STATE OF NEW JERSEY v. EVERETT HOLLOWAY
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5156-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EVERETT HOLLOWAY,
Defendant-Appellant.
_____________________________
Submitted March 21, 2018 – Decided April 16, 2018
Before Judges Alvarez and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No. 07-
12-2004.
Joseph E. Krakora, Public Defender, attorney
for appellant (Louis H. Miron, Designated
Counsel, on the brief).
Joseph D. Coronato, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella,
Chief Appellate Attorney, of counsel; Shiraz
Imran Deen, Assistant Prosecutor, on the
brief).
PER CURIAM
Defendant Everett Holloway appeals from the May 16, 2016
denial of his second petition for post-conviction relief (PCR)
without an evidentiary hearing. After a review of the arguments
in light of the record and applicable principles of law, we affirm.
This matter arises from an incident on October 12, 2007,
during which defendant brutally, sexually assaulted the victim,
E.H. A jury found defendant guilty of two counts of aggravated
sexual assault,
N.J.S.A. 2C:14-2(a)(7) (count one) and
N.J.S.A.
2C:14-2(a)(3) (count two), and three related offenses that were
merged when defendant was sentenced on August 6, 2009. The details
of defendant's offenses are recounted thoroughly in our opinion
affirming defendant's conviction on direct appeal and need not be
repeated here. State v. Holloway, No. A-0464-09 (App. Div.
September 29, 2011) (Holloway I) (slip op. at 3-9). In his direct
appeal, defendant raised the following issues:
I. THE ADMISSION OF HEARSAY STATEMENTS
VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO
CONFRONT THE WITNESSES AGAINST HIM AT TRIAL.
II. THE EXPERT TESTIMONY INTRODUCED BY THE
STATE WAS IMPROPER AND, COMBINED WITH THE
INSUFFICIENT JURY INSTRUCTIONS ON THE SUBJECT
GIVEN BELOW, CAUSED AN UNFAIR TRIAL.
III. DEFENDANT'S MOTION FOR ACQUITTAL SHOULD
HAVE BEEN GRANTED.
IV. THE PROSECUTOR EXCEEDED FAIR COMMENT AND
DEPRIVED DEFENDANT OF A FAIR TRIAL.
V. DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL
JURY WAS VIOLATED.
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VI. REMAND SHOULD BE ORDERED SO DEFENDANT CAN
HAVE AN OPPORTUNITY TO PRESENT HIS CLAIM OF
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL NOTED
BELOW.
VII. DEFENDANT'S SENTENCE IS IMPROPER AND
EXCESSIVE.
Although we rejected the claims advanced in Points I through
IV and affirmed defendant's conviction, we deferred consideration
of Point VI for PCR. We remanded the issues surrounding Point VII
for resentencing because we determined the trial court erred by
imposing two extended term sentences contrary to
N.J.S.A. 2C:44-
5(a)(2), which provides that "[n]ot more than one sentence for an
extended term shall be imposed." The Supreme Court denied
defendant's petition for certification. State v. Holloway,
210 N.J. 109 (2012). On remand, the trial court resentenced defendant
on the second count of aggravated sexual assault to a twenty-year
custodial term, subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2, to run concurrently with the life sentence the
trial court had previously imposed on the first count of aggravated
sexual assault.
On March 1, 2012, defendant filed his first PCR petition.
Counsel was appointed to represent him. In the petition, he
alleged trial counsel was ineffective for the following reasons:
(1) trial counsel failed to provide defendant with discovery and
review it with him, which was exacerbated because defendant is
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blind; (2) trial counsel failed to investigate and locate witnesses
who would have testified defendant and the victim had a prior
sexual relationship; and (3) trial counsel's cumulative errors
deprived defendant of effective assistance of counsel. In an oral
decision delivered from the bench on January 4, 2013, Judge Joseph
L. Foster denied defendant's petition without an evidentiary
hearing. Defendant appealed, raising the following argument:
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE OF TRIAL
COUNSEL'S INEFFECTIVENESS FOR FAILING TO
PROVIDE HIM WITH DISCOVERY AND FAILING TO
INVESTIGATE PROSPECTIVE WITNESSES.
