STATE OF NEW JERSEY v. DAVID JORDAN

NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2050-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DAVID JORDAN,

     Defendant-Appellant.
________________________

                    Submitted December 16, 2019 – Decided April 24, 2020

                    Before Judges Fasciale and Rothstadt.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 08-08-
                    1444.

                    David Jordan, appellant pro se.

                    Christopher L.C. Kuberiet, Acting Middlesex County
                    Prosecutor, attorney for respondent (Patrick F.
                    Galdieri, II, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant David Jordan appeals from the denial of his second petition for

post-conviction relief (PCR). We affirm.

      Defendant was convicted in 2009 of first-degree aggravated manslaughter,

 N.J.S.A. 2C:11-4(a), and other related charges. He was sentenced that year to

an aggregate term of life without parole. Defendant appealed his conviction and

we affirmed. See State v. Jordan, No. A-3315-09 (App. Div. Sept. 4, 2012) (slip

op. at 2). The Supreme Court denied his petition for certification. See State v.

Jordan,  213 N.J. 388 (2013).

      Thereafter, defendant filed a petition for PCR and the PCR judge, who

was also the trial judge, denied his petition without an evidentiary hearing and

explained his reasons in a written decision. Defendant appealed and we affirmed

in another unpublished opinion. See State v. Jordan, No. A-5280-13 (App. Div.

Feb. 23, 2016) (slip op. at 1).

      Defendant filed a petition for certification.     While that petition was

pending, defendant filed a second petition for PCR on September 7, 2016.

Before defendant's second PCR petition was decided, on November 3, 2016, the

Supreme Court issued an order granting certification on the denial of defendant's

first PCR petition. State v. Jordan,  228 N.J. 242 (2016). The Court limited its

certification to an issue relating to defendant's sentence and remanded the matter


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to the trial court for the entry of an amended judgment to reflect a necessary

correction. See ibid.1 Pursuant to the remand, the trial judge amended the

defendant's judgment of conviction on November 29, 2016.

      In his second PCR petition, defendant argued that appellate and PCR

counsel provided ineffective assistance of counsel (IAC) by failing to include in

his appeal and petition for PCR a letter defendant purportedly received from his

trial counsel. The letter "admitt[ed] that counsel . . . was ineffective" for not

pursuing a pre-trial motion to suppress "incriminating statements" that

defendant gave to police "while under the influence." In addition, defendant

contended that his PCR counsel failed to address defendant's letter to the public

defender "addressing the [IAC] during . . . defendant's trial and pretrial [in

which trial] counsel . . . admitt[ed] . . . that he withheld vital information as to

[defendant's] state of mind" when he made his statements to the police and did

not file a motion to suppress. Defendant's second petition was supported only

by a pro se brief and a copy of his trial counsel's alleged December 28, 2009

letter that was the subject of his arguments.


1
  The Court limited its granting of defendant's petition "to defendant's challenge
to the imposition of his sentence on Count 1, aggravated manslaughter, and as
to that issue [it] . . . summarily reversed, and the matter [was] remanded to the
trial court for the entry of an amended judgment of conviction that merge[d]
Count 1, aggravated manslaughter, with Count 2, murder." Ibid.
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      The letter defendant relied upon was directed to defendant. In the letter,

counsel provided a copy of defendant's "medical chart" and other laboratory

results from April 14, 2008 that were taken at a hospital. According to the letter,

defendant was undergoing "surgery for a gunshot wound" at that time. Trial

counsel provided the letter because he believed "it could be of some help [with

defendant's] appeal." Counsel also extended his "apologies for not filing with

the courts a motion to suppress the statement" defendant gave to a police

detective on three dates in April 2008 while he was in the hospital. According

to the letter, those statements were "made while under the influence" and counsel

"once again apologize[d] for [his] ineffectiveness."

      In addition to the letter, defendant included in his second petition the

medical records that were reportedly transmitted to him with the letter. He also

supplied his letter addressed to the public defender asking that trial counsel's

letter be included in his "[a]ppeal process." That letter to the public defender

was dated April 9, 2009.

      After considering defendant's submissions and oral arguments, the second

PCR judge entered an order on May 26, 2017 denying the petition. The judge's

order was supported by an eighteen-page written decision. In her decision, the

judge reviewed the underlying facts supporting defendant's conviction. Her


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recitation of the facts included the circumstances under which defendant made

his statement to a police officer at the hospital while being treated for a gunshot

wound, and the police investigation that ultimately led to defendant 's arrest and

indictment.

