STATE OF NEW JERSEY v. HERU HEKSHUS ATUM-RA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5064-04T55064-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HERU HEKSHUS ATUM-RA,

Defendant-Appellant.

________________________________

 

Submitted: May 2, 2006 - Decided June 23, 2006

Before Judges Kestin and Lefelt.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, 1215-81.

Heru Hekshus Atum-Ra, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Linda K. Danielson, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order entered on April 8, 2005, denying his second application for post-conviction relief (PCR). See R. 3:22.

The convictions occurred in 1982, as the result of a guilty plea to two counts of murder and related crimes. Defendant was sentenced to a life term of imprisonment with twenty-five years of parole ineligibility. There was no appeal.

We will not repeat the procedural history of the matter, which was set out in our unpublished opinion of May 31, 1991, under docket no. A-4574-88, affirming, in part, the denial of the first petition for post-conviction relief, and remanding for resentencing on two of the concurrent sentences. The Supreme Court denied certification on September 6, 1991, in an order reported at 126 N.J. 388.

In the instant matter, Judge Dupuis expressed her reasons for denying the second PCR application in a letter opinion of the same date as the order. The judge held that the application was time-barred, see R. 3:22-12(a), and that petitioner had failed to discharge his burden of establishing either excusable neglect for not meeting the time requirement, see ibid., or a fundamental denial of justice, see R. 3:22-4. The judge also held that all claims made in the current petition could have been raised in prior proceedings, and she observed that one factual basis for the relief plaintiff sought varied from the record.

On appeal, defendant presents the issues in the following terms:

POINT I DUE TO EXTRAORDINARY CIRCUMSTANCES, PURSUANT TO THE FUNDAMENTAL FAIRNESS CLAUSE OF THE NEW JERSEY COMMON LAW, ATUM-RA'S APPEAL SHOULD BE REINSTATED AND DECIDED ON ITS MERITS.

POINT II IT WAS A DENIAL OF DUE PROCESS AND THE EQUAL PROTECTION OF THE LAW FOR THE PCR JUDGE TO RELY ON A PROCEDURAL BAR TO DENY ATUM-RA PCR RELIEF AFTER ASSURING ATUM-RA HIS PETITION WOULD BE DECIDED ON IS MERITS. U.S. CONST. AMEND. XIV.

POINT III ATUM-RA WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AT SENTENCING AND BY FAILING TO FILE A NOTICE APPEAL WHICH ENGENDERED A CONFLICT OF INTERESTS; AND, BY COUNSEL ON HIS FIRST PCR AND THE APPEAL THEREFROM.

A. TRIAL COUNSEL'S FAILURE TO INVESTIGATE THE REQUIREMENTS OF N.J.S.A. 2C:43-7c DEPRIVED ATUM-RA OF EFFECTIVE ASSISTANCE AT SENTENCING.

B. FIRST PCR COUNSEL'S ASSISTANCE OF COUNSEL WAS DEFICIENT DUE TO PCR COUNSEL'S FAILURE TO PRESENT A CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL DURING SENTENCING DUE TO TRIAL COUNSEL'S IGNORANCE OF THE FACT THAT N.J.S.A. 2C:43-7c DID NOT APPLY WHICH DENIED ATUM-RA A FULL AND FAIR HEARING.

C. FIRST PCR COUNSEL'S ASSISTANCE OF COUNSEL WAS INEFFECTIVE DUE TO FAILURE TO PRESENT A CLAIM OF PROSECUTORIAL MISCONDUCT DURING SENTENCING WHICH DENIED ATUM-RA A FAIR PCR PROCEDURE.

1. PROSECUTORIAL MISCONDUCT BREACHED THE PLEA.

Our review of the record in the light of the arguments advanced by the parties and prevailing legal standards discloses that none of the issues advanced by petitioner has sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons articulated by Judge Dupuis.

Affirmed.

 

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A-5064-04T5

June 23, 2006