifying.
10. Sleeping Juror.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Taylor v. Kentucky, 436 U.S. 478, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978).
After our remand, defendant's PCR counsel submitted a brief arguing that counsel was ineffective because "counsel did not adequately investigate or challenge certain aspects of the case." He specified that counsel failed to investigate an alibi witness, an eyewitness to the retired police chief's homicide, and facts relating to an independent shooting that occurred in the same location where the retired police chief was shot and killed. In addition, PCR counsel argued that trial counsel failed to investigate another victim's vision problems that could have interfered with his ability to identify defendant.
PCR counsel also argued that "[b]ecause of counsel['s] cumulative error, defendant's sixth and fourteenth amendment right[s] to a fair trial and effective assistance of counsel were violated." He then listed the ten items noted supra, as "examples of the errors committed by counsel, which although independently may not have resulted in the deprivation of [defendant's] rights, arguably [did] when viewed in the whole." He supplemented that original list with various other alleged errors committed by trial counsel and, based on all those errors, argued that defendant was entitled to an evidentiary hearing having established a prima facie case of ineffective assistance of counsel. Finally, he argued that defendant's claims were not procedurally barred.
The PCR court considered counsels' oral argument and subsequently issued its written opinion and an order denying defendant's petition on both procedural and substantive grounds. Judge Cassini held that defendant's claims of ineffective assistance of counsel were "time barred, procedurally barred and there is no evidence that he was prejudiced by any alleged errors made by his trial, appellate and PCR counsel." The judge further held that defendant's petition was time-barred under Rule 3:22-4, -5, because "[d]efendant's cumulative error claims could have been raised in either his first or second PCR[, and t]here is no showing that enforcement of the bar would result in a fundamental injustice or would be contrary to the U.S. or New Jersey Constitutions."
The judge also found no excusable neglect for defendant's failure to pursue his claims on PCR until fourteen years after his conviction. He specifically rejected any claim that the failure to raise a claim until then was justified by defendant's pursuit of his appeals. The judge also found that "defendant's specific claims are procedurally barred because they have already been adjudicated on the merits." The judge cited to defendant's argument that trial counsel failed to investigate an alibi witness as having been already addressed in defendant's second PCR petition.
Despite the procedural bars, the judge addressed defendant's substantive argument that the cumulative effect of the alleged errors by defendant's trial, appellate and PCR counsels prejudiced defendant. Applying the two-prong Strickland/Fritz test, he found that defendant's claims of ineffective assistance of counsel were unsupported, "bald assertions." As the judge stated, "[w]ithout any affidavits, certifications or other evidence that shows that his trial counsel did not adequately investigate his case, he has failed to make out the first prong of the ineffective assistance of counsel test."
State v. Fritz, 105 N.J. 42 (1987).
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As to Strickland/Fritz's second prong, Judge Cassini stated:
Next, even if the defendant could show that his trial counsel's assistance fell below the level of professional competence, there is no showing to a reasonable certainty that the defendant would not have been convicted but for the errors of his trial counsel. There was overwhelming evidence against the defendant that was proffered by the State at trial, including several eyewitness
identifications and the defendant's own confession. There is also no showing to a reasonable certainty, that the jury would have found the defendant not guilty if the defendant's trial counsel had used alternative witnesses in this case. There is also no showing to a reasonable certainty that the defendant would have gotten a better plea agreement with [the] State if his attorney completed further investigations. Furthermore, the defendant does not show to a reasonable certainty that if his prior appellate counsel and PCR counsel had made these same arguments, his conviction would not have been upheld or he would have been afforded post-conviction relief.
Finally, the cumulative effect of the alleged errors committed by defendant's trial counsel also does not afford him relief. Since none of the alleged errors were deficient in themselves, there is no cumulative effect of those alleged errors. Accordingly, the defendant has failed to meet the second prong of the ineffective assistance of counsel standard and thus should not be afforded post-conviction relief.
Before us, defendant raises the following arguments for our consideration:
POINT I - DEFENDANT'S THIRD PCR PETITION SHOULD NOT HAVE BEEN PROCEDURALLY BARRED.
POINT II - THIS MATTER MUST BE REMANDED FOR FINDINGS OF FACT AND CONCLUSION[S] OF LAW REGARDING THE ISSUES NOT ADDRESSED BY THE PCR COURT. (Not Raised Below)
We begin with a review of the well-settled principles that guide our analysis. Claims of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, as adopted by our Supreme Court in Fritz, supra, 105 N.J. at 52. The test requires a showing of deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
"A petitioner must establish the right to such relief by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459 (1992) (citing State v. Mitchell, 126 N.J. 565, 579 (1992)). "[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner "must allege facts sufficient to demonstrate counsel's alleged substandard performance," and the court must view the facts in the light most favorable to the petitioner. Ibid. A defendant is generally entitled to an evidentiary hearing if he or she makes a prima facie case demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). However, an evidentiary hearing need not be granted where the "defendant's allegations are too vague, conclusory, or speculative." Ibid.; see also Preciose, supra, 129 N.J. at 462-64; State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).
To protect against courts addressing endless issues in a piecemeal fashion, certain PCR procedural rules exist. For example, Rule 3:22-12(a) imposes a five-year limitation after the judgment sought to be attacked for the filing of a first petition, and also limits the time for filing subsequent petitions. Although the time limitations are not absolute and may be waived to prevent a fundamental injustice, the rule must be viewed in light of its dual purposes, "to ensure that the passage of time does not prejudice the State's retrial of a defendant," State v. DiFrisco, 187 N.J. 156, 166 (2006), and "to respect the need for achieving finality." Id. at 167 (quoting Mitchell, supra, 126 N.J. at 576) (internal quotation marks omitted). Moreover, a PCR petition is not a substitute for an appeal of a conviction, R. 3:22-3, and any available ground for relief not asserted in a prior proceeding is barred if it could have been raised earlier, R. 3:22-4, or was asserted earlier. R. 3:22-5.
We have carefully considered defendant's arguments and the applicable law, and we conclude that the arguments advanced by defendant 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 the PCR judge in his August 28, 2012 written opinion. We are satisfied that defendant's third petition, filed fourteen years from the date of his conviction, is clearly time-barred. R. 3:22-12. We also agree that defendant's claims of cumulative error and counsel's deficient performance are barred by Rule 3:22-4, -5, as they were raised or could have been raised on direct appeal and during his two prior PCR petitions. Even if defendant's claims were not procedurally barred, we agree with Judge Cassini that they are meritless because defendant failed to meet his burden under the second prong of the Strickland/Fritz test.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION