STATE OF NEW JERSEY v. JAMAAL WALIYUALLAH

NOT FOR PUBLICATION WITHOUT THE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.

JAMAAL WALIYUALLAH,

Defendant-Appellant.

October 21, 2014

Submitted September 17, 2014 Decided

Before Judges Alvarez and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 96-06-0783.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Michael D. Grillo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jamaal Waliyuallah1 appeals from the May 4, 2012 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

A jury found defendant guilty of murder, N.J.S.A. 2A:113-1 and 2A:113-2 (count one) and three counts of felony murder, N.J.S.A. 2A:113-1 and 2A:113-2, based on kidnapping (count two), sodomy (count three), and private lewdness (count four). The sentencing judge merged counts two through four into count one, and on April 16, 1999, sentenced defendant to life, consecutive to a sentence he was then serving. The conduct in question predated the enactment of the Criminal Code. It involved the brutal rape and murder of a ten-year-old on January 28, 1976. On appeal, we affirmed the judgment of conviction, except for vacating monetary penalties not in effect when the offense occurred. State v. Waliyallah, No. A-0718-99 (App. Div. Feb. 21, 2003). The horrific details of the killing are detailed in the opinion. Id. at 2-5.

On July 3, 2003, the Supreme Court denied defendant's petition for certification. State v. Waliyuallah, 177 N.J. 492 (2003). He thereafter, on February 5, 2004, filed a timely pro se petition for PCR. For reasons not disclosed on the record, it was not until 2011 that counsel filed defendant's brief.2

Defendant was initially investigated because he made inculpatory statements to an acquaintance. When interviewed by police, he claimed to have an alibi, although that person denied having been in defendant's company during the relevant time. Defendant agreed to take a polygraph test, which he passed. The authorities turned their attention elsewhere, and defendant implicated an acquaintance, C.W. as the assailant.

Approximately a year later, defendant was reinterviewed and gave a second alibi that could not be confirmed. Ten years later, a new detective was assigned to investigate unsolved murder cases, a new witness was located who placed defendant at the scene, and defendant for a third time gave police the name of an alibi witness who denied being with defendant on the night in question.

Years later, in 1995, defendant's stepbrother R.B. who was then in jail on pending charges, told police that he heard defendant confess to the murder. This time, when he was administered a polygraph test, defendant failed.

Defendant subsequently confessed to the killing on February 9, 1995, although he implicated C.W. again, and when taken to the scene, reconstructed the crime in a fashion inconsistent with the evidence. He gave a formal written statement repeating this version of events.

On February 11, 1995, during a telephone conversation with his mother and sisters, defendant confessed to committing the crime. A few days later, on February 15, when confronted about his accusations regarding C.W. defendant admitted that C.W. was not involved. He gave another formal written statement admitting his guilt.

Defendant, who was then housed at the Vroom Adjustment Unit at Trenton State Prison, at different times, confessed to the murder to P.J.M., T.W., and A.T.W. He admitted not only the killing, but the rape as well, to both T.W. and A.T.W.

At trial, defendant testified that on the day of the murder he was sexually assaulted by his stepfather. That evening he said he just went to work, spent time with friends, drank some alcohol, and went to bed. As we have previously said, the jury rejected this version of events and found defendant guilty.

On PCR, defendant raised a host of issues both in the counseled and pro se briefs. Most relevant to this appeal, defendant alleged ineffective assistance of counsel in that his attorney declined to obtain an expert to test for DNA nail clippings taken from the child, despite receiving funding from the Office of the Public Defender.

At trial, the State presented an expert forensic DNA scientist, John Nichols, who testified that the clippings were no longer suitable for DNA testing because there were insufficient red blood cells for that purpose. He explained that a cotton swab was used to draw out any red blood cells from the clippings, and that the amount on the swab in 1976 would have been inadequate for conducting DNA testing at that time. The test Nichols performed in an effort to generate such evidence destroyed any remaining biological material. Furthermore, because of outdated methods of preserving evidence, none of the DNA traces on the nail clippings would have survived twenty years later. Defendant argued that his appellate counsel was likewise ineffective for not raising the issue of DNA testing.

Defendant also contended, without record support, that his attorney was ineffective for not exploring alleged payments made by police in order for a witness against him to testify on behalf of the State. Additionally, he argued that four witnesses should have been vigorously cross-examined because of their biases, but were not.

The PCR judge observed that defendant did not present any expert testimony that would have challenged Nichols's statements, which in any event were vigorously explored on cross-examination by defendant's own attorney. Furthermore, defendant provided no documentation of any sort corroborating the allegedly false testimony given against him, including payments of money and the authorities' favorable treatment of those witnesses who were in custody.

The PCR judge concluded that although defendant raised detailed accusations as to each of the witnesses, he provided no support for any of his claims. The judge therefore opined that defendant failed to meet the Strickland3 standard by a preponderance of the credible evidence. The attorney's performance was not deficient. Given the overwhelming proofs against defendant, no other outcome but a conviction would have resulted. Defendant's petition was therefore denied.

On this appeal, defendant argues

POINT ONE

MR. WALIYUALLAH IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT TWO

MR. WALIYUALLAH'S OTHER CLAIMS ARE PRESERVED FOR REVIEW.

We find no merit to the arguments. R. 2:11-3(e)(2).

In order to obtain relief based on ineffective assistance of counsel, a defendant is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here failed to meet either the performance or the prejudice prongs of Strickland. See ibid.

With regard to the DNA issue, defendant offered no support for the allegation that Nichols's testimony about the deterioration of the biological material was false. That defense counsel had the funding available for testing did not mean it had to be obtained when to do so would be futile. If the material was no longer suitable for testing by the time of trial, having the money to pay for examination would not have advanced defendant's cause. Thus it was neither ineffective assistance of counsel for defendant's trial attorney to have not retained a DNA expert nor was it ineffective assistance of counsel for defendant's appellate attorney to have failed to raise the issue on appeal.

In his remaining points, by reference, defendant raises the same unsupported attacks on the credibility of the State's witnesses, including alleged payments of money. These are the classic bare allegations which do not warrant even an evidentiary hearing, much less the grant of PCR. State v. Cummings, 321 N.J. Super. 154, 164 (App. Div.), certif. denied, 162 N.J. 199 (1999).

We have considered the other points defendant raised before the PCR judge and find them equally lacking in merit. R. 2:113(e)(2).

Affirmed.

1 The prior opinion in this matter spelled defendant's name as "Jamal Waliyallah."

2 There are references in the record to the public defender's file never being found. Portions of the prosecutor's file were also missing.

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