STATE OF NEW JERSEY v. SHAYKH M. ABD-HAQQ

NOT FOR PUBLICATION WITHOUT THE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.

SHAYKH M. ABD-HAQQ, a/k/a

LEWIS GRACE,

Defendant-Appellant.

___________________________________________________________

December 31, 2014

Submitted November 5, 2014 Decided

Before Judges Ostrer and Hayden.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 3204-81.

Shaykh M. Abd-Haqq, appellant pro se.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Shaykh M. Abd-Haqq appeals from the February 11, 2013 Law Division order denying his second petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

We discern the following facts from the record. On January 28, 1983, a jury convicted defendant of two counts of murder, N.J.S.A. 2C:11-3; first-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4. The trial court merged the robbery count with the murder counts and sentenced defendant to two consecutive life sentences with twenty-five years of parole ineligibility for each term. The conviction for unlawful possession of a weapon was merged with possession of a weapon for unlawful purpose, for which defendant received a ten-year sentence with five years of parole ineligibility to run concurrently with the two murder sentences.

Defendant appealed, and this court affirmed the conviction in an unpublished opinion. State v. Lewis Grace, No. A-3476-82 (App. Div. May 15, 1985). The Supreme Court denied certification. 104 N.J. 449 (1986). Defendant then filed a PCR petition on March 24, 1988, which was denied. Defendant appealed and this court affirmed. State v. Grace, No. A-1616-89 (App. Div. June 28, 1991). The Supreme Court again denied certification. 127 N.J. 547 (1991). Defendant also filed two habeas corpus petitions in federal court.

Defendant filed the current PCR petition on November 29, 2010, but it could not be processed due to a deficient indictment number. The PCR petition was refiled on February 2, 2012. Defendant's petition raised allegations of ineffective assistance of counsel based on counsel's failure to investigate, discover, and present mitigating evidence concerning defendant's combat service and injuries to mitigate his sentence.

On February 11, 2013, Judge Peter J. Vazquez denied defendant's second PCR petition. He determined that the petition was time-barred under Rule 3:22-12(a)(2), because the factual predicate for relief, the diagnosis of defendant's post-traumatic stress disorder (PTSD), occurred in 1985, which was three years prior to defendant filing his first PCR petition. The judge also rejected defendant's claim that his petition was timely because Porter v. McCullom, 558 U.S. 40, 130 S. Ct. 447, 175 L. Ed. 2d 398 (1999), which found ineffective assistance of counsel based upon an attorney's failure to raise his client's military service and PTSD as mitigating circumstances to a murder conviction, had been decided within one year of the filing of his petition in 2010. The judge found that Porter did not announce a new constitutional rule, but was simply an application of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Despite finding that the petition was procedurally barred, Judge Vazquez evaluated and rejected defendant's substantive claims. In particular, the judge found that defendant did not receive ineffective assistance under Strickland because, unlike Porter, defendant's military service and combat injuries were brought to the attention of the sentencing court. The judge further found that "[p]laintiff's claim that evidence of the PTSD would have lowered his sentence is hollow and represents mere conjecture, since he was sentenced within the appropriate ranges for each count and received consecutive sentences for both victims he was responsible for killing." Thus, the judge concluded that defendant had not demonstrated either deficient performance of his counsel or prejudice to the defendant's case.

Defendant raises the following points on appeal

POINT I: THE COURT BELOW ERRED BY CONSTRUING THE ARTICLE I PARAGRAPH 14 PETITION FOR A WRIT OF HABEAS CORPUS, WHICH CHALLENGED THE CONSTITUTIONALITY OF APPELLANT'S SENTENCING HEARING, AS A PROCEDURALLY BARRED SECOND PETITION FOR POST-CONVICTION RELIEF. N.J. CONST. (1947) ART. I, PAR. 1, 10, 14; U.S. CONST. AMEND. VI, VIII, XIV.

POINT II: THE COURT BELOW COMMITTED AN ABUSE OF DISCRETION BY FAILING TO CONSTRUE THE FILING BELOW AS A SECOND PCR NOT PROCEDURALLY BARRED AND ONLY SUBJECT TO NEW JERSEY PCR RULES IN EXISTENCE ON 31JAN10 SINCE THE FILING WAS WITHIN ONE YEAR OF PORTER V. MCCOLLUM (30NOV09) THAT JUDICIALLY NOTICED THE APPLICABILITY AT SENTENCING OF THE FEDERAL TRADITION OF LENIENCY FOR COMBAT VETERANS WITH MENTAL ILLNESSES. N.J. CONST. (1947) ART. I, PAR. 1, 10; U.S. CONST. AMEND. VI, VIII, XIV; R. 3:22-4(31JAN10); R. 3:22-12(31JAN10).

