STATEOF NEW JERSEY v. ERIC D. DANIELS

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1834-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ERIC D. DANIELS,

     Defendant-Appellant.
_______________________________

              Submitted January 31, 2018 – Decided February 20, 2018

              Before Judges Fuentes and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No. 08-
              12-1096.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Janet A. Allegro, Designated
              Counsel, on the brief).

              Ann M. Luvera, Acting Union County Prosecutor,
              attorney for respondent (Meredith L. Balo,
              Special    Deputy   Attorney    General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
    Defendant Eric D. Daniels appeals from an order denying his

petition for post-conviction relief (PCR) without an evidentiary

hearing.   We affirm.

    This matter returns to us after the Supreme Court's decision

in State v. Daniels, 
225 N.J. 338 (2016).         The Court reversed

this court's decision affirming the denial of defendant's PCR and

remanded to the Law Division to afford defendant oral argument in

accord with State v. Parker, 
212 N.J. 269 (2012).       Ibid.

    Upon remand and after oral argument, the PCR judge denied

defendant's   petition   in   a   written   opinion   and   without    an

evidentiary hearing.     We recite the following relevant facts as

taken from our prior decision, State v. Daniels, No. A-3317-09

(App. Div. Feb. 20, 2013), which affirmed defendant's conviction:

                The events underlying this offense
           occurred on August 12 and 13, 2008 at the home
           of defendant's former girlfriend, Tanya
           Reeves.    Defendant and Reeves had lived
           together in Linden for a period of time. After
           their relationship ended, Reeves moved to
           another apartment on the same street with her
           son in August 2008. Reeves testified that,
           when they broke up, she made it clear to
           defendant that she wanted nothing to do with
           him anymore.    However, when she moved, she
           took clothing defendant had left behind with
           her to give him an opportunity to retrieve it.
           Her arrangement with him was that "he was to
           call the police officer when he needed his
           belongings and they would escort him to [her]
           home to pick them up."



                                   2                            A-1834-16T1
     On August 12, 2008, defendant arrived at
Reeves's residence in the evening and rang the
doorbell.   Reeves spotted him through her
window blinds, but she did not answer the
door. Reeves had not allowed defendant into
her house since she had moved and was afraid
to let him into the house because he appeared
"[a] little disturbed." After defendant came
back several times, Reeves asked him what he
wanted. He said he needed some things to wear.
Reeves prepared a bag of his clothes and threw
it out the window.

     The next morning, August 13, 2008, at
approximately 7:20, Reeves was in her bedroom
with her friend, John Hendricks. As the two
prepared for work, Reeves opened the bedroom
door, which had been cracked open, and saw
defendant standing right at the bedroom door.
When defendant saw there was another man
there, he started calling Reeves names, such
as a "stinking bitch[.]"     Defendant struck
Hendricks once and Reeves once or twice,
knocking Reeves to the floor, where she
"tussle[d]" with defendant. Reeves yelled to
her son to get her neighbor, Jacyn McPhail, a
Linden police officer.        Before McPhail
arrived, defendant asked Reeves to return a
chain and a ring he had given to her while
they were dating. Reeves testified that she
"voluntarily" returned the jewelry to prevent
the situation from "elevat[ing]" further.

     Officer   McPhail   testified   that   at
approximately 7 a.m., he was awakened by "loud
banging and screaming" coming from Reeves's
apartment, which was attached to his unit. He
heard a woman screaming, "get off me, get off
me, stop."    McPhail instructed his wife to
call 911.    McPhail got dressed in street
clothes and placed his police badge around his
neck. As he was getting dressed, his doorbell
began to ring and he could hear Reeves's son
yelling.   He answered the door and Reeves's


                      3                          A-1834-16T1
    son   directed  him   toward   Reeves's   open
    apartment door.

         When McPhail entered Reeves's unit,
    defendant had Reeves pinned against a wall.
    He held her up against the wall with his left
    hand around her throat and his right arm was
    drawn back "like he was going to punch" her.
    Hendricks was "kind of in between them trying
    to shield [] Reeves from [defendant.]"
    McPhail drew his duty weapon and yelled
    "Linden police."    He told defendant to let
    Reeves go and get on the floor.      Defendant
    "smirked," looked at McPhail and said, "fuck
    that, fuck you." When he did not release
    Reeves, McPhail "rushed [defendant] and put
    him in a compliance hold down on the floor[.]"
    McPhail got on top of him but defendant was
    "still very angry" and "still trying to get
    up and peel [McPhail's] hands away from
    holding him down."

