STATE OF NEW JERSEY v. JAMES R. HOLMA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4774-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES R. HOLMAN, a/k/a

MAHA MUDRA,

Defendant-Appellant.

_________________________________________________

November 17, 2011

 

Submitted October 12, 2011 - Decided

 

Before Judges Payne and Hayden.

 

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment No.

90-05-01013.

 

Maha Mudra, appellant pro se.

 

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (David A. Zeitzoff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, James R. Holman, a/k/a Maha Mudra, appeals from the denial of his first petition for post-conviction relief (PCR). In a pro se brief, he argues:

 

POINT I

 

DEFENDANT WAS DENIED HIS RIGHT TO APPELLATE REVIEW DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT II

 

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ON HIS FIRST POST-CONVICTION PETITION.

 

POINT III

 

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS WHEN TRIAL JUDGE PREVENTED HIM FROM PARTICIPATING IN HIS OWN TRIAL.

 

Because the record is inadequate to definitively determine this matter, we remand the case for further fact finding and legal analysis.

I.

Following the death of Corey Grant, defendant was indicted for murder, N.J.S.A. 2C:11-3a(1) and (2), conspiracy to commit murder, N.J.S.A. 2C:11-3a(1) and (2) and N.J.S.A. 2C:5-2, possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, and unlawful possession of a handgun, N.J.S.A. 2C:39-5b. He was tried before a jury, convicted on all counts, and sentenced to an aggregate term of life in prison with thirty years of parole ineligibility. Defendant appealed, and we reversed his conviction for murder and conspiracy to commit murder in an unpublished decision. State v. Holman, No. A-1223-91 (App. Div. June 7, 1994). The State's petition for certification was denied. State v. Holman, 138 N.J. 265 (1994).

Upon retrial, for reasons that remain contested,1 defendant refused to leave his cell, and trial was held in absentia. Defendant claims that his cell was uninhabitable because of a toilet backup and that he was denied proper clothing for trial. His trial counsel and the State claim that defendant purposefully backed up the toilet and refused to leave his cell, threatening to kill any guards who sought to remove him forcefully. Following trial, defendant was again found guilty of conspiracy and murder. He claims that he refused to attend his sentencing,2 where a life sentence with thirty years of parole ineligibility was imposed on June 21, 1996.

No appeal was filed on defendant's behalf, and the record does not indicate whether defendant timely sought an appeal or was aware of the procedural steps necessary to perfect such an appeal. However, the record contains evidence of defendant's attempts, commencing on May 29, 2000, to obtain the transcripts of his second trial. In a letter to the Public Defender of that date, defendant wrote, in relevant part:

PLEASE BE ADVISED, that this is the third (3rd) letter that I have written to your office requesting my Transcripts from my trial of 1994.3

 

Because your office has consistently refused to turn over my transcripts, I now face the prospect of being disallowed to file my appeal pursuant to the five (5) year statute of limitation.

 

The dates of defendant's two prior letters are unknown. However, defendant claims in his appellate brief that the earliest letter was sent in 1997, one year after sentencing.

The Public Defender responded on June 7, 2000, stating:

I am in receipt of your letter of May 29, 2000 requesting copies of your trial transcript from 1994. This office has no record of any trial proceedings on your indictment in 1994. Our records indicate that you were tried and sentenced in 1991. The transcripts from that trial were sent to you along with you[r] appellate brief.

 

In your letter you refer to a five year statute of limitations, [by] which I assume you refer[] to the period in which a petition for post-conviction relief must be filed. In your case that period expired on September 27, 1996. You may still file a petition with the court if you allege reasons why you did not file by 1996. You will be assigned counsel who will help you develop both your legal issues and the reasons why there is excusable neglect which would permit a late filing. I am enclosing a copy of [a] form petition. Once that is completed and filed with the court, you[r] case will be referred for assignment of counsel who will be provided with both your appellate and trial files.

 

If you have any further questions, please feel free to write directly to me.

