STATE OF NEW JERSEY v. WALI PALMER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0252-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WALI PALMER,

Defendant-Appellant.

________________________________________________________________

June 15, 2011

Submitted April 12, 2011 - Decided

Before Judges Payne and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 98-06-1542-C.

Wali Palmer, appellant pro se.

Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals the denial of his third petition for post-conviction relief (PCR). The PCR petition was denied because it was untimely and thus procedurally barred. R. 3:22-12(a)(2); R. 3:22-4(b). After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant was convicted after a jury trial of aggravated manslaughter, N.J.S.A. 2C:11-4a, aggravated assault, N.J.S.A. 2C:12-1b(1), possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, and unlawful possession of a weapon, N.J.S.A. 2C:39-5b. He received an aggregate sentence of thirty years with an eighty-five percent No Early Release Act (NERA) parole ineligibility term. N.J.S.A. 2C:43-7.2.

Defendant was involved in a bar fight on March 27, 1998, during which he intentionally shot an individual and mistakenly shot and killed his friend, Junior. Only defendant used a gun during the altercation.

We affirmed defendant's conviction. State v. Palmer, A-129-99 (App. Div. Mar. 19, 2001), certif. denied, 169 N.J. 606 (2001). On September 13, 2001, defendant filed a timely PCR petition, which was denied, and we affirmed the denial on appeal. State v. Palmer, A-2049-02 (App. Div. Feb. 11, 2004), certif. denied, 180 N.J. 357 (2004). On September 14, 2004, defendant filed a petition seeking a writ of habeas corpus, which was denied on May 15, 2006, and that denial was also affirmed on appeal. Palmer v. Hendricks, 592 F.3d 386 (3d Cir. 2010). On April 19, 2005, defendant filed a PCR petition designated as a "motion to correct an illegal sentence" raising issues relating to NERA, which was denied without prejudice pending resolution of defendant's petition for a writ of habeas corpus and never re-filed. On June 29, 2010, defendant filed the present PCR petition, which was denied on August 10, 2010.

Defendant raises the following issues on appeal:

POINT I

THE LOWER COURT SHOULD HAVE GRANTED DEFENDANT['S] REQUEST IN CONNECTION WITH HIS PCR PETITION BASED ON INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL BECAUSE HE FAILED TO RAISE [THE] ARGUMENT[] THAT A STATEMENT IN THE SELF-DEFENSE INSTRUCTION PREDICATED PURSUANT TO STATE V. MOORE WAS A [sic] FLAWED LEGAL DICTA HIS TRIAL JUDGE SUBMITTED TO THE JURY, WHICH DEPRIVE[D] THE DEFENDANT OF HIS RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTION[S]. (RAISED BELOW).1

A.

THE LOWER COURT SHOULD HAVE GRANTED DEFENDANT['S] REQUEST IN CONNECTION WITH HIS PCR PETITION BASED ON THE JUDGE['S] EXPLANATION O[F] THE ELEMENT OF KNOWLEDGE BECAUSE THE JUDGE TOLD THE JURY THAT THE STATE CAUSED THE VICTIM'S DEATH OR SERIOUS BODILY INJURY RESULTING IN DEATH, THUS THAT ERROR CRIPPLED WHAT THE FACTFINDER HAD TO EVALUATE WHICH SHOULD HAVE BEEN MEASURED BY THE BEYOND-A-REASONABLE-DOUBT STANDARD THEREFORE DEFENDANT'S RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTION[S]. (RAISED BELOW).

B.

THE DEFENDANT'S RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTION[S] WAS VIOLATED BECAUSE A CHARGE FROM THE JUDGE PREVENTED THE JURY FROM CONVICTING DEFENDANT ON THE OFFENSES OF PASSION/PROVOCATION/MANSLAUGHTER AND RECKLESS-MANSLAUGHTER BECAUSE THE CHARGE CONVEYED A CLEAR MESSAGE THAT THE JURY MUST NOT CONVICT THE DEFENDANT ON ANY OFFENSES WHICH CONTAINS THE ELEMENT OF RECKLESSNESS. (NOT RAISED BELOW).