      Turning to defendant's contentions, the judge observed that while

defendant alleged that his first PCR counsel "did not include [the] letter f rom

his trial attorney, dated 2009," in his second petition for PCR, defendant

"admit[ted] he was aware of the aforementioned letter at the time he filed [his

first petition], but did not mention it to his PCR attorney because he 'believed

the letter would become available automatically.'" The PCR judge stated that

the "purported" letter from trial counsel was "not credible," and in any event ,

"the letter [was] not an indicator of [IAC] because there was never a viable

motion to suppress" defendant's statements to the police in this matter.

      Before further addressing the letter, the judge reviewed the rules

applicable to a second petition for PCR, first specifically quoting from Rule

3:22-6's requirement that a defendant show "good cause" in order to have

counsel assigned on a second or subsequent petition. The judge then turned to

Rule 3:22-4, which requires that a second PCR petition must be dismissed unless

certain criteria is met, including that the petition is timely under Rule 3:22-


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12(a)(2); and is not based upon "a new rule of constitutional law, . . . does not

allege new facts that could not have been discovered with reasonable

diligence . . . , or . . . does not allege [IAC] that represented the defendant on the

first or subsequent application for [PCR]."

      The judge found that defendant's second petition was time-barred under

Rule 3:22-12(a)(2), as it "concern[ed] issues [defendant] could have raised in"

his first petition. The judge noted that defendant's first petition was denied on

April 25, 2014, and he waited more than two years before filing his second

petition. She also concluded that his petition did not rely on any new rule of

law or any "previously undiscoverable facts." The judge acknowledged that

defendant's petition did allege IAC of his PCR and appellate counsel, both

relating to the purported letter from his trial attorney.

      Addressing that letter, the judge concluded it was "not newly discovered

evidence" because defendant had the letter prior to the filing of his first petition.

Addressing the merits of defendant's claim, the judge stated that, neither "PCR

[nor] appellate counsel were . . . required to make the argument that trial counsel

was ineffective for failing to file a motion to suppress . . . because there was

never a valid [basis for a] motion to suppress those statements in the first place."




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      The judge questioned the veracity of the letter, finding it unbelievable

that, "an attorney's written communication to a client, especially on the topic of

the attorney's ineffectiveness[,] could contain grammatical errors in almost

every sentence." The judge then compared the letter from defendant's trial

counsel to other letters in the file from the same attorney and noted differences

in the formatting of the letters and their layout as compared to the letter offered

by defendant.

      Adding to the letters lack of credibility, the judge found that the contents

of the purported letter "directly contradict[ed] established case law." Referring

to her earlier recitation of the facts, the judge emphasized that "all the

statement[s defendant] made to [the police] . . . [were] not [made] in custody

and his statement[s were] completely voluntary." The judge then reiterated that

the purported letter was not newly discovered evidence and it was "almost

certainly a forgery."

      The judge proceeded to review the law applicable to the statements made

by defendant to law enforcement, described again in detail the circumstances

under which he made those statements, and concluded that they would not have

been suppressed because there was no indication defendant was in custody or

subjected to police interrogation at that time.


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      Addressing defendant's claims about trial counsel in his first petition for

PCR, the judge explained that under the two-prong set forth in Strickland v.

Washington,  466 U.S. 668, 687 (1984), "there was no viable [IAC] claim[] on"

the grounds asserted by defendant in his second petition. This appeal followed.

      On appeal defendant asserts the following arguments:

            POINT I

            THE [PCR] COURT ERRED IN DENYING
            DEFENDANT'S SECOND (PCR), AS BEING TIME
            BARRED PURSUANT TO R. 3:22-12(a)(2),
            ARGUING THAT DEFENDANT FILED SECOND
            (PCR) ONE (1) YEAR AFTER FIRST (1) (PCR).
            DEFENDANT'S SECOND (2ND) (PCR) WAS FILED
            WITHIN TIME PURSUANT TO R. 3:22-
            4(B)(1)(C). . . . (NOT RAISED BELOW).

