STATE OF NEW JERSEY v. GREGORY P. MAPLES, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1296-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY P. MAPLES, JR.,

Defendant-Appellant.

_________________________

July 18, 2011

Submitted January 24, 2011 - Decided

Before Judges A.A. Rodr guez and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 02-09-1247.

Gregory P. Maples, Jr., appellant pro se.

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor,of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from the August 4, 2009 order denying his second petition for post-conviction relief (PCR). We affirm.

Tried to a jury in 2003, defendant was convicted of purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) or (2), and second-degree conspiracy to commit murder, N.J.S.A. 2C:11-3(a)(1) or (2) and 2C:5-2. He was sentenced to a term of thirty years imprisonment with a thirty-year parole ineligibility period. Defendant appealed his convictions, raising numerous claims of trial error. We affirmed. State v. Maples, No. A-6934-03) (App. Div. May 12, 2005). The Supreme Court denied certification. State v. Maples, 185 N.J. 295 (2005).

Defendant filed his first PCR petition on April 20, 2006, raising eleven claims of ineffective assistance of counsel, and a contention that the trial court lacked jurisdiction due to the issuance of a defective warrant. Counsel was assigned and, after hearing oral argument, a judge denied that petition by an order entered on March 9, 2007. Defendant appealed, and we affirmed. State v. Maples, No. A-5227-06 (App. Div. April 6, 2009). The Supreme Court denied certification. State v. Maples, 199 N.J. 541 (2009).

Defendant filed his second PCR petition on July 14, 2009, He raised claims of ineffective assistance of trial counsel for failure to (1) interview witnesses, (2) move for a mistrial, (3) cross-examine his co-defendant and (4) argue "third-party guilt"; he also claimed prosecutorial misconduct in having his co-defendant testify in prison garb, and asserted that the trial judge had an "ex[]parte communication when he spoke to a juror over the phone[.]"

On August 4, 2009, the judge issued a written decision denying defendant's petition as barred by Rule 3:22-4 because the issues presented could have been raised in his first PCR petition. The judge noted that defendant's first petition had been "denied after a full hearing" in March 2007.

On appeal, defendant presents the following contentions for our consideration:

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE, AND P.C.R. COUNSEL IN VIOLATION OF HIS [SIC] FOURTEENTH AND SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION, AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

A. COUNSEL FAILED TO INVESTIGATE INDEPEND[E]NT EYEWITNESS MS. BARBARA MCKINNON WHO'S [SIC] STATEMENT WOULD HAVE IMPEACHED PROSECUTOR'S STAR WITNESS ERNESTO BARBER.

B. COUNSEL FAILED TO INVESTIGATE MS. ANN CORMARTIE'S CLAIM OF BEING IN CONTACT WITH STEVEN BENNETT A PARTICIPANT IN THE SHOOTING, AND BENNETT HAVING OFFERED HER HIS CLOTHES IN EXCHANGE FOR A RIDE.

C. COUNSEL FAILED TO EFFECTIVELY CROSS-EXAMINE CO-DEFENDANTS MARVIN WORTHY AND RENATO SANTOS.

D. COUNSEL FAILED TO ARGUE A [SIC] THIRD-PARTY GUILT WHEN COUNSEL HAD ESSENTIAL EVIDENCE OF OTHER PARTIES THAT COMMITTED THE MURDER.

E. COUNSEL FAILED TO ASK FOR A MISTRIAL WHEN AN [SIC] POLICE OFFICER WAS ALLOWED TO READ A STATEMENT FROM A CO-DEFENDANT THAT WAS REDACTED BY THE PROSECUTOR.

F. COUNSEL FAILED TO OBJECT TO STATE'S WITNESS ERNESTO BARBER TESTIFYING IN FRONT OF JURY IN PRISON CLOTHES AND PROSECUTOR REFERENCES IN CLOSING ARGUMENT.