 

Defendant did not seek PCR and apparently did not direct "any further questions" to the Public Defender's Office, but instead followed this correspondence with a letter to the Union County Clerk, dated June 28, 2000, requesting his transcripts "FROM MY TRIAL OF 1994." He next sought aid from the United States Department of Justice by correspondence dated August 8, 2000, from the New Jersey Bar Association in a letter dated May 27, 2003, and from the Advisory Committee on Judicial Conduct on the same date. Most addressees responded, but offered no assistance. On July 17, 2003, defendant wrote to his trial counsel, reminding him of his representation, stating that he could not remember the trial date with any degree of specificity, and continuing by stating:

What I need to know from you is the following information:

 

1. Did you file a Notice of Appeal with the trial judge?

 

2. If you did not file a Notice of Appeal, why?

 

3. Why have you not attempted to contact me to at least discuss my options on appeal?

 

4. Are you currently in receipt of my trial transcripts?

 

[Counsel], I do not mean to be impudent, but you were ethically bound to meet the obligations listed above. Admittedly, you and I did not have the coziest of attorney/client relationships, but such a fact does not absolve you of your professional responsibilities. In fact, upon sentencing, a Notice of Appeal is legally axiomatic.

 

I need not remind you, [counsel], that a Notice of Appeal sets in motion a consecution of events that include, among other things, the ordering of trial transcripts. Since you did not file that Notice of Appeal, I have been denied a copy of my trial transcripts, despite my repeated attempts to secure them.

 

In closing, I would like to remind you that my trial transcripts are of paramount importance. Without them, appellate review would be impossible.

 

Trial counsel responded on July 22, 2003, stating that he remembered defendant well, because when counsel tried to coax him into participating in his own trial "you showed your gratitude by flooding the toilet(s) filled with waste and kicking the same in my direction." Additionally, counsel stated that he was nearly jailed by the trial judge when he conveyed defendant's request for new counsel, and he was ordered to proceed with the trial regardless of defendant's request. Nonetheless, counsel stated:

I did what I do in every pool matter when the case results in a conviction. I forward the file to the Public Defender's Office with a Notice of Appeal prepared on your behalf as well as a case information statement which is required for the appeal. The Public Defender pursues your appeal assuming you sought an appeal be filed on your behalf.

 

Following the receipt of counsel's letter, on August 4, 2003, defendant wrote to the judge who had conducted the second trial requesting that he "turn over my trial transcripts so that I may, at last, initiate appellate review." On April 20, 2004, he also wrote to the Chief Justice, requesting assistance and stating: "I thought that my recourse was through the Office of the Public Defender, but it has consistently refused to cooperate with me. I have also written on several occasions to the judge who presided over my trial, but much like the Office of the Public Defender, he also refuses to cooperate."

On March 20, 2008, defendant filed a pro se petition for PCR alleging ineffective assistance of trial counsel in perfecting an appeal and demanding a new trial. On August 6, 2008, by a process that is not explained in the record, the transcripts of defendant's second trial were furnished to him by the Public Defender's Office.

Thereafter, PCR counsel was assigned to defendant who, after a videoconference, determined, against defendant's wishes, to supplement defendant's pro se brief to include issues other than deprivation of the right of appeal. As counsel explained in a letter to defendant, dated October 10, 2008, recapping advice given during the videoconference:

I brought to your attention that the failure to expand the petition as now constituted by an amendment pursuant to R. 3:22-9 to add other issues of defects in the trial proceedings themselves that may warrant reversal on grounds independent of the above or of other claims of ineffective assistance of counsel that may exist in the record below, namely that within the five volumes of trial transcripts that were provided to you per Ms. Yurchenco's letter dated August 6, 2008, may possibly preclude you from raising such matters in a subsequent appeal of the same trial as not having brought those matters to the attention of the Court . . . on the present petition, at the earliest possible date so that they could be addressed on the merits and therefore overcome a subsequent procedural bar on direct appeal based on the record of the trial itself.

 

However, defendant vehemently objected to counsel's submission, claiming that it had been filed against defendant's "expressed will" and that it contained what defendant claimed to be "self-stultifying arguments clearly intended to undermine the case."

