STATE OF NEW JERSEY v. LOUIS PIERCE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LOUIS PIERCE,

Defendant-Appellant.

________________________________________________________________

August 26, 2013

Submitted May 6, 2013 Decided

Before Judges Fasciale and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 98-09-3008.

Louis Pierce, appellant pro se.

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda S. Shashoua, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Louis Pierce appeals from the denial of his second petition of post-conviction relief (PCR) in connection with his conviction for two counts of first-degree attempted murder, N.J.S.A. 2C:5-1 (counts one and two); two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts three and four); third-degree possession of a weapon (firearm) for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b) (count six); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count seven); and fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count eight). He was sentenced to life imprisonment with twenty-nine-and-one-half years without parole. In an opinion dated February 10, 2003, we affirmed defendant's convictions, and the Supreme Court denied certification on June 5, 2003. State v. Pierce(Pierce I), No. A-1221-00 (App. Div. Feb. 10), certif. denied, 177 N.J.222 (2003).

Defendant's first pro se PCR petition was filed in December 2003, and claimed ineffective assistance based on lack of preparation for trial, failure to investigate and other deficiencies. Assigned counsel raised additional issues of ineffective assistance from both trial and appellate counsel. The petition was denied in September 2007, and we affirmed the denial of the first PCR petition. State v. Pierce (Pierce II), No. A-0907-07 (App. Div. July 26, 2010), certif. denied, 205 N.J. 183 (2011). In that opinion, we specifically noted that we would not consider the two issues raised on appeal concerning the failure to challenge a defense witness appearing in handcuffs and the admission of prejudicial hearsay, because those issues had not been presented to the PCR judge. Nonetheless, we noted that in State v. Artwell, 177 N.J. 526, 539 (2003), the Supreme Court held that "going forward, a trial court may not require a defendant's witness to appear at trial in prison garb." The Artwell case did not assist defendant, whose appeal was decided prior to that case. We held that "defendant is not entitled to retroactive application of Artwell to the issue raised for the first time in his PCR appellate brief." Pierce II, supra, slip op. at 12.

More than one year later, on September 1, 2011, defendant filed his second petition for PCR raising the same two issues that we declined to consider in his first petition "because they had not been raised at the trial court." On March 15, 2012, the PCR judge denied the petition because the issues raised were procedurally barred by Rule 3:22-5.

On appeal, defendant raises the following claims:

I. THE LOWER COURT ORDER MUST BE REVERSED BECAUSE THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF PCR COUNSEL.

A. The PCR Court Erred in Procedurally Barring Defendant's Claim that PCR Counsel Failed to Present the Claim of a Defense Witness Testifying in Handcuffs.

B. The PCR Court Erred in Procedurally Barring Defendant's Claim that PCR Counsel Failed to Present the Claim of Prejudicial Hearsay Testimony Being Introduced at Defendant's Trial.

Defendant again contends that he received ineffective assistance, and that the PCR judge erred in finding his claims to be procedurally barred. We considered these arguments in light of the record and applicable legal standards. We affirm for substantially the reason expressed by the second PCR judge.

Rule 3:22-4(b)(2) governs second or subsequent PCR petitions. It provides that such a petition "shall be dismissed" unless it alleges either that: (1) it relies on a new rule of constitutional law; (2) it relies on a factual predicate that could not have been discovered earlier; or (3) it alleges ineffective assistance of counsel that represented defendant in an earlier PCR petition. Here, defendant does not specifically address any of these three grounds other than a brief mention that PCR counsel was ineffective for failing to raise trial and appellate counsel's "reversible error[s]."

In any case, Rule 3:22-4(b)(1) provides that a second or subsequent PCR petition must not only raise an appropriate ground, it must also be timely filed under Rule 3:22-12(a)(2).1

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 . . . [Rule] 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 [Rule] 3:22-12(a)(2)." (Emphasis added). It is clear to us that defendant failed to file his second PCR petition in a timely fashion.

Defendant does not address this procedural bar in his brief. As such, we reject any such claim not briefed for this appeal. SeeR.2:6-2. It suffices to say that because this is defendant's second PCR petition, the time constraints of Rule 3:22-12(a)(2) should apply, not the five-year limitation period contained in Rule 3:22-12(a)(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 petition was denied on September 10, 2007, and the appeal was denied on July 26, 2010. This petition, filed on September 1, 2011, is therefore untimely.

Affirmed.

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