STATE OF NEW JERSEY v. JAMES LEAK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1656-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES LEAK,

Defendant-Appellant.

_

March 15, 2011

Submitted February 22, 2011 - Decided

Before Judges Kestin and Newman.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 94-01-0133.

James Leak, appellant pro se.

Theodore J.Romankow, UnionCounty Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James Leak appeals from an order denying his second petition for post-conviction relief (PCR). We affirm.

By way of background, defendant was tried by Judge Wertheimer and a jury. He was found guilty and sentenced to life with a thirty-year parole disqualifier for murder, and a consecutive five years subject to two and one-half years of parole ineligibility on an unlawful possession of a weapon charge.

Defendant's conviction was affirmed by this court on direct appeal, State v. Leak, No. A-1988-94 (App. Div. Jan. 23, 1996), and the Supreme Court denied his petition for certification, 144N.J. 337 (1996). Defendant later filed a petition for PCR, the denial of which was upheld by this court. State v. Leak, No. A-2973-99 (App. Div. Jan. 6, 2003). In affirming, this court noted that defendant was not precluded "from pursuing any relief which may be available by filing a motion for a new trial under R. 3:22-4." Id. at 9. The Supreme Court denied certification. 177 N.J. 221 (2003).

Defendant then filed a motion for a new trial on the basis of newly-discovered evidence contending that a number of the State's witnesses perjured themselves and he should be entitled to a new trial. That motion for a new trial was denied by Judge Wertheimer. This court affirmed the denial of the motion for a new trial. State v. Leak, No. A-3485-05 (App. Div. Feb. 4, 2008). The Supreme Court denied certification. 195 N.J. 421(2008).

In his second petition for PCR, in pertinent part, defendant argued that the court should have considered certifications alleging that the [S]tate's witnesses perjured themselves and that counsel for his first PCR should have submitted the certifications regardless of the court's refusal to accept them. He sought a reversal of his conviction and the granting of a new trial or a full evidentiary hearing.

The essential facts surrounding the murder conviction, which were summarized in this court's opinion affirming the denial of defendant's first PCR petition, Leak, supra, A-2973-99, slip op. at 2-7, itself quoting from this court's opinion affirming his conviction on direct appeal, were that defendant acted as an enforcer for a drug dealer. That dealer, Anthony Martin, was shot and sought revenge, directing that defendant shoot one "Antoine." Id. at 4. Defendant then proceeded to shoot Antoine Phillips in the back with four shots, which was actually witnessed by various persons, as well as others who saw him flee from the scene. Id. at 3-4. Unfortunately for Phillips, defendant shot the wrong Antoine. Id. at 4. Based on Martin's direction, defendant should have retaliated against Antoine Adams, a rival drug operator, who was selling drugs at a higher price than that of Martin. Ibid.

Initially, Judge Wertheimer signed an order on September 14, 2009, directing the Office of Public Defender to assign representation to defendant on his second PCR petition. The PCR unit of the Public Defender's office sought clarification of the September 14, 2009 order, noting its public funding limitations and the finding of good cause necessary for assignment of counsel, given the appellate history, the prior PCR, and the new-trial motion, and the appeal thereof pursued by defendant.

On reconsideration, Judge Wertheimer found that good cause for the assignment under Rule 3:22-6(b) was not established. As Judge Wertheimer put it,

The arguments that defendant has raised in this PCR are substantially equivalent to those in his prior PCR, as well as his prior motion for a new trial. The issue of the certifications regarding testimony of state witnesses has already been addressed both directly and on appeal. As a result, defendant has failed to show why his second PCR should not be precluded by R. 3:22-5.

On appeal, defendant raises the following issues for our consideration:

POINT I

THE COURT ABUSED ITS DISCRETION BY DENYING THE ASSIGNMENT OF COUNSEL, WITHOUT PROVIDING A LEGALLY SOUND BASIS FOR THE DECISION, AFTER INITIALLY FINDING GOOD CAUSE FOR THE ASSIGNMENT OF COUNSEL.

POINT II

THE LOWER COURT ERRED IN FINDING THAT THE DEFENDANT WAS PROCEDURALLY BARRED FROM RAISING PARTICULAR CLAIMS FOR POST- CONVICTION WITHOUT ANALYZING SUCH CLAIMS UNDER A CAUSE AND PREJUDICE STANDARD. THE ENFORCEMENT OF THE PROCEDURAL BAR IS MANIFESTLY UNJUST, AND A DENIAL OF THE REQUESTED RELIEF WOULD BE CONTRARY TO THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF NEW JERSEY.

We are satisfied that Judge Wertheimer did not abuse his discretion in denying the PCR petition and not assigning counsel on this second PCR. Judge Wertheimer was in the unique position of having been not only the trial judge, but the judge who heard the new-trial motion based on the various witnesses' recantations. Since those were the very issues that defendant sought to raise once again, Judge Wertheimer was in the best position to know that these issues had already been decided by him and against defendant. By noting that the arguments were "substantially equivalent to those in [a] prior PCR, as well as [the] prior motion for a new trial," Judge Wertheimer recognized that the bar of Rule 3:22-5 is applicable. As set forth in Rule 3:22-5:

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 brought pursuant to this rule or prior to the adoptions thereof, or in any appeal taken from such proceeding.

Defendant's second PCR was properly rejected, as was his request for assignment of counsel. Defendant was not entitled to representation on this second go-around on issues already determined.