STATE OF NEW JERSEY v. HUMPHREY COHEN
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2599-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HUMPHREY COHEN,
Defendant-Appellant.
______________________________
Submitted February 12, 2018 – Decided March 9, 2018
Before Judges Whipple and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
83-03-1433.
Humphrey Cohen, appellant pro se.
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Tiffany
M. Russo, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Humphrey Cohen appeals from the denial of his
eighth1 petition for post-conviction relief ("PCR"). Defendant
contended his plea counsel and appellate counsel were ineffective,
and his sentence was illegal. Judge Siobhan A. Teare authored a
comprehensive written decision dated January 12, 2017, denying
defendant relief. Having considered defendant's arguments in
light of the record and controlling law, we affirm.
We incorporate by reference the facts and procedural history
set forth in our prior opinions. Briefly, following a jury trial,
defendant was convicted of felony murder,
N.J.S.A. 2C:11-3(a)(3),
purposeful or knowing murder,
N.J.S.A. 2C:11-3(a)(1) and (2),
armed robbery,
N.J.S.A. 2C:15-1, and unlawful possession of a
handgun,
N.J.S.A. 2C:39-5(b). On May 4, 1984, the sentencing
judge merged the murder convictions and sentenced defendant to
life imprisonment with a thirty-year period of parole
ineligibility. The judge also merged the robbery and weapons
offenses and sentenced defendant to a consecutive term of
imprisonment of fifteen years with seven-and-a-half-years of
1
The exact number of prior PCR petitions is unclear from the
record. Defendant inaccurately references his prior petitions in
his merits brief and appendix as, for example, his "second [third]
petition." We count, in the record before us, seven prior PCR
petitions and a prior motion to correct an illegal sentence
pursuant to Rule 3:21-10(b). Therefore, we treat the present
appeal as the denial of defendant's eighth PCR petition.
2 A-2599-16T3
parole ineligibility. All of defendant's PCR petitions were
denied; his motions for reconsideration of the denials were denied;
his motion to correct an illegal sentence was denied; his direct
appeal was denied; and one writ of habeas corpus filed in federal
court was denied and another was withdrawn. See, e.g., State v.
Cohen, No. A-5472-08 (App. Div. Aug. 24, 2010) (slip op. at 1-3),
certif. denied,
207 N.J. 188 (2011), cert. denied,
565 U.S. 1238
(2012) (setting forth the factual and procedural history of
defendant's appellate review).
Defendant filed the present petition for PCR on December 15,
2015.2 The PCR judge denied the petition in a written opinion
holding the claims were previously adjudicated. This appeal
followed.
On appeal, defendant argues:
POINT I
BECAUSE [DEFENDANT] WOULD HAVE EITHER BEEN
RELEASED FROM PRISON OR ELIGIBLE FOR PAROLE
FORTHWITH IF ILLEGAL SENTENCE MOTION COUNSEL
HAD APPLIED HER AMBIGUOUS STATUTE LEGAL
KNOWLEDGE TO SHOW: (1) THE MURDER STATUTE
N.J.S.A. 2C:11-3(a)(1), (2) IS AMBIGUOUS; AND
(2) CONSEQUENTLY, [DEFENDANT] MUST BE
RESENTENCED AS SOMEONE CONVICTED OF PURPOSELY
2
As the State correctly notes, Judge Teare indicated defendant's
present PCR petition was filed December 15, 2015, but defendant
only appended an "amended letter memorandum," dated October 20,
2016, in support of his petition. In any event, in her opinion,
the PCR judge cites to defendant's "amended petition."
3 A-2599-16T3
OR KNOWINGLY CAUSING SERIOUS BODILY INJURY
MURDER, FELONY MURDER, ROBBERY AND UNLAWFUL
POSSESSION OF A WEAPON TO A MAXIMUM
AGGREGATED THIRTY YEARS PAROLE INELIGIBILITY
MEANS, THE PCR COURT COMMITTED ERROR BY
RULING COUNSEL DID NOT RENDER [EFFICIENT]
COUNSELING BECAUSE[ ] SHE WAS NOT OBLIGATED
TO USE SAID LEGAL KNOWLEDGE.
POINT II
THE [PCR] COURT'S DECISION TO IGNORE[]
[DEFENDANT'S CLAIM] THAT HE WAS CONVICTED OF
[SERIOUS BODILY INJURY ("SBI")] UNINTENTIONAL
MURDER AND INSTEAD TREAT [DEFENDANT] AS
SOMEONE CONVICTED OF INTENTIONAL MURDER,
RESULTED IN SAID COURT COMMITTING ERROR IN
ITS RULING THAT APPELLATE COUNSEL . . . DID
NOT RENDER[] INEFFECTIVE ASSISTANCE TO
[DEFENDANT].
