STATE OF NEW JERSEY v. MYRON HUGHLEY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1748-08T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MYRON HUGHLEY, A/K/A SHAHID
ALLEN,
Defendant-Appellant.
________________________________
Submitted: May 5, 2010 Decided: August 26, 2010
Before Judges Cuff and C.L. Miniman.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
99-07-2419.
Yvonne Smith Segars, Public Defender, attor-
ney for appellant (Arthur J. Owens,
Designated Counsel, on the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Sara A.
Friedman, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Defendant Myron Hughley appeals from a March 26, 2007,
order denying his petition for post-conviction relief (PCR) in
connection with his March 22, 2002, conviction of second-degree
aggravated assault, contrary to N.J.S.A. 2C:12-1b(1); second-
degree possession of a weapon for an unlawful purpose, contrary
to N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a
weapon, contrary to N.J.S.A. 2C:39-5b, under Indictment No. 99-
07-2419. Defendant was sentenced to a term of ten years on the
aggravated-assault conviction, subject to the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2, with three years of parole
supervision; a term of ten years on the conviction for posses-
sion of a weapon for an unlawful purpose; and a term of five
years on the conviction for unlawful possession of a weapon.
These sentences were to run concurrently with each other and
concurrently with the sentence he was then serving under
Indictment No. 99-09-2948.1
On direct appeal, State v. Hughley, No. A-5902-01 (App.
Div. Dec. 1, 2003), we described the facts as follows:
The events giving rise to these charges
occurred on January 19, 1999, when Norman
Henderson encountered defendant on the
street. Henderson knew defendant because he
had previously purchased drugs from defen-
dant. After his conversation with defen-
dant, Henderson started walking home when he
heard someone behind him. He turned around
1
Defendant is currently "serving an aggregate term of sixty
years [on this indictment under the name Shahid Allen] with a
thirty-year period of parole ineligibility following his convic-
tion of first degree murder, third degree possession of a hand-
gun without a permit, and second degree possession of a weapon
State v. Allen, No. A-1482-08 (App.
for an unlawful purpose."
Div. Dec. 29, 2009) (slip op. at 1-2). We there affirmed the
denial of post-conviction relief. Id. at 7-8.
A-1748-08T4
2
and saw defendant. Defendant took out a gun
and fired a single shot, wounding Henderson
in the chest, puncturing a lung and kidney.
Henderson ran to the street, flagged down a
car and was driven to University Hospital,
where he was treated for the gunshot wound.
Henderson told police he knew defendant
by the name of "Black" and, although he did
not know where Black lived, he knew where
the man hung out. The police showed Hender-
son a photo array, but he did not recognize
his assailant. Henderson gave Detective
Richard Flourney a verbal description, how-
ever, and when the detective subsequently
saw a person on the street who fit the
description, he detained him for question-
ing. This person was later identified as
defendant. The detective added a photo of
defendant to the prior array and showed it
to Henderson, who then identified defendant
as his assailant. Henderson also identified
defendant at trial.
Defendant presented the testimony of
Beatrice Washington, who said she was driv-
ing by during the shooting and that she knew
defendant from school but could not identify
him as the shooter. Defendant testified
that he did not remember where he was that
day but denied seeing Henderson, shooting
him or ever selling drugs to him. Defendant
acknowledged that when he was first ques-
tioned by police, he gave his name as Myron
Hughley, which was not his actual name,
because he knew that there were outstanding
traffic warrants for him and did not want to
go to jail.
[Id. at 2-3.]
In his direct appeal, defendant raised four issues:
POINT ONE THE TRIAL COURT ERRED BY FAILING
TO SUPPRESS THE VICTIM'S PRETRIAL PHOTO-
GRAPHIC INDENTIFICATION AS A RESULT OF THE
A-1748-08T4
3
FAILURE OF THE POLICE TO PRESERVE THE
PHOTOGRAPHIC ARRAY.
POINT TWO THE TRIAL COURT ERRED BY FAILING
TO MERGE COUNT IV CHARGING POSSESSION OF A
WEAPON FOR AN UNLAWFUL PURPOSE INTO COUNT II
CHARGING AGGRAVATED ASSAULT. (NOT RAISED
BELOW)
POINT THREE THE TRIAL COURT ERRED BY
IMPROPERLY SENTENCING THE DEFENDANT IN
ACCORDANCE WITH THE NO EARLY RELEASE ACT
SINCE A "VIOLENT CRIME" WAS NOT COMMITTED IN
THE PRESENT CASE.
POINT [FOUR] THE SENTENCE IMPOSED WAS
MANIFESTLY EXCESSIVE.
[Id. at 3-4.]
