STATE OF NEW JERSEY v. ERIC V. LOMAX

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4066-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC V. LOMAX,

Defendant-Appellant.

________________________________

Submitted April 5, 2011 Decided May 3, 2011

Before Judges Parrillo and Espinosa.

On appeal from Superior Court of New Jersey, Law

Division, Camden County, Indictment No. 91-04-0998.

Eric V. Lomax, appellant pro se.

Warren W. Faulk, Camden County Prosecutor, attorney

for respondent (Linda A. Shashoua, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Eric V. Lomax appeals from an order of the Law Division denying his second petition for post-conviction relief (PCR). We affirm.

A jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (count one), and third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two). On March 19, 1993, after merging count two into count one, the judge sentenced defendant to a term of life imprisonment, with a thirty-year period of parole ineligibility.

The convictions stem from the murder of defendant's live-in girlfriend, Marine Corporal Wendy Vaughns, at her Cherry Hill apartment complex in the early morning hours of October 16, 1990. We reproduce the pertinent facts as set forth in our decision on the direct appeal.

On October 16, 1990, Wendy [Vaughns], a Marine Corp[s] corporal, was found dead in her Cherry Hill apartment, the victim of twenty-six stab wounds in the area of her heart and neck. Her throat had been slashed and there was a knife handle embedded in her chest. Defendant, a Navy petty officer, and the victim had been living together in the apartment. Defendant was a married man. On the evening of October 15, 1990, defendant, his wife, and the victim spent several hours together in the apartment arguing about their relationship. After the wife left, the victim and defendant continued to argue. Defendant testified he left the apartment after the victim had twice attacked him with a knife and that she was alive the last time he saw her.

The evidence of defendant's guilt was overwhelming. Numerous witnesses testified during the trial that they heard banging and screaming in the early morning hours of October 16, 1990. One witness identified defendant by his voice as being present in the apartment at or about the time the screams were heard. A neighbor testified that he saw a black male leaving the apartment at about the same time and drive away in the victim's white Honda. The record reflects defendant was involved in an accident while driving the victim's vehicle on the [Pennsylvania] Turnpike later that morning and was hospitalized.

DNA testing was performed and the record discloses the blood on the knife and various items of clothing matched known blood samples from both the victim and defendant.

[State v. Lomax, A-5277-92T4 (App. Div. Apr. 4, 1995) (slip op. at 2-3).]

Defendant's theory of the case was that someone else committed the murder.

We affirmed the judgment of conviction. Ibid. The Supreme Court denied defendant's petition for certification. State v. Lomax, 142 N.J. 456 (1995).

Defendant filed a timely PCR petition on March 8, 1996, alleging, among other things, that the language of the indictment failed to charge purposeful murder separately from knowing murder; the jury was not properly charged on passion-provocation manslaughter; the verdict sheet was improperly drafted, creating the necessity for "sequential deliberation"; he was denied a speedy trial; and he was denied the effective assistance of counsel. Defendant also claimed newly-discovered evidence. The PCR judge conducted an evidentiary hearing on April 25, 1997, at which defendant's trial counsel testified concerning his investigative efforts, his rationale for filing or not filing various motions and his recollection of the reasons for various continuances granted in the months prior to trial. At the conclusion of the hearing, the court denied defendant's PCR application, finding, among other things, that the passion-provocation manslaughter charge, to which no objection was voiced, was properly molded to the evidence in this case; that the verdict sheet afforded the jury all possible verdict options; and that counsel's performance was neither deficient nor prejudicial.

On appeal from that denial, we remanded for a hearing for the limited purpose of supplementing the record with the testimony of the attorney then representing Charles E. Reddish, Jr. for capital murder, who had earlier refused to allow his client to testify on defendant's behalf in any criminal matter. At the remand hearing on August 14, 1998, Reddish's former counsel testified that his position had not changed, and although he no longer represented Reddish, it was his understanding that Reddish's present counsel also shared the view that Reddish should not testify or be interviewed on defendant's behalf. Having found nothing presented in the remand proceeding to have altered his decision in any way, the judge once again denied defendant's PCR petition. We affirmed, State v. Lomax, A-6971-09T4 (App. Div. Nov. 29, 1999), and the Supreme Court denied defendant's petition for certification. State v. Lomax, 165 N.J. 606 (2000).1

More than ten years after we affirmed the denial of his first PCR petition, defendant filed a second application on January 27, 2010. In a written decision of April 6, 2010, the PCR judge denied the application as out of time, citing Rule 3:22-12, and procedurally barred under Rule 3:22-5 for raising issues previously decided on the first PCR petition. Specifically, the judge reasoned:

This Court cannot extend the statute of limitations to accommodate your petition. The Court finds it would be unduly burdensome to entertain a petition twenty years after the crime, seventeen years since the date of your conviction. You failed to establish by a preponderance of credible evidence, facts or circumstances that would constitute excusable neglect for failing to file this matter within time. Therefore, R. 3:22-12 procedurally bars this petition.