POINT III
BECAUSE COMPLEX MERGER OF THE OFFENSES ISSUES
ARE NOT TO BE HEARD VIA THE EXCESSIVE
SENTENCING ORAL ARGUMENT HEARING MEANS
[DEFENDANT] RECEIVED INEFFECTIVE ASSISTANCE
OF APPELLATE COUNSEL DUE TO SAID HEARING
PREVENTING COUNSEL FROM ARGUING [DEFENDANT'S]
NOVEL COMPLEX MERGER ISSUE WHICH REQUIRED
REVIEW OF: (1) THE DEFINITION OF MURDER AND
FELONY MURDER, (2) THE EVIDENCE, AND (3) THE
MERGER LAWS TO DETERMINE WHETHER A CONVICTION
FOR SBI MURDER AND FELONY MURDER REQUIRES
EITHER THE SBI MURDER TO BE VACATED OR MERGED
INTO FELONY MURDER. (Not raised below)
In a reply brief, defendant raises the following points:
POINT I
BECAUSE THERE EXISTS [MORE THAN] A REASONABLE
PROBABILITY THAT [DEFENDANT'S] OVERALL
[THIRTY-SEVEN-AND-A-HALF] YEARS [OF] PAROLE
ELIGIBILITY WOULD HAVE BEEN [AND WOULD BE]
4 A-2599-16T3
CORRECTED TO [THIRTY] YEARS IF [TRIAL] COUNSEL
. . . HAD APPLIED HER AMBIGUOUS STATUTE
KNOWLEDGE TO SHOW THE MURDER VERDICT MUST BE
READ AS A VERDICT FOR SBI MURDER MEANS, [THE
STATE] AND THE PCR COURT ARE IN ERROR THAT
[TRIAL] COUNSEL . . . DID NOT RENDER
INEFFECTIVE ASSISTANCE OF COUNSEL WHEN SHE
MADE THE DECISION TO NOT APPLY SAID KNOWLEDGE
TO [DEFENDANT'S] ILLEGAL SENTENCE CLAIM.
POINT II
[THE STATE] WAIVED [ITS] ALLEGED PROCEDURAL
BAR CLAIM BECAUSE [IT] FAILED TO PRESENT SAID
CLAIM TO THE PCR COURT.
Our analysis of the issues raised on appeal is guided by a
review of the two court rules that apply to a second or subsequent
PCR. Rule 3:22-12(a)(2) states:
[N]o second or subsequent petition shall be
filed more than one year after the latest of:
(A) the date on which the constitutional
right asserted was initially recognized by the
United States Supreme Court or the Supreme
Court of New Jersey, if that right has been
newly recognized by either of those Courts and
made retroactive by either of those Courts to
cases on collateral review; or
(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; or
(C) the date of the denial of the first or
subsequent application for post-conviction
relief where ineffective assistance of counsel
that represented the defendant on the first
5 A-2599-16T3
or subsequent application for post-conviction
relief is being alleged.
Further, pursuant to Rule 3:22-4(b),
[a] second or subsequent petition for post-
conviction relief shall be dismissed unless:
(1) it is timely under [Rule] 3:22-12(a)(2);
and
(2) it alleges on its face either:
(A) that the petition relies on a
new rule of constitutional law, made
retroactive to defendant's petition
by the United States Supreme Court
or the Supreme Court of New Jersey,
that was unavailable during the
pendency of any prior proceedings;
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.
Although the time limitations are not absolute and may be
waived to prevent a fundamental injustice, the rules must be viewed
6 A-2599-16T3
in light of their dual key purposes: to ensure 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 petition is not a
substitute for an appeal of a conviction, Rule 3:22-3, and any
available ground for relief not asserted in a prior proceeding is
barred if it could have been raised earlier, Rule 3:22-4, or was
asserted earlier, Rule 3:22-5.
We have carefully considered defendant's arguments in light
of the applicable law, and conclude they lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2). We
affirm substantially for the reasons stated by Judge Teare in her
thorough written opinion of January 12, 2017. We add only the
following brief comments.
We are satisfied defendant's eighth PCR petition, filed at
least thirty-one years after the judgment of conviction 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 subsequent PCR
petitions imposed by this rule. We agree with the PCR judge that
trial counsel's letter brief in support of another client,
purportedly discovered by defendant in February 2015, "discusses
the ambiguity of the sentencing portion of the [murder] statute
7 A-2599-16T3
which is wholly distinguishable from the argument [defendant]
presents in this instant petition."
We also agree defendant's present claims are barred by Rule
3:22-4 and Rule 3:22-5 as they could have been raised, or were
raised, either on direct appeal or in defendant's previous PCR
petitions and appeals. As the PCR judge astutely observed,
defendant's argument that appellate counsel was ineffective
because she failed to argue merger of robbery with his felony
murder conviction was considered and rejected by another trial
judge pursuant to defendant's motion for an illegal sentence.
Moreover, in order to obtain relief on an ineffective
assistance of counsel claim, a defendant must show both that his
counsel's performance was deficient and that counsel's performance
prejudiced his defense. State v. Fritz,
105 N.J. 42, 52 (1987)
(citing Strickland v. Washington,
466 U.S. 668, 687 (1984)). We
are in accord with Judge Teare that defendant masks his previous
illegal sentencing argument with his ineffective assistance of
counsel claims against his trial and appellate counsel. Having
been litigated previously, we agree with the PCR judge that these
claims are barred. See R. 3:22-4 and R. 3:22-5.
Affirmed.
8 A-2599-16T3
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