STATE OF NEW JERSEY v. TRACY TISDOL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1018-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TRACY TISDOL,

Defendant-Appellant.

_________________________________________________________

October 29, 2010

Submitted October 12, 2010 - Decided

Before Judges Graves and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Indictment No.

95-11-1254.

Tracy Tisdol, appellant pro se.

Camelia M. Valdes, Passaic County Prosecutor,

attorney for respondent (Steven E. Braun,

Chief Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Tracy Tisdol appeals from an order dated September 25, 2009, denying his second petition for post-conviction relief (PCR). We affirm.

More than thirteen years ago, on February 13, 1997, defendant was convicted of murder, felony murder, conspiracy to commit armed robbery, armed robbery, possession of a weapon for an unlawful purpose, and possession of a handgun without a permit. On April 18, 1997, the trial court sentenced defendant to an aggregate term of life imprisonment plus twenty years, with forty years of parole ineligibility. On appeal, we affirmed defendant's convictions and his sentence in an unreported decision. State v. Tisdol, No. A-6056-96T4 (App. Div. Nov. 12, 1999), certif. denied, 163 N.J. 396 (2000).

The trial court denied defendant's first PCR petition in 2003. Defendant then appealed to this court, and we affirmed the denial of his petition for PCR.1 Defendant reports that he filed an application for a writ of habeas corpus in the United States District Court, which was denied on September 25, 2006; his appeal to the Third Circuit Court of Appeals was denied on April 25 2007; and the Supreme Court of the United States denied defendant's petition for a writ of certiorari.2 Tisdol v. Milgram, 552 U.S. 1284, 128 S. Ct. 1711, 170 L. Ed. 2d 520 (2008).

Defendant's second petition for PCR was denied on September 25, 2009. The PCR court determined that defendant's petition was filed well beyond the five-year period allowed by Rule 3:22-12, and defendant failed to demonstrate that the five-year time bar should be relaxed because the delay in filing was due to "excusable neglect" or because the interests of justice required relaxation. See State v. Goodwin, 173 N.J. 583, 594-95 (2002). Nevertheless, the court considered defendant's petition and found that his arguments lacked merit.

On appeal to this court, defendant presents the following argument:

POINT ONE

THE DECISION OF THE LOWER COURT WAS NOT BASED ON SUFFICIENT, CREDIBLE EVIDENCE IN THE RECORD[.] THEREFORE, THE MATTER SHOULD BE REVERSED AND REMANDED FOR A NEW HEARING[.]

We are satisfied from our review of the record that defendant's argument is clearly without merit, Rule 2:11-3(e)(2), and we affirm substantially for the reasons stated by Judge Guzman in his written decision dated September 25, 2009. As he correctly concluded, defendant's contentions were "either specious, previously adjudicated, or severely out of time." See State v. McIlhenny, 357 N.J. Super. 380, 386 (App. Div.) ("To consider legal arguments available to a defendant on direct appeal years after conviction and sentence does not serve justice. Rather it mocks the reasonable time limits of the Rules of Criminal Practice and insults the laudatory purpose of post-conviction relief."), certif. denied, 176 N.J. 430 (2003).

1 Although the record does not contain a copy of our opinion affirming the denial of defendant's first petition for PCR, defendant confirms that the New Jersey Supreme Court denied his petition for certification on May 3, 2005. State v. Tisdol, 183 N.J. 586 (2005).

2 The record does not include copies of the documents defendant filed in the federal proceedings or any of the decisions rendered in those proceedings.