STATE OF NEW JERSEY v. MATTHEW JAMES BREWER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3612-04T53612-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MATTHEW JAMES BREWER,

Defendant-Appellant.

_________________________________

 

Submitted: October 18, 2005 - Decided May 1, 2006

Before Judges Kestin and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Hudson County, 824-06-86.

Matthew J. Brewer, appellant pro se.

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Allysa Gambarella, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from an order denying his third petition for post-conviction relief. See R. 3:22. We affirm.

In 1987, following a jury trial, defendant was convicted of kidnapping, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, aggravated assault, and criminal restraint. The trial court imposed an aggregate sentence of fifty years' imprisonment with twenty-five years of parole ineligibility, consisting of: thirty years with fifteen years of parole ineligibility for the kidnapping conviction, a consecutive term of twenty years with ten years of parole ineligibility for the aggravated sexual assault conviction, and a concurrent term of ten years with five years of parole ineligibility for the aggravated assault conviction. The remaining convictions were merged.

On direct appeal, in an unpublished opinion, we reversed the conviction for criminal restraint, one of the merged offenses, and affirmed in all other respects. The Supreme Court denied certification in an order noted at 117 N.J. 58 (1989).

Subsequently, in 1993, the trial court denied defendant's first petition for post-conviction relief, filed on February 21, 1990; and, in 1998, the trial court denied defendant's motion for a new trial based on newly discovered evidence. In 1999, we granted defendant leave to file appeals from both orders out of time and, in an unpublished opinion dated October 20, 2000, we affirmed both orders, i.e. the denial of the first petition for post-conviction relief and the denial of the motion for a new trial. On March 14, 2001, the Supreme Court denied defendant's petition for certification in an order reported at 167 N.J. 644. During the course of the appeal, in an order entered on July 31, 2000, we denied a motion to supplement the record "without prejudice to defendant's right to file a new petition for post-conviction relief alleging ineffective assistance of post-conviction relief counsel in the event defendant is unsuccessful on this appeal."

In 2002, defendant filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. That application was denied on October 31, 2003, and the United States Court of Appeals for the Third Circuit ultimately affirmed.

Shortly after the United States District Court's denial of the habeas corpus petition, defendant filed his second petition for post-conviction relief, raising the issue, inter alia, of an illegal sentence. That petition was denied, and defendant's appeal from the denial was dismissed on November 5, 2004.

On July 16, 2004, defendant filed his third petition for post-conviction relief, alleging inadequate representation by counsel in the first post-conviction relief proceeding. He also moved for "DNA reports" and for the disqualification of Judge Kevin G. Callahan, who had been the trial judge in the matter and had been assigned to all post-conviction applications. Initially, the third petition for post-conviction relief was dismissed by reason of the pending habeas corpus appeal, but it was reinstated on completion of the federal proceeding.

The third petition for post-conviction relief was denied in an order entered on February 9, 2005. Judge Callahan had expressed his reasons for the ruling in considerable detail in a written decision dated January 31, 2005, incorporated by reference in the denial order.

On appeal from the February 9, 2005 order, defendant raises the following issues:

POINT I THE LAW DIVISION JUDGE DISREGARDED THE APPELLATE DIVISION'S ORDER THAT PERMITTED APPELLANT TO RAISE A CLAIM OF INEFFECTIVE ASSISTANCE OF HIS POST CONVICTION RELIEF ATTORNEY.

POINT II APPELLANT WAS NOT TIME BARRED, THEREFORE HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF PCR COUNSEL ENTITLED HIM TO AN EVIDENTIARY HEARING, SINCE THE EVIDENCE CLEARLY SHOWED THAT HE PRESENTED A PRIMA FACIE CASE AS THE NEW JERSEY SUPREME COURT DEFINED IN STATE v. PRECIOSE, 129 N.J. 451 (1992), N.J. CONST. ART 1, PAR. 10, (1947).

POINT III THE LAW DIVISION JUDGE SHOULD HAVE DISQUALIFIED HIMSELF FROM PRESIDING OVER APPELLANT'S PCR REGARDING HIS PCR ATTORNEY'S INEFFECTIVE REPRESENTATION.

POINT IV THE LOWER COURT'S DENIAL OF APPELLANT'S REQUEST FOR POST CONVICTION DNA REPORTS WAS NOT SUPPORTED BY THE LAW.

Our review of the record in the light of the arguments advanced by the parties and prevailing standards of law discloses that none of the issues raised has sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2). We are in substantial agreement with the reasons articulated by Judge Callahan for denying the relief sought.

 
We note that our order of July 31, 2000, did not adjudicate any issues, including questions of timeliness, but merely preserved to defendant the right to raise additional issues in a subsequent post-conviction relief application, which would be independently evaluated both as to substantive merit and timeliness. That order may not be seen, as defendant contends, to revive any issue that may already have been time-barred, see R. 3:22-12(a), or barred by the provisions of R. 3:22-5 as previously adjudicated.

Affirmed.

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A-3612-04T5

May 1, 2006