            POINT II

            THE [PCR] COURT ERRED IN DENYING THE
            INTRODUCTION OF THE LETTER SENT TO
            DEFEND[A]NT . . .  FROM        THEN      TRIAL
            COUNSEL . . . DATED DECEMBER 28, 2009,
            INFORMING      DEFENDANT . . .      HE     WAS
            INEFFECTIVE       WHILE        REPRESENTING
            [DEFENDANT] DURING PRE-TRIAL, AND TRIAL
            STAGE, FOR NOT FILING A . . . MOTION TO
            SUPPRESS THE STATEMENTS GIVEN BY
            [DEFENDANT] ON APRIL 14, . . . 15, AND 16, 2008,
            WHILE DEFENDANT BEING UNDER THE
            INFLUENCE OF MORPHINE, STEMMING FROM A
            SURGERY FROM A GUN SHOT WOUND. . . .
            (NOT RAISED BELOW).


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             POINT III

             DEFENDANT . . . ARGUES . . . HIS CLAIMS
             W[ERE]     NOT     PROCEDURALLY         BARRED,
             PETITION HAD INFORMED AND [HE] FILED
             SECOND (2ND) PCR TO INCLUDE THE LETTER
             SENT FROM DEFENSE TRIAL ATTORNEY . . .
             [ON]      DECEMBER        28,   2009 . . .   TO
             DEFENDANT. . . . THE INTRODUCTION OF THE
             LETTER AND PETITION OF SECOND (2ND) PCR
             WAS FILED WITHIN TIME, PURSUANT TO R.
             3:22-4, 3:22-12, 3:22-5, AND 3:22-8. . . . (NOT
             RAISED BELOW).

             POINT IV

             [THE PCR COURT] ERRED IN DENYING THE
             INTRODUCT[ION] OF THE LETTER SENT TO
             DEFENDANT . . . BY THEN TRIAL COUNSEL . . .
             WHEN [THE PCR COURT] RULED THAT
             DEFENSE       COUNSEL['S] . . .  LETTER   TO
             DEFENDANT . . . WAS OUT OF TIME AND THE
             MENTIONED        LETTER       WAS   POSSIBLY
             FORGED. . . . (NOT RAISED BELOW).

        We review de novo a decision to deny a petition for PCR where the PCR

court did not conduct an evidentiary hearing. State v. Harris,  181 N.J. 391, 419

(2004); see also State v. Jackson,  454 N.J. Super. 284, 291 (App. Div. 2018)

(applying a de novo standard of review to the denial of a second petition for

PCR).

        Applying that standard, we agree that the PCR judge correctly denied

defendant's petition substantially for the reasons expressed in the judge's

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thorough written decision. We find no merit to any of defendant's contentions

to the contrary, and conclude, as did the PCR judge, that defendant failed to

establish that his second petition was not time-barred, and in any event, that his

contentions met the two-prong test under Strickland, as adopted by our Supreme

Court in State v. Fritz,  105 N.J. 42, 49-50 (1987). We only add the following

brief comment.

      As the PCR judge noted in her decision, under Rule 3:22-4(b)(1) a second

PCR petition must be "timely under R[ule] 3:22-12(a)(2)." A second PCR

petition that alleges IAC "that represented the defendant on the first or

subsequent application for" PCR, must be filed no more than one year after "the

date of the denial of the first . . . application for [PCR]." R. 3:22-12(a)(2)(C).

The one-year time limitation, however, "is absolutely prohibited" by court rule

from being enlarged. Jackson,  454 N.J. at 292-93 (quoting Aujero v. Cirelli,

 110 N.J. 566, 577 (1988)) (explaining that recent rule amendments made clear

"that 'no second or subsequent petition shall be filed more than one year after '

the date one of the three claims accrued" (quoting R. 3:22-12(a)(2))); see R.

3:22-12(b) ("These time limitations shall not be relaxed, except as provided

herein."); see also State v. Dillard,  208 N.J. Super 722, 727 (App. Div. 1986)




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(holding that the appeal of the defendant's first PCR petition did not toll the time

limitation of Rule 3:22-12).

      Here, defendant's first PCR petition was denied on April 25, 2014. He did

not file his second petition until September 2016. Contrary to defendant's

argument on this appeal, the fact that his first PCR petition was pending appeal

to the Supreme Court did not toll the one-year period for him to file his second

petition. That appeal was not a "direct appeal." Cf. R. 3:22-6A(2) (stating that

a "petition shall be dismissed without prejudice" pending a "direct appeal" and

providing for the refiling of a petition within ninety days of decision on direct

appeal, even if it occurs after the five-year period for filing the initial petition).

For that reason, his petition was time-barred, and in any event, we concur with

the second PCR judge that defendant failed to make a prima facie showing of

IAC as to his PCR or appellate counsel for the reasons stated by the judge.

      Affirmed.




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