STATE OF NEW JERSEY v. ABDUS SALAAM QADEEM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3615-04T23615-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ABDUS SALAAM QADEEM a.k.a.

WILLIAM LEE GRANT,

Defendant-Appellant.

___________________________________________________

 

Argued January 11, 2006 - Decided February 8, 2006

Before Judges Stern and Miniman.

On appeal from the Superior Court of New

Jersey, Law Division, Mercer County,

Indictment No. 90-07-1098.

Nancy C. Ferro argued the cause for appellant

(Ferro and Ferro, attorneys).

Dorothy Hersh, Assistant Prosecutor, argued

the cause for respondent (Joseph L. Bocchini,

Jr., Mercer County Prosecutor, attorney;

Ms. Hersh, of counsel and on the brief).

Appellant filed a pro se brief.

PER CURIAM

Defendant appeals from the denial of his third petition for post-conviction relief (PCR). His pro se brief, written before the substitution of counsel, asserts that "the PCR judge incorrectly interpreted the nature of defendant's argument, and in so doing, failed to find the ineffective assistance of counsel claim raised constitutes an injustice sufficient to relax the Rule 3:22-12 time bar."

Defendant was convicted of fatally stabbing James Grimshaw during a drug transaction shortly after midnight on February 16, 1990. The events of that evening are as follows.

After a night of drinking, the victim and two female friends drove into an alley to buy drugs. A knife was concealed inside the glove compartment of the victim's truck. Three men, one of whom was the defendant, approached the driver's side of the truck. When the victim held out his money to make the sale, one of the men snatched it from his hands and ran away. At that time, the victim began to exit the truck and asked one of the women to hand him his knife.

According to the defendant's statement to the police, after the victim opened the door of the truck, he tried to stab the victim in his leg. He then realized that the knife was still in its holder, and ran down the alley and hid. During this time, the defendant was afraid that the victim would come after him in retaliation because he heard the victim ask for his knife. Claiming that he was "high on crack," the defendant took the holder off his knife, snuck up behind the victim, and stabbed him several times in the back of the neck. The victim died hours later.

Although defendant was seventeen years old at the time he committed the offense, he was waived to the Law Division after a juvenile waiver hearing and, consequently, tried as an adult. Following his trial, defendant was found guilty of murder and possession of a weapon for an unlawful purpose. He was sentenced to life imprisonment with a thirty year parole ineligibility term for the murder conviction and a concurrent five year term for the possession of a weapon for unlawful purpose. Judgment was entered on March 12, 1993.

On appeal, we affirmed defendant's murder conviction. However, we ordered the merger of the weapon conviction with the murder conviction.

Since then, defendant has petitioned three times for post-conviction relief. In his first PCR petition, defendant alleged ineffective assistance of counsel, claiming that his attorney did not advise him or his mother of the right to testify at his juvenile waiver hearing. The PCR judge denied his petition and we affirmed the denial, noting that any failure to properly advise the defendant or his parents of their right to testify in this case was "harmless error."

Defendant's second PCR petition, filed on December 22, 2000, was denied on the ground that it was filed beyond the five-year period permitted by R. 3:22-12, and, pursuant to R. 3:22-4, because the petition was predicated on an argument, alleging the ineffective assistance of counsel for failing to raise the defense of intoxication, which could have been raised in either his direct appeal or his first petition for PCR. On appeal, we affirmed the denial of PCR, but clarified that the "defense of intoxication as negating defendant's capacity to have acted purposely or knowingly was in fact submitted to the jury at trial."

Defendant's third PCR petition was filed on January 14, 2005, again alleging ineffective assistance of counsel for failing to raise a psychiatric and/or diminished capacity defense. His petition was denied on January 27, 2005 because it was filed beyond the statutory five year period provided by R. 3:22-12 and because the claim had been expressly adjudicated pursuant to R. 3:22-5.

Defendant now claims that he was mentally unstable when he stabbed the victim and did so when he thought the victim was going to stab him. Defendant asserts that the second PCR was based on a claim of ineffectiveness for failure to raise an "intoxication defense," or "a defense of intoxication as negating defendant's capacity," whereas this one is "that trial counsel was constitutionally ineffective in failing to pursue a psychiatric and/or diminished capacity defense, pursuant to N.J.S.A. 2C:4-2." He further asserts ineffectiveness is now based on the failure to assert the "psychiatric/diminished capacity defense based on the evidence presented at the Juvenile Waiver hearing of defendant's long history of mental or emotional problems." The PCR judge concluded that the defendant made the same claim in the second petition and that there was no excuse to avoid the time bar.

The record does not substantiate defendant's present claim that trial counsel did not take "minimal investigatory steps" to obtain an "expert appraisal of defendant's mental condition and the effect of cocaine on his mental state." See State v. Savage, 120 N.J. 594, 622 (1990). We have reviewed the transcript of the juvenile waiver hearing, at which defendant asserted he could be rehabilitated by age nineteen, and note that his witness, Dr. Margaret Cooke, testified that defendant was "drug and alcohol dependen[t]," had a "long term depressive disorder" and experienced "a severe major depressive episode" at the Youth House. However, the doctor found "no signs of psychosis . . . no signs of difficulty with impulse control." The defendant's presentation at the hearing does not warrant the conclusion that he demonstrated a reasonable likelihood of success if the defense had been asserted. Strickland v. Washington, 466 U.S. 668, 694-95, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); see State v. Preciose, 129 N.J. 451, 463 (1992); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) certif. denied, 162 N.J. 199 (1999).

Even though defendant may now be asserting counsel's failure to raise a psychiatric or diminished capacity defense as a basis for relief in different terms or for different reasons than in prior proceedings, the matter was generally raised in the second petition, if not before; and because of the presentations at his juvenile waiver hearing and at trial, could have been raised previously. See R. 3:22-4, -5. It certainly could have been presented in the prior PCR applications and within five years of the conviction. Furthermore, in affirming the first denial of PCR, we noted that there had been an evidentiary hearing and that the petition involved a "claim of alleged ineffective assistance of counsel at the waiver hearing."

In any event, irrespective of the intoxication defense at trial and the prior ineffective assistance claim on PCR, there is no showing to warrant consideration of the present out-of-time contention raised in a petition filed more than ten years after the judgment was entered. See R. 3:22-12.

Affirmed.

 

The State appended our prior opinions.

He was found not guilty of unlawful possession of a weapon.

The PCR judge's letter opinion stated it was filed on February 28, 2001.

Defendant states his petition was filed in October 2003 but not processed until he wrote the court in January 2005. We can find no copy of the third petition marked "filed." In any event, it was at least ten years after the judgment was returned.

Defendant presented eight witnesses at the waiver hearing. We have not been presented with the trial transcript.

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A-3615-04T2

February 8, 2006