We affirmed defendant's convictions and the sentences
imposed on the aggravated-assault and unlawful-possession con-
victions, but remanded for correction of the judgment of convic-
tion to reflect merger of the conviction for possession a weapon
for an unlawful purpose with the aggravated-assault conviction.
at 10. Defendant's petition for certification was
Id.
thereafter denied. State v. Hughley,
179 N.J. 311 (2004).
Defendant filed his PCR petition on or about March 23,
2005, asserting that his trial counsel was ineffective (1) in
failing to investigate and call an alibi witness and (2) in
failing to object to "identification issue and testimony."
Defendant's appointed PCR counsel filed a supplemental brief in
which he raised the following issues on defendant's behalf,
A-1748-08T4
4
which we have renumbered to run sequentially to defendant's pro
se points:
POINT THREE THE TRIAL COURT ABUSED ITS
DISCRETION BY SENTENCING DEFENDANT TO A SEN-
TENCE GREATER THAN THE PRESUMPTIVE TERM
BASED ON FACTORS NOT FOUND BY THE JURY.
POINT FOUR THE DEFENDANT SUFFERED FROM
INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE OF
COUNSEL'S FAILURE TO INVESTIGATE AND PRESENT
MITIGATING CIRCUMSTANCES CONCERNING
PETITIONER'S DISABILITIES AT SENTENCING.
POINT FIVE PETITIONER'S RIGHT TO A FAIR
TRIAL WAS VIOLATED BY THE TRIAL COURT'S
FAILURE TO SUPPRESS THE PHOTOGRAPHIC ARRAY
IN LIGHT OF THE VICTIM'S OWN TESTIMONY THAT
HE DID NOT IDENTIFY PETITIONER FROM THE PHO-
TOGRAPHIC ARRAY AND THAT IN FACT HE NEVER
IDENTIFIED ANY INDIVIDUAL IN THE COPY OF THE
PHOTO ARRAY PRODUCED AT TRIAL.
In ruling on defendant's PCR petition, Judge Michael L.
Ravin first refused to consider Point Five, and thus inferen-
tially Point Two, because the issue had been raised on direct
appeal and was thus barred by Rule 3:22-5. Defendant does not
contest this obviously correct determination, which also applies
to Point Three respecting the sentence imposed in this matter.
The judge rejected this point on the ground that excessiveness
was distinct from illegality and did not satisfy the require-
ments of Rule 3:22-2(c), which provides a ground for PCR where a
sentence is illegal.
A-1748-08T4
5
After summarizing the case law governing ineffective-assis-
tance-of-counsel claims, including Strickland v. Washington,
466 U.S. 668,
104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), and State v.
Fritz,
105 N.J. 42, 58 (1987), Judge Ravin determined that
defendant's claim of ineffective assistance of counsel with
respect to investigation and presentation of mitigating circum-
stances at sentencing lacked merit. This was so because these
contentions were "not substantiated by any certification or
affidavit. The claims are based on pure speculation." He also
noted that sentencing judges do consider the contents of the
presentence report prepared by the Probation Department, which
indicated that defendant had attended several alternative
schools during his formative years and may have been receiving
some form of Social Security.
The judge concluded that defendant failed to prove that his
counsel's performance was ineffective, because "'Strickland does
not require counsel to investigate every conceivable line of
mitigating evidence no matter how unlikely the effort would be
to assist the defendant at sentencing[, n]or does Strickland
require defense counsel to present mitigating evidence at sen-
tencing in every case,'" quoting Wiggins v. Smith,
539 U.S. 510,
533,
123 S. Ct. 2527, 2541,
156 L. Ed. 2d 471, 492 (2003). The
judge also found that defendant had not demonstrated that the
A-1748-08T4
6
outcome would have been different even had this evidence been
developed and presented at the time of sentencing, the second
prong of Strickland.
The judge did not specifically address Point One, in which
defendant pro se asserted that his trial counsel was ineffective
for failing to investigate and call an alibi witness. However,
we note that defendant did not submit a certification or affida-
vit from the alleged witness and thus did not meet his burden of
proof under Strickland. State v. Cummings,
321 N.J. Super. 154,
170 (App. Div.), certif. denied,
162 N.J. 199 (1999). This
appeal followed.
Defendant raises the following issues for our consideration:
POINT ONE THE [PCR] COURT ERRED IN FINDING
THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE
WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL.
POINT TWO THE [PCR] COURT ERRED IN ITS
FINDING THAT DEFENDANT FAILED TO DEMONSTRATE
A PRIMA FACIE CASE OF INEFFECTIVENESS OF
APPELLATE COUNSEL (NOT RAISED BELOW).
POINT THREE THE WITHIN MATTER SHOULD BE
REMANDED SO THAT AN EVIDENTIARY HEARING ON
THE ISSUE OF INEFFECTIVENESS OF COUNSEL MAY
BE CONDUCTED.
POINT FOUR DEFENDANT WAS DENIED THE EFFEC-
TIVE ASSISTANCE OF COUNSEL ON HIS PETITION
FOR [PCR] (NOT RAISED BELOW).
