STATE OF NEW JERSEY v. CLARENCE E. SCOTT

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4601-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CLARENCE E. SCOTT,

     Defendant-Appellant.
______________________________

                   Submitted November 5, 2020 – Decided December 17, 2020

                   Before Judges Alvarez and Sumners.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 98-05-0493.

                   Clarence E. Scott, appellant pro se.

                   Camelia M. Valdes, Passaic County Prosecutor,
                   attorney for respondent (Marc A. Festa, Senior
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Clarence E. Scott appeals the Law Division's dismissal of his

third petition for post-conviction relief (PCR) without an evidentiary hearing.

We affirm.

      In 2002, a jury found defendant guilty of first-degree murder, first-degree

attempted murder, first-degree robbery, second-degree certain persons not to

have a weapon, and related weapon and assault offenses.            After merger,

defendant was sentenced to an aggregate life term with thirty-five years of

parole ineligibility for murder, to run consecutive to a sentence defendant was

serving on an earlier conviction. He was also sentenced to a consecutive twenty-

year term for robbery subject to the No Early Release Act (NERA),  N.J.S.A.

2C:43-7, and a consecutive twenty-year term for attempted murder subject to

NERA. We affirmed defendant's conviction on his direct appeal. State v. Scott,

No. A-1732-03 (App. Div. Feb. 2, 2006).           Our Supreme Court granted

defendant's petition for certification limited to the issue of his sentence on the

robbery and attempted murder charges, and the matter was remanded to the trial

court for resentencing in light of State v. Natale,  184 N.J. 458 (2005). State v.

Scott,  187 N.J. 488 (2006).




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       Defendant's first PCR petition was denied in September 2008.          We

affirmed the denial on appeal. State v. Scott, No. A-2047-08 (App. Div. Aug.

3, 2010), cert. denied, State v. Scott,  205 N.J. 101 (2011).

       Defendant filed his second PCR petition in 2015, alleging ineffective

assistance of trial counsel, first PCR counsel, and PCR appellate counsel. Judge

Ronald B. Sokalski issued an order and written opinion determining the petition

was time-barred by Rule 3:22-12(a)(2) and procedurally barred by Rule 3:22-

4(b). We affirmed that order. State v. Scott, No. A-3846-16 (App. Div. June

18, 2018), cert. denied, State v. Scott,  235 N.J. 455 (2018).

       The within third PCR petition was filed in April 2019. A month later,

Judge Sokalski issued an order and written opinion denying relief on the papers

without an evidentiary hearing. As with the dismissal of the second PCR

petition, the judge decided that defendant's claims were time- and procedurally

barred, Rule 3:22-12(a)(2), Rule 3:22-4(b), and Rule 3:22-5, respectively.

       Before us, defendant contends:

             POINT I

             APPELLANT’S INITIAL JULY 13, 2015 SECOND
             PCR BASED ON THE UNITED STATES SUPREME
             COURT HOLDING IN [MARTINEZ],1 WAS NEVER
             ADJUDICATED; THE TIMELINESS OF HIS

1
    Martinez v. Ryan,  566 U.S. 1 (2012).
                                                                        A-4601-18T4
                                        3
            SEPTEMBER 10, 2015 SECOND PCR SUPPLEMENT
            AND THE TIMELINESS OF THE OCTOBER 23,
            2018   THIRD     PCR   IS   INEXTRICABLY
            INTERTWINED WITH THE TIMELINESS OF THE
            JULY 13, 2015 INITIAL SECOND PCR, WHICH
            WAS NEVER RULED UPON, AND THE DENIAL OF
            HIS THIRD PCR AND SECOND PCR SUPPLEMENT
            WITHOUT FIRST RULING ON THE SECOND PCR
            INITIAL FILING VIOLATED HIS RIGHT TO DUE
            PROCESS OF LAW AND ACCESS TO THE
            COURTS. (U.S. CONST. AMENDS V, VI, & XIV).

                  [A.] Post-Conviction Relief Standard of Review.

                  [B.] Second PCR Time Limitations.

                  [C.] Equitable Tolling Applies.

                  [D.] Due Diligence/Reasonable Diligence.