We affirmed substantially for the reasons explained by Judge
Foster in his oral decision, finding defendant's arguments to be
without sufficient merit to warrant discussion in a written
opinion. State v. Holloway, No. A-2700-12 (App. Div. April 119,
2014) (slip op. at 3) (Holloway II) (citing R. 2:11-3(e)(2)). The
Supreme Court denied defendant's petition for certification.
State v. Holloway,
220 N.J. 40 (2014).
On August 26, 2013, defendant filed his second petition for
PCR. Pursuant to Rule 3:22-3, the matter was stayed pending the
outcome of the first PCR. The second PCR was reinstated following
the denial of the first PCR. Counsel was appointed to represent
defendant and filed an amended petition and a supporting
4 A-5156-15T4
certification of defendant. The amended petition raised the
following issues:
[I.] The State of New Jersey deprived
Petitioner of his Due Process right to a fair
trial, pursuant to the Fifth and Fourteenth
Amendments to the United States Constitution
because Petitioner is a disabled blind person
and the State failed to provide him with (a)
the necessary equipment to read the discovery
or a Social Worker to read the discovery to
him; (b) the necessary equipment to
communicate with his attorney; and (c) the
equipment to listen to the audio tapes of his
statement and the statements of the State
witnesses.
[II.] Petitioner was deprived effective
assistance of trial counsel in violation of
the Sixth Amendment to the United States
Constitution and N.J. Const. (1947), Art. I,
par. 10. Petitioner alleges that trial
counsel was ineffective as follows:
A. Petitioner's right to Due Process was
violated because defense counsel failed
to provide discovery to Petitioner;
failed to read all discovery to
Petitioner; failed to review the numerous
audio tape statements of witnesses with
Petitioner; failed to review
Petitioner's recorded statements given
to the police with Petitioner; failed to
investigate Petitioner's defense; and
failed to consult with Petitioner to
discuss a defense strategy.
B. Failed to object to the admission of
hearsay testimony from [Nurse] Valarie
Johnson-Green, a State expert witness who
had treated the victim, who provided
testimony that the victim told her that
Petitioner committed the offense along
with details of the offense;
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C. Failed to request appropriate limiting
jury instruction for how the jury could
use hearsay testimony;
D. Failed to request a mistrial after it
became known that some of the juror's
observed a [newspaper] headline that
stated, "Rapist on trial" for the crimes
which the jury was to deliberate. This
allowed the jury to have knowledge that
Petitioner had previously been convicted
of rape charges.
[III.] Petitioner was deprived effective
assistance of appellate counsel in violation
of the Sixth Amendment to the United States
Constitution and N.J. Const. (1947), Art. I,
par. [10] because counsel failed to raise the
above referenced hearsay issues during
petitioner's direct appeal of his conviction.
[IV.] Petitioner was deprived effective
assistance of PCR counsel in violation of the
Sixth Amendment to the United States
Constitution and N.J. Const. (1947), Art. I,
par. 10. Petitioner alleges that PCR counsel
was ineffective for failing to properly raise
the above and below referenced issues.
[V.] Petitioner was deprived effective
assistance of appellate counsel in violation
of the Sixth Amendment to the United States
Constitution and N.J. Const. (1947), Art. I,
par. [10] because counsel failed to raise the
above referenced hearsay and jury issues
during petitioner's PCR appeal.
Following oral argument on May 10, 2016, the PCR judge issued
an order and comprehensive written decision denying the petition
without an evidentiary hearing. As noted by the judge, defendant
essentially argues trial counsel was ineffective for failing to:
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provide discovery to him and review discovery with him; object to
the Johnson-Green's hearsay testimony recounting the victim's
statements to her; request a mistrial after jurors discussed a
newspaper headline regarding defendant; and obtain sufficient
accommodations for defendant's blindness at trial.