II.-A: The appellant urges that the Court below erred by applying the more onerous procedural requirements of the new PCR rules in R. 3:22-4 (1FEB10) and R. 3:22-12 (1FEB10), modeled after the successive Habeas Corpus requirements of 28 U.S.C. 2244(b)(2)(A), 28 U.S.C. 2244(b)(2)(B), and 28 U.S.C. 2244(2)(C).

II.-B: Decisions in the Federal Court system further illuminate the spirit of appellant's argument that his Petition should not have been denied as untimely for noncompliance with the new PCR rules since it was filed within one year of adopting the new PCR rules and since it otherwise complies with the old PCR procedural rules.

II.-C: Interpreting the Petition below as a second PCR subject to the new PCR rules is unfair on yet another ground. The appellant will summarily be denied his First Amendment right to access to court by the Court below's failure to find the outdated NJSP legal database caused a delay in filing after 30NOV09.

II.-D: The nature and circumstances surrounding the Petition filed below satisfies the excusable neglect standard pursuant the old PCR rules and so the Petition is timely.

POINT III.-A: THE COURT BELOW ERRED IN APPLYING R. 3:22-12(a)(2)(B) AND R. 3:22-4(b)(1) SINCE THE PETITION WAS TIMELY FILED BY THE PRISONER MAILBOX RULE ON 22NOV10 (WITHIN ONE YEAR OF THE DATE OF PORTER V. MCCOLLUM (30NOV09) WHEN THE U.S. SUPREME COURT ADOPTED AS AN ULTIMATE OR EVIDENTIAL FACT THE FEDERAL TRADITION OF LENIENCY FOR COMBAT VETERANS WITH MENTAL ILLNESSES) AND SINCE THE TOTAL FACTUAL PREDICATE FOR APPELLANT'S CLAIMS COULD NOT HAVE BEEN DISCOVERED EARLIER THAN 1OCT10 WITH REASONABLE DILIGENCE. N.J. CONST. (1947) ART. I, PAR. 1, 10; U.S. CONST. AMEND. VI, VIII, XIV.

POINT III.-B: THE COURT BELOW ERRED IN APPLYING R. 3:22-12(a)(2)(A) AND R. 3:22-4(b)(2) SINCE THE PETITION WAS TIMELY FILED BY THE PRISONER MAILBOX RULE ON 22NOV10 WITHIN ONE YEAR OF THE DATE OF THE DECISION IN PORTER V. MCCOLLUM (30NOV09) THAT NOTICED THE RIGHT TO BE HEARD ON WHETHER THE FEDERAL TRADITION OF LENIENCY FOR COMBAT VETERANS WITH MENTAL ILLNESSES APPLIES TO THE FACTS OF HIS SENTENCING HEARING. N.J. CONST. (1947) ART. I, PAR. 1, 10; U.S. CONST. AMEND VI, VIII, XIV.

POINT III.-C: THE COURT BELOW ERRED IN APPLYING R. 3:22-4(b)(2)(B) SINCE THE PETITION CLEARLY ALLEGES THAT THE FACTUAL PREDICATE FOR RELIEF COULD NOT HAVE BEEN DISCOVERED EARLIER THROUGH REASONABLE DILIGENCE AND THE FACTS UNDERLYING THE GROUND FOR RELIEF AS PROVEN, AND IN LIGHT OF THE EVIDENCE AS A WHOLE, RAISES A REASONABLE PROBABILITY THAT A NEW SENTENCING WOULD BE GRANTED. N.J. CONST. (1947) ART. 1, PAR. 1, 10; U.S. CONST. AMEND. VI, VIII, XIV.

POINT III.-D: THE COURT BELOW ERRED IN APPLYING R. 3:22-4(b)(2)(A) SINCE THE PETITION ALLEGES A PREVIOUSLY UNUSED RULE OF CONSTITUTIONAL LAW MADE RETROACTIVE BY THE U.S. SUPREME COURT THAT WAS UNAVAILABLE DURING THE PENDENCY OF PRIOR PROCEEDINGS. N.J. CONST. (1947) ART. I, PAR. 1, 10; U.S. CONST. AMEND VI, VIII, XIV.