In the supplemental brief, filed on November 20, 2008, counsel summarized defendant's pro se argument by stating:

Pursuant to a pro se petition for post-conviction relief filed on or about March 20, 2008, . . . the defendant advances that the failure of trial counsel to file the appropriate papers in support of filing a timely notice of appeal or of following through with that matter if such papers had been filed in conjunction with the Public Defender's failure to request the preparation of the transcripts required to prosecute an appeal and of providing the defendant with copies thereof (all of which have now been prepared and supplied to the defendant), the defendant was deprived of his constitutional right to a direct appeal and denied the effective assistance of trial and appellate counsel to which he is constitutionally entitled. The defendant has set out no substantive claims of ineffective assistance of trial counsel going to any trial matters and claims that the above procedural deficiencies in and of themselves constitute per se violations that mandate vacating the convictions and relisting the matter for retrial. He bases his reasoning on the decisional law of the Supreme Court of United States and in particular the opinion of Bakari v. Beyer, 863 F. Supp. 192 (D.N.J. 1994).4 He claims that those cases stand for reversal. The defendant is adamant that no other claims of trial error were required to warrant reversal and that no challenges to any trial matters are required. He has expressly directed that no notice of appeal be filed as if within time so as to avoid any potential procedural bar under R. 3:22-3 as an unwarranted concern about "procedural minutia" that is irrelevant to the relief that he seeks in his pro se moving papers.

 

Nonetheless, "so that the defendant may have as full a hearing on his petition as possible," counsel set forth five argument points, in which he argued that the trial court erred in not broadcasting the trial to defendant in his jail cell by closed-circuit television (Points 1 and 2), in not granting a mistrial upon learning of defendant's position that he was not "happy" with assigned counsel (Point 3), in denying defendant's motion for acquittal at the end of the State's case (Point 4), and in imposing an excessive sentence (Point 5).

Following receipt of the supplemental brief, defendant wrote a letter to the PCR judge, dated November 21, 2008, stating that the brief was unauthorized and should be withdrawn from consideration. Defendant adhered to that position at the PCR hearing, which occurred on April 16, 2010 in his presence.5

After the hearing had taken place, the PCR judge issued a written opinion in which he addressed the issue raised by defendant and the arguments set forth in counsel's supplemental brief. With respect to defendant's argument that trial counsel was ineffective because he failed to file an appeal, the judge concluded:

While the defendant provides case law that establishes that he is entitled to the effective assistance of counsel with respect to his right to a direct appeal, he fails to provide any argument with respect to the Strickland6 test in support of his assertion that he was denied same. The defendant was notified at his sentencing that, if he had a desire to appeal, he would have to make the appropriate application to do so for an attorney. [Trial counsel] has stated that he provided the Public Defender's Office with a notice of appeal and a case information statement, and the defendant has not provided any evidence to show that same did not occur or that [counsel] did not advise him of his right to appeal.

 

The judge thus rejected defendant's argument as well as the arguments set forth by counsel in the supplemental brief. This appeal followed.

II.

 

On appeal, defendant relies on the District Court's opinion in Simmons v. Beyer, 689 F. Supp. 432 (D.N.J. 1988) to support his position that he is entitled to a new trial as the result of counsel's failure to file an appeal on his behalf. In Simmons, the petitioner had expressed his desire to appeal convictions for murder and other crimes at the time of sentencing. However, his designated counsel did not file a notice of appeal, and no appeal was filed by the Office of the Public Defender. When the petitioner sought relief in State court and initially in Federal court, his efforts were rebuffed. 689 F. Supp. at 433-44. However, his second petition for a writ of habeas corpus was conditionally granted by Judge Debevoise. Id. at 449-50. In doing so, the judge recognized the petitioner's constitutional right to counsel in connection with his first appeal. Id. at 439-40. But, as the State conceded at the hearing on the petitioner's petition, the State's system for providing representation to indigents had failed in this case. Id. at 443. The judge held: "Where systems of public defense break down in this manner, the rights to effective assistance of counsel and to due process are violated." Ibid. (citations omitted).

The judge rejected the State's position that the petitioner was not entitled to relief because he had not pointed to specific grounds for appeal. In that regard, the judge noted that grounds had been identified by the petitioner in his first habeas petition, but he also held:

The more important point is, however, that petitioner has been denied an opportunity to develop possible grounds for appeal. No one has even been able to read the transcript from his trial, which may now be lost permanently. Petitioner has long sought assistance by counsel in probing the trial record and determining meritorious grounds for constitutional challenge of his conviction. This habeas action must be viewed as preliminary to an exploration of the merits of the case.