POINT II

THE LOWER COURT SHOULD HAVE GRANTED DEFENDANT['S] REQUEST IN CONNECTION WITH HIS PCR PETITION BASED ON THE JUDGE['S] FAILURE TO INSTRUCT THE JURY ON IMPERFECT-SELF-DEFENSE, [WHICH] DEPRIVE[D] HIM OF HIS RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW THEREFORE APPELLATE ATTORNEY RENDERED INEFFECTIVE ASSISTANCE BY NOT RAISING THE ISSUE ON APPEAL THUS VIOLAT[ING] HIS RIGHTS [UNDER] THE UNITED STATES AND NEW JERSEY CONSTITUTION[S]. (RAISED BELOW).

POINT III

THE LOWER COURT SHOULD HAVE GRANTED DEFENDANT['S] REQUEST IN CONNECTION WITH HIS PCR PETITION BASED ON APPELLATE COUNSEL['S] INEFFECTIVENESS BECAUSE HE FAILED TO RAISE THE ARGUMENT THAT A DEFENSE-OF-ANOTHER CHARGE SHOULD HAVE BEEN GIVEN BECAUSE THE EVIDENCE FOR SUCH AN INSTRUCTION EXISTED IN EITHER THE STATE OR DEFENDANT['S] CASE-IN-CHIEF, THEREFORE HIS RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW W[ERE] VIOLATED UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTION[S]. (RAISED BELOW).

POINT IV

THE LOWER COURT SHOULD HAVE GRANTED DEFENDANT['S] REQUEST IN CONNECTION WITH HIS PCR PETITION BASED ON INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL BECAUSE HIS ATTORNEY FAILED TO RAISE[] THE ISSUES SET FORTH IN POINT I THROUGH POINT III. ALTERNATIVELY, THE FIVE-YEAR TIME BAR OF R. 3:22-12 SHOULD BE RELAXED DUE TO HIS EXCUSABLE NEGLECT AND/OR THE INTERESTS OF JUSTICE AS DANFORTH V. MINNESOTA, 128 S. Ct. 1029 (2008), HOLDING ON THE RETROACTIVITY OF CASES. (RAISED BELOW).

We decline to consider defendant's arguments, which are untimely. See R. 3:22-12(a)(2); R. 3:22-4(b). We add only the following comments. Defendant raises arguments relating to jury instructions, relying on State v. Rodriguez, 195 N.J. 165 (2008). In Rodriguez, the Court held that self-defense is generally available to a defendant charged with aggravated manslaughter because "a person who kills in the honest and reasonable belief that the protection of his own life requires the use of deadly force does not kill recklessly." Id. at 172. However, the Court noted that "[a] person justified in using deadly force for his own protection is stripped of the legal justification of self-defense if 'he recklessly or negligently injures or creates a risk of injury to innocent persons.'" Ibid. (quoting N.J.S.A. 2C:3-9(c)). Defendant killed his friend Junior, who was not defendant's adversary in the bar fight, and thus, this defense was not available to him.

As the trial court correctly held, even if self-defense were available to defendant, he waited too long to bring a subsequent PCR petition based on the applicability of Rodriguez. Rule 3:22-4(b) mandates dismissal of a second or subsequent PCR petition if it is untimely under Rule 3:22-12(a)(2). Pursuant to Rule 3:22-12(a)(2)(A), a defendant has one year from the date of a Supreme Court decision initially recognizing a constitutional right and applying it retroactively to raise the issue in a subsequent PCR petition. Rodriguez was decided on January 9, 2008, and defendant filed the current application on June 29, 2010. The Court also has not applied Rodriguez retroactively. Rule 3:22-12(c) prohibits the relaxation of the time limit under these circumstances. Although Rule 3:22-12(a)(2)(C) allows a defendant alleging ineffective assistance of prior PCR counsel one year from the denial of that petition to file a subsequent PCR petition, defendant does not allege incompetence of prior PCR counsel. Thus, defendant's PCR application is time-barred as he did not file it until more than two and one-half years after the Court's decision in Rodriguez.

1 State v. Moore, 158 N.J. 292 (1999) (contained the fatally flawed jury instruction regarding the reckless conduct element used here). [This footnote is included by defendant in his point heading.]