STATE OF NEW JERSEY v. GREGORY ULYSSE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY ULYSSE,

Defendant-Appellant.

-

March 4, 2016

Submitted November 17, 2015 Decided

Before Judges Reisner and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 01-12-4806 and 02-04-0363.

Gregory Ulysse, appellant pro se.

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

PER CURIAM

Defendant Gregory Ulysse appeals from the February 17, 2015 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

We outlined the relevant facts, and the appellate issues defendant raised, in our prior opinion affirming defendant's convictions for two counts of first-degree purposeful and knowing murder, N.J.S.A. 2C:11-3(a)(1), (2); one count of second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3; one count of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); and one count of third-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b). See State v. Ulysse
(Ulysse II), No. A-4425-10 (App. Div. May 6, 2013) (slip op. at 3-8), certif. denied, 216 N.J. 86 (2013).1 The case arose from the fatal shootings of Emmanuel Previllon and Edner Pierre on the evening of July 28, 2001, in Newark. After merger, the trial court imposed an aggregate sentence of sixty years in prison, the entire term to be served without parole. Id. at 2.

On defendant's direct appeal, we rejected his arguments regarding the inadmissibility of a statement he gave to the police,2 as well as claims of prosecutorial misconduct during the trial and sentencing error. Ulysse II, supra, slip op. at 10-13. Defendant's petition for certification was denied on October 31, 2013. State v. Ulysse, 216 N.J. 86 (2013).

On December 2, 2013, defendant filed another petition for PCR, and the court denied that petition on February 27, 2014. Defendant then filed a motion for transcripts at the public expense on October 31, 2014, and yet another petition for PCR on November 19, 2014. On February 17, 2015, Judge Michael Ravin denied this latest petition and the motion for transcripts at the public expense, concluding that defendant's claims are barred as already adjudicated or untimely and that defendant has failed to set forth good cause to relax any procedural bars.

Defendant raises the following issues on this appeal

POINT ONE

THE PROCEDURAL BARS SHOULD NOT BE ENFORCED BECAUSE THE ENFORCEMENT WOULD RESULT IN A MANIFEST DENIAL OF JUSTICE, IN VIOLATION OF THE CONSTITUTION[S] OF NEW JERSEY AND UNITED STATES. CONTRARY TO [U.S. CONST. AMEND.] SIXTH AND FOURTEENTH AND [N.J. CONST.] ART. 1. PAR. 10.

POINT TWO

DEFENDANT CONTENDS THAT THE FAILURE OF TRIAL COUNSEL TO EXERCISE A PREEMPTORY CHALLENGE TO EXCUSE A JUROR WHO WAS A LAW ENFORCEMENT OFFICIAL DEPRIVED DEFENDANT[] OF HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT THREE

MR. ULYSSE CONTENDS THAT THE STATEMENT SHOULD HAVE BEEN SUPPRESSED AS MR. ULYSSE WAS NOT ADVISED OF HIS ARREST WARRANT AND CRIMINAL COMPLAINT UNTIL AFTER HE HAD WAIVED HIS [MIRANDA] RIGHTS, THEREBY DEPRIVING DEFENDANTS OF HIS FIFTH AMENDMENT RIGHT TO REMAIN SILENT PURSUANT TO THE U.S. CONSTITUTION AND THE EQUIVALENT PROTECTION PURSUANT TO N.J. LAW.

POINT FOUR

THE STATEMENT WAS NOT VOLUNTARY BECAUSE OF MR ULYSSE['S] INABILITY TO PROVIDE A STATEMENT DUE TO HIS SELF[-]DEPRIVATION, LACK OF FOOD, SUBSTANCE ABUSE, AND THE FAILURE TO HONOR HIS REQUEST TO HAVE A LAWYER PRESENT.

POINT FIVE

DEFENDANT CONTENDS THAT TRIAL COUNSEL WAS INEFFECTIVE BY NOT OBJECTING TO [THE] TRIAL PROSECUTOR'S CROSS-EXAMINATION AND SUMMATION REMARKS REFERRING TO DEFENDANT AS A LIAR CONSTITUTED PROSECUTORIAL MISCONDUCT. AND APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT RAISING THE ISSUE ON APPEAL. (NOT RAISED BELOW).

POINT SIX

DEFENDANT CONTENDS THAT THE SENTENCE IMPOSED WAS VIOLATIVE OF THE [EIGHTH] AMENDMENT TO THE UNITED STATES CONSTITUTION, AS APPLIED TO THE STATES BY THE FOURTEENTH AMENDMENT, IN LIGHT OF THE IMPOSITION OF CONSECUTIVE SENTENCES.

POINT SEVEN

THE PROPRIETY OF THE TRIAL JUDGE'S LIMITATIONS ON DEFENDANT'S COUNSEL (AND RELATED INSTRUCTIONS TO THE JURY) PRECLUDING COUNSEL FROM FULLY EXPLORING WITH MR. FILS, A PRIMARY STATE WITNESS, PRIOR HOSTILITY BETWEEN ONE OF THE VICTIMS AND DEFENDANT[.]