 

This result is dictated by relevant authority. Recognizing that the lack of examination by competent counsel of the trial transcript makes it impossible to know what if any grounds for appeal would have been promising, courts presume prejudice rather than insisting on a specific showing thereof. See, e.g., Rodriguez v. United States, 395 U.S. 327, 89 S. Ct. 1715, 23 L. Ed. 2d 340 (1969) (defendant deprived of right to appeal by trial counsel's failure to file notice of appeal not required to specify errors that he would have raised on appeal or demonstrate that denial of appeal was prejudicial in order to state a prima facie case warranting post-conviction relief) . . . .

 

[Id. at 445 (additional citations omitted).]

 

Judge Debevoise held that "[w]here an appeal has been denied in violation of due process and Sixth Amendment rights, the normal remedy is to order the state to make available an appeal nunc pro tunc." Id. at 448 (citing Macon v. Lash, 458 F.2d 942 (7th Cir. 1972)). However, he observed that it was not clear in this case whether a late appeal would be feasible because materials necessary to prepare complete transcripts appeared to have been lost. Ibid. Nonetheless, the judge gave the State the opportunity to find or reconstruct an adequate record to permit an appeal. Id. at 449. He thus granted a conditional writ of habeas corpus, permitting the State to cure the due process violation either by giving the petitioner an effective appeal or a new trial. If neither were possible, the judge declared "the writ must issue." Id. at 449-50.

Thereafter, the Passaic County Prosecutor's Office filed, on the petitioner's behalf, an application for leave to appeal nunc pro tunc and for a remand to the trial court to reconstruct the record. Simmons v. Arvonio, 796 F. Supp. 777, 780 (D.N.J. 1992). After the record was reconstructed and filed with the Appellate Division, the petitioner challenged the sufficiency of the record in Federal Court, but relief was denied pending completion of state court proceedings. Ibid. Eventually, defendant's conviction was affirmed by the Appellate Division, and certification was denied by the New Jersey Supreme Court. Id. at 780-81.

The petitioner then reopened his petition for habeas corpus in the Federal District Court and relief was denied. Nonetheless, on appeal, the Third Circuit reversed. Simmons v. Beyer, 44 F.3d 1160 (3d Cir.), cert. denied, 516 U.S. 905, 116 S. Ct. 271, 133 L. Ed. 2d 192 (1995). The court found that the petitioner, an African American, had raised a prima facie claim that the prosecution had systematically excluded African Americans from the jury, thereby raising a colorable claim pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Simmons, supra, 44 F.3d at 1167-68. However, because during reconstruction hearings, no one could recall how many potential African American jurors were peremptorily challenged or why, the petitioner's Batson claim could not be reviewed. Id. at 1168. The court held that in these circumstances, "[i]t would be a grinding injustice to Simmons were he to suffer at the hand of a prosecutor who practiced racial discrimination through the use of peremptory challenges and then contributed to a delay that shielded his actions from review." Id. at 1169.

The court then turned to the petitioner's argument that the thirteen-year delay in considering his appeal violated his right to due process and a speedy appeal, thereby providing another basis for habeas relief. Ibid. In considering the speedy appeal issue, the court recognized that such a right existed and that whether the right had been violated on appeal should be governed by the same standards as the right to a speedy trial, namely, "'[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.'" Ibid. (quoting Baker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972)). The court concluded:

The 13-year delay in this case is an outrage, and that Simmons' appeal as of right "slipped through the cracks" is shameful. The subsequent period of litigation marking Simmons' efforts to obtain a direct appeal apparently took on a life of its own, without regard for fundamental notions of fairness and due process.

 

The district court's finding that the reason for the delay was ineffective assistance by appointed trial counsel and the Public Defender is clearly correct.

 

[Id. at 1169-70 (citations omitted).]