G. COUNSEL FAILED TO INVESTIGATE RESIDING [SIC] JUDGE HAVING EX-PARTE COMMUNICATION WITH A JUROR OVER THE PHONE.

POINT II

PROSECUTOR MISCONDUCT IN VIOLATION OF THE DEFENDANT'S FOURTEENTH AMENDMENT OF THE UNITED STATES AND NEW JERSEY CONSTITUTION [SIC].

POINT III

FUNDAMENTAL INJUSTICE, THE DEFENDANT SHOULD HAVE NEVER BEEN CONVICTED OF THE MURDER OF RASHON ROY. (NOT RAISED BELOW).

POINT IV

P.C.R. COUNSEL WAS INEFFECTIVE FOR NOT FORWARDING THE ISSUE PETITIONER RAISED ON HIS PETITION FOR P.C.R. THAT THE COURT LACKED SUBJECT-MATTER JURISDICTION AND PERSONAL JURISDICTION BECAUSE A POLICE OFFICER SIGNED THE JURAT ON THE COMPLAINT AND IN FACT ISSUED A DEFECTIVE WARRANT[] IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. (NOT RAISED BELOW).

Defendant's brief merely sets forth the bases for each of his claims of ineffective assistance of trial counsel. He adds a claim of prosecutorial misconduct based on alleged inconsistencies in the testimony of the State's witnesses. Finally, he adds a point heading asserting ineffective assistance of prior PCR counsel for failure to "forward" the issue of lack of jurisdiction; defendant, however, does not address that claim in his brief.

At no point does defendant address the basis on which the judge denied his petition, namely that it was procedurally barred under Rule 3:22-4. At the time defendant filed his second PCR petition in July 20091, that rule provided:

Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction . . . is barred from assertion in a proceeding under this rule unless the court . . . finds (a) that the ground for relief not previously asserted could not reasonably have been 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 Constitutions of the United States or the State of New Jersey.

Defendant has failed to demonstrate that any of his claims come within the exceptions to the bar imposed by the rule.

To come within exception (a), defendant's "claim must be one that a reasonable attorney, aware of the relevant facts and law, could not reasonably have raised." State v. Mitchell, 126 N.J. 565, 585 (1992). Defendant was represented by counsel on his first PCR petition; therefore, in his second petition he had to demonstrate that prior counsel's failure to raise these issues constituted ineffective assistance of PCR counsel. Here, defendant asserts such a claim in a point heading related only to the issue of lack of jurisdiction, which was raised, and rejected, in his first PCR petition.

To come within exception (b) of the rule, defendant had the burden to demonstrate "exceptional circumstances[,]" and to "prov[e] that barring the petition would lead to injustice." Id. at 586-87. Finally, to come within exception (c), defendant would have to demonstrate "that his constitutional rights were seriously infringed during the conviction proceedings." Id. at 585-86. However, "[c]loaking the claim in constitutional language will not guarantee relief. A court must scrutinize the assertion to ascertain whether constitutional rights are truly at stake." Id. at 586.

Defendant has failed to make any of these showings. We are, therefore, satisfied that the PCR judge properly denied his second petition as procedurally barred by Rule 3:22-4.

Affirmed.

1 Amendments to Rule 3:22-4 were adopted on January 14, 2010, to be effective February 1, 2010. Pressler & Verniero, Current N.J. Court Rules, Note on R. 3:22-4 (2011). As amended, the rule imposes even more stringent limitations on what claims will be cognizable in a "second or subsequent" PCR petition. Such a petition must be "timely under R. 3:22-12(a)(2)" and must

allege[] on its face either:

(A) that the petition relies on a new rule of constitutional law, made retroactive to defendant's petition by the United States Supreme Court or the Supreme Court of New Jersey, that was unavailable during the pendency of any prior proceeding; or

(B) that the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted; or

(C) that the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first or subsequent application for post -conviction relief.

[R. 3:22-4(b).]