Opinion
DOCKET NO. A-2768-10T4
05-29-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD T. MORRIS, Defendant-Appellant.
Richard T. Morris, appellant pro se. Joseph L. Bocchini, Jr. Mercer County Prosecutor, attorney for respondent (Michael A. Nardelli, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 92-01-0033.
Richard T. Morris, appellant pro se.
Joseph L. Bocchini, Jr. Mercer County Prosecutor, attorney for respondent (Michael A. Nardelli, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant Richard Morris was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1) and N.J.S.A. 2C:11-3a(2), felony murder, N.J.S.A. 2C:11-3a(3) and N.J.S.A. 2C:2-6, and first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6, and was sentenced on January 28, 1994 to life imprisonment with a thirty-year parole disqualifier on the murder conviction and a consecutive fifteen-year term with a five-year parole disqualifier on the robbery conviction. According to the record, the events leading to the conviction took place in an alley where the victim and the perpetrators were using cocaine.
In his direct appeal, defendant claimed that the court's failure to charge the jury on the effect of his voluntary intoxication denied him due process and a fair trial and that his attorney's failure to request such a charge constituted ineffective assistance of counsel. We found no evidence in the record that defendant suffered from a "prostration of faculties" that "rendered [him] incapable of forming an intent," which would have entitled him to the charge. State v. Cameron, 104 N.J. 42, 54 (1984). We upheld the conviction but remanded for reconsideration of the sentence. State v. Morris, No. A-3952-93 (App. Div. Jan. 31, 1996). At the re-sentencing hearing, defendant was sentenced to life imprisonment with thirty years parole ineligibility.
On May 16, 1997, defendant filed a post-conviction relief (PCR) petition, which was denied by the trial judge on June 29, 1999. On September 29, 1999, defendant filed a second petition for PCR, which was denied on February 9, 2000. On February 4, 2002, we considered the denial of defendant's first and second petitions, ordered additional briefing, and subsequently affirmed the denials of both petitions for PCR. On April 28, 2003, the Supreme Court denied defendant's petition for certification. State v. Morris, 176 N.J. 279 (2003). On June 20, 2004, defendant filed his third petition for PCR, which was denied on January 9, 2006, on the ground that it was time-barred pursuant to R. 3:22-12. We affirmed the trial court, and certification was denied on December 8, 2006. State v. Morris, 189 N.J. 104 (2006). On February 9, 2007, defendant filed a federal writ of habeas corpus in U.S. District Court, which was denied on July 23, 2008.
On August 10, 2010, defendant filed this fourth PCR petition, alleging ineffective assistance of counsel. On January 19, 2011, Judge Gerald J. Council issued an order denying the petition without a hearing. Judge Council found that the petition was time-barred under R. 3:22-4 because it was filed four years and seven months after the denial of the third petition. See R. 3:22-12(a)(2)(C) (requiring filing of a second or subsequent PCR petition within one year of denial of preceding petition where ineffective assistance of counsel is alleged in that preceding application). The judge ruled:
[A] second or subsequent petition for post-conviction relief shall be dismissedThis appeal followed.
unless it is timely or an exception applies, R. 3:22-4. Moreover, defendant has already raised these issues, or substantially similar ones, and thus is barred from re-raising them . . . . Additionally, it appears that those claims were raised in defendant's prior PCR application. Therefore, defendant's application is also denied pursuant to R. 3:22-5, as a prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceeding resulted in the conviction or in any PCR proceeding.
Rule 3:22-4(b) provides that a petition for PCR that is not timely filed pursuant to Rule 3:22-12(a)(2) shall be dismissed.
On appeal, defendant raises the following contentions.
POINT I - APPELLANT SUBMITS THAT THE FIVE YEAR BAR SET FORTH IN R. 3:22-12 SHOULD BE RELAXED DUE TO APPELLANT'S EXCUSABLE NEGLECT AS TO FILING WITH OTHER REVIEWING COURTS, THE CASE WAS ACTIVE THROUGHOUT THE COMMENCING OF THE JUDGMENT OF CONVICTION, AND THE INTERESTS OF JUSTICE WARRANT RELAXATION OF THE TIME BAR BECAUSE OF INEFFECTIVE ASSISTANCE OF COUNSEL, A VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS.
POINT II - THE TRIAL COURT ERRED IN DENYING APPELLANT'S PETITION FOR POST CONVICTION RELIEF OR, AT MINIMUM, HOLDING A[N] EVIDENTIARY HEARING [CONCERNING] BOTH APPELLANT'S ATTORNEYS' FAILURE TO INVESTIGATE OBVIOUS SIGNIFICANT AVENUES OF A DEFENSE, DIMINISHING CAPACITY, RECORDS OF MENTAL DISEASES OR DEFECTS THAT DID EFFECT THE "MENS REA" OF THE STATE'S CASE.
Based upon our thorough review of the record and the applicable law, we conclude that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We add the following comments.
Post-conviction relief constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). A person is generally entitled to an evidentiary hearing if he or she makes a prima facie showing of entitlement to such relief by 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). Without such a showing, no evidentiary hearing is required. See State v. Cummings, 321 N.J. Super. 154, 169 (App. Div.), certif. denied, 162 N.J. 199 (1999).
To protect against courts addressing endless issues in a piecemeal fashion, certain procedural rules govern PCR petition filings. For example, Rule 3:22-12(a) imposes a five-year limitation on filing a first petition after entry of the judgment sought to be attacked. 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 purpose 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 are satisfied that defendant's fourth PCR petition, filed eighteen years after the judgment of conviction and more than four years after the denial of the third PCR petition without any showing of excusable neglect, is clearly time-barred. R. 3:22-12. We also agree that the present claims are barred by Rule 3:22-5 as it appears that substantially similar claims were raised and adjudicated in earlier proceedings. To the extent that any claim was not raised, it is barred by Rule 3:22-4 as it could have been raised either on direct appeal or in defendant's previous PCR petitions.
As the record contains neither the prior PCR petitions nor the trial or appellate decisions on the first three petitions, we are unable to determine with certainty what issues were raised and decided previously.
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Moreover, in order to obtain relief on an ineffective assistance of counsel claim, a defendant must show both that his counsel's performance was deficient and that the deficiency prejudiced his defense. State v. Fritz, 105 N.J. 42, 58 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). The record contains nothing more than bald assertions of ineffective assistance, without certifications or other evidence supporting defendant's claims of deficiency or prejudice. See State v. Cummings, supra, 321 N.J. Super. at 170.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION