STATE OF NEW JERSEY v. JAMES HUNT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3537-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES HUNT,

Defendant-Appellant.

________________________________________________________________

December 2, 2011

Submitted November 15, 2011 - Decided

Before Judges Baxter and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 83-08-1689.

Joseph E. Krakora, Public Defender, attorney forappellant (MichaelConfusione, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James Hunt appeals from an October 23, 2009 Law Division order denying his first petition for post-conviction relief (PCR) on the grounds that the petition was filed well beyond the five-year time limit established by Rule 3:22-12(a)(1) and defendant failed to present any meritorious basis warranting the extension of the deadline established by that Rule. We affirm.

I.

After a capital murder trial, defendant was convicted on January 23, 1984 of capital murder, conspiracy, weapons offenses and burglary. The jury sentenced him to death. On March 28, 1994, the judge imposed sentence on the non-capital counts. On June 9, 1989, our Supreme Court affirmed defendant's conviction, but vacated the death sentence due to errors in the penalty phase jury instructions. State v. Hunt, 115 N.J. 330, 378-89 (1989). The Court remanded to the Law Division for the imposition of a non-capital sentence. Id. at 385. On June 30, 1989, the judge sentenced defendant to life imprisonment, subject to a thirty-year parole ineligibility term.

Defendant's appeal of his sentence was heard on an excessive sentence calendar (ESOA), R. 2:9-11, at which time we concluded that the consecutive sentences were not justified, and remanded for the imposition of concurrent sentences. State v. Hunt, No. A-2768-09 (App. Div. May 16, 1991). The Law Division issued an amended judgment of conviction bearing the date of May 14, 1991.1

Having exhausted the appellate process in state court, defendant filed a petition for a writ of habeas corpus in the United States District Court. That petition was denied on March 11, 1992. On April 16, 1993, the Third Circuit affirmed. Hunt v. Beyer, 993 F.2d 877 (3d Cir. 1993).

On June 10, 2002, more than nine years after the Third Circuit judgment, and more than eighteen years after his conviction, defendant filed the PCR petition that is the subject of this appeal. In his petition, he asserted that trial counsel rendered ineffective assistance because he did not meet with defendant frequently enough prior to trial. Defendant did not provide any affidavits or certifications demonstrating how the result of the trial would have been different had trial counsel met with him more frequently.

Without assigning counsel, a Law Division judge denied defendant's PCR petition based upon the five-year time bar contained in Rule 3:22-12(a). On appeal, we summarily reversed the denial of the PCR petition because the court had not assigned counsel to defendant in violation of Rule 3:22-6(a), which requires the assignment of counsel on a first petition for post-conviction relief. Counsel was thereafter assigned, and after the submission of briefs, on October 23, 2009, the Law Division conducted a hearing on defendant's PCR petition.

At the beginning of the proceeding, the judge offered PCR counsel the opportunity to present testimony on the time bar issue, but counsel declined the judge's offer stating, "you know, frankly, there isn't a lot more except what is on the papers before the court. Those are the reasons set forth[.]" After hearing argument from both sides, the judge rendered a comprehensive and well-reasoned oral opinion in which he denied defendant's petition. The judge's ruling began with a detailed recitation of the procedural history that we have already described. The judge observed that defendant was convicted in 1984 and his appeals were concluded on April 16, 1993 when the Third Circuit Court of Appeals affirmed the denial of defendant's petition for a writ of habeas corpus.

Noting that defendant had not filed his PCR petition until June 10, 2002, the judge addressed the threshold question of whether defendant had established excusable neglect for failing to comply with the five-year filing requirement established by Rule 3:22-12(a)(1). The provisions of that Rule required defendant to have filed his PCR petition no later than March 28, 1989, which was five years after his March 28, 1984 conviction. The judge noted that the only explanation defendant offered for the untimely filing was his belief that the Office of the Public Defender would be filing not only all necessary appeals, but also a PCR petition.

In rejecting defendant's claim of excusable neglect,

the judge reasoned:

All that has been presented to me today, and [defendant] has been given and afforded the opportunity to make a factual statement, but he's declined to do so and just wanted his attorney to make this statement, was that he thought he left the appeals up to the Public Defender's Office and he also asserts that the time limitation should be relaxed based on the fact that this was a serious offense, that it is a serious sentence, and that on four prior occasions, [he] did take successful appeals of this matter and the fact that the overall length of time . . . elapsed between when he filed it in 2002 until now, 2009, seven years later[.]

Even the seven-year delay in this court hearing the PCR application is not as long as the time that . . . went from 1989 to 2002, the thirteen years within which he didn't file his PCR, so I can't place much credence . . . into that.

The fact that it was a serious matter and a serious sentence, that doesn't establish excusable neglect or exceptional circumstances under the [R]ule either and as well, the fact that he had four prior occasions where he was successful in an appeal, in those matters, he was properly re-sentenced upon remand.

So the issues that he was able to [obtain] relief upon, he received that relief. So . . . I don't see that filing successful appeals in any way creates excusable neglect. . . . [Any errors in] the sentence were all rectified. . . . [T]here were some other issues related to some sentencing matters that were all corrected upon remand . . . as far back as . . . '83 or '84, . . . and there doesn't appear to be anything else on the record that establishes excusable neglect.

I've also looked . . . beyond that [at] whether or not there would be . . . a serious miscarriage of justice . . . if I deny this petition, and I don't see that a . . . prima facie case on ineffective [assistance of] counsel [has been] established. . . . [T]here's just nothing in the record here to fit the two-prong test under Strickland v. Washington, which was adopted by the New Jersey Supreme Court in State v. Fritz.

So for those reasons, I find that there is no showing of excusable neglect as required by the [R]ule for filing post-conviction relief matters and I deny the application to accept this out of time PCR petition.

On appeal, defendant raises the following claims:

THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND REMAND THIS MATTER FOR AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.

1. Excusable neglect or exceptional circumstances existed to overcome the time bar.

2. Defendant established a prima facie case of ineffective assistance of counsel that at least warranted an evidentiary hearing.

II.

To establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, defendant must show that defense counsel's performance was indeed deficient. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The precepts of Strickland have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).

Prejudice is not presumed. Id. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

A PCR petition must be filed within five years of the judgment or sentence sought to be attacked, "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." R. 3:22-12(a)(1).2

As the Supreme Court has observed, the five-year time bar established by Rule 3:22-12(a)(1) should only be relaxed when "exceptional circumstances" are presented:

The court should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an "injustice" sufficient to relax the time limits. As we have made clear, the longer the time-span since the original trial, the more difficult a retrial becomes. Absent compelling, extenuating circumstances, the burden of justifying a petition filed after the five-year period will increase with the extent of the delay. The prejudice to the State's ability to litigate the case after a long delay is also relevant.

[State v. Mitchell, 126 N.J. 565, 580 (1992) (emphasis added).]

Applying the Mitchell factors, we are satisfied, as was Judge Pugliese, that defendant's proffer falls far short of establishing the "compelling" and "extenuating" circumstances required to justify the enormous filing delay presented here. Defendant's claim that he assumed the Office of the Public Defender would file the necessary petition, even if true, cannot excuse defendant's own failure to determine whether the Office of the Public Defender had indeed done so. Thus, any neglect on defendant's part, cannot be deemed "excusable" within the meaning of Rule 3:22-12(a)(1).

Moreover, defendant's thirteen-year violation of the five-year time bar is so lengthy as to likely create an insurmountable burden to the State's ability to retry defendant were the petition to be granted. As the Court held in Mitchell, such a long delay is entitled to considerable weight in determining the validity of a defendant's claim of excusable neglect. Ibid.

Having reviewed defendant's contentions in light of the record and applicable law, we are satisfied that Judge Pugliese's findings of fact are well-supported by the record and his legal conclusions are unassailable. We affirm his determination that defendant did not establish excusable neglect for the violation of the Rule 3:22-12(a)(1) five-year time bar.

Turning to the merits, we likewise affirm the judge's conclusion that defendant failed to establish a prima facie case of ineffective assistance of counsel. As we held in State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." He must "allege facts sufficient to demonstrate counsel's alleged substandard performance . . . [by] assert[ing] the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid. Here, defendant's claim that trial counsel was ineffective because he did not meet with defendant as frequently as defendant would have liked prior to trial is an instance of the "bald assertions" that we held in Cummings were insufficient. We thus concur in the judge's conclusion that if the merits of defendant's PCR petition were to be considered, his claim of ineffective assistance of counsel should be rejected.

Affirmed.

1 The judge likely signed the amended judgment after May 14, 1991, but dated it to correspond to the date of our ESOA order.

2 If the petition is filed while a defendant's direct appeal is pending, the petition will be dismissed without prejudice and will be deemed timely if refiled within ninety days of the judgment on direct appeal. R. 3:22-12(a)(3). As defendant's direct appeal was concluded long before he filed his PCR petition, he is not entitled to the benefit of the Rule 3:22-12(a)(3) relaxation.