STATE OF NEW JERSEY v. THOMAS PARKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS PARKER,

Defendant-Appellant.

________________________________

October 20, 2016

Submitted October 5, 2016 Decided

Before Judges Nugent and Haas.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-04-1390.

Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Thomas Parker appeals from the trial court's January 16, 2014 order denying his motion for a new trial. Defendant argues

POINT I

THE TRIAL COURT ERRED WHEN IT REFUSED TO HOLD AN EVIDENTIARY HEARING TO CONSIDER WHETHER SYHIM COBB'S AND ALFUQUAN MAING'S AFFIDAVITS, WHICH INDICATED THEIR WILLINGNESS TO TESTIFY ABOUT DEFENDANT'S INNOCENCE, WARRANTED A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.

Defendant argues in his supplemental brief

POINT I

THE TRIAL COURT ERRED WHEN IT FAILED TO TAKE JUDICIAL NOTICE OF THE FACTS, AND BY DOING SO IT WAS UNABLE TO CONSIDER NEW EVIDENCE IN LIGHT OF THE TRUE FACTS AND THEREFORE WAS UNABLE TO "NOW. . . DETERMINE, BASED ON ALL THE EVIDENCE NEW AND OLD" WHETHER THIS DEFENDANT IS GUILTY OF THE MURDER AND OTHER CRIMES BEYOND A REASONABLE DOUBT. State v. Carter, 126 N.J. Super. 271 (1974); State v. Ways, 180 N.J. 171 (2005); State v. Nash, 212 N.J. 518 (2013).

POINT II

IT IS BOTH A FUNDAMENTAL INJUSTICE AND A MISCARRIAGE OF JUSTICE FOR THE LAW DIVISION TO DISMISS WITH PREJUDICE THE DEFENDANT'S NEWLY DISCOVERED MAING AND COBB RECANTATIONS, KNOWING THAT OTHER COURTS HAVE, 1.) FAILED TO CONDUCT CREDIBILITY EVALUATIONS FOR JUDGING THE TRUSTWORTHINESS OF THEIR AFFIDAVITS, SEE State v. Nash, 212 N.J. 518 (2013); State v. Allen, 398 N.J. Super. 247 (App. Div. 2008) AND, 2.) WHERE OTHER COURTS HAVE SQUARELY RELIED ON A FALSE RECORD IN DENYING THESE CLAIMS, PER. THE 6TH AND 14TH AMENDMENTS.

POINT III

IT IS BOTH A FUNDAMENTAL INJUSTICE AND A MISCARRIAGE OF JUSTICE FOR THE LAW DIVISION TO SUMMARILY DISMISS WITH PREJUDICE THE DEFENDANT'S NEWLY DISCOVERED MAING AND COBB RECANTATIONS, IN THE ABSENCE OF BOTH DEFENDANT AND HIS COUNSEL, KNOWING THAT COUNSEL WAS ASSIGNED TO REPRESENT THE DEFENDANT WHICH VIOLATED HIS SIXTH AND FOURTEENTH AMENDMENT[] RIGHTS.

For the reasons that follow, we affirm.

This case has a lengthy procedural history. Following a 1993 jury trial resulting in defendant's conviction of felony murder, five counts of robbery, and other offenses, a judge sentenced him to an aggregate prison term of life plus thirty years with forty-five years of parole ineligibility. We affirmed his conviction on direct appeal, State v. Parker, No. A-6493-93 (App. Div. Feb. 10, 1997), and the Supreme Court denied certification, 149 N.J. 410 (1997). In October 1998, defendant filed his first petition for post-conviction relief (PCR), which the trial court denied on March 24, 2000, after conducting hearings in January and March of that year. We affirmed the order denying defendant's PCR petition. State v. Parker, No. A-5455-99 (App. Div. July 2, 2002). The Supreme Court denied certification. 175 N.J. 76 (2002).

Defendant next sought relief simultaneously in both the federal and state courts, attempting to have his convictions overturned based on recanting witnesses

Between the years of 1999 and 2004, six of the witnesses who had previously testified against Petitioner in his 1993 trial, submitted recanting affidavits to the Superior Court in Essex County. As a result, on May 21, 2001, Petitioner submitted to the trial court a motion for a new trial based on newly discovered evidence. Evidentiary hearings were held on October 27-28, 2004, and December 14, 2004. Upon hearing the testimonies of four of the six available recanting witnesses, the trial court Judge denied Petitioner's motion for a new trial on February 2, 2005. A motion for reconsideration was filed on March 7, 2005, and was denied on November 10, 2005. During this period, Petitioner filed a writ of habeas corpus on March 7, 2003. On August 2, 2005, Petitioner filed a motion to stay his petition for writ of habeas corpus until he exhausted all of his state remedies. The District Court granted his stay. Thereafter, on December 22, 2005, Petitioner filed a notice of appeal to the Appellate Division. On August 26, 2008 the New Jersey Appellate Division affirmed the Law Division's decision denying a new trial.[1]

On December 17, 2008, following Petitioner's exhaustion of his state remedies, Petitioner filed a motion with this Court to re-open his case. Petitioner's request was granted on January 22, 2009. Petitioner filed a supplement to his application for a writ of habeas corpus on December 17, 2008. Respondents filed an Answer on March 20, 2009. In response, Petitioner submitted a Traverse on April 1, 2009. On April 8, 2009, Petitioner filed a motion to compel the production of documents. On April 27, 2009 and May 7, 2009, Petitioner filed a motion for an evidentiary hearing and a motion requesting "admissions in lieu of a more formal motion on petition for habeas corpus" relief. On May 19, 2009, Respondents filed a letter in opposition to Petitioner's requests for an evidentiary hearing and admissions. On August 19, 2009, the Court denied Petitioner's petition for a writ of habeas corpus as well as his motion to compel documents, request for an evidentiary hearing, and request for admissions.

