STATE OF NEW JERSEY v. SHAWN JACKSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4986-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN JACKSON, a/k/a

RA'ZULU S. UKAWABUTU,

Defendant-Appellant.

___________________________________

December 1, 2015

Submitted October 20, 2015 Decided

Before Judges Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 89-12-3501 and 90-11-3310.

Ra'Zulu S. Ukawabutu, appellant pro se.

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Shawn Jackson, a/k/a Ra'Zulu S. Ukawabutu, appeals from the Law Division's May 9, 2013 order denying his second petition for post-conviction relief (PCR) without an evidentiary hearing. The court denied the petition because it failed to satisfy the requirements of Rules 3:22-4(b)1 and 3:22-12(a)(2)(B).2

On appeal, defendant argues

POINT ONE

THE PCR COURT ERRED IN SUMMARILY DISMISSING DEFENDANT'S SECOND PCR PETITION WITHOUT A HEARING OR ANY ARGUMENT WHEN THE PETITION WAS BASED SOLELY ON CONSTITUTIONAL CLAIMS DEFENDANT TIMELY RAISED ON HIS INITIAL PCR PETITION WHICH WERE NEVER EXPRESSLY ADJUDICATED AND FOR WHICH DEFENDANT HAS MADE A PRIMA FACIE SHOWING WARRANTING AN EVIDENTIARY HEARING.

POINT TWO

DEFENDANT WAS SUBJECTED TO THE CONSTRUCTIVE DENIAL OF COUNSEL AT HIS INITIAL SUPPRESSION HEARING AND THE NEW SUPPRESSION HEARING ON THE REMAND ORDERED BY THE APPELLATE DIVISION IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION[.] THEREFORE, THE CONVICTION SHOULD BE REVERSED OR THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING.

POINT THREE

THE TRIAL COURT'S RELIANCE ON A STATEMENT OF A NON-TESTIFYING CO-DEFENDANT WAS AN ABUSE OF DISCRETION AND A VIOLATION OF DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES AGAINST HIM.

We have considered defendant's arguments in light of our review of the record and the applicable principles of law. We affirm, substantially for the reasons expressed by Judge Kyran Connor in his May 9, 2013 letter opinion.

We previously detailed the facts leading to defendant's convictions, after a 1991 bench trial, for committing murder and kidnapping, and his ensuing sentences, in our earlier opinions addressing his conviction, see State v. Jackson, 272 N.J. Super. 543, 545-48 (App. Div. 1994), certif. denied, 142 N.J. 450 (1995), his first PCR petition, see State v. Jackson, No. A-1725-00 (App. Div. Oct. 3, 2002), certif. denied, 176 N.J. 429 (2003), and an earlier motion for a new trial,3 see State v. Jackson, No. A-4364-03 (App. Div. Dec. 9, 2005), certif. denied, 186 N.J. 365 (2006). These facts need not be repeated here for purposes of this appeal.

In defendant's second PCR petition, which he filed in January 2013, the PCR judge found defendant "concede[d] . . . that the constitutional claims raised in [defendant's second] petition ha[d] been previously raised either on direct appeal or in [defendant's] first PCR [petition]." The court also found that, even if there was some new basis to be argued on PCR, the petition was untimely as it failed to satisfy the limitations of Rule 3:22-12(a)(2)(B), which prohibits the filing of a petition "more than one year after . . . the date on which the factual predicate for relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence."

Against this backdrop, and based upon our review of the record, we find defendant's arguments on appeal to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say that defendant's petition represented yet another bite at the proverbial apple.

Affirmed.

1 The pertinent part of the Rule provides

A second or subsequent petition for [PCR] shall be dismissed unless

(1) it is timely under R. 3:22-12(a)(2); and

(2) it alleges on its face . . .

. . . .

(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 . . . .

2 The Rule requires in pertinent part

Notwithstanding any other provision in this rule, no second or subsequent petition [for PCR] shall be filed more than one year after the latest of

. . . .

(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 . . . .

3 In another opinion being issued today, we are affirming the trial court's denial of defendant's most recent motion for a new trial. See State v. Jackson, No. A-5146-12 (App. Div. Dec. 1, 2015).