STATE OF NEW JERSEY v. JAMES CLAUSELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES CLAUSELL,

Defendant-Appellant.

_________________________________________

April 22, 2014

 

Submitted December 2, 2013 Decided

 

Before Judges Ashrafi and St. John.

 

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 95-08-0512.

 

James Clausell, appellant pro se.

 

Respondent has not filed a brief.

 

PER CURIAM

Defendant James Clausell appeals from an order denying his second petition for post-conviction relief (PCR). He also moves for an order imposing sanctions on the State for failing to file an appellate brief, which we denied by order dated July 10, 2013. The State cross-moved for summary affirmance, which we denied by order July 10, 2013.

We need not repeat the lengthy factual background and procedural history of this matter, which is fully described in our April 1, 1999 unpublished opinion affirming defendant's convictions after his second trial. See State v. Clausell, Docket No. A-4947-95 (App. Div. April 1, 1999), certif. denied, 161 N.J. 331 (1999). Defendant is now serving a term of life imprisonment (with a thirty-year period of parole ineligibility) on the murder conviction, as well as consecutive eighteen-month sentences (with eighteen-month periods of parole ineligibility) on the three aggravated assault convictions.

In his initial PCR petition filed on September 24, 1999, defendant claimed that newly-discovered evidence proved co-defendant Dwayne Wright, and not defendant, was the shooter. The PCR judge denied the petition, and we affirmed. See State v. Clausell, Docket No. A-5681-01 (App. Div. Dec. 10, 2003), certif. denied, 180 N.J. 151 (2004).

Defendant thereafter filed a petition for writ of habeas corpus in the United States District Court for the District of New Jersey pursuant to 28 U.S.C. 2254, asserting numerous constitutional and other violations during his retrial. Defendant argued, inter alia, that trial counsel had been ineffective, particularly by failing to raise a Batson objection1 to the State's peremptory challenges during jury selection.

The District Court denied the habeas petition. See Clausell v. Sherrer, No. 2846283, 2 006 U.S. Dist. LEXIS 73607 (D.N.J. Sept. 29, 2006), aff'd, 594 F.3d 191 (3d Cir.), cert. denied, __ U.S. __, 131 S. Ct. 172, 178 L. Ed. 2d 103 (2010). In its decision, the District Court rejected defendant's claims that relied on his co-defendant's mother Carolyn Wright's "unsworn and unattested to" statement "regarding whether [defendant] was the shooter" and relied on "statements from several detectives in which witnesses indicated that Wright, not [defendant], was the shooter." The court explained that Carolyn's statement was "not clearly exculpatory," and "failed to serve as the 'smoking gun' [defendant] hoped it would serve," and "that the evidence presented by the State was too great to sway the jury from its verdict of guilty."

Specifically, the court "concurre[d]" with the state court denying PCR, and rejected defendant's claim of ineffective assistance of counsel for failing to subpoena Carolyn, stating:

The Honorable John A. Almeida, New Jersey Superior Court Judge, considered this very matter in his letter opinion dated April 11, 2002, which was issued in response to Petitioner's PCR motion. That court found that there was no deficiency in trial counsels' performance regarding Ms. Wright. The court held that the overall results of the trial would not have been altered as there was an abundance of evidence placing Petitioner at the Atwood residence with the purpose to shoot Edward Atwood.

 

This Court is in concurrence with the state court's determination in this regard. . . . The evidence presented to the jury included multiple eyewitnesses, including those who participated in the planning of Atwood's murder with Petitioner, those who witnessed Petitioner [defendant] at Atwood's home with a gun in his hand, and those who recalled post offense statements made by Petitioner regarding Atwood's death. Addi-tionally, during Petitioner's own testimony he admitted that he was at Atwood's house at the time of the murder. Therefore, Peti-tioner has failed to show a clear error on trial counsels' part, or that the proposed error prejudiced Petitioner's case.

 

The District Court also rejected defendant's claim of witness tampering.

On July 18, 2011, defendant filed a second PCR petition, requesting a hearing, and claimed newly discovered evidence, including: (1) Carolyn's affidavit asserting that Wright had admitted to her that he was the shooter, and had admitted the same to prosecutors; and (2) a transcript from Wright's PCR hearing on October 25, 2002, wherein he admitted: "I have to live with a man died everyday because of me, not [defendant]." On March 19, 2012, in a written decision, the PCR judge denied defendant's second PCR petition, stating:

[A]fter extensive review it has been determined that the relief you are seeking is not attainable. Your application is time barred and even if it was not it lacks the required element of good cause under Rule 3:22-6(b). Therefore because your petition lacks merit, your request for post- conviction relief is DENIED.

