STATE OF NEW JERSEY v. GEORGE J. CORBETT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5669-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE J. CORBETT,

Defendant-Appellant.

___________________________________________________

January 9, 2012

Submitted October 4, 2011 - Decided

Before Judges Messano and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 94-10-1604.

George J. Corbett, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following trial, a jury convicted defendant of the first-degree murder of Christopher Shrimpton, N.J.S.A. 2C:11-3(a)(1) and (2), and second-degree possession of a rifle for an unlawful purpose, N.J.S.A. 2C:39-4(a). On May 24, 1996, after merging the two convictions, the judge sentenced defendant to imprisonment for life with a thirty-year period of parole ineligibility. We affirmed defendant's conviction on appeal, noting, "[i]n short, the voluminous record fairly reeks of defendant's guilt." State v. Corbett, No. A-7123-95 (App. Div. Feb. 17, 1999) (slip op. at 3). Defendant's petition for certification to the Supreme Court was denied. State v. Corbett, 160 N.J. 478 (1999).

Defendant filed his first PCR petition on June 23, 1999, which was denied by the trial judge. Defendant again appealed, and we affirmed. State v. Corbett, No. A-0569-03 (App. Div. Nov. 5, 2004). Defendant's petition for certification was again denied. State v. Corbett, 182 N.J. 430 (2005).

On March 31, 2010, defendant filed his second PCR petition raising two specific claims of trial counsel's ineffective assistance. He argued that counsel failed to present evidence of defendant's left-handedness, a fact defendant claims demonstrates that he "handled the rifle with his non-dominant hand and . . . the rifle was unlikely to have been aimed or discharged purposely or knowingly." Defendant attached certifications from his father, mother and brother attesting that he was left-handed.

Defendant also attached the reports of John Brick, Ph.D., a biological psychologist, and Kenneth J. Weiss, M.D., a forensic psychiatrist, provided to trial counsel in 1995 and 1996 respectively. Essentially, these experts opined that defendant was intoxicated when he shot and killed Shrimpton and could not have acted "purposely." Defendant claimed that trial counsel provided ineffective assistance by not raising a diminished capacity defense.

The second PCR judge disposed of the petition on the papers. In a brief written statement of reasons that accompanied the order, the judge noted that pursuant to Rule 3:22-6(b), "a second petition for post-conviction relief requires a finding of good cause for the assignment of counsel." The judge found that defendant had not demonstrated good cause for assignment of counsel, and, "under R. 3:22-6(b), counsel may not be assigned when a second petition is time-barred." The judge concluded that defendant's petition was time-barred pursuant to Rule 3:22-12(a)(2).

Defendant now appeals and raises the following issues for our consideration:

POINT I

TRIAL COUNSEL'S FAILURE TO PRESENT EVIDENCE ESTABLISHING DEFENDANT'S LEFT-HANDEDNESS DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS

POINT II

TRIAL COUNSEL'S FAILURE TO PRESENT EXPERT TESTIMONY FROM JOHN BRICK, PH.D., AND KENNETH J. WEISS, M.D., DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS

POINT III

DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS NOT PROCEDURALLY BARRED

POINT IV

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING IN SUPPORT OF HIS PETITION FOR POST-CONVICTION RELIEF

POINT V

DEFENDANT WAS ENTITLED TO THE ASSIGNMENT OF COUNSEL ON POST-CONVICTION RELIEF

We have considered these arguments in light of the record and applicable legal standards. We affirm substantially for the reasons expressed by the second PCR judge.

Rule 3:22-12(a)(2) provides:

Second or Subsequent Petition for Post-Conviction Relief. Notwithstanding any other provision in this rule, no second or subsequent petition shall be filed more than one year after the latest of:

(A) the date on which the constitutional right asserted was initially recognized by the United States Supreme Court or the Supreme Court of New Jersey, if that right has been newly recognized by either of those Courts and made retroactive by either of those Courts to cases on collateral review; or

(B) the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence; or

(C) the date of the denial of the first or subsequent application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for post conviction relief is being alleged.

This time limitation "shall not be relaxed, except as [otherwise] provided" in the Rule. R. 3:22-12(c); see also R. 1:3-4(c) ("Neither the parties nor the court may . . . enlarge the time specified by . . . R. 3:22-12 . . . ."). Pursuant to Rule 3:22-4(b)(1), "[a] second or subsequent petition for post-conviction relief shall be dismissed unless . . . it is timely under R. 3:22-12(a)(2)." It is clear to us that defendant failed to file his second PCR petition in a timely fashion.

In his brief, defendant broadly contends "that this procedural bar was either inapplicable, subject to exemption, or caused by the ineffectiveness of his prior PCR attorney." The argument lacks sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). It suffices to say that because this is defendant's second PCR petition, the time constraints of Rule 3:22-12(a)(2) applied, not the five-year limitation period contained in Rule 3:22-12(a)(1).1 Furthermore, any claim that defendant's first PCR counsel was ineffective had to have been made within one year of the denial of that PCR petition. R. 3:22-12(a)(2)(C). Defendant's first PCR petition was denied on August 9, 2001, and this petition was not filed until 8 and 1/2 years later.

1 Rule 3:22-12(a)(2) was amended, effective February 1, 2010, and, therefore, was applicable to defendant's second PCR petition.