With regard to providing reasonable accommodations to
defendant's blindness at trial, the trial judge and counsel engaged
in the following colloquy during the pretrial conference:
THE COURT: The final issue the [c]ourt
would like to address is the extent of your
client's vision and any reasonable
accommodations to be made. Let me first hear
from you, Mr. Smith [defendant's trial
counsel], regarding that.
MR. SMITH: Yes, Judge, thank you.
Your Honor, as I understand it, Mr.
Holloway is completely blind, not just legally
blind, and he is unable to read anything. And
regarding that, Judge, several months back in
one of my visits to see Mr. Holloway upstairs
in the jail, I did review with him and I read
through page by page all of the discovery we
had at that point.
I did receive today the transcribed
statement that Mr. Holloway gave to the
police, it's approximately 105, 107 pages in
length. I indicated to Mr. Holloway that
given the court schedule tomorrow which I
understand will break at 12:30, I will spend
the afternoon with him upstairs and I will
read him that transcript as well and review
any other discovery that he wants to go over
again before we start the testimony next
Tuesday.
7 A-5156-15T4
Judge, I also spoke with him, one of the
concerns was his ability to assist in his
defense and I explained to him that during the
course of the trial and the testimony, we
would [be] unable to speak and I know
sometimes clients will write out questions for
the defense attorney to respond to with regard
to whether the relevant issues are so as to
not interrupt the testimony which Mr. Holloway
would be unable to do to some extent. However,
I think at this point, just from looking at
what he brought down with him and discussing
with him before your Honor came out on the
bench, if he is provided with a note pad and
a pen, I have instructed him to during the
course of the testimony, if he has an issue
or concern with regard to something that's
transpiring during the course of the trial,
for him to make a note or two, or even a word
or two, and then I would at the first available
opportunity as needed ask your Honor for a
very brief break so I can discuss the issue
with him before we proceed, and I think that
would work out just fine.
THE COURT: All right. And the [c]ourt
will accommodate you once it's brought to the
[c]ourt's attention you need time to
communicate to your client.
It is my understanding there may be some
pictures that may be presented and I
understand the State will also give you
pictures in order to review and speak with
your client in describing those pictures as
well.
MR. SMITH: Yes, Judge. In fact, Miss
Pierro [the trial prosecutor] was kind enough
to provide me already with photos of the
anticipated exhibits that will be larger for
the jurors to review and the witnesses to
review. And what I also indicated to Mr.
Holloway is tomorrow afternoon when I see him
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upstairs, I will go through with him one by
one and explain what the photos depict and
that way during the course of the trial when
the exhibits are utilized, I will already have
explained to him what they are and I can just
make reference to that.
THE COURT: Very good. Without telling
me what your client brought down, was it
writing that you were able to see and is it
legible that he communicated to you? I don't
know.
MR. SMITH: Yes, it is, Judge. I think
he would have difficulty writing out full
sentences in a manner where I would be able
to address an issue immediately with
testimony. However, I think he's able to, I
see words he has written and if he's able to
do that, I would be able to address any
concerns he might having during the course of
the trial.
With regard to trial counsel providing discovery to and
reviewing discovery with defendant, the judge recounted the
following colloquy between the trial judge and counsel before jury
selection commenced:
THE COURT: All right. There is another
issue the [c]ourt would like to address at
this time.
Previously, Mr. Smith, you had indicated
and you were instructed to spend some time
with your client to review the pictures and
describe them in detail. Did you have that
opportunity?
MR. SMITH: I did, Judge. Prior to last
week, Mr. Holloway and I had reviewed,
upstairs, the discovery that I had in my
possession last week. We received photographs
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that were anticipated to be exhibits in the
trial. I did go up to the jail and reviewed.
I described what each photograph depicts in
anticipation of them being used at the trial.