 

Defendant appeals from that denial, and raises the following issues for our consideration:

POINT I

 

TRIAL COURT ERRED IN CONCLUDING THAT THE ISSUES "IS TIME BARRED AND EVEN IF IT WAS NOT IT LACKS THE REQUIRED ELEMENT OF GOOD CAUSE UNDER RULE 3:22-6(b)" AFTER DEFENDANT SUBMITTED THAT THE ISSUES PRESENTED WERE NOT TIME-BARRED, PROCEDURALLY BARRED, OR LIMITATIONS APPLIED TO THE ISSUES.

 

POINT II

 

TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANT'S MOTION FOR NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE "IS TIME-BARRED AND EVEN IF IT WAS NOT IT LACKS THE REQUIRED ELEMENT OF GOOD CAUSE UNDER RULE 3:22-6(b)."

 

POINT III

 

TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANT'S CLAIM OF ACTUAL INNOCENCE AND FUNDAMENTAL INJUSTICE "IS TIME-BARRED AND EVEN IF IT WAS NOT IT LACKS THE REQUIRED ELEMENT OF GOOD CAUSE UNDER RULE 3:22-6(b)."

 

POINT IV

 

TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANT'S CLAIM THAT HIS CONVICTION ON SBI MURDER VIOLATES HIS RIGHTS UNDER THE 14th AMENDMENT OF THE UNITED STATES CONSTITUTION AND N.J. CONST., ART. 1, PARA. 1, "IS TIME- BARRED AND EVEN IF IT WAS NOT IT LACKS THE REQUIRED ELEMENT OF GOOD CAUSE UNDER RULE 3:22-6(b)."

 

Rule 3:22-12 imposes time limits for filing PCR petitions. A second or subsequent petition "shall" be filed within "one year" of: declaration of a newly recognized constitutional right, Rule 3:22 12(a)(2)(A); discovery of a "factual predicate" that "could not have been discovered earlier through the exercise of reasonable diligence," Rule 3:22 12(a)(2)(B); or denial of the first or subsequent PCR petition when ineffective assistance of the former PCR counsel is being alleged, Rule 3:22 12(a)(2)(C). In addition, Rule 3:22 12(a)(2) imposes this one year limit "[n]otwithstanding any other provision in this rule," and Rules 3:22-12(c) and 1:3-4(c) render that time limit not avoidable or enlargeable by either the parties or the court.

As defendant acknowledges, he received both Carolyn's affidavit and co-defendant Wright's PCR transcript in March 2005, but did not file his second PCR petition until July 2011, over six years later. Consequently, his second petition was time-barred under Rule 3:22-12(a)(2), and the court had no choice but to dismiss it. See 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)).

Federal habeas corpus proceedings do not toll the time limit for filing a PCR petition. State v. Milne, 178 N.J. 486, 494 (2004). And a defendant's lack of sophistication with the law and unfamiliarity with court procedure does not constitute excusable neglect. State v. Murray, 162 N.J. 240, 246 (2000).

Moreover, even if defendant's second PCR petition had been timely filed, we agree with the PCR judge that it lacked merit. Rule 3:22-4(b)(2) provides that a second PCR petition "shall be dismissed" if it fails to allege "on its face" either:

(A) that the petition relies on a new rule of constitutional law [retroactively applicable and previously unavailable] ; or

 

(B) that the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted; or

 

(C) that the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief.

 

[Ibid. (emphasis added).]

 

Defendant cannot meet any of the criteria, even assuming that he was reasonably diligent and could not have discovered Wright's admission and Carolyn's affidavit earlier than 2005, or that the attorneys who represented him at retrial or on his first PCR petition should have discovered the documents before 2005. Defendant cannot demonstrate that results at a new trial would be any different even if the documents had been presented to the jury and it believed defendant was not the shooter.

Both the first PCR court and the District Court agreed that the results of defendant's retrial would not have been altered by the introduction of Carolyn's testimony, since there was an abundance of evidence placing defendant at the victim's house with the purpose to shoot him. Rule 3:22-5 states that "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." But see State v. Nash, 212 N.J. 518, 547 (2013)(Rule's "bar to review . . . prior claim litigated on the merits 'is not an inflexible command'") (citation omitted).

Hence, even if defendant's petition was not time barred and the factual predicate for the relief he sought could not have been discovered earlier, his second PCR petition fails to avoid dismissal under Rule 3:22-4(b)(2)(B).

 

Moreover, because defendant cannot show that the outcome would have been different if a jury believed he was not the shooter, he cannot make a prima facie case of ineffective assistance of counsel to avoid dismissal of his second PCR petition under Rule 3:22-4(b)(2)(C). To establish a claim for ineffective assistance of counsel, a defendant must demonstrate both that his or her counsel's performance was deficient, and that that deficiency prejudiced him or her. State v. Goodwin, 173 N.J. 583, 596 (2002)(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). Further, even assuming his counsel was deficient, defendant cannot show a reasonable probability here that "but for counsel's unprofessional errors, the result of the retrial would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

 

Affirmed.

1 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).