In his first point on appeal, defendant claims that he
provided "trial counsel with the name and address of an alibi
A-1748-08T4
7
witness [who] would have testified that he helped defendant
remove furniture from defendant's storage space using a U-Haul
rental truck at the time of the assault." He contends that
trial counsel's failure to investigate this witness and have him
testify to establish reasonable doubt constituted ineffective
assistance of counsel and that a new trial is required. Neither
he nor any of his attorneys have identified this witness or
submitted an affidavit or certification from him.
Defendant next contends that his appellate counsel was
ineffective because he failed to argue that "defendant's
sentence was unconstitutional as it was based upon facts not
found by a jury or admitted to by defendant."2 He has not
identified what those facts were, but the judgment of conviction
states that the judge found aggravating factors (3),3 (6),4 and
(9),5 all of which are based on defendant's criminal record and
do not require fact-findings by the jury.6 State v. Thomas,
188 N.J. 137, 151-54 (2006).
2
This issue was not raised before the PCR judge. We generally
do not consider issues that were not presented to the trial
court. State v. Arthur,
184 N.J. 307, 327 (2005). We find no
basis for an exception to that rule here.
3 N.J.S.A. 2C:44-1a(3).
4 N.J.S.A. 2C:44-1a(6).
5 N.J.S.A. 2C:44-1a(9).
6
Defendant cites State v. Nesbitt,
185 N.J. 504, 519 (2006), for
the proposition that only aggravating factor (6) may be found
(continued)
A-1748-08T4
8
Defendant next contends that the PCR judge abused his
discretion when he determined that no evidentiary hearing was
required. He urges that the facts established that he made out
a prima facie case of ineffective assistance of counsel and a
hearing should have been scheduled to develop the facts to which
the alibi witness would have testified.
Finally, defendant contends that his PCR counsel was
ineffective because he "presented a Blakely[7] argument without
acknowledging or addressing the pipeline retroactivity
limitation set forth in Natale.[8, 9]
" He contends that other than
"in the context of an ineffectiveness of appellate counsel
theory for relief was
argument, [PCR] counsel's Blakely
explicitly precluded by Natale." He also contends that PCR
counsel's suggestion "that defendant was operating under 'some
form of mental limitation,' was purely speculative and
unsupported by any documentation." He also should not have
raised the issue with respect to the photographic array as it
(continued)
without a jury, but we are unable to find any such holding in
the case.
7
Blakely v. Washington,
542 U.S. 296,
124 S. Ct. 2531,
159 L. Ed. 2d 403 (2004).
8
State v. Natale,
184 N.J. 458 (2005).
9
This issue also was not raised below and we will not consider
it on appeal.
A-1748-08T4
9
was raised on direct appeal and failed to develop the alibi
evidence at all.
We review the legal conclusions of a PCR judge de novo.
State v. Harris,
181 N.J. 391, 420-21 (2004) (citing Mickens-
Thomas v. Vaughn,
355 F.3d 294, 303 (3d Cir. 2004); Hakeem v.
Beyer,
990 F.2d 750, 758 (3d Cir. 1993)), cert. denied,
545 U.S. 1145,
121 S. Ct. 2973,
162 L. Ed. 2d 898 (2005). The same scope
of review applies to mixed questions of law and fact. Ibid.
(citing McCandless v. Vaughn,
172 F.3d 255, 265 (3d Cir. 1999)).
We review fact-findings for clear error, ibid. (citing Burkett
v. Fulcomer,
951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied,
505 U.S. 1229,
112 S. Ct. 3055,
120 L. Ed. 2d 921 (1992)), and
accord deference to credibility determinations, ibid. (citing
United States v. Igbonwa,
120 F.3d 437, 441 (3d Cir. 1997),
cert. denied,
552 U.S. 1119,
118 S. Ct. 1059,
140 L. Ed. 2d 121
(1998)). However, where no evidentiary hearing has been held,
we "may exercise de novo review over the factual inferences
Id. at
drawn from the documentary record by the [PCR judge]."
421 (citing Zettlemoyer v. Fulcomer,
923 F.2d 284, 291 n.5 (3d
Cir.), cert. denied,
502 U.S. 902,
112 S. Ct. 280,
116 L. Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de
novo review of both the factual findings and legal conclusions
Where no credibility determinations
of the PCR court." Ibid.
A-1748-08T4
10
have been made, "we invoke our original jurisdiction in the
review of th[e] matter." Ibid. Such a review is appropriate
here as there was no evidentiary hearing and no credibility
determinations were made.
We have reviewed the record in its entirety and are satis-
fied that defendant has not marshaled the requisite proofs to
satisfy the Strickland/Fritz standard. We affirm the March 26,
2007, order denying defendant's petition for PCR substantially
for the reasons expressed by Judge Ravin in his comprehensive
and well-reasoned opinion of the same date.
Affirmed.
A-1748-08T4
11
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