THE COURT: How much time would you
approximate you spent with your client?
MR. SMITH: Last week, with regard to the
pictures, it was a little over an hour. It
was after court. A little over an hour.
The PCR judge concluded trial counsel made reasonable
attempts to provide defendant with discovery given his disability.
The judge emphasized Judge Foster had discussed and decided the
discovery issue in his ruling denying defendant's first PCR.
Specifically, Judge Foster stated:
First of all, with respect to the claim that
the defendant was not provided discovery, Mr.
Smith represented . . . to Judge Daniels, and
there's nothing before this [c]ourt on a
competent basis which in any way contradicts
Mr. Smith's representations . . . that he
received the discovery provided to him prior
to trial, that he took the discovery to the
defendant while the defendant was incarcerated
prior to trial, and reviewed on a line by line
basis all the discovery. Defense counsel
later represented that he took photographs
which were provided to defense counsel during
discovery, took them to the jail, sat down
with the defendant for an hour and described
the contents of those photographs in detail
and explained to the defendant how the State
would use those photographs . . . .
Unfortunately, defendant in this matter is
blind. I don't know what else defense counsel
could have done other than what he did.
10 A-5156-15T4
The PCR judge further explained:
[Defendant's] argument that discovery should
have been translated to Braille or a social
worker should have read all discovery to him
does not establish that reasonable
accommodations were not made. Furthermore,
facts underlying the claim that discovery was
not appropriately provided unfolded at or
before trial. Therefore, they could have been
discovered through reasonable diligence by the
time of [defendant's] direct appeal, or even
by the time of his first PCR petition.
Therefore, the claim is also barred under the
general bar on subsequent PCR petitions
pursuant to [Rule] 3:22-4(b).
The PCR judge further held trial counsel was not ineffective
in not requesting a limiting instruction as to Johnson-Green's
testimony. In essence, the PCR judge held any failure to object
to Johnson-Green's hearsay testimony identifying defendant as the
perpetrator was harmless since the testimony of Seaside Heights
Police Officer Edward Pasieka included the admissible excited
utterance of the victim identifying defendant as the perpetrator,
citing N.J.R.E. 803(c)(2). We concluded Pasieka's testimony
regarding the victim's identification of defendant as the rapist
was admissible under the excited utterance exception to the hearsay
rule, N.J.R.E. 803(c)(2). Holloway I, slip op. at 13.
This issue was addressed on the merits on direct appeal. In
our opinion we noted the trial court provided a limiting
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instruction to the jury before Johnson-Green testified. Id. at
6-7. We then described Johnson-Green's testimony:
Johnson-Green testified that E.H. had a "rug
burn" under her chin, her tongue was swollen,
she had petechiae (pinpoint broken blood
vessels) around her left eye, a reddened area
around her neck, a laceration on her left chin
and a "dime-sized abrasion" on her left ankle.
After Johnson-Green described E.H.'s
injuries, the prosecutor asked Johnson-Green
whether she had formed an opinion about
whether E.H.'s injuries were "consistent with
what [E.H.] reported to [her] on that date,"
to which Johnson-Green answered "[y]es." She
responded that the petechiae around E.H.'s
left eye, the reddened area around her neck,
and her swollen tongue were all "indicative
of being strangled and choked until
unconsciousness"; the bump on her tongue and
the burn under her chin would have been
sustained "when [she] passed out and hit the
floor;" and "the friction from the rug would
cause the rug burn under her chin."
[Id. at 7-8 (alteration in original).]
We concluded the admission of the testimony of Johnson-Green
and Rita O'Connor, the State's other expert, was not error,
reasoning:
Neither expert offered an opinion that
defendant was guilty of sexually assaulting
E.H., or that he had engaged in vaginal
intercourse with her without her consent.
Instead, each one merely commented that E.H.'s
injuries were consistent with the type of
incident she had described, which had included
falling to the floor and sustaining a "rug
burn" under her chin, and being choked,
thereby sustaining petechiae around her eye.