            POINT II

            EVIDENTIARY HEARING IS REQUIRED ON THIS
            MATTER.

                  [A.] Trial [a]nd First PCR Counsels Were
                  Ineffective.

      We affirm substantially for the reasons set forth in Judge Sokalski's cogent

written decision, adding the following comments.

      To establish a prima facie claim of ineffective assistance of counsel, a

defendant must show: (1) counsel's performance was deficient; and (2) the

deficiency prejudiced the defense. Strickland v. Washington,  466 U.S. 668, 687


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(1984); State v. Fritz,  105 N.J. 42, 58 (1987) (adopting Strickland). The mere

raising of PCR does not entitle the defendant to an evidentiary hearing, State v.

Cummings,  321 N.J. Super. 154, 170 (App. Div. 1999), because the court

reviewing claims of ineffective assistance has the discretion to grant an

evidentiary hearing only if the defendant makes a prima facie showing in support

of the requested relief, State v. Preciose,  129 N.J. 451, 462 (1992).             An

evidentiary hearing need only be conducted if there are disputed issues as to

material facts regarding entitlement to PCR that cannot be resolved based on the

existing record. State v. Porter,  216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)).

      A PCR claim is not a substitute for a direct appeal and must hurdle some

time- and procedural bars. R. 3:22-3. "[A] defendant may not employ post-

conviction relief to assert a new claim that could have been raised on direct

appeal . . . or to relitigate a claim already decided on the merits . . . ." State v.

Goodwin,  173 N.J. 583, 593 (2002).

      In accordance with Rule 3:22-12(a)(2), a second PCR petition must be

filed within one year of either the date that "the constitutional right asserted was

initially recognized by the United States Supreme Court or the Supreme Court

of New Jersey;" or "the date on which the factual predicate for the relief sought

was discovered, if that factual predicate could not have been discovered earlier


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[with] . . . reasonable diligence;" or "the date of the denial of the first or

subsequent [PCR petition] where ineffective assistance of counsel . . . [therein]

is being alleged."    While these time limits may be waived to prevent a

fundamental injustice, they must be viewed in light of their dual key purposes:

to "ensure that the passage of time does not prejudice the State's retrial of a

defendant" and "to respect the need for achieving finality[.]" State v. DiFrisco,

 187 N.J. 156, 166-67 (2006) (quoting State v. Mitchell,  126 N.J. 565, 576

(1992)).

      Under Rule 3:22-4, a defendant is barred from raising any issue in a

second PCR petition that could have been raised on direct appeal or in the first

PCR petition unless one of three exceptions apply. The petition must "allege[]

on its face" one of the three criteria: (1) the petition "relies on a new rule of

constitutional law . . . that was unavailable during the pendency of any prior

proceedings[,]" (2) "the factual predicate for the relief sought could not have

been discovered earlier through the exercise of reasonable diligence," or (3) the

"petition alleges a prima facie case of ineffective assistance of counsel" of prior

PCR counsel. R. 3:22-4(b)(2).

      Rule 3:22-5 provides that "[a] prior adjudication upon the merits of any

ground for relief is conclusive whether made in the proceedings resulting in the


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conviction or in any post-conviction proceeding . . . or in any appeal taken from

such proceedings." "[A] prior adjudication on the merits ordinarily constitutes

a procedural bar to the reassertion of the same ground as a basis for post -

conviction review." Preciose,  129 N.J. at 476 (citing R. 3:22-5 ). "[A] defendant

may not use a petition for post-conviction relief as an opportunity to relitigate a

claim already decided on the merits." State v. McQuaid,  147 N.J. 464, 483

(1997) (citation omitted).

      Guided by these principles, the judge correctly determined that

defendant's third PCR petition claims were either raised in fact or should have

been raised in his first PCR petition or within one year of either his first or

second petitions. Further, we agree with the judge that defendant has not

demonstrated it would be fundamentally unjust to consider any claims that are

procedurally barred by Rule 3:22-4.

      To the extent we have not addressed any of defendant's arguments, we

conclude they are without sufficient merit to warrant discussion in this opinion.

R. 2:11-3(e)(2).

      Affirmed




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