Opinion
DOCKET NO. A-0425-13T3
03-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GLADSTONE MESSAM, Defendant-Appellant.
Gladstone Messam, appellant pro se. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Maven and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 85-08-03187. Gladstone Messam, appellant pro se. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Gladstone Messam appeals from an August 16, 2013 amended order denying his third petition for post-conviction relief (PCR). We affirm.
In 1985, defendant was indicted for the murder of Rhonda Daye, a pregnant employee with whom he had a sexual relationship. In addition to murder, N.J.S.A. 2C:11-3a(1), defendant was charged with third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. In 1989, a jury convicted defendant on all counts. On February 2, 1989, the trial court merged the convictions and sentenced defendant to a term of life imprisonment with thirty years of parole ineligibility.
We affirmed defendant's conviction on direct appeal. State v. Messam, No. A-166-89 (App. Div. Feb. 26, 1992). The Supreme Court thereafter denied defendant's petition for certification. 130 N.J. 15 (1992). We incorporate by reference the salient facts leading to defendant's conviction, as described in our unpublished decision affirming the jury's verdict. No. A-166-89 (slip op. at 3-8 ).
In November 1992, defendant filed his first PCR petition, alleging ineffective assistance of trial and appellate counsel. Defendant simultaneously filed a "motion for writ of error coram nobis," claiming that trial counsel was ineffective for failing to call certain witnesses at a pre-trial suppression hearing. The trial judge denied the petition in March 1993, and we affirmed. State v. Messam, No. A-4691-92 (App. Div. June 13, 1994), certif. denied, 138 N.J. 269 (1994).
Defendant's petition to the United States District Court for the District of New Jersey for a writ of habeas corpus was thereafter denied and, in an unpublished opinion, filed on November 19, 1997, the United States Court of Appeals for the Third Circuit affirmed. The United States Supreme Court denied defendant's petition for a writ of certiorari. Messam v. Morton, 523 U.S. 1074, 118 S. Ct. 1517, 140 L. Ed. 2d 669 (1998).
In 1999, defendant filed a second pro se petition for PCR, raising issues of ineffective representation of counsel and the adequacy of the jury charge. The trial judge found that these issues were previously adjudicated both in defendant's prior appeals to this court and the Third Circuit, and were thus barred under Rule 3:22-5. In his March 24, 1999 written opinion, the trial judge concluded that defendant's petition was "wholly frivolous and without merit." Accordingly, defendant was not entitled to assigned counsel and his second petition was denied. On April 8, 1999, the trial judge denied a motion filed by defendant to "correct an illegal sentence."
Defendant appealed from both orders. Among other things, defendant "again argue[d] that he received inadequate assistance of prior counsel, including his attorney on the prior PCR application." We affirmed in a consolidated opinion, State v. Messam, Nos. A-4722-98 and A-4813-98 (App. Div. Oct. 17, 2000), and the Supreme Court denied certification. 167 N.J. 630 (2001). During the pendency of that appeal, defendant moved for a remand so that he could seek a new trial based on his sister-in-law's alleged observation in 1984 of the police rummaging through his car before they spoke to him. In May 2000, we denied the motion for a remand.
In January 2002, defendant filed a motion for a new trial based on newly discovered evidence, the asserted observation by his sister-in-law in 1984. On May 3, 2002, the judge (who was not the trial judge who had denied defendant's first two PCR petitions) denied the motion. The judge found it incredible that defendant waited "some [ten] years" before obtaining this information from his own sister-in-law. Additionally, the judge reasoned:
If I understand your argument correctly, it's being alleged that there was some type of illegal search done that, in some way, affected the consent to search that you gave, or in some kind of way affected the finding by [the trial judge] . . . that the items should not be suppressed. I don't find that to be the case.Defendant appealed, and we affirmed the denial of his motion for a new trial, substantially for the reasons stated by the motion judge. State v. Messam, No. A-5616-01 (App. Div. Nov. 17, 2004).
. . . .
I find that the evidence is (1) not material; (2) was clearly discoverable prior to trial; and (3) is not at all likely to . . . in fact, change the jury verdict that was rendered.
Defendant filed the present pro se application for PCR on September 5, 2012. In this third PCR petition, defendant requested an evidentiary hearing and sought to vacate his convictions. He argued, again, that PCR counsel was ineffective, specifically for failing to investigate his sister-in-law's claim that the police had illegally rummaged through his car before the search. He also again challenged his sentence as illegal, and, for the first time, argued that he was not effectively advised of his right to allocution at sentencing and that the jury was improperly impaneled.
On August 16, 2013, without an evidentiary hearing, the PCR judge (not the trial judge or the judge who decided the 2002 new trial motion) denied PCR and the appointment of counsel. The judge explained that defendant's application was time-barred under Rule 3:22-12(a)(2), and his claims were procedurally barred under Rule 3:22-4 and Rule 3:22-5. This appeal followed.