Describing the injuries as "consistent with"
12 A-5156-15T4
E.H.'s account told the jury nothing more than
E.H.'s injuries could be explained by being
choked to unconsciousness. So viewed, nothing
in the testimony of either expert invaded the
province of the jury, but instead assisted the
jurors by providing them with "specialized
knowledge" to "assist" them in
"understand[ing] the evidence or . . .
determin[ing] a fact in issue." N.J.R.E. 702.
We therefore reject defendant's contention
that the testimony of Johnson-Green and
O'Connor exceeded the permissible bounds of
expert testimony.
[Id. at 17-18 (alteration in original).]
Defendant claimed there were several witnesses who could have
testified he was engaged in a consensual relationship with the
victim. Defendant did not provide any affidavits or certifications
from these witnesses setting forth their testimony had they been
called. Nor did he provide addresses or telephone numbers for the
alleged witnesses. The PCR judge noted this issue was previously
adjudicated in defendant's first PCR. In his oral decision denying
defendant's first PCR, Judge Foster stated:
[N]one of those individuals are able to be
located, can't be identified, there's no
certification or even proffer from the
defendant as to what those witnesses would
testify to at an evidentiary hearing.
. . . .
The assertions here are nothing more than
quite simply bald assertions unsupported by
any detail or competent evidence which would
suggest that an evidentiary hearing would have
13 A-5156-15T4
any purpose at all in this matter or alter the
outcome in any way.
Defendant further claimed trial counsel was ineffective by
failing to request a mistrial after it became known that during
the trial two jurors observed a newspaper headline that stated:
"Sex Offender Goes On Trial for Raping Neighbor Two Months after
Leaving Prison," and "Woman Says She Ran From Rapist Yesterday."
Defendant contended this violated his right to due process. The
PCR court held this issue was raised and decided against defendant
on direct appeal. In our opinion on direct appeal, we stated:
In Point V, defendant argues that his
right to a fair trial was violated when the
judge failed to excuse two jurors who had seen
a newspaper headline in the Asbury Park Press.
The record reflects that as a precautionary
measure at the beginning of each day's
proceedings, the judge inquired of the jurors
whether any of them had inadvertently been
exposed to any media coverage of the trial.
In response to the judge's question, on March
25, 2009, juror number five told the judge
that she had seen a headline that morning, but
had not read the article. She commented that
she had only seen the word "naked." Upon being
asked, she assured the judge that seeing a
portion of the headline would not impact her
ability to be fair and impartial. When the
judge asked defense counsel whether he was
seeking the excusal of juror number five,
defense counsel answered "no." The headline
in question apparently read, "Woman Says She
Ran From Rapist Yesterday." The record does
not explain where the word "naked" was
positioned in the headline.
14 A-5156-15T4
Next, the judge interviewed juror number
two, who had seen the same headline. As had
juror number five, he told the judge that
after seeing the headline, he "stopped," and
read nothing else. He also told the judge
that nothing about the article or the headline
would interfere with his ability to be fair
and impartial. Defense counsel did not ask
that juror number two be excused.
As a precaution, the judge conducted a
voir dire of each of the remaining jurors at
sidebar, and although a few had overheard a
passing remark in the jury room that there had
been an article in the newspaper, none had
seen the article and each assured the judge
that he or she could be fair and impartial.
Having carefully considered defendant's
arguments, we conclude they lack sufficient
merit to warrant extended discussion in a
written opinion. R. 2:11-3(e)(2). Suffice
it to say, the judge scrupulously adhered to
the procedures for the handling of mid-trial
publicity that the Supreme Court developed in
State v. Bey,
112 N.J. 45, 86 (1988). We see
no basis for reversal, especially in light of
the fact that defendant did not request the
excusal of any of the jurors.
[Holloway I, slip op. at 24-26.]
