STATE OF NEW JERSEY v. RAAFIQ LEONARD

NOT FOR PUBLICATION WITHOUT THE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-4815-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RAAFIQ LEONARD, a/k/a
TYRONE DAYE, and FIQ LEONARD,

     Defendant-Appellant.
________________________________

              Submitted April 26, 2018 – Decided June 12, 2018

              Before Judges Simonelli and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 06-
              06-1717.

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

              Robert D. Laurino, Acting Essex County
              Prosecutor, attorney for respondent (Lucille
              M. Rosano, Special Deputy Attorney General/
              Acting Assistant Prosecutor, of counsel and
              on the brief).

              Appellant filed a pro se supplemental brief.

PER CURIAM
     Defendant Raafiq Leonard appeals from the denial of his

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

hearing.    For the reasons that follow, we affirm.

     Defendant was convicted by a jury of first-degree carjacking,


N.J.S.A.    2C:15-2(a)(2);    second-degree       conspiracy       to   commit       a

carjacking, 
N.J.S.A. 2C:15-2, 
N.J.S.A. 2C:5-2(a)(1); third-degree

receiving    stolen     property,   
N.J.S.A.      2C:20-7(a);       first-degree

robbery,     
N.J.S.A.    2C:15-1(b);       third-degree        possession     of     a

prohibited     weapon,     N.J.S.A.        2C:39-3(b);     and     second-degree

possession of a weapon for an unlawful purpose, 
N.J.S.A. 2C:39-

4(a)(1).     On October 12, 2007, the sentencing court imposed an

aggregate sentence of twenty years, subject to a No Early Release

Act, 
N.J.S.A. 2C:43-7.2, parole ineligibility period of eighty-

five percent of his sentence.

     Defendant    appealed    and     we    affirmed     his    convictions        and

sentence in a published opinion. State v. Leonard, 
410 N.J. Super.
 182, 190 (App. Div. 2009).      The Supreme Court denied his petition

for certification.       State v. Leonard, 
201 N.J. 157 (2010).

     The facts underlying defendant's convictions are set forth

in our earlier opinion and need not be repeated here. See Leonard,


410 N.J. Super. at 184-86.

     Defendant filed a PCR petition on May 14, 2012, in which he

argued ineffective assistance of trial and appellate counsel.                      The

                                       2                                    A-4815-16T1
court dismissed the petition on June 27, 2012, after it found that

it was procedurally barred by Rule 3:22-3 because it raised issues

that we considered in defendant's direct appeal.           Defendant did

not appeal from that order.

     Almost four years later, on January 14, 2016, defendant filed

a second PCR petition in which he challenged the first PCR court's

dismissal of his petition.         A brief and amended petition were

submitted later on behalf of defendant.         In this brief, defendant

argued that he received the ineffective assistance of trial and

appellate counsel.      He alleged that trial counsel failed to:

subpoena defendant's "sole alibi-notice witness" to testify at

trial, "object, request a [mistrial], or seek the strongest of

curative instructions" in response to the prosecutor's "prohibited

comments" to the jury about defendant's unemployment, and request

an accomplice liability or lesser-included offense charge.           As to

appellate counsel, defendant claimed he failed to raise these same

issues on appeal. Defendant also argued his second petition should

not be procedurally barred because of the "improvident dismissal

of" his first petition and "the importance of" his claims.

     After considering counsel's oral argument on January 23,

2017, Judge John I. Gizzo entered an order on April 21, 2017,

denying   defendant's   petition    for   PCR   without   an   evidentiary

hearing supported by a nineteen-page written decision.             In his

                                    3                              A-4815-16T1
decision, Judge Gizzo first addressed defendant's argument that

his petition should be considered his first because the previous

one was dismissed without assigning counsel to him.                     The judge

rejected that argument as he found that the petition was time-

barred under Rule 3:22-12 because the "case occurred eleven years

ago[,]" and re-litigating the matter "would cause prejudice to the

State[.]"    Judge Gizzo also concluded that even if he considered

defendant's second petition as his first, it was still procedurally

barred by Rule 3:22-3 that prevents PCR petitions from being used

as substitutes for appeals, Rule 3:22-4 that bars claims that

could have been raised on direct appeal, and Rule 3:22-5 that bars

the litigation of issues previously raised in prior proceedings.

       Although   Judge   Gizzo    found   that       defendant's     claims   were

barred, he considered the merits of defendant's claims and found

that    defendant    failed   to   establish      a    prima    facie    claim    of

ineffective assistance of either trial or appellate counsel.                     The

judge    concluded    that    counsel's    actions       were   the     result    of

acceptable trial strategy or, even if deficient, would not have

changed the outcome of defendant's trial.               Accordingly, the judge

denied    defendant's     petition   and    request       for   an    evidentiary

hearing.    This appeal followed.

       Defendant presents the following issues for our consideration

in his appeal.

                                      4                                    A-4815-16T1
              POINT I

              FAILURE OF THE PCR COURT TO GRANT
              THE   DEFENDANT    AN   EVIDENTIARY
              [HEARING]   ON   HIS    CLAIMS   OF
              INEFFECTIVE ASSISTANCE COUNSEL.

                   A.    FAILURE TO SUBPOENA ALIBI
              WITNESS.

                   B.   FAILURE OF COUNSEL TO
              TAKE ANY ACTION FOLLOWING THE
              PROSECUTOR'S      IMPROPER    AND
              PREJUDICIAL     COMMENTS   DURING
              SUMMATION.

                   C.   FAILURE TO REQUEST      AN
              ACCOMPLICE LIABILITY CHARGE.

                   D.   FAILURE   OF    APPELLATE
              COUNSEL TO RAISE ISSUES ON APPEAL.

              POINT II

              THE DEFENDANT'S PETITION    WAS   NOT
              PROCEDURALLY BARRED.

    Defendant filed a supplemental pro se brief in which he

presents the following arguments:

              POINT I

              THE PCR COURT ERRED BY INVOKING THE
              PROCEDURAL   BARS,   WHEREFORE   THE
              DECISION     DENYING     THE     PCR
              APPLICATION SHOULD BE REVERSED AND
              REMANDED    FOR    AN    EVIDENTIARY
              HEARING.

              POINT II

              DEFENDANT     WAS     DENIED  HIS
              CONSTITUTIONAL    RIGHT    OF THE
              EFFECTIVE ASSISTANCE OF COUNSEL,

                                5                     A-4815-16T1
                   WHEREFORE THE DENIAL OF THE PCR
                   APPLICATION SHOULD BE REVERSED AND
                   REMANDED.

     We are not persuaded by any of these arguments, and conclude

that they "are without sufficient merit to warrant discussion in

a written opinion[.]"        R. 2:11-3(e)(2).     We affirm substantially

for the reasons expressed by Judge Gizzo in his comprehensive

opinion   as   we    agree    that   defendant's       PCR    arguments   were

procedurally barred and, in any event, he failed to make a prima

facie showing of ineffectiveness of either trial or appellate

counsel   within    the   Strickland-Fritz1     test   and,    therefore,    an

evidentiary hearing was not warranted.        See State v. Preciose, 
129 N.J. 451, 462-63 (1992).

     Affirmed.




1
   Strickland v. Washington, 
466 U.S. 668, 687 (1984); State v.
Fritz, 
105 N.J. 42, 49 (l987).

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