POINT EIGHT

DEFENDANT CONTENDS THAT TRIAL COUNSEL WAS INEFFECTIVE BY NOT SUGGESTING THAT THE TRIAL JUDGE CHARGE ACCOMPLICE LIABILITY TO THE TRIAL JURY WAS ESSENTIAL FOR A FAIR TRIAL. AND APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT RAISING THE ISSUE ON APPEAL[.]

POINT NINE

DIRECT AND APPELLATE COUNSEL[] [WERE] INEFFECTIVE NOT RAISING THE ISSUE OF THE TRIAL COURT'S [OVEREMPHASIZING] THE CHARGES ON CONSPIRACY TO COMMIT MURDER AND CONSPIRACY AS A BASIS FOR SUBSTANTIVE LIABILITY OF DEFENDANT'S GUILT[.]

POINT TEN

DEFENDANT CONTENDS THAT HIS CONSECUTIVE SENTENCE WAS UNCONSTITUTIONAL AND ERRONEOUS. AND TRIAL AND APPELLATE COUNSEL [WERE] INEFFECTIVE BY NOT ARGUING THE ISSUE AT TRIAL AND ON APPEAL[.]

POINT ELEVEN

DEFENDANT CONTENDS THAT AN EVIDENTIARY HEARING IS WARRANTED FOR EXPLORATION AND CONSIDERATION OF THE FEDERAL CONSTITUTION CLAIMS IN HIS POST-CONVICTION RELIEF.

Based on our review of the record and the applicable law, we conclude these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Ravin in his cogent written opinion. We add the following comments.

In order to establish a prima facie case of ineffective assistance of counsel, a defendant must satisfy the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The defendant must then show that counsel's deficient performance prejudiced the defense. Ibid. To show prejudice, the defendant must establish by "a reasonable probability" that the deficient performance "materially contributed to defendant's conviction[.]" Id. at 58.

Rule 3:22-5 provides a "prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding . . . ." Thus, the application of this standard requires the "[p]reclusion of consideration of an argument presented in post-conviction relief proceedings . . . if the issue raised is identical or substantially equivalent to that adjudicated previously on direct appeal." State v. Marshall, 173 N.J. 343, 351 (2002) (citations and internal quotation marks omitted).

Defendant's assertions of ineffective assistance of counsel are an attempt to re-litigate arguments he raised on direct appeal averring an invalid Miranda3 waiver and prosecutorial misconduct during cross-examination and summation. On defendant's direct appeal, we rejected defendant's various arguments challenging his Miranda waiver. Ulysse II, supra, slip op. at 8-10. We likewise fully addressed defendant's claim that the prosecutor's summation included improper argument, and held it did not deny him a fair trial. Id. at 11-13. We also rejected defendant's claims of sentencing error. Id. at 13.

With one exception, those claims are substantially equivalent to the claims asserted in this appeal and thus are barred by Rule 3:22-5. PCR is not another avenue for a defendant to submit the same arguments asserted on direct appeal. See State v. McQuaid, 147 N.J. 464, 484 (1997).

In his latest PCR petition, defendant claims that his attorney provided ineffective assistance by failing to object to two law enforcement officers sitting as jurors. There is no record provided to support this claim. Moreover, defendant's petition is time-barred. See Rule 3:22-12(a)(1). We agree with Judge Ravin that "[t]here is no fundamental injustice present here to justify relaxing this time bar."

Defendant further contends the PCR court erred by ruling on his petition without an evidentiary hearing. However, a hearing was not required in this matter because defendant failed to present a prima facie case of ineffective assistance of counsel. State v. Porter, 216 N.J. 343, 354 (2013) (citing State v. Preciose, 129 N.J. 451, 462-63 (1992)); R. 3:22-10(b).

Affirmed.

1 After defendant's trial in 2003, he retained a private attorney to file an appeal on his behalf, but the attorney failed to do so. Thereafter, defendant filed a petition for post-conviction relief (PCR), which was denied. On his appeal from the PCR denial, we concluded that the original trial attorney's failure to file defendant's direct appeal was per se ineffective assistance of counsel. State v. Ulysse (Ulysse I), No. A-3579-08 (App. Div. Feb. 14, 2011) (slip op. at 15-18). We therefore deemed the PCR petition to be defendant's notice of appeal, accepted it for filing nunc pro tunc, and ordered that the matter be briefed as a direct appeal. Ibid.

2 In his confession, defendant told the police that he shot Previllon, and stated that St. Fleur shot the other victim, Pierre. However, several months later, defendant signed an affidavit taking responsibility for both shootings, and stating that he lied when he accused St. Fleur of shooting Pierre. In his trial testimony, defendant recanted his confession and also characterized the affidavit as a "lie," contending that he only signed the affidavit to help St. Fleur obtain a lower bail. Ulysse II, supra, slip op. at 11.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).