 

The court then recognized three interests as being relevant to prejudice in a speedy appeal context: "'(1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person's grounds for appeal, and his or her defenses in case of reversal and retrial, might be impaired.'" Id. at 1170 (quoting Burkett v. Cunningham, 826 F.2d 1208, 1222 (3d Cir. 1987) (quoting Rheuark v. Shaw, 628 F.2d 297, 303 n.8 (5th Cir. 1980), cert. denied, 450 U.S. 931, 101 S. Ct. 1392, 67 L. Ed. 2d 365 (1981)). Under this standard, the court found that the petitioner had undeniably suffered not possible, but actual, prejudice as the result of the delay, since his Batson claim was no longer reviewable. Ibid. Reversing the District Court, the Third Circuit held that "the delay in this case 'substantially affected the fairness of the appellate proceeding,' and we conclude that the due process violation caused by the delay compels some form of habeas relief." Ibid. (quoting Cody v. Henderson, 936 F.2d 715, 722 (2d Cir. 1991)).

Having concluded that the petitioner was entitled to relief both for his potentially meritorious, but unreviewable, Batson claim and his speedy appeal claim, id. at 1171, the court reversed the judgment of the District Court and remanded the cause for it to grant petitioner's petition for a writ of habeas corpus, in order to give the state an opportunity to retry petitioner or release him. Ibid.

The present matter differs from Simmons, in that it is unclear whether defendant timely sought to exercise his right of appeal and was thwarted by trial counsel or the Office of the Public Defender, or whether he knowingly rested on his rights, seeking a copy of his transcripts, but not seeking to perfect his appeal. In this regard, we understand trial counsel's position that, in the normal course, he would complete a notice of appeal and case information statement before returning the file to the Public Defender. However, we have no evidence that he did so in this case. Further, we lack knowledge of what procedures the Public Defender's Office normally undertakes, once a notice of appeal is presented to it, to determine if a defendant seeks an appeal, or what in fact occurred here.

Additionally, we note that in the present case, unlike Simmons, it appears that a complete transcript of the second trial was furnished to defendant in 2008 in connection with his PCR petition, and there is no claim that any portion of that transcript is missing. We also note evidence that, while defendant was seeking to collaterally attack his conviction through PCR, he explicitly rejected an offer that a motion for leave to file a direct appeal nunc pro tunc be filed by counsel on his behalf. And, finally, we note that PCR counsel, albeit without authorization or consultation, raised some substantive issues on defendant's behalf in his supplemental brief on PCR. However, PCR counsel did not raise the issue of whether defendant had been denied the right to appear at his own trial -- a matter that, as we noted previously, raises contested issues of fact.

Because the facts of this matter remain unclear, we are unwilling to hold as a matter of law, at this point, that defendant is either entitled to a new trial or to an appeal. Accordingly, we remand the matter to the trial court for further exploration of the issues raised within the framework established in the Simmons decisions.

Reversed and remanded. Jurisdiction is not retained.

1 Although a trial transcript was prepared in 2008, it has not been supplied in connection with this appeal. As a result, matters that we might resolve by reference to the transcript remain contested.

2

If this claim is in fact correct, defendant may not have received the advice regarding the filing of an appeal that is generally given at the time of sentencing.

3 Trial had in fact taken place in 1996.

4 In this decision, the judge granted habeas corpus relief to defendant who, after briefs were filed without prior consultation with him and he was not provided a copy of his trial transcript, informed the Office of the Public Defender that he did not wish to be represented by it. In response, the Public Defender moved to withdraw as counsel, which motion was granted without a hearing and without any inquiry as to whether defendant sought to proceed pro se, and if so, whether his waiver of counsel was knowing and voluntary. 863 F. Supp. at 195-96. Defendant was then ordered to perfect his appeal either pro se or with substitute counsel within thirty days. Id. at 195. The habeas judge remanded the case for a new appeal, determining that the Appellate Division had a duty to inform defendant of the mechanisms for appointing new counsel and to determine whether defendant knowingly and voluntarily waived his right to representation. Id. at 198. The Third Circuit reversed. Bakari v. Beyer, 82 F.3d 404 (3d Cir. 1996).

5 Prior to the hearing, defendant had not received a copy of the State's brief opposing his petition. Although the judge offered to adjourn the proceedings to permit defendant to review the papers, defendant declined the offer stating "I can just skim through this real quick." Defendant was permitted to do so, and thereafter he declared that he was ready to proceed and did not need an adjournment. Because of defendant's choice to proceed, he lacked the ability to present evidence in opposition to the State's factual assertions.

6 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).