STATE OF NEW JERSEY v. JAMES MINETT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5430-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES MINETT,

Defendant-Appellant.

_______________________________

December 8, 2011

Submitted October 5, 2011 - Decided

Before Judges Cuff and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 96-05-550.

James Minett, appellant pro se.

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James Minett appeals from the denial of his petition for post-conviction relief (PCR) seeking to set aside his 1998 convictions relating to a murder-for-hire. The trial court concluded the petition was time barred pursuant to Rule 3:22-12. Defendant moved to amend the order, arguing the issues should be considered notwithstanding the passage of time. In a letter, the trial judge denied the request and reaffirmed his prior conclusions. On appeal, defendant challenges the trial court's orders, arguing:

POINT I

PCR JUDGE ORDER/RULINGS SHOULD BE VACATED AND THE MATTER REMANDED TO DEVELOP[] A RECORD FOR REVIEW.

POINT II

PROCEDURAL BAR SHOULD BE LIFTED.

In light of the record and applicable law, we affirm.

Following a jury trial, defendant was convicted of murder-for-hire, conspiracy, and weapons offenses arising from the February 1995 death of his mistress, Holly Jo Desch. The jury declined to impose the death penalty and on June 10, 1998, after merger of appropriate counts, defendant was sentenced to life imprisonment with a thirty-year period of parole ineligibility for the murder conviction and a consecutive five-year term with two and one-half years of parole ineligibility for unlawful possession of a weapon. We affirmed defendant's convictions and sentence on direct appeal, finding no error requiring reversal. State v. Minett, No. A-6554-97 (App. Div. Jan. 28, 2000), certif. denied, 164 N.J. 560 (2000). In 2001, defendant commenced his quest for relief in federal court by filing a Petition for Writ of Habeas Corpus, which ultimately was denied. The Third Circuit Court of Appeals affirmed in an unpublished opinion. Minett v. Hendricks, No. 03-3456 (3d Cir. June 23, 2005).

Defendant's first PCR petition was filed in 2007. Defendant argued that he was denied effective assistance of trial counsel and his sentence was excessive, contrary to State v. Natale, 184 N.J. 458 (2005). Defendant requested the appointment of counsel pursuant to Rule 3:22-6 to present his position in an evidentiary hearing. More specifically, defendant's PCR petition argued:

[1)] Ineffective [assistance] of Counsel. Counsel failed to address a thorough federal constitutional issue in detail that denied Petitioner a fair trial. Than [sic] [counsel] attempt[ed] to raise the same issue in federal court which was denied twice. Counsel should have known the law and applied [it] correctly on Petitioner['s] behalf in state proceedings. . . . [C]ounsel['s] deficiency denied Petitioner a fair trial.

2) . . . [T]rial counsel, who also handled the State and Federal appeals was ineffective and denied Petitioner a fair adequate presentation in all proceedings in advanc[ing] the error or errors at the trial level throughout.

3) Trial counsel was ineffective by failing to object to a rebuttal witness who had already testified for the State. This rebuttal witness was allowed to testify after the defense had rested. Failure to exclude this rebuttal testimony caused petitioner prejudice and denied petitioner a fair trial.

The petition was denied on September 25, 2007.1 Defendant maintains his PCR petition was denied "without . . . a hearing, on the ground that it was out of time pursuant to R[ule] 3:22-12" and his request for representation was denied because "this was [his] second PCR." Defendant was unsuccessful in obtaining the order entered and there was no transcript of the proceeding provided.

Defendant moved for amendment of the order and requested reconsideration. On October 3, 2007, the PCR judge issued a letter, stating: "This letter is to acknowledge the receipt of your Motion for Amendment of a PCR denial. As you were informed at your PCR Motion hearing, any disagreement with my findings should be addressed to the Appellate level. Your request is therefore denied." Defendant's subsequent attempts to obtain an order memorializing this decision were unsuccessful. We granted defendant's motion to file his untimely appeal and allowed him to receive transcripts without charge. Defendant asserts he never received the documents. Consequently, we permitted defendant to proceed with his appeal, treating the court's October 3, 2007 letter as a final order.

Rule 3:22-12(a)(1) requires a defendant to file a petition for PCR within five years after a judgment of conviction is entered. See State v. Dugan, 289 N.J. Super. 15, 19 (App. Div.), certif. denied, 145 N.J. 373 (1996). The time limits of the rule may be relaxed provided a defendant "alleges facts showing that the delay . . . was due to defendant's excusable neglect and that there [wa]s 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). See also State v. Goodwin, 173 N.J. 583, 594 (2002); State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009) ("Excusable neglect provides the means for a court to address and correct a criminal judgment where 'adherence to it would result in an injustice.'") (quoting State v. McQuaid, 147 N.J. 464, 485 (1997)). In determining whether this test has been met, a reviewing 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.'" Goodwin, supra, 173 N.J. at 594 (quoting State v. Afanador, 151 N.J. 41, 52 (1997)).

On appeal, defendant argues fundamental fairness requires the procedural bar be lifted, allowing examination of his alleged constitutional infringements. Defendant maintains the absence of a statement of the PCR court's findings and a copy of the transcripts, despite our order, require the matter be remanded for development of a record. In part, defendant also maintains counsel was negligent in not advising him of the time limit of Rule 3:22-12 during the 2001 to 2005 habeas corpus proceedings. He suggests counsel's negligence constitutes good cause, which should toll the time to file his PCR petition. We do not find these arguments persuasive.

Defendant's petition for PCR was filed almost nine years after his conviction and four years beyond the time bar. Defendant offers no facts to support a claim of excusable neglect but for an argument that the time bar should be tolled during the pursuit of federal appeals. Not only does the required strict application of the rule's time limit defeat defendant's argument, see R. 3:22-12(c), but also it is well settled that a defendant's pursuit of habeas corpus review will not justify relaxation or toll the period allowed to file for PCR review. See State v. Milne, 178 N.J. 486, 494 (2004).2

Having failed to establish exceptional circumstances for the untimely filing of his petition, the PCR court properly denied defendant's request for the appointment of counsel, an evidentiary hearing, and consideration of his allegations of ineffective assistance of counsel. For completeness, we note defendant's assertions regarding counsel's failure to challenge the State's allegedly undisclosed rebuttal testimony, see Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and the admission of prejudicial witness testimony were raised and rejected on direct appeal. R. 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 adoption thereof, or in any appeal taken from such proceedings."). Our review of defendant's additional assertions reveals he has not presented specific factional assertions of counsel's deficient performance evincing he has suffered a "fundamental injustice." See R. 3:22-4. He merely offers bald assertions that do not present a prima facie claim in support of PCR. State v. Preciose, 129 N.J. 451, 463 (1992).

1 The record does not contain an order.

2 We are aware Milne was not decided until 2004, three years after defendant initiated his habeas corpus proceeding. Nevertheless, Milne's holding was not novel, rather, it emphasized the applicable law on this point. See Pressler, Current N.J. Court Rules, comment on R. 3:22-12 (2000) ("[T]he five-year period . . . is neither stayed nor tolled by appellate or other review proceedings." (citations omitted)).