STATE OF NEW JERSEY v. JOSEPH POST

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4543-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH POST,

Defendant-Appellant.
_________________________________

February 8, 2012

Submitted: May 11, 2011 - Decided:

Before Judges Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 96-04-0488.

Joseph Post, appellant pro se.

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Joseph Post appeals from the Law Division's May 5, 2010 order denying his second petition for post-conviction relief (PCR) and request for an evidentiary hearing. Defendant renews his argument that trial counsel was ineffective in failing to call a rebuttal witness and appellate counsel was ineffective in failing to raise issues of trial error on direct appeal. We affirm.

The record reflects that defendant was convicted by a jury in 1997 of first-degree murder and two weapons offenses in the stabbing death of Andrew Whited. The recitals of the State's witnesses, co-defendants Michael Levering and Nicholas Migliaccio, both eyewitnesses, though differing in detail, related an unprovoked stabbing of the victim by defendant. The in-court testimony of the State's witness, co-defendant Brus Post, defendant's brother and also an eyewitness, exonerated defendant of the killing and exculpated Levering and Migliaccio. However, in an earlier statement to police, Post related that he saw defendant standing behind the victim with a knife in his hands and attempting to stab the victim. The stories of the eyewitnesses were corroborated by blood stains found in the apartment and in the car used to dispose of the victim's body, as well by the location and physical condition of the body when found about a month later.

Defendant was sentenced on June 21, 1997, to life imprisonment with a thirty-year period of parole ineligibility. We affirmed defendant's conviction and sentence in an unpublished opinion.1 State v. Post, No. A-0628-97 (App. Div. Jan. 24, 2001). The Supreme Court denied certification. State v. Post, 169 N.J. 605 (2001).

Defendant filed his first PCR petition in July 2001, which he withdrew and was granted leave to re-file. On July 26, 2002, defendant re-filed his PCR petition alleging ineffective assistance of trial counsel in failing to: (1) request a correction of an allegedly erroneous jury instruction based on contradictory testimony of co-defendants; (2) investigate two potential witnesses, Harry Washington and Curtis Jordan, whose names were allegedly made available to him; and (3) make a number of specific objections during trial. Defendant also made an unspecified claim of ineffective assistance of appellate counsel. In support of his application, defendant proffered the alleged exculpatory statements of Washington and Jordan on the basis that the failure to call these witnesses to advance a theory of self-defense resulted in the conclusion that trial counsel was ineffective.

The court conducted an evidentiary hearing in which defendant's trial counsel Jerome Ballarotto testified. On August 11, 2003, the judge issued a written opinion denying defendant's PCR petition. We affirmed in an unreported opinion. State v. Post, No. A-0603-03 (App. Div. Nov. 14, 2005). The Supreme Court denied certification. State v. Post, 186 N.J. 256 (2006). Defendant then filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey, which was denied on November 7, 2008. On July 14, 2009, the United States Court of Appeals for the Third Circuit denied defendant's application for issuance of a "certificate of appealability."

On March 31, 2010, defendant filed his second PCR petition seeking an evidentiary hearing. Defendant argued his claims were not procedurally barred by Rule 3:22-4 as they raise constitutional issues.2 He alleged that trial counsel was ineffective in failing to secure the testimony of a "vital defense witness," Ajene Drew, and appellate counsel was ineffective in failing to raise this issue on direct appeal. Defendant certified that Drew was willing to give testimony "about statements made to him by [] Migliaccio" which establish that Migliaccio and Levering "are lying about what happened the night of [] Whit[]ed's death," and would "exculpate" defendant in Whited's murder. According to the certifications of defendant and Drew, defendant was aware of Drew in 1996 as an exculpatory witness and told this to Ballaratto, who apparently subpoenaed him, but never called him to testify at trial. According to Drew's January 17, 2010 certification, although he spoke with Ballaratto on the phone and requested he visit him in prison, Drew was never interviewed by him or by any attorney. Defendant further certified he provided the same information to his first PCR attorney and claimed he wanted him to raise the current issue and to find Drew and call him to testify at his PCR hearing. According to defendant, however, his attorney did not investigate the claim, nor did he raise the issue on his first PCR petition.

Defendant further certified that after he lost his first PCR petition he "started to look for [Drew] with the help of [his] family and friends." He further claimed it was not "until January 2010 when [he] finally located [Drew] at the New Jersey State Prison, in Trenton[,] New Jersey, under the name Tyrone Miller."

In a written decision of May 4, 2010, memorialized in an order filed the following day, the court denied defendant's PCR petition as procedurally barred under Rule 3:22-12. This Rule provides, in pertinent part:

[N]o second or subsequent petition shall be filed more than one year after the latest of:

. . . .

(B) the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence; or

(C) the date of the denial of the first or subsequent application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief is being alleged.

[R. 3:22-12(a)(2)(B), (C).]

As the court pointed out, defendant's first PCR petition was denied on August 11, 2003. His second petition was filed over six years later.