         After another officer arrived, McPhail
    had an opportunity to inspect the house. He
    discovered that the screen on the basement
    window on Reeves's side of the apartment was
    off and the window was open. Among the items
    in defendant's possession at the time of his
    arrest were a diamond ring and a diamond
    necklace,    items    consistent   with    the
    description of items Reeves reported defendant
    had taken from her.    Photographs were taken
    of bruises Reeves had sustained on her arm and
    neck.

    [Daniels, slip op. 1-4.]

On appeal, defendant raises the following argument:

    POINT I

    THE COURT ERRED IN DENYING DEFENDANT'S
    PETITION FOR [PCR] WITHOUT AFFORDING HIM AN
    EVIDENTIARY HEARING TO FULLY ADDRESS HIS


                          4                           A-1834-16T1
           CONTENTION THAT HE FAILED TO RECEIVE EFFECTIVE
           LEGAL REPRESENTATION.

                A. THE PREVAILING LEGAL PRINCIPLES
                REGARDING CLAIMS OF INEFFECTIVE
                ASSISTANCE OF CONSEL ARISING OUT OF
                EVIDENTIARY HEARINGS AND PETITIONS
                FOR [PCR].

                1. TRIAL COUNSEL'S FAILURE TO MAKE
                A MOTION FOR JUDGMENT OF ACQUITTAL
                AFTER THE STATE RESTED CONSTITUTED
                INEFFECTIVE ASSISTANCE OF COUNSEL.

                2. TRIAL COUNSEL'S FAILURE TO MAKE
                A MOTION AFER THE DISCHARGE OF THE
                JURY    CONSTITUTED    INEFFECTIVE
                ASSISTANCE OF COUNSEL.

                3.   TRIAL COUNSEL WAS INEFFECTIVE
                FOR FAILING TO SUBPOENA THE LANDLORD
                TO SHOW THAT MR. DANIELS HAD A RIGHT
                TO BE ON THE PROPERTY.

      "Post-conviction   relief   is    New   Jersey's    analogue   to   the

federal writ of habeas corpus."        State v. Preciose, 
129 N.J. 451,

459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled

to post-conviction relief if there was a "[s]ubstantial denial in

the   conviction   proceedings    of    defendant's      rights   under   the

Constitution of the United States or the Constitution or laws of

the State of New Jersey[.]"        "A petitioner must establish the

right to such relief by a preponderance of the credible evidence."

Preciose, 
129 N.J. at 459 (citations omitted).            "To sustain that

burden, specific facts" that "provide the court with an adequate



                                   5                                 A-1834-16T1
basis on which to rest its decision" must be articulated.      State

v. Mitchell, 
126 N.J. 565, 579 (1992).

     Claims of constitutionally ineffective assistance of counsel

are well suited for post-conviction review.    See R. 3:22-4(a)(2);

Preciose, 
129 N.J. at 460.   In determining whether a defendant is

entitled to relief on the basis of ineffective assistance of

counsel, New Jersey courts apply the two-prong test articulated

by the United States Supreme Court in Strickland v. Washington,


466 U.S. 668, 687 (1984), and United States v. Cronic, 
466 U.S. 648, 658-60 (1984). Preciose, 
129 N.J. at 463; see State v. Fritz,


105 N.J. 42, 49-50 (1987).

     Under the first prong of the Strickland test, a "defendant

must show that [defense] counsel's performance was deficient."

Strickland, 
466 U.S.  at 687.     Under the second prong, a defendant

must demonstrate "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different."   Id. at 694.