POINT IV: THE COURT BELOW ERRED SINCE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT HIS 2MAR83 SENTENCING. N.J. CONST. (1947) ART. 1, PAR. 1, 10; U.S. CONST. AMEND. VI, VIII, XIV.

POINT V: THE COURT BELOW ERRED SINCE "MAY" IN N.J.S.A. 2C:44-1(b) DENIES COMBAT VETERANS WITH SERVICE CONNECTED MENTAL ILLNESSES A FAIR WEIGHING AT SENTENCING, AND DENIES THEM THEIR DUE PROCESS RIGHT TO AN OPPORTUNITY TO BE HEARD ON THE TRADITION OF LENIENCY. N.J. CONST. (1947) ART. 1 PAR. 1, 10; U.S. CONST. AMEND. VI, VIII, XIV.

POINT VI: THE COURT BELOW ERRED SINCE CONSTRUCTIVE IMPOSITION OF CONSECUTIVE SENTENCES FOR A DEFENDANT WHO IS FACTUALLY RESPONSIBLE FOR ONLY ONE OF TWO HOMICIDES CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT FOR A COMBAT VETERAN WHOSE MENTAL ILLNESS WAS PROXIMATELY CAUSED BY THAT COMBAT. N.J. CONST. (1947) ART. 1 PAR. 1, 10; U.S. CONST. AMEND. VI, VIII, XIV.

We begin with a review of the well-established legal principles that guide our analysis. PCR constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992); see also State v. Nash, 212 N.J. 518, 540 (2013) (noting that PCR represents a defendant's last chance to challenge the fairness and reliability of a criminal verdict). "Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." Preciose, supra, 129 N.J. at 460.

To protect against courts addressing endless issues in a piecemeal fashion, certain procedural rules govern PCR petition filings. Rule 3:22-12(a)(1) imposes a five-year limitation on filing a petition after the entry of the judgment sought to be challenged. A second or subsequent PCR petition may only be filed within one year of the recognition of a new constitutional right, discovery of a new factual predicate, or denial of the last PCR to address ineffective assistance of counsel on an earlier PCR petition. R. 3:22-12(a)(2).

While these time limits may be waived to prevent a fundamental injustice, they must be viewed in light of their dual key purposes: to ensure that the passage of time does not prejudice the State's retrial of a defendant and to respect the need for achieving finality. State v. DiFrisco, 187 N.J. 156, 166-67 (2006). Moreover, a PCR is not a substitute for an appeal of a conviction, Rule 3:22-3, and any ground for relief not asserted in a prior proceeding is barred if it could have been raised earlier, Rule 3:22-4, or was raised earlier, Rule 3:22-5.

Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, 10. This right to assistance of counsel "encompasses the right to effective counsel." State v. Norman, 151 N.J. 5, 23 (1997).

Claims of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland, supra, 466 U.S. 668, 687 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The test requires a showing of deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

A petitioner must establish the right to relief by a preponderance of the evidence. Preciose, supra, 129 N.J. at 459. "[B]ald assertions" of ineffective assistance are not enough to meet this burden. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner "must allege facts sufficient to demonstrate counsel's alleged substandard performance," and the court must view the facts alleged in the light most favorable to the petitioner. Ibid.

Having carefully considered the record in light of the applicable legal principles, we conclude that defendant's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons provided by Judge Vazquez in his February 11, 2013 written opinion. We add only the following brief discussion.

We are satisfied that defendant's second PCR petition, filed twenty-seven years after the judgment of conviction and without any showing of excusable neglect or manifest injustice, is clearly time-barred. R. 3-22-12(a). Defendant has articulated no basis to relax the clear restrictions concerning second PCR petitions imposed by this rule. We also agree that the present claims are barred by Rule 3:22-4.

Defendant's claim that his petition is not time-barred, because he filed within a year of a new constitutional rule in Porter, is not persuasive. Porter did not announce a new rule of constitutional law but simply applied the Strickland two-prong test to the facts of the case. Porter, supra, 558 U.S. at 40-44, 130 S. Ct. at 453-56, 175 L. Ed. 2d at 406-09. Indeed, the Supreme Court emphasized that the defendant's counsel's deficiency and the resultant prejudice stemmed from counsel's failure to investigate and present to the judge the defendant's military history, which ignored a long standing practice in this country of affording sentencing leniency to veterans. Id. at 43-44, 130 S. Ct. at 455, 175 L. Ed. 2d at 408. In contrast, here, although unaware of the later-diagnosed PTSD, the sentencing judge was fully aware of defendant's military service and combat injuries at the time of the sentencing.

Affirmed.