The court further held that defendant's claims could have been raised in his first PCR application, R. 3:22-4, and, in essence, defendant's claim of ineffectiveness based on failure to investigate or call certain allegedly exculpatory witnesses was raised and rejected in the first PCR. Accordingly, the court held that the relief sought on defendant's second PCR was barred as previously adjudicated under Rule 3:22-5.

On appeal, defendant challenges the court's findings as conclusory. He also contends his second PCR was not procedurally barred under Rule 3:22-12(a)(2)(B) because he did not locate Drew until January 2010, and acted with "reasonable diligence" under State v. Behn, 375 N.J. Super. 409, 428 (App. Div.), certif. denied, 183 N.J. 591 (2005), nor under Rule 3:22-5 because ineffective assistance of counsel for failure to call Drew as a rebuttal witness was never raised nor ruled upon during the first PCR. Defendant further contends the interests of justice demand that his second PCR petition be considered on the merits. Defendant emphasizes that his petition raised substantial constitutional questions regarding ineffective assistance of counsel affecting his life and liberty.3

Based on our review of the record and applicable law, we are satisfied defendant's second PCR petition was properly denied. In his first PCR petition, denied in 2003, defendant unsuccessfully argued that trial counsel was ineffective in failing to investigate and call two allegedly exculpatory witnesses, Washington and Jordan. Thus, the one-year period for filing his second PCR petition would run from 2003 pursuant to Rule 3:22-12(a)(2)(C), unless defendant demonstrated he could not have discovered "the factual predicate for the relief sought" in his second PCR petition "through the exercise of reasonable diligence" until after that date, pursuant to Rule 3:22-12(a)(2)(B). He cannot.

In his certification, defendant admits knowing of Drew as a potential inculpatory witness as early as l996, prior to trial, which he passed on to trial counsel, and repeated to PCR counsel in 2002. In fact, defendant concedes in his certification that he asked PCR counsel to advance the present claim. Clearly Drew was locatable, as evidenced by his receipt of the subpoena in l996. We further note that defendant's statement in his certification about the inability to locate Drew until January 2010, is conclusory and contains no details of his, his family's, or his friend's efforts. As such, it is woefully insufficient to demonstrate due diligence, even under Behn, supra, 375 N.J. Super. at 428-29, which involved the legal test governing motions for a new trial on the ground of newly discovered evidence, i.e., evidence not discoverable at trial by "reasonable diligence." Thus, the factual predicate for the relief currently sought was clearly discovered prior to denial of defendant's first PCR petition in 2003. The filing of defendant's second PCR petition in March 2010 was thus time-barred under Rule 3:22-12(a)(2)(B).

Rule 3:22-12(c) essentially exempts the time limitations of the rule from relaxation.4 Moreover, for a second PCR petition, the untimeliness prong of Rule 3:22-12(a)(2) precludes consideration of the exceptions set forth in Rule 3:22-4(b)(2). As noted by the court, defendant's second PCR petition is also barred by Rule 3:22-5, as his claim of ineffectiveness of trial counsel in failing to investigate and call Drew, a potentially exculpatory witness, was "substantially equivalent" to the same claim regarding Washington and Jordan that was rejected on first PCR. See State v. Marshall, 173 N.J. 343, 351 (2002); State v. Afanador, 151 N.J. 41, 51 (1997).

Following an evidentiary hearing, the court made detailed findings on defendant's first PCR petition, noting for example, Ballarotta's testimony that

defendant repeatedly insisted that he "never wanted to be considered a rat" and would not countenance placing the blame on anyone else. . . . [defendant] stated unequivocally that he would not take the stand and "rat" anyone else out for the victim's murder. By defendant's insistence on not being considered a "rat," an entire defense strategy was removed from defendant's arsenal.

We noted this testimony as a compelling point in our affirmance. State v. Post, supra, No. A-0603-03 (slip op. at 5).

Moreover, even on the merits, defendant would be unable to demonstrate ineffective assistance of trial counsel in failing to call Drew as a witness. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (holding that in order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there existed a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). See also State v. Preciose, 129 N.J. 451, 462-63 (1992) (holding that to establish a prima facie claim of ineffectiveness of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits).

1 We remanded, however, for increase of the VCCB penalty pursuant to N.J.S.A. 2C:43-3.1a(1).

2 Defendant inaccurately referenced prior Rule 3:22-4 that was substantially amended effective February 1, 2010, to provide that, on a first petition, the denial of relief must be contrary to a "new rule" of constitutional law, and to add a separate paragraph specifically governing second or subsequent PCR petitions.

3 Defendant attaches a certification from his first PCR attorney, which post-dates the trial court's opinion and, thus, is not part of the trial record. Accordingly, it will be disregarded. R. 2:5-4.

4 Defendant also fails to satisfy the pre-amendment standard of exceptional circumstances set forth in State v. Afanador, 151 N.J. 41, 52-53 (1997).