     Our review of an order granting or denying PCR contains

consideration of mixed questions of law and fact. State v. Harris,


181 N.J. 391, 415-16 (2004).     "[W]here the court does not hold an

evidentiary hearing, we may exercise de novo review over the

factual inferences the trial court has drawn from the documentary

record."   State v. O'Donnell, 
435 N.J. Super. 351, 373 (App. Div.

                                   6                         A-1834-16T1
2014)(citing   Harris,    
181 N.J.   at   420-21).     A   PCR   court's

interpretations of law are provided no deference and are reviewed

de novo.   State v. Nash, 
212 N.J. 518, 540-41 (2013).

     At the outset, we note that defendant's argument relating to

his counsel's failure to move for a judgment of acquittal was

raised before this court on a prior appeal.            In rejecting that

argument, we held:

                In this case, the sole issue raised in
           defendant's petition relates to his contention
           that the evidence was insufficient to support
           a conviction for burglary in light of his
           assertion that he lacked the requisite intent
           to commit a crime when he entered the
           dwelling. The standard applicable to whether
           a motion for a judgment of acquittal should
           be granted is straightforward. The issue is
           not whether an acquittal is possible given the
           version of facts proffered by the defendant
           but "whether, viewing the State's evidence in
           its entirety . . . and giving the State the
           benefit of all its favorable testimony as well
           as all of the favorable inferences which
           reasonably could be drawn therefrom, a
           reasonable jury could find guilt of the charge
           beyond a reasonable doubt." State v. Reyes,
           
50 N.J. 454, 458-59 (1967); See R. 3:18. The
           PCR court identified the correct legal
           standard and applied it to the evidence
           presented at trial.

                . . . .

                We agree with the PCR court that even if
           counsel had moved for a judgment of acquittal
           based upon an alleged insufficiency of the
           evidence, such a motion would have been
           unsuccessful.


                                   7                               A-1834-16T1
           [State v. Daniels, No. A-4594-13 (App. Div.
           Feb. 4, 2016) (slip op. 5-7).]

     Predicated upon our review of the record, we adopt our prior

decision relating to this discrete argument.

     Defendant argues that his trial counsel was ineffective for

failing to call the victim's landlord to support the contention

that defendant was also a lessee of the apartment.                "[W]hen a

petitioner claims his trial attorney inadequately investigated his

case, he must assert the facts that an investigation would have

revealed, supported by affidavits or certifications based upon the

personal   knowledge   of   the    affiant   or   the   person   making   the

certification." State v. Porter, 
216 N.J. 343, 353 (2013) (quoting

State v. Cummings, 
321 N.J. Super. 154, 170 (App. Div. 1999)).

     In support of the PCR, defendant did not identify the name

of the landlord, nor did he submit any proof that he was legally

entitled to enter the apartment to rebut the burglary charge.               As

such, the judge properly held that defendant "failed to submit a

certification from the unidentified landlord as to any facts based

on personal knowledge that would have aided the defense nor would

those alleged facts have any material effect on the outcome of the

case."

     Notwithstanding    our       determination    regarding     defendant's

failure to establish that counsel's performance was deficient, we


                                      8                              A-1834-16T1
briefly address the second Strickland prong.     Upon consideration

of the record, we conclude that defendant has also failed to

demonstrate how any alleged deficiency resulted in a prejudice

that, "but for counsel's unprofessional errors, the result of the

proceeding would have been different."    Strickland, 
466 U.S.  at
 694; Fritz, 
105 N.J. at 52 (citation omitted).

     Finally, we reject defendant's argument that the court erred

in denying his petition without an evidentiary hearing.            An

evidentiary hearing is required where the defendant has shown a

prima facie case and the facts on which he relies are not already

of record.   Pressler & Verniero, Current N.J. Court Rules, cmt. 2

on R. 3:22-10 (2016).   The mere raising of a claim for PCR does

not entitle defendant to an evidentiary hearing.     Cummings, 
321 N.J. Super. at 170.     As defendant failed to establish a prima

facie case of ineffective assistance of counsel, no evidentiary

hearing was required.

     Affirmed.




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