On appeal, defendant presents the following issues for our consideration:
POINT ONE
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE APPELLANT'S INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL CLAIM WAS NOT SUBJECT TO PROCEDURAL DEFAULT, FOR TWO RELATED REASONS THAT TURN ON HIS DUE PROCESS/EQUAL PROTECTION RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL POST-CONVICTION COUNSEL WITH REGARD TO THAT CLAIM
A. Denial of effective assistance of counsel on Appellant's initial PCR provides gateway through which claims must be heard on merits and establishes cause to excuse any procedural defaults of Appellant's ineffective assistance of trial counsel claims
POINT TWO
THE ORDER DE[N]YING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE PCR COUNSEL ON THE INITIAL PCR VIOLATED RULE 3:22-(6)(d), WHEN HE FAILED TO INVESTIGATE APPELLANT'S INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL CLAIM AND ARGUE APPELLANT'S CORAM NOBIS MOTION
POINT THREE
BECAUSE APPELLANT'S INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL CLAIM WAS "SUBSTANTIAL" AND "CAUSE" CONSISTED OF THERE BEING "INEFFECTIVE" ASSISTANCE OF COUNSEL DURING THE INITIAL COLLATERAL PROCEEDING WITH RESPECT TO THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL CLAIMS, IT WAS ERROR FOR THE PCR COURT TO DENY APPELLANT'S PETITION WITHOUT AN EVIDENTIARY HEARING
POINT FOUR
THE PCR COURT'S REFUSAL TO ADDRESS APPELLANT'S SPECIFIC TERM OF YEARS
SENTENCING ARGUMENT SHOULD BE REVERSED BECAUSE THE LIFE SENTENCE IMPOSED WAS NOT AUTHORIZED LEGISLATIVELY. APPELLANT SHOULD BE RE-SENTENCED TO A SPECIFIC TERM OF YEARS BETWEEN THIRTY AND SEVENTY[-]FOUR YEARS WITH A MANDATORY MINIMUM NOT TO EXCEED THIRTY YEARS
POINT FIVE
THE PCR COURT'S DENIAL OF APPELLANT'S REQUEST TO BE RE[-]SENTENCED WAS ERRONEOUS AND SHOULD BE REVERSED BECAUSE APPELLANT'S CONSTITUTIONAL RIGHT TO ALLOCUTION WAS NOT SATISFIED
POINT SIX
THE PCR COURT'S DECISION SHOULD BE REVERSED BECAUSE APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS[/]EQUAL PROTECTION OF LAW BECAUSE THE STATUTE DESIGNATING THE MANNER IMPANELING A JURY IN A CRIMINAL CASE WAS IGNORED
We begin with a review of the relevant, well-settled principles governing our analysis. PCR constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992); see also State v. Nash, 212 N.J. 518, 540 (2013) (noting that PCR represents a defendant's "last chance" to challenge the fairness and reliability of a criminal verdict). To protect against courts addressing endless issues in a piecemeal fashion, certain procedural rules govern PCR petition filings. Rule 3:22-12(a)(1) imposes a five-year limitation on filing a petition after the entry of the judgment sought to be challenged. A second or subsequent PCR petition may only be filed within one year of the recognition of a new constitutional right, discovery of a new factual predicate, or denial of the last PCR to address ineffective assistance of PCR counsel. R. 3:22-12(a)(2).
Although the time limitations are not absolute and may be waived to prevent a fundamental injustice, the rules must be viewed in light of their dual key purposes: to ensure that the passage of time does not prejudice the State's retrial of a defendant and to respect the need for achieving finality. State v. DiFrisco, 187 N.J. 156, 166-67 (2006). Moreover, a PCR petition is not a substitute for an appeal of a conviction, Rule 3:22-3, and any available ground for relief not asserted in a prior proceeding is barred if it could have been raised earlier, Rule 3:22-4, or was asserted earlier, Rule 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 add only the following brief comments.
We are satisfied that defendant's third PCR petition, filed twenty-three years after the judgment of conviction, and thirteen years after the denial of his second PCR petition, is clearly time-barred. R. 3:22-12(a). We also agree that the present claims are barred by Rule 3:22-4 and Rule 3:22-5 as they could have been raised, or were raised, either on direct appeal or in defendant's previous PCR petitions and subsequent appeals.
Contrary to defendant's argument, the recent decisions of the United States Supreme Court in Martinez v. Ryan, 566 U.S. 1, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012), and Trevino v. Thaler, ___ U.S. ___, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013), do not compel a different result. In Martinez, the Court held that "a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the [State's] initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." Martinez, supra, 566 U.S. at ___, 132 S. Ct. at 1320, 182 L. Ed. 2d at 288. This holding was then extended to situations where the State's "procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal." Trevino, supra, ____ U.S. at ___, 133 S. Ct. at 1921, 188 L. Ed. 2d at 1057.
In the present case, defendant had a full and fair opportunity to argue ineffective assistance of trial counsel in his first PCR petition. Similarly, he had a meaningful opportunity to claim ineffective assistance of PCR counsel in his second PCR petition. Moreover, the merits of defendant's claim that the police were seen rummaging through defendant's car were fully developed and rejected during his 2002 new trial motion. Thus, even if not procedurally barred, defendant has failed to assert a "substantial" claim of ineffective assistance of PCR counsel sufficient to warrant relief.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION