STATE OF NEW JERSEY v. MARLON BRADSHAW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3885-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARLON BRADSHAW,

Defendant-Appellant.

________________________________________________________________

April 15, 2011

Submitted January 11, 2011 - Decided

Before Judges Espinosa and Skillman.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 92-10-2844.

Marlon Bradshaw, appellant pro se.

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

PER CURIAM

Defendant appeals from the denial of his second petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

Defendant was convicted by a jury on October 20, 1993, of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and possession of a weapon by a previously convicted person, N.J.S.A. 2C:39-7. On November 19, 1993, defendant was sentenced to an aggregate sentence of life imprisonment with thirty years of parole ineligibility.

Defendant appealed and we affirmed his convictions and sentence in an unpublished opinion, State v. Bradshaw, No. A-5235-93 (App. Div. October 10, 1995). The Supreme Court denied his petition for certification on January 24, 1996. State v. Bradshaw, 143 N.J. 329 (1996). The facts underlying defendant's convictions are set forth in our opinion addressing his direct appeal and need not be repeated here.

Defendant filed a PCR petition in February 1997, in which he argued: (1) the trial court improperly admitted a police statement; (2) the trial court issued improper instructions regarding remarks made by the prosecutor; (3) he was deprived of the effective assistance of counsel because his attorney presented a defense based upon intoxication rather than diminished capacity; and (4) the prosecutor committed misconduct by misrepresenting facts to the jury in summation.

Robert Neustadter, J.S.C., denied defendant's petition by order dated August 11, 1997. In his written opinion, Judge Neustadter noted that, other than the claim of ineffective assistance of counsel, defendant's arguments were procedurally barred by Rule 3:22-4 and Rule 3:22-5. Judge Neustadter also noted that defendant failed to file a brief in support of the PCR petition and also failed to provide any transcripts of the trial or pretrial motions. Although defendant provided the PCR court with expert reports that purportedly supported a diminished capacity defense, Judge Neustadter rejected the ineffective assistance of counsel claim, stating:

Here the defendant's sole argument rests upon finding fault with the strategic choice of his trial attorney to present a defense of intoxication nullifying intent. The defendant has failed to make any showing that establishes that the defense that was adopted was not competently arrived at. The defendant's proffer of the expert reports is insufficient to destroy the presumption that the defendant's trial counsel made this choice after an adequate investigation of law or fact.

This court affirmed the denial of defendant's PCR petition in an unpublished opinion, State v. Bradshaw, No. A-982-97 (App. Div. June 7, 1999). In that opinion, we agreed with Judge Neustadter's treatment of the failure to present a diminished capacity defense and his conclusion that no evidentiary hearing was warranted. Id., slip op. at 2-3. We also addressed points defendant raised in his pro se supplemental brief, many of which were not presented to the PCR court: (1) that he was denied the effective assistance of PCR counsel and appellate counsel; (2) that the trial court erred in ruling that his claim of prosecutorial conduct was procedurally barred; (3) that he was denied the effective assistance of counsel at trial; and (4) that the prosecutor's misconduct and misrepresentation of facts denied him due process and various constitutional rights. We found each of these arguments to be without merit. Ibid. Defendant's petition for certification was denied. State v. Bradshaw, 162 N.J. 129 (1999). Defendant stated that he filed a petition for habeas corpus, which was also denied, Bradshaw v. Hendricks, Docket No. 00-398 (SMO), but a copy of that order was not included in the appendix.

Defendant filed a second PCR petition in July 2005. His request for the appointment of counsel was denied in April 2006. We denied his motion for leave to appeal from that order in June 2007. As defendant describes it, in this petition, he raised "a 'bouquet' of claims stemming from his original PCR." On March 25, 2010, the PCR court denied defendant's petition in its entirety "in light of the fact that the same issues were raised, litigated and denied previously, and the petitioner has failed to set forth any additional grounds for relief[.]"

In his appeal, defendant argues that this matter should be remanded to allow his petition to be treated as a first petition and that good cause exists for the appointment of counsel pursuant to Rule 3:22-6(b). After giving due consideration to the arguments and record, we are satisfied that defendant's arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.

As the PCR court observed and defendant essentially concedes, the issues he raises in this petition were previously raised and adjudicated in one or more of the following forums: defendant's direct appeal, his first PCR petition before the trial court, and on appeal from the denial of his first PCR petition. The arguments he raises here are therefore procedurally barred. R. 3:22-5.