STATE OF NEW JERSEY v. WILLIAM JOHNSON a/k/a NATRONE DHORUBA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6439-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM JOHNSON a/k/a

NATRONE DHORUBA,

Defendant-Appellant.

__________________________

 

Submitted July 26, 2006 - Decided August 18, 2006

Before Judges Hoens and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 3113-12-88.

William Johnson, appellant pro se.

James P. Lynch, Acting Camden County Prosecutor, attorney for Respondent (Nancy P. Scharff, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant William Johnson appeals from a trial court order denying his third petition for post-conviction relief (PCR). Judge Millenky rejected the PCR in a thorough written opinion dated June 24, 2005, and we affirm.

I

We will not repeat the entire litany of defendant's multiple appeals and collateral challenges to his conviction and sentence, as Judge Millenky's opinion provides a detailed history. But we briefly review the most pertinent events.

On April 14, 1989, following a jury trial, defendant was convicted of first degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), and conspiracy to distribute a controlled dangerous substance, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5a(1) and -5b(1). After merging the two counts and granting the State's motion for an extended term, Judge Steinberg sentenced defendant to sixty years in prison with a twenty-year period of parole ineligibility.

In 1990, we affirmed defendant's sentence after review at an Excessive Sentence Oral Argument calendar. We later permitted defendant to raise additional issues, including ineffective assistance of counsel, and in 1992 we re-affirmed the conviction following full briefing. State v. Johnson, No. A-5068-88 (App. Div. March 5, 1992), certif. denied, 130 N.J. 10 (1992).

Defendant's first PCR was considered on the merits and denied in 1993. The denial was affirmed on appeal and certification was denied. State v. Johnson, No. A-1823-93 (App. Div. June 12, 1995), certif. denied, 143 N.J. 329 (1996).

Defendant filed a petition for a writ of habeas corpus in Federal District Court in 1998. In that petition he raised, among other claims, contentions that the State had not properly proven the identity and weight of the cocaine, and that his trial counsel was ineffective for having stipulated to those issues. Judge Irenas rejected those arguments in a written opinion on July 15, 1999. Dhoruba v. Morton, No. 98-5355 (D.N.J. July 15, 1999). The United States Court of Appeals for the Third Circuit dismissed defendant's appeal as untimely. Dhoruba v. Morton, No. 99-5688 (3rd Cir. February 10, 2000), cert. denied, 531 U.S. 932, 121 S. Ct. 315, 148 L. Ed. 2d 253 (2000).

Defendant filed his second PCR in 2001. It was denied as untimely, because it was filed beyond the five-year time bar of R. 3:22-12(a) and defendant did not demonstrate excusable neglect. We affirmed the denial of defendant's second PCR in 2002. State v. Dhoruba, No. A-13-01 (App. Div. August 15, 2004). The Supreme Court denied certification. State v. Dhoruba, 175 N.J. 430 (2004).

Defendant filed his third PCR on July 12, 2004, more than fifteen years after his conviction. Judge Millenky denied the petition, because it was untimely and defendant had not shown excusable neglect. R. 3:22-12(a). He also concluded that the issues defendant was raising were barred by R. 3:22-5, because they had been previously raised and adjudicated.

II

On this appeal, defendant raises the following contentions:

THE STATE WILL CONCEDE THAT N.J.S.[A]. 2C:35-19 REQUIRES THE STATE TO PROFFER EITHER THE TESTIMONY OF A CHEMIST OR A LABORATORY CERTIFICATE IN LIEU OF A CHEMIST TESTIMONY IN REGARDS TO ESTABLISHING WEIGHT AND IDENTITY OF AN ILLEGAL SUBSTANCE FOR THE PURPOSE OF PROVING GUILT AND TO DETERMINE THE APPLICABLE SENTENCING RANGE. THE STATE'S FAILURE TO COMPLY WITH THE STATUTORY REQUIREMENTS OF SAID STATUTE REPRESENTS AN INDISPUTABLE REVERSIBLE CLAIM AND ALSO MEANS DEFENDANT'S SENTENCE IS ILLEGAL. TO REMOVE ANY PREJUDICE THAT THE STATE COULD SUFFER AS A RESULT OF THE STATE FAILING TO PROVIDE A LEGAL PROCESS TO PROPERLY/TIMELY LITIGATE THIS CLAIM AGAINST THE STATE, DEFENDANT SEEKS TO COMPROMISE WITH THE STATE AND ASKS THAT THE REJECTED PLEA OFFER BE IMPOSED IN LIEU OF REVERSING THE CONVICTION.

Having reviewed the record and applicable legal precedents, we conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm, adding only the following comments.

First, defendant's PCR was properly dismissed as untimely under R. 3:22-12(a). His appellate brief and reply brief do not even address the issue of timeliness or excusable neglect, beyond asserting in general that defendant should not be penalized because his prior attorneys "failed to properly/timely raise reversible claims on behalf of . . . defendant."

Second, while defendant implicitly attempts to bring his PCR within the exception that an illegal sentence may be challenged at any time, R. 3:22-12(a), his effort is unavailing. He contends that his conviction should be overturned because the State did not properly substantiate the weight and identity of the cocaine he was accused of possessing. Defendant reasons that if his conviction should be overturned on that basis, then his sentence is also illegal. This is not a challenge to the sentence itself, within the meaning of R. 3:22-12(a), but is simply a challenge to defendant's underlying conviction. Thus, the issue had to be raised on PCR within five years of defendant's conviction.

Third, defendant is procedurally barred from raising his claim that the State did not prove the identity and weight of the cocaine, because that claim could have been raised on direct appeal to this court. R. 3:22-4. Moreover, the claim was actually raised and adjudicated on defendant's federal habeas corpus petition.

Finally, his related claim, that his counsel was ineffective for stipulating to the identity and weight of the drugs, could have been raised in prior PCR filings, and it cannot be raised here, in defendant's third PCR petition. R. 3:22-4. This contention also was adjudicated and rejected in the habeas corpus proceeding.

In conclusion, in numerous past proceedings, defendant has had a full and fair opportunity to raise these issues and to have them adjudicated. But cf. State v. Preciose, 129 N.J. 451, 474-78 (1992) (disapproving application of State procedural bars to PCR for the purpose of preventing federal habeas corpus review). He is not entitled to raise them again.

Affirmed.

 

The State also contends that this claim and the related ineffective assistance of counsel claim were actually raised in prior State appeals and PCR proceedings. Defendant does not address the State's contention. But neither party has provided us with sufficient materials from the record to permit us to reach a conclusion on the issue.

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A-6439-04T3

 

August 18, 2006