The PCR judge concluded trial counsel's performance did not
fall below the objective standard of reasonableness required under
either prong of the Strickland/Fritz1 test. With regard to whether
the alleged deficiencies in assistance of counsel materially
contributed to the outcome of the trial, the judge stated:
1
Strickland v. Washington,
466 U.S. 668 (1984); State v. Fritz,
105 N.J. 42 (1987).
15 A-5156-15T4
Merely stating that the alleged deficiencies
in assistance of counsel would have materially
contributed to the outcome in the matter,
instead of displaying how it could have done
so, is a "bald assertion." In order to
establish a prima facie claim, a petitioner
must do more than make bald assertions that
he was denied effective assistance of counsel.
Viewing the facts in a light most favorable to defendant, the
judge found defendant failed to demonstrate the jury would have
reached a different verdict had the discovery been provided to him
in the manner he claims it should have. The judge held defendant's
arguments did not warrant an evidentiary hearing.
This appeal followed. Defendant raises the following issues:
POINT I
THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
DEPRIVED HOLLOWAY OF A FAIR TRIAL AND RENDERED
THE JURY'S VERDICT AS FUNDAMENTALLY
UNRELIABLE.
POINT II
HOLLOWAY WAS DEPRIVED OF HIS CONSTITUTIONAL
RIGHT TO DUE PROCESS AND A FAIR TRIAL BECAUSE
HE WAS NOT PROVIDED WITH THE REQUISITE
EQUIPMENT TO PARTICIPATE MEANINGFULLY IN THE
INVESTIGATION, PRE-TRIAL PREPARATION AND
ACTUAL TRIAL AND HOLLOWAY WAS DEPRIVED OF THE
EFFECTIVE ASSISTANCE OF COUNSEL INSOFAR AS
COUNSEL FAILED TO ENSURE THAT THE COURT
REASONABLY ACCOMMODATED HOLLOWAY'S VISUAL
IMPAIRMENT DISABILITY.
16 A-5156-15T4
POINT III
TRIAL COUNSEL'S ERRORS, CONSIDERED
CUMULATIVELY, AMOUNTED TO THE INEFFECTIVE
ASSISTANCE OF COUNSEL FOR HOLLOWAY.
POINT IV
THE PCR COURT SHOULD HAVE CONDUCTED AN
EVIDENTIARY HEARING TO ADDRESS ALL OF
HOLLOWAY'S CLAIMS.
The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment was formulated
in Strickland and adopted by our Supreme Court in Fritz. In order
to prevail on a claim of ineffective assistance of counsel,
defendant must meet a two-prong test, establishing both that: (l)
counsel's performance was deficient and he or she made errors that
were so egregious that counsel was not functioning effectively as
guaranteed by the Sixth Amendment to the United States
Constitution; and (2) the defect in performance prejudiced
defendant's rights to a fair trial such that there exists a
"reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland,
466 U.S. at 694.
The mere raising of a claim for PCR does not entitle the
defendant to an evidentiary hearing. State v. Cummings,
321 N.J.
Super. 154, 170 (App. Div. 1999). Rather, trial courts should
17 A-5156-15T4
grant evidentiary hearings only if the defendant meets the
following requirements:
(b) A defendant shall be entitled to an
evidentiary hearing only upon the
establishment of a prima facie case in support
of post-conviction relief, a determination by
the court that there are material issues of
disputed fact that cannot be resolved by
reference to the existing record, and a
determination that an evidentiary hearing is
necessary to resolve the claims for relief.
To establish a prima facie case, defendant
must demonstrate a reasonable likelihood that
his or her claim, viewing the facts alleged
in the light most favorable to the defendant,
will ultimately succeed on the merits.
(c) Any factual assertion that provides
the predicate for a claim of relief must be
made by an affidavit or certification pursuant
to Rule 1:4-4 and based on personal knowledge
of the declarant before the court may grant
an evidentiary hearing.
[R. 3:22-10(b) and (c).]
