STATE OF NEW JERSEY v. CARL CULLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1871-05T11871-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARL CULLEY,

Defendant-Appellant.

___________________________________

 

Argued July 12, 2006 - Decided August 10, 2006

Before Judges Fuentes and Graves.

On appeal from Superior Court of

New Jersey, Law Division, Bergen

County, Indictment No. S-138-84.

Paul Salvatoriello argued the cause

for appellant (Lowenstein Sandler,

attorneys; Paul Salvatoriello, of

counsel and on the brief; Stephen F.

Herbes, on the brief).

Catherine A. Foddai, Assistant Prosecutor,

argued the cause for respondent (John

L. Molinelli, Bergen County Prosecutor,

attorney; Ms. Foddai, of counsel and on

the brief).

PER CURIAM:

This is an appeal from a denial of a post conviction relief ("PCR") petition. Defendant Carl Culley's PCR petition was denied by the Criminal Part as untimely under R. 3:22-12. Defendant now appeals raising the following arguments.

POINT I

THE SUPERIOR COURT ERRED IN FINDING THAT THE 5-YEAR TIME BAR OF RULE 3:22-12 WAS TRIGGERED BY THE SUPREME COURT OF NEW JERSEY'S DECISION IN REYES.

POINT II

THE SUPERIOR COURT MISREAD REYES AS HOLDING THE HUMANIK CASE RETROACTIVE, WHEN THE REYES COURT NEVER ADDRESSED THE ISSUE OF RETROACTIVITY.

POINT III

THE SUPERIOR COURT ERRED IN FINDING THAT MR. CULLEY'S CASE WAS FACTUALLY SIMILAR TO MILNE.

POINT IV

THE SUPERIOR COURT ERRED IN REFUSING TO RELAX THE 5-YEAR TIME BAR OF RULE 3:22-12(a).

POINT V

THE SUPERIOR COURT ERRED IN FAILING TO ADDRESS WHETHER MR. CULLEY SATISFIED THE "EXCEPTIONAL CIRCUMSTANCES" STANDARD ARTICULATED BY THE SUPREME COURT IN THE CONTEXT OF HUMANIK CLAIMS.

POINT VI

THE SUPERIOR COURT ERRED IN ASSERTING A PROCEDURAL BAR WITHOUT EVEN AN ABBREVIATED REFERENCE TO THE MERITS OF MR. CULLEY'S HUMANIK CLAIM.

A. The Superior Court Should Have Granted The PCR Petition Because The Petition Was Not Procedurally Barred Under Rule 3:22-4.

B. Mr. Culley's Petition Should Be Granted Because The Constitutional Error In His Trial Was Not Harmless.

We reject these arguments and affirm. We need not recite the underlying facts supporting defendant's conviction, nor the long and complex procedural history of defendant's multiple appeals and collateral attacks of his conviction, both in the courts of this State and the federal courts. Suffice it to say that, defendant's conviction was upheld on appeal. State v. Culley, No. A-1775-84T4 (App. Div. Nov. 24, 1986), certif. denied, 107 N.J. 94 (1987). Thereafter, we affirmed the trial court's denial of defendant's first PCR petition. State v. Culley, 250 N.J. Super. 558, 564 (App. Div.), certif. denied, 126 N.J. 387 (1991). Defendant has been similarly unsuccessful in challenges in federal courts. The United States District Court denied his application for a writ of habeas corpus, and the Third Circuit Court of Appeals affirmed. Culley v. Beyer, 16 F.3d 403 (3d Cir. 1993).

This is defendant's second attempt to set aside his conviction via a PCR petition. Distilled to its essence, defendant now argues that the Supreme Court's decision in State v. Milne, 178 N.J. 486, 491-95 (2004), affords him a new opportunity to attack his conviction based on the principles announced in Humanik v. Beyer, 871 F.2d 432, 436-37 (3d Cir.), cert. denied, 493 U.S. 812, 110 S. Ct. 57, 107 L. Ed. 2d 25 (1989). We reject this argument as well as the other arguments raised by defendant here, and affirm substantially for the reasons expressed by Judge Conte in his memorandum of opinion dated October 14, 2005.

Affirmed.

 

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4

A-1871-05T1

 

August 10, 2006