It also should be noted that "a prior adjudication upon the merits of any ground for relief is conclusive, whether made in the proceedings resulting in . . . any post conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings. R. 3:22-2 (emphasis added). It is apparent that each claim set forth in your new petition was adjudicated at your original Post Conviction Relief hearing in 1997.

At your first hearing for Post-Conviction Relief, the Court made sure to specifically address each issue raised in your petition to avoid this particular issue. The Court explicitly considered and rejected all of your claims. First, the Court found that your claim regarding the trial court's charge on passion-provocation manslaughter and your claim concerning the verdict sheet lacked any merit. Additionally, the court rejected your claim that your appellate counsel was ineffective for failing to argue the alleged deficiency of [the murder count] of the indictment, the alleged deficiency of the court's passion-provocation charge, and the alleged deficiency of the verdict sheet.

Had appellate counsel raised these issues on direct appeal, it would have demonstrated poor representation and a lack of professionalism as the facts did not support these arguments. The Court previously held that these claims lacked merit and cannot form the basis for any legal proceeding.

On appeal, defendant raises the following issues:

I. THE POST CONVICTION RELIEF COURT ERRED WHEN DENYING APPELLANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND TO RECEIVE THE DUE PROCESS OF LAW, AS [IT] WAS VIOLATED BY THE TRIAL JUDGE, IN FAILING TO CORRECTLY CHARGE THE JURY ON THE CHARGE OF PASSION/PROVOCATION MANSLAUGHTER BY NOT ADEQUATELY DEFINING THE ELEMENTS OF THE OFFENSE AND TAILORING THE CHARGE TO THE OFFENSE AND TAILORING THE CHARGE TO THE FACTS OF THE CASE VIOLATE THE U.S. CONST. AMENDS., VI AND XIV. (Raised below).

II. THE POST CONVICTION RELIEF COURT ERRED WHEN DENYING APPELLANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THE VERDICT SHEET REQUIRED THE JURY FIRST CONVICT PETITIONER OF MURDER BEFORE THEY COULD CONSIDER PASSION/PROVOCATION MANSLAUGHTER - AS BEING CONTRARY TO U.S. CONST. AMEND. XIV. (Raised below).

III. THE POST CONVICTION RELIEF COURT ERRED WHEN DENYING APPELLANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN HE DID NOT RECEIVE THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, CONTRARY TO U.S. CONST. AMENDS. VI AND XIV. (Raised below).

IV. THE POST CONVICTION RELIEF COURT ERRED WHEN DENYING THE CUMULATIVE EFFECT OF ALL THE CONSTITUTIONAL VIOLATIONS THAT DEPRIVE APPELLANT OF A FAIR AND JUST TRIAL, COUNTER TO THAT AFFORDED CRIMINAL DEFENDANTS, AND CONTRARY TO N.J. AND FEDERAL CONSTITUTIONS, ART. I PARA. 10 (1947), U.S. CONST. AMENDS. VI, X, XI AND XIV.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and defendant pro se, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.

The PCR judge relied on the five-year time bar of Rule 3:22-12, as it applied to defendant at that time.2 That version of Rule 3:22-12(a) provided as relevant:

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.

The availability of relaxation to extend the five-year bar has been strictly construed. See generally State v. McQuaid, 147 N.J. 464, 485 (1997); State v. Murray, 162 N.J. 240, 249-51 (2000). Indeed, only exceptional circumstances will permit relief from the five-year time bar. State v. Afanador, 151 N.J. 41, 52 (1997). Defendant, however, has presented no valid grounds that would qualify for this relief. As the PCR judge noted, applying the five-year measure, the fact of the "unforeseen death of an 'inmate paralegal' who was assisting [defendant] does not excuse [defendant's] untimely filing of this petition." Defendant filed his second PCR application ten years after we affirmed denial of his first PCR petition and almost seventeen years after his March 19, 1993 judgment of conviction. In addition to having raised issues already resolved on the prior petition and thus precluded from review here, Rule 3:22-5, the instant application is grossly out of time and the delay is inexcusable.

1 On November 26, 2001, defendant filed a habeas corpus petition in the federal district court in New Jersey, which was dismissed on July 11, 2003, for failure to exhaust State remedies.

2 Rule 3:22-12 was amended, effective February 1, 2010, to include a one-year time bar to second or subsequent PCR petitions filed under certain circumstances. Since defendant filed his second PCR petition on January 27, 2010, before the amendment's effective date, the trial court properly applied the five-year time bar to defendant's second PCR petition.