STATE OF NEW JERSEY v. VICTOR JOSE MARTINEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3726-05T23726-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VICTOR JOSE MARTINEZ,

Defendant-Appellant.

_________________________________

 

Submitted November 29, 2006 - Decided January 26, 2007

Before Judges Wefing, C.S. Fisher and Messano.

On appeal from Superior Court of New Jersey,

Law Divisiion, Camden County, No. 1678-06-91.

Appellant submitted a pro se brief.

Stuart Rabner, Attorney General, attorney for

respondent (Hillary Horton, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of felony murder, N.J.S.A. 2C:11-3a(3), and first-degree robbery, N.J.S.A. 2C:15-1. The trial record demonstrated that defendant, together with his cousin, entered a small market in Camden, intent on stealing the cash on hand. While defendant got into a scuffle with a patron, his cousin shot the owner with a sawed-off shotgun; the man died from his wounds. Defendant was sentenced on May 14, 1992. The trial court merged the robbery conviction into the felony murder conviction and sentenced defendant to thirty years in prison and specified that defendant had to serve the full thirty years without being eligible for parole.

Defendant appealed and raised the following arguments: that his statements to the police should have been suppressed, that the trial court erred in its charge in several regards, that his sentence was excessive, and cumulative error. We rejected these contentions and affirmed his conviction and sentence. State v. Martinez, No. A-5886-91 (App. Div. July 18, 1994). The Supreme Court denied defendant's petition for certification. 139 N.J. 184 (1994).

Thereafter, defendant filed a petition seeking post-conviction relief (PCR), in which he asserted a variety of grounds in support of his petition. The trial court denied his petition pursuant to a ten-page letter-opinion dated October 10, 1997. Defendant appealed from that denial. He made one contention on appeal, that he had been denied the effective assistance of trial counsel. We affirmed. State v. Martinez, No. A-5463-97 (App. Div. December 22, 1999). Again, the Supreme Court denied defendant's petition for certification. 163 N.J. 395 (2000).

Defendant then filed a petition in federal court for habeas corpus. In July 2002, United States District Judge Pisano denied defendant's petition. In March 2003, the United States Court of Appeals for the Third Circuit dismissed defendant's appeal from that order.

Defendant returned to state court and filed a second petition for PCR. Defendant raised the following arguments in connection with that second petition:

POINT I SINCE THE TRIAL JUDGE DID NOT MAKE A PROPER INQUIRY INTO POSSIBLE TAINTED JURY WHICH COULD HAVE RESULTED FROM MISCONDUCT OF ONE OF THE VENIREMEN AND BY TRIAL COUNSEL, THE INTERESTS OF JUSTICE REQUIRE THE REVERSAL OF MY FELONY MURDER CONVICTION.

POINT II SINCE A TAINTED JURY REPRESENTS REVERSIBLE ERROR, THE PCR RULES SHOULD BE RELAXED, COUNSEL SHOULD BE ASSIGNED AND THIS DEFENDANT SHOULD BE GRANTED A POST-CONVICTION RELIEF EVIDENTIARY HEARING.

The trial court denied that petition in an order entered February 3, 2004, accompanied by a letter-opinion setting forth its reasons for concluding that defendant's petition was barred both under R. 3:22-12 and R. 3:22-5. Defendant again appealed, and we again affirmed the denial of PCR, this time summarily; we concluded defendant's petition was time-barred under R. 3:22-12. State v. Martinez, No. A-3886-03 (App. Div. January 25, 2005). Defendant's petition to the Supreme Court for certification was denied. 183 N.J. 590 (2005).

In August 2005, defendant filed a third petition for PCR. Defendant has appealed from the denial of that petition. He makes the following arguments on appeal:

POINT I THE LOWER COURT SHOULD HAVE ORDERED A FULL EVIDENTIARY HEARING IN CONNECTION WITH THE DEFENDANT'S POST-CONVICTION RELIEF PETITION BASED ON INEFFECTIVE ASSISTANCE OF TRIAL, APPELLATE AND PCR PROCEEDINGS COUNSEL, BECAUSE OF THE ATTORNEY'S FAILURE TO RAISE[] AND/OR PRESERVE[] THE ISSUE THAT THE TRIAL COURT ERRED WHEN IT DID NOT QUESTION[] THE REMAINING MEMBERS OF THE JURY AS TO ANY POSSIBLE TAINT FOLLOWING THE REMOVAL OF A JUROR.

POINT II

A GOOD-CAUSE SHOWING WAS DEMONSTRATED BY DEFENDANT IN HIS POINT I AND ARGUMENTS IN HIS DEMONSTRATION OF EXCUSABLE NEGLECT AND EXCEPTIONAL CIRCUMSTANCES IN SUPPORT OF HIS PETITION FOR PCR. THUS, THE LOWER COURT'S FAILURE TO HONOR REQUEST FOR COUNSEL ACCORDING TO RULE 3:22-6(b) DEPRIVED HIM OF DUE PROCESS OF LAW UNDER THE U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARA. 10.

 
We have once again reviewed the record on appeal in light of the contentions defendant has advanced. We are satisfied the order under review should be affirmed substantially for the reasons stated by Judge McNeill in his written opinion of February 28, 2006.

Affirmed.

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A-3726-05T2

January 26, 2007