STATE OF NEW JERSEY v. MAX YVES MERLAIN

NOT FOR PUBLICATION WITHOUT THE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-3869-16T2


STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

MAX YVES MERLAIN,

     Defendant-Appellant.
____________________________

                Submitted September 13, 2018 – Decided October 23, 2018

                Before Judges Simonelli and Whipple.

                On appeal from Superior Court of New Jersey, Law
                Division, Union County, Indictment No. 06-05-0421.

                Max Yves Merlain, appellant pro se.

                Michael A. Monahan, Acting Union County
                Prosecutor, attorney for respondent (James C. Brady,
                Special Deputy Attorney General/Acting Assistant
                Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Max Yves Merlain appeals from the March 15, 2017 Law

Division order, which denied his third petition for post-conviction relief (PCR).

We affirm.

      Following a jury trial, defendant was convicted of first-degree murder,

 N.J.S.A. 2C:11-3(a)(1), and second-degree endangering the welfare of a child,

 N.J.S.A. 2C:24-4(a). The charges stemmed from the murder of the two-year-

old son of defendant's girlfriend. On September 5, 2008, the trial court imposed

a forty-five-year term of imprisonment on the murder charge with an eighty-five

percent period of parole ineligibility pursuant to the No Early Release Act,

 N.J.S.A. 2C:43-7.2. The court also imposed a concurrent eight-year term of

imprisonment with a four-year period of parole ineligibility on the endangering

charge.

      Defendant appealed his conviction and sentence. We affirmed, State v.

Merlain, No. A-2294-08 (App. Div. Mar. 26, 2012), and the Supreme Court

denied certification. State v. Merlain,  212 N.J. 287 (2012).

      On December 10, 2012, defendant timely filed his first PCR petition pro

se, alleging ineffective assistance of trial and appellate counsel.     He was

subsequently represented by counsel on the petition. On February 19, 2014, the


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PCR court denied the petition. The PCR court found defendant's claims as to

trial counsel were "unsubstantiated," "inaccurate," and "unsustainable," were

"unpersuasive" and "without merit" as to appellate counsel. We affirmed, State

v. Merlain, No. A-3775-13 (App. Div. June 21, 2016), and the Court denied

certification. State v. Merlain,  228 N.J. 45 (2016).

      While his appeal was pending, on October 28, 2015, defendant filed a

second PCR petition pro se, alleging ineffective assistance of PCR counsel.

Defendant asserts in this appeal that the court denied the second PCR petition

without prejudice due to the pending appeal; however, he did not provide a

confirming order or the date of the alleged denial. Nevertheless, his appeal of

the denial of his first PCR petition did not stay or toll the time to file the second

PCR petition. See R. 3:22-12(b) ("These time limitations shall not be relaxed,

except as provided herein"); cf. State v. Milne,  178 N.J. 486, 494 (2004)

(Calculation of the five-year period under Rule 2:22-12 is neither stayed nor

tolled by appellate proceedings).

      Accordingly, the second PCR petition was untimely under Rule 3:22-

12(a)(2)(C) because it alleged ineffective assistance of PCR counsel on the first

PCR petition and was filed more than one year after the date of the denial of the




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first petition. The second PCR petition was also barred under Rule 3:22-4(b)(1)

because it was untimely under Rule 3:22-12(a)(2)(C).

      On December 6, 2016, defendant filed a third PCR petition pro se, alleging

ineffective assistance of first PCR counsel and PCR appellate counsel. 1 On

March 15, 2017, the PCR court denied the petition as untimely under Rule 3:22-

12(a)(2)(C) and barred under Rule 3:22-4(b). This appeal followed.

      On appeal, defendant raises the following contentions:

            POINT ONE

            THE LOWER COURT ERRED IN RULING THAT
            APPELLANT'S SECOND PCR WAS TIME BARRED,
            AND      [RULE]      3:22-12(a)(2)(C)  IS
            UNCONSTITUTIONAL, INVALID AND VOID-
            FOR-VAGUENESS, THEREBY VIOLATING HIS
            CONSTITUTIONAL RIGHTS OF DUE PROCESS
            AND THE EFFECTIVE ASSISTANCE OF COUNSEL
            AS GUARANTEED BY THE FIFTH, SIXTH AND
            FOURTEENTH AMENDMENTS OF THE UNITED
            STATES CONSTITUTION AND PROVISION OF
            THE NEW JERSEY CONSTITUTION. [(Not Raised
            Below)].