[Parker v. Hendricks, No. 03-cv-914 (D.N.J. June 24, 2010) (slip op. at 8-10).]

Defendant filed a motion for reconsideration of the District Court's denial of his habeas corpus petition. The District Court denied the motion. Id. (slip op. at 1). The Third Circuit Court of Appeals denied defendant's motion for a certificate of appeal- ability on November 12, 2010, Parker v. Hendricks, C.A. No. 10-3014 (3d Cir. Dec. 8, 2010), and the United States Supreme Court denied certiorari, 563 U.S. 924, 131 S. Ct. 1828, 179 L. Ed. 2d 784 (2011).

Defendant remained undeterred. On May 23, 2011, he filed his second PCR petition, which the trial court denied on January 5, 2012. We affirmed the denial, State v. Parker, No. A-2582-11 (App. Div. Mar. 12, 2013), and the Supreme Court denied certification, 216 N.J. 8 (2013). While defendant's second PCR petition was pending, defendant filed three additional federal court petitions to vacate the previous order denying his habeas corpus petition. The United States District Court for the District of New Jersey denied defendant's three petitions. Parker v. Hendricks, No. 2:03-cv-0914 (D.N.J. Mar. 19, 2012). The Third Circuit Court of Appeals denied defendant's motion for a certificate of appealability, Parker v. Hendricks, C.A. No. 12-1921 (3d Cir. Dec. 10, 2012), and thereafter, on January 7, 2013, denied his petition for a rehearing en banc, Parker v. Hendricks, C.A. No. 12-1921 (3d Cir. Jan. 7, 2012). The United States Supreme Court denied certiorari on March 25, 2013. Parker v. Warren, ___ U.S. ___, 133 S. Ct. 1639, 185 L. Ed. 2d 622 (2013).

Meanwhile, on February 19, 2013, the District Court denied petitioner's motion to vacate its March 19, 2012 order. Parker v. Hendricks, No. 2:03 cv-0914 (Feb. 19, 2013). The Third Circuit Court of Appeals denied defendant's request for a certificate of appealability, Parker v. Hendricks, C.A. No. 13-1656 (3d Cir. July 23, 2013), and thereafter denied defendant's application for a re-hearing en banc. Parker v. Hendricks, C.A. No. 13-1656 (3d Cir. Sept. 11, 2013). The United States Supreme Court denied certiorari. Parker v. New Jersey, ___ U.S. ___, 134 S. Ct. 695, 187 L. Ed. 2d 561 (2013). Thereafter, the United States Supreme Court denied defendant's application for certiorari as to our Supreme Court's denial of his second PCR petition. Parker v. New Jersey, ___ U.S. ___, 134 S. Ct. 938, 187 L. Ed. 2d 807 (2014).

Finally, in December 2013, defendant filed in federal court a motion to vacate and a motion for admissions, which the District Court denied. Parker v. Hendricks, No. 03-914 (D.N.J. Jan. 8, 2015). Thereafter, on June 18, 2015 and July 8, 2015, the District Court dismissed two more motions filed by defendant. Parker v. Hendricks, No. 03-914 (D.N.J. June 18, 2015) and Parker v. Hendricks, No. 03-914 (D.N.J. July 8, 2015). The Third Circuit of Appeals denied defendant's application for a certificate of appealability. Parker v. Warden New Jersey State Prison, C.A. No. 15-1286 (3d Cir. Nov. 10, 2015). That brings us to the current appeal.

On November 5, 2013, defendant filed a notice of motion requesting a new trial pursuant to Rule 3:20 based on affidavits from two witnesses recanting their trial testimony. Judge Alfonse J. Cifelli denied defendant's motion after determining defendant had "previously filed a motion for new trial based on . . . substantially the same grounds, which was denied." Judge Cifelli noted defendant had also filed two petitions for post-conviction relief based on newly discovered evidence and that both petitions had been denied. Significantly, Judge Cifelli also noted the basis for defendant's new trial motion newly discovered evidence had also been previously asserted in PCR petitions,2 both of which had been denied. Judge Cifelli rejected defendant's persistent claim that no valid evidence had been produced against him as contrary to the decisions "of the [a]ppellate and [t]rial and federal district courts that have reviewed your case time and time again."

We affirm the order denying defendant's motion, substantially for the reasons expressed by Judge Cifelli in his January 16, 2014 order and opinion. The issues raised by defendant in his brief and supplemental brief are entirely without merit and warrant no further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 State v. Parker, No. A-2462-05 (App. Div. Aug. 26, 2008), certif. denied, 197 N.J. 16 (2008).

2 Judge Cifelli referred to a second and third PCR petition. Our review of the record has disclosed only two previously filed PCR petitions.