"Rule 3:22-10 recognizes judicial discretion to conduct such
hearings." State v. Preciose,
129 N.J. 451, 462 (1992) (citations
omitted).
"[I]n order to establish a prima facie claim, a petitioner
must do more than make bald assertions that he was denied effective
assistance of counsel." Cummings, 321 N.J. Super. at 170.
"[R]ather, the defendant must allege facts sufficient to
demonstrate counsel's alleged substandard performance." State v.
Jones,
219 N.J. 298, 312 (2014) (citations omitted) (quoting State
18 A-5156-15T4
v. Porter,
216 N.J. 343, 355 (2013)). Where a "court perceives
that holding an evidentiary hearing will not aid the court's
analysis of whether the defendant is entitled to post-conviction
relief or that the defendant's allegations are too vague,
conclusory, or speculative to warrant an evidentiary hearing, then
an evidentiary hearing need not be granted." State v. Marshall,
148 N.J. 89, 158 (1997) (citations omitted); see R. 3:22-10(e)(1)-
(2).
"[A] prior adjudication on the merits ordinarily constitutes
a procedural bar to the reassertion of the same ground as a basis
for post-conviction review." Preciose,
129 N.J. at 476 (citing
R. 3:22-12; State v. Mitchell,
126 N.J. 565, 575-83 (1992)).
Additionally, a defendant is precluded from raising an issue on
PCR that could have been raised on direct appeal. State v.
McQuaid,
147 N.J. 464, 483 (1997). As explained by the Court in
McQuaid:
A defendant ordinarily must pursue relief by
direct appeal, see R. 3:22-3, and may not use
post-conviction relief to assert a new claim
that could have been raised on direct appeal.
See R. 3:22-4. Additionally, a defendant may
not use a petition for post-conviction relief
as an opportunity to relitigate a claim
already decided on the merits. See R. 3:22-
5.
[Ibid.]
19 A-5156-15T4
The application of these standards require the "[p]reclusion
of consideration of an argument presented in post-conviction
relief proceedings . . . if the issue raised is identical or
substantially equivalent to that adjudicated previously on direct
appeal." State v. Marshall,
173 N.J. 343, 351 (2002) (quoting
Marshall,
148 N.J. at 150)). The same principle applies to issues
decided on the merits in a prior PCR proceeding. A PCR claim is
based upon the "same ground" as a claim already raised by direct
appeal when "the issue is identical or substantially equivalent"
to the issue previously adjudicated on the merits. McQuaid,
147 N.J. at 484 (quoting Picard v. Connor,
404 U.S. 270, 276-77
(1971)).
We review the denial of a PCR petition without an evidentiary
hearing for abuse of discretion. State v. Peoples,
446 N.J. Super.
245, 255 (App. Div. 2016) (citing Preciose,
129 N.J. at 462). We
discern no such abuse of discretion by the PCR court.
We are satisfied that the PCR court's conclusions are well
supported by the record. We, therefore, affirm the denial of the
PCR petition substantially for the reasons expressed in the PCR
judge's well-reasoned written decision. We add only the following
comments.
Defendant raises several issues that were decided on the
merits on direct appeal or in his first PCR. The PCR judge
20 A-5156-15T4
properly held that defendant is procedurally barred from re-
raising those issues in this second PCR. R. 3:22-5; McQuaid,
147 N.J. at 484; Preciose,
129 N.J. at 476.
The trial court properly rejected defendant's unsupported
claim that trial counsel was ineffective for failing to investigate
and call as witnesses several individuals who would testify
defendant had been engaged in a consensual relationship with the
victim. Defendant did not submit any affidavits or certifications
of those witnesses verifying what they would have testified to at
trial. Nor has defendant demonstrated that he provided trial
counsel with sufficient contact information to pursue interviewing
those alleged witnesses. Consequently, the allegations amount to
no more than bald assertions.
Affirmed.
21 A-5156-15T4
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