            A.    [Rule] 3:22-12(a)(2)(C) Does Not Bar
                  Appellant's Second PCR.

            B.    Court Rule 3:22-12(a)(2)(C) is Void-
                  For-Vagueness.

1
   Defendant claims this was a "refiling" of his second PCR petition; however,
it was a third PCR petition that raised additional claims against PCR appellate
counsel.
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POINT TWO

PURSUANT TO [RULE] 2:7-2, APPELLANT WAS
ENTITLED TO COUNSEL ON HIS FIRST PCR,
HOWEVER, HE DID NOT HAVE A FIRST PCR
COUNSEL, WHICH DEPRIVED HIM OF DUE
PROCESS OF LAW AND EFFECTIVE ASSISTANCE
OF FIRST PCR APPELLATE COUNSEL AS
GUARANTEED     BY    THE    SIXTH   AND
FOURTEENTH AMENDMENTS OF THE UNITED
STATES CONSTITUTION.

POINT THREE

ENFORCEMENT OF ANY TIME BAR PURSUANT
TO RULE 3:22-12[(a)](2)(C) WOULD LEAD TO A
FUNDAMENTAL          INJUSTICE     BECAUSE
APPELLANT HAS SUBSTANTIAL ISSUES OF
MERIT THAT PCR APPELLATE COUNSEL, PCR,
TRIAL AND DIRECT APPEAL COUNSELS FAILED
TO RAISE DESPITE COUNSELS BEING TOLD TO
RAISE THEM BY APPELLANT, THEREBY
DENYING [HIM] THE RIGHT TO EFFECTIVE
ASSISTANCE    OF     COUNSEL, RIGHT     TO
CONFRONT WITNESSES, DUE PROCESS OF LAW
AND A FAIR TRIAL, IN VIOLATION OF THE
FIFTH,    SIXTH        AND     FOURTEENTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION.

    Defendant Max Yves Merlain Is Actually
    Innocent Of Murder, And There Was
    Insufficient Evidence To Support The
    Murder Conviction, Or In The Alternative,
    The Jury Verdict Was Against The Weight
    Of The Evidence.


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                  Appellant Max Yves Merlain Was Denied
                  His Right To Confront Witnesses Against
                  Him When The State Presented Dr.
                  Zhongxue Hua At Trial, But Failed To
                  Produce The Medical Examiner, Dr.
                  Leonard Zaretski, Who Performed The
                  Autopsy and Ruled The Death of J.G.M.
                  "A Natural Happening" And "Accidental",
                  In Violation Of The Sixth And Fourteenth
                  Amendments to The United States
                  Constitution And [Art. I, ¶ 10] Of The New
                  Jersey Constitution.

      Defendant's arguments in Point III regarding trial errors are procedurally

barred under Rule 3:22-5, as they were previously addressed in his direct appeal.

They are also barred under Rule 3:22-4, as they could and should have been

raised on direct appeal. We have considered defendant's remaining arguments

in light of the record and applicable legal principles and conclude they are

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(2). However, we make the following brief comments.

      The third PCR petition was untimely as to first PCR counsel under Rule

3:22-12(a)(2)(C) and barred under Rule 3:22-4(b).        Even if not untimely,

defendant failed to establish a prima facie claim of ineffective assistance of

counsel. "[I]n order to establish a prima facie claim, a petitioner must do more

than make bald assertions that he was denied the effective assistance of counsel.

He must allege facts sufficient to demonstrate counsel's alleged substandard

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

Where, as here, a petitioner claims his attorney failed to properly investigate,

"'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. at 343, 353

(2013) (quoting Cummings,  321 N.J. Super. at 170).

      Defendant makes nothing but bald assertions that PCR counsel, as well as

PCR appellate counsel, rendered ineffective assistance. Defendant filed his

second and third PCR petitions pro se and provided no affidavits or

certifications, including his own, to support his claims against either counsel.

      Affirmed.




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