STATE OF NEW JERSEY v. JAMES A. BOYKINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3727-03T13727-03T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES A. BOYKINS,

Defendant-Appellant.

_____________________________

 

Submitted December 13, 2005 - Decided February 6, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from Denial of a Petition for

Post-Conviction Relief in the Superior

Court of New Jersey, Law Division,

Ocean County, 96-04-00591.

James A. Boykins, appellant pro se.

Thomas F. Kelaher, Ocean County

Prosecutor, attorney for respondent

(Samuel Marzarella, Senior Assistant

Prosecutor, on the brief).

PER CURIAM

Defendant appeals from the denial of his second post-conviction relief application, and we affirm.

Defendant was convicted, after a jury trial, of kidnapping, N.J.S.A. 2C:13-1b; aggravated criminal sexual contact, N.J.S.A. 2C:14-3a; and criminal sexual contact N.J.S.A. 2C:14-3b. On March 31, 1994, he was sentenced on the kidnapping charge to life imprisonment with a parole ineligibility of twenty-five years. Lesser sentences on the other two counts were run concurrently. On November 15, 1996, in an unreported opinion bearing Docket No. A-5147-93T4, we affirmed, "but without prejudice to an application for post-conviction relief regarding the claim of ineffective assistance of counsel...."

The post-conviction relief application, alleging the ineffective assistance of counsel, was, thereafter, filed; counsel was assigned; and the matter was heard before Judge Edward J. Turnbach on September 19, 1997. Judge Turnbach denied the petition and, in an unreported opinion bearing Docket No.

A-4872-97T4, we affirmed on November 10, 1999. The Supreme Court denied certification. 163 N.J. 76 (2000).

On December 18, 2003, defendant filed this petition for post-conviction relief. Judge James N. Citta issued a letter opinion dated January 9, 2004, denying the application as barred by R. 3:22-5. The memorializing order is not included in this record. We have carefully, and indulgently, reviewed this record, recognizing that defendant is proceeding pro se. Nevertheless, we have concluded that none of the arguments raised by defendant justify discussion in a written opinion. R. 2:11-3(e)(2). We add, however, these brief comments.

R. 3:22-12(a) provides

A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.

This application is, by virtue of that Rule, time-barred. It was filed on December 18, 2003, almost ten years after defendant's conviction and well beyond the five-year period within which the Rule permits it to have been filed. No reason for the delay is provided and, therefore, the exception to the five-year limitation does not apply.

Additionally, the petition alleges ineffective assistance of counsel, a claim already adjudicated in the first post-conviction relief application, and trial errors that were, or might have been, considered on direct appeal. R. 3:22-5 bars an application premised upon grounds that had been adjudicated "in the proceedings resulting in the conviction or in any post-conviction proceeding . . . ." Our independent review of this application reveals no argument other than those presented on defendant's direct appeal or his first post-conviction relief application. Although defendant is entitled to a comprehensive review of the proceedings leading to his conviction, he is not entitled to multiple reviews of the same issues.

Nevertheless, defendant's brief argues that "... the denial of his [first] PCR petition alleging ineffective assistance of counsel was fundamentally unfair." Although we have been unable to identify any claim by defendant that had not been considered previously, it may be that this statement is a reference to the provisions of R. 3:22-4. That Rule prohibits litigation of issues that were not raised in prior proceedings unless it is shown

"(a) that the ground for relief not previously asserted could not reasonably raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.

Even if defendant seeks to raise new issues which we have failed to identify, his current application provides no explanation as to why those issues were not previously raised or why the enforcement of the bar would violate either a constitutional provision or notions of fundamental justice. To the extent defendant is now claiming that he was wrongly convicted, the claim is foreclosed by the decision affirming his conviction and the decision, affirmed by us, that he received effective assistance of counsel.

In short, defendant asks us to adjudicate, twelve years after his conviction, issues that either were or might have been raised directly on appeal and further asks us to review, for a second time, claims of ineffective assistance of counsel without any explanation as to how counsel was ineffective or why that explanation was not previously advanced. Even absent the bar of R. 3:22-5, we would decline to do so.

Finally defendant claims entitlement to a hearing on his petition. Such a hearing, however, is dependent upon the showing of a prima facie basis for relief. State v. Preciose, 129 N.J. 451 (1992). No such showing was made here.

 
Affirmed.

(continued)

(continued)

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A-3727-03T1

February 6, 2006