Opinion
DOCKET NO. A-2617-14T4
03-21-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EDWARD LOCKE, Defendant-Appellant.
Edward Locke, appellant pro se. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-01-0235. Edward Locke, appellant pro se. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Edward Locke appeals the January 5, 2015 order denying his third petition for post-conviction relief (PCR). We affirm.
The PCR judge mistakenly described this as defendant's second PCR petition. --------
In January 1995, defendant was convicted after trial of felony murder, aggravated manslaughter, aggravated assault, second-degree burglary and two counts of first-degree robbery. He was sentenced to a term of life imprisonment with thirty years of parole ineligibility for the murder count and to a consecutive term of twenty years, ten without parole, on the robbery counts. All of the other counts merged or resulted in concurrent sentences. Defendant appealed and we affirmed the conviction, but remanded for correction of the sentence to effect an additional merger of the concurrent term. State v. Locke, No. A-4116-94 (App. Div. Apr. 29, 1997). Defendant's prison term and his period of parole ineligibility were not affected by our decision. Defendant's petition for certification was denied. State v. Locke, 151 N.J. 76 (1997).
In 1997, defendant filed his first PCR petition, raising ten claims of ineffective assistance of counsel. On October 25, 1999, the judge who had presided at defendant's trial entered an order accompanied by a written decision denying each of the claims. Defendant appealed and we affirmed that decision. State v. Locke, No. A-2122-99 (App. Div. Apr. 16, 2001). The Supreme Court again denied defendant's petition for certification. State v. Locke, 170 N.J. 89 (2001).
In 2005, defendant filed his second PCR petition. He challenged only his sentence, claiming his original indictment did not clearly define the elements of first-degree robbery because it did not specify that the robbery was committed during the course of a theft. Defendant argued that the defect in the indictment made his conviction, and therefore his sentence, on the two robbery counts illegal.
On August 31, 2005, the same judge entered an order denying defendant's second petition on procedural grounds, finding that it did not assert a claim of an illegal sentence and raised an argument that could have been raised on direct appeal. The judge also considered the petition on its merits and rejected the claim that the indictment was defective.
Defendant appealed and we again affirmed, finding his argument lacked sufficient merit to warrant extended discussion in a written opinion. State v. Locke, No. A-0452-05 (App. Div. May 23, 2006). The Supreme Court denied defendant's petition for certification. State v. Locke, 188 N.J. 354 (2006).
Defendant moved for a new trial based on newly discovered evidence. On June 20, 2012, a different judge entered an order denying the motion. Defendant appealed and we affirmed. State v. Locke, No. A-6297-11 (App. Div. Mar. 5, 2014). The Supreme Court denied defendant's petition for certification. 219 N.J. 628 (2014).
On October 22, 2014, defendant filed his third PCR petition, raising several of the newly discovered evidence claims he had previously asserted. On January 5, 2015, Judge Robert H. Gardner filed an order accompanied by a written decision denying defendant's third petition. Citing Rules 3:22-12(a) and 3:22-4(b), Judge Gardner found that defendant's petition was procedurally barred as it was not filed within five years of the entry of judgment and defendant had failed to show excusable neglect. Defendant appeals from that order, raising the following arguments:
POINT ONE
RULE WHICH BARS CONSIDERATION OF ISSUES IN PETITION FOR POST CONVICTION RELIEF MAY BE RELAXED WHERE ISSUE INVOLVES INFRINGEMENT OF CONSTITUTIONAL RIGHTS OR SHOWING OF FUNDAMENTAL INJUSTICE.
POINT TWO
POST CONVICTION PETITIONER'S CLAIM OF ACTUAL INNOCENCE WAS A CONSTITUTIONAL CLAIM TO [BE] CONSIDERED ON THE MERITS IN A SECOND PETITION.
POINT THREE
WITH NEW EVIDENCE OF INNOCENCE THE EXISTENCE OF A MERITORIOUS CONSTITUTIONAL VIOLATION IS IN ITSELF SUFFICIENT TO ESTABLISH MISCARRIAGE OF JUSTICE.
POINT FOUR
STANDARD OF HERRERA V. COLLINS, REQUIRES [DEFENDANT] TO SHOW THAT A CONSTITUTIONAL VIOLATION PROBABLY RESULTED IN CONVICTION OF ONE WHO IS ACTUALLY INNOCEN[T].
POINT FIVE
DEMONSTRATING ACTUAL INNOCENCE TO PERMIT A COURT TO CONSIDER MERITS OF A SECOND POST CONVICTION CLAIMS, GOVERNS MISCARRIAGE OF JUSTICE INQUIRY WHEN PETITIONER RAISES CLAIMS OF ACTUAL INNOCENCE TO AVOID PROCEDURAL BAR TO THE CONSIDERATION OF THE MERITS OF HIS CONSTITUTIONAL CLAIMS.
POINT SIX
EXPERT TESTIMONY IS NOT ADMISSIBLE [WHERE] THE THEORY CANNOT BE, AND HAS NOT BEEN, TESTED THAT WILL ASSIST THE TRIER OF FACT, WAS NOT SUPPORTED BY "SCIENTIFIC KNOWLEDGE" UNDER FEDERAL RULES OF EVIDENCE.
POINT SEVEN
BASED ON POST TRIAL BLACK BOX WARNING OF FOOD AND DRUG ADMINISTRATION (FDA) CONTAINING RESULTS OF NATIONWIDE SURVEY ADDRESSING KEY TRIAL ISSUE OF CAUSING SERIOUS INJURIES AND DEATH; FINDING OF FACT IS "CLEARLY ERRONEOUS" A MISTAKE HAS BEEN MADE.
POINT EIGHT
THE RECORD ESTABLISHES THAT EITHER THE PROSECUTION OR THE JUDICIARY ABUSED THE
PROCESS UNDER WHICH DEFENDANT WAS CONVICTED. RESOLUTION OF THE ISSUES RAISED REQUIRE TAKING OF ORAL TESTIMONY.
Defendant submitted a supplemental brief raising the following additional arguments:
POINT [NINE]
WHEN A DEFENDANT HAS HAD NOTICE FROM THE BEGINNING THAT THE PLAINTIFF SETS UP AND IS TRYING TO ENFORCE A CLAIM AGAINST IT BECAUSE OF SPECIFIED CONDUCT, THE REASONS FOR THE STATUTE OF LIMITATIONS DO NOT EXIST, AND WE ARE OF OPINION THAT A LIBERAL RULE SHOULD BE APPLIED.
POINT [TEN]
WRIT OF HABEAS CORPUS IS CIVIL ACTION THAT PROVIDES REMEDY FOR ILLEGAL CONFINEMENT THROUGH COLLATERAL REVIEW OF CRIMINAL JUDGMENTS.
POINT [ELEVEN]
A WRIT OF HABEAS CORPUS IS THE PROCEDURE BY WHICH A NEW JERSEY POST CONVICTION COURT INQUIRES INTO ILLEGAL DETENTION.
We have carefully considered all of defendant's arguments and find that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons contain in the thorough and comprehensive decision of Judge Gardner.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION