STATE OF NEW JERSEY v. LOUIS RAY MORRIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5275-03T45275-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LOUIS RAY MORRIS,

Defendant-Appellant.

________________________________________

 

Submitted September 28, 2005 - Decided

Before Judges Conley and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, docket no. 85-11-4348.

Yvonne Segars, Public Defender, attorney for appellant (Jean B. Bennett, Designated Counsel, on the brief).

Paula T. Dow, Acting Essex County Prosecutor, attorney for respondent (Debra G. Simms, Special Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant was convicted in 1986 of murder and first-degree robbery, along with several other related offenses. An aggregate term of life imprisonment with thirty years parole ineligibility was imposed.

Defendant's direct appeal was unsuccessful. State v. Morris, No. A-5148-85T4 (App. Div. Sept. 19, 1988). The basis of the appeal was that defendant was denied a fair trial because of racially exclusionary peremptory challenges, the verdict was against the weight of the evidence, prosecutorial misconduct during summation, error in admission of defendant's confession and other evidence, and denial of the effective assistance of counsel. Defendant's petition for certification to the Supreme Court was denied on December 7, 1986.

Sometime thereafter, defendant filed a habeas corpus petition with the federal District Court of New Jersey claiming that he was denied an impartial jury based on the peremptory challenges, that his guilt was not proven beyond a reasonable doubt, prosecutorial misconduct during summation, and error in the admission of his confession. The petition was denied on May 21, 1990. On October 25, 1991, defendant filed a motion for a certificate of probable cause and permission to file a notice of appeal nunc pro tunc with the federal district court. The motion was denied on December 17, 1991.

On October 15, 1992, defendant filed his initial petition for post-conviction relief (PCR). The basis for the petition was denial of effective assistance of counsel, exclusion of the statement defendant gave to the police, improper jury instruction with respect to count four, and cumulative error. This petition was denied on June 24, 1993. Meanwhile, on May 20, 1993, defendant filed a second habeas corpus petition in the federal district court, again challenging the exercise of the peremptory challenges. On September 1, 1993, defendant's second habeas corpus petition was denied.

Defendant filed a notice of appeal from the denial of the PCR petition on February 1, 1994. It was unsuccessful. State v. Morris, No. A-2822-93T4 (App. Div. May 24, 1996). We cited the basis of R. 3:22-4, R. 3:22-5 and R. 3:22-12.

On February 10, 1999, defendant filed a second (PCR) petition, alleging that the jury instructions on accomplice liability and felony murder were incorrect, and that the cumulative effect of these errors denied him a fair trial. In an affidavit, defendant claimed "excusable neglect" because of the lack of available legal assistance in the prison system. The petition was denied as being time barred under R. 3:22-12. Defendant field a notice of appeal. It, too, was unsuccessful. State v. Morris, No. A-9966-99T1 (March 15, 2001). We concluded that the petition was barred by R. 3:22-4 and R. 3:22-12.

Apparently unaware that the petition had been decided, and an appeal therefrom unsuccessful, a private attorney sent a letter to the trial judge in late 2001 setting forth his arguments in the matter. Judge Vichness, who also apparently was unaware the petition had been previously denied, held a hearing on the petition and denied it by order entered that day. Defendant then filed the notice of appeal that is before us. He argues in his brief that his claims are not barred by R. 3:22-4 because they are either constitutional claims or based on facts and evidence not in the record, and are not barred by R. 3:22-12(a) because he offered evidence of excusable neglect, namely that he was never informed of his right to file a second petition for post-conviction relief.

However, as noted above, an appeal from an order denying the same petition for post-conviction relief has already been decided by us. There is no reason for this panel to resurrect the previously disposed of appeal.

In any event, Judge Vichness correctly determined that the petition was barred by R. 3:22-12(a). In this respect, he said:

In this case the argument of excusable neglect has to be viewed in light of what preceded the second filing for a petition for post-conviction relief.

There was a first petition for post-conviction relief which was filed, considered, argued on appeal, decided on appeal. There were two petitions for writs of habeas corpus filed, decided by Judge Bissell. I understand what the defendant is saying by there not being . . . a sufficient number of people available at the state prison level to advise him.

But I would be more impressed with that argument if there hadn't been a first petition for post-conviction relief and if there hadn't been 2 motions for writs of habeas corpus in the federal system.

I don't find excusable neglect. I do find that this would be time barred.

. . . .

There has to be some finality. It is now 18 years since a sentence was imposed in this case. But even arguing when the first documents showed up in this case, it was 1999 . . . the first beginning of a second post-conviction relief application. Even at that point it's 13 years after the sentence in this case. Clearly way beyond the 5 year period of time.

The judge also correctly found that the claims were barred because they could have been made on direct appeal. R. 3:22-4. See also State v. Milne, 178 N.J. 486 (2004); State v. Mitchell, 126 N.J. 565, 576 (1992).

 
Affirmed.

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A-5275-03T4

October 11, 2005