STATE OF NEW JERSEY v. HAROLD E. DUFFUS

NOT FOR PUBLICATION WITHOUT THE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-4608-18T1

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

HAROLD E. DUFFUS, a/k/a ROCCO
DUFFES, ROCCO DUFFUS, HAROLD
POCCHIO, and GARY SHOEMAN,

     Defendant-Appellant.
________________________________

                   Submitted March 17, 2020 - Decided March 31, 2020

                   Before Judges Accurso and Rose.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Middlesex County, Indictment No.
                   11-12-1939.

                   Harold E. Duffus, appellant pro se.

                   Christopher Kuberiet, Acting Middlesex County
                   Prosecutor, attorney for respondent (Joie D. Piderit,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, on the brief).

PER CURIAM
      Defendant Harold E. Duffus appeals from the April 16, 2019 order

dismissing his second petition for post-conviction relief (PCR) claiming the

State withheld "impeachment material that would have eviscerated the

credibility of its only witness,"1 and the attorneys who represented him at trial

and on his first PCR application rendered ineffective assistance by failing to

properly investigate the witness's background. The trial court dismissed the

claim as time-barred. We agree and affirm.

      A jury convicted defendant of first-degree robbery and other offenses in

connection with his theft of a $589 drill from Home Depot. At trial, the store's

loss prevention officer testified he saw defendant cut open the box containing

the drill and place it in a carton for a mailbox, which defendant had taken from

another shelf and emptied of its contents. Defendant subsequently purchased

the "mailbox" at a self-checkout register for $26.72. The employee, a former

Union County police officer, testified defendant threatened him with the

boxcutter when he followed defendant out of the store to retrieve the drill.

      We affirmed defendant's conviction, State v. Duffus, No. A-2074-12

(App. Div. Apr. 23, 2015) (slip op. at 2), and the Supreme Court denied


1
 The State presented two witnesses at trial, a Woodbridge police officer and a
Home Depot loss prevention officer. Defendant's claims relate to the latter.
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defendant's petition for certification,  223 N.J. 556 (2015). Defendant filed a

timely petition for PCR arguing his trial counsel was ineffective for failing,

among other things, to conduct a more thorough investigation and effectively

cross-examine the State's witnesses. State v. Duffus, No. A-1573-17 (App.

Div. Jan. 16, 2019) (slip op. at 4). Defendant also asserted his appellate

counsel was ineffective for failing to present those issues and others in

prosecuting defendant's direct appeal. Ibid.

       The judge conducted an evidentiary hearing on the petition. Defendant's

trial counsel testified about his strategy for cross-examining the loss

prevention officer, including questions designed to allow the jury to wonder

why the witness, who had served for a short time as a police officer, was then

working at Home Depot. Following the hearing, the judge denied defendant

post-conviction relief, finding defendant had not established either prong of

the Strickland2 standard. We affirmed, noting defense counsel's strategy was

to present the loss prevention officer as "willfully dishonest," and having

"improperly handled or secured relevant evidence" thus allowing the jury to

infer he "'was a bad police officer resulting in his career change and now was a




2
    Strickland v. Washington,  466 U.S. 668, 687-88 (1984).
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bad loss prevention officer.'" State v. Duffus, No. A-1573-17 (App. Div. Jan.

16, 2019) (slip op. at 6) (quoting the trial court opinion).

       Shortly after we issued our opinion affirming the denial of post-

conviction relief, defendant filed a second PCR petition, based on records he

obtained from Union County in 2018 pursuant to an Open Public Records Act

request, including a report of the loss prevention officer's pension

contributions when he worked as a county police officer. Defendant contends

those records show the witness was "suspended and terminated" from the

force.3 The trial court dismissed the petition by way of order, citing Rule

3:22-4(b).

       Defendant appeals contending the court failed to make findings of fact

and conclusions of law in accordance with Rule 1:7-4(a) and improperly

denied him an evidentiary hearing as he presented a prima facie case of Brady4

violations and ineffective assistance of trial and PCR counsel. Defendant also


3
  As noted, the records in the appendix to which defendant refers purport to be
a report of pension contributions. In an entry following the space for
"Projected Salary For Next Quarter," which is blank, a "Remark" states
"Terminated." The next line provides the "Effective Date" as "06/09/2006"
and in a space for "Additional Comments" states "N/A" "SUSP 6/9/ 06 TERM 7/24/06."
4
    Brady v. Maryland,  373 U.S. 83 (1963).


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                                         4
argues his second petition was not time-barred because our opinion of January

16, 2019, affirming the denial of his first petition "is the actual date of the

denial of the first PCR petition" under Rule 3:22-12(a)(2)(C). We reject

defendant's arguments as plainly without merit. See R. 2:11-3(e)(2).

      Pursuant to Rule 3:22-12(a)(2), no second or subsequent petition for

PCR, "[n]otwithstanding any other provision in [Rule 3:22-12], . . . shall be

filed more than one year after the latest of:" A) the United States Supreme

Court's or the Supreme Court of New Jersey's recognition of a new

constitutional right on which the defendant relies, which the Court has made

retroactive to cases on collateral review; B) a newly discovered factual

predicate, which could not have been earlier discovered through reasonable

diligence; and C) "the date of the denial of the first . . . application for post-

conviction relief" where the defendant alleges ineffective assistance of counsel

representing him on that petition. R. 3:22-12(a)(2)(A) to (C). A 2009

amendment to the rule makes clear beyond question that the one-year

limitation for second or subsequent petitions is non-relaxable. R. 3:22-12(b);

State v. Jackson,  454 N.J. Super. 284, 293 (App. Div.), certif. denied,  236 N.J.
 35 (2018); see also R. 1:3-4(c). Rule 3:22-4(b)(1) requires dismissal of a

second petition if untimely under Rule 3:22-12(a)(2).


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      Application of those rules here makes plain the trial court was correct in

dismissing defendant's second PCR petition as untimely. Defendant filed his

second PCR petition on March 15, 2019, more than one year beyond the denial

of his first petition on August 29, 2017. Defendant's contention that his first

petition was not denied until we affirmed the trial court's decision on his

appeal is incorrect. See R. 3:22-12(a)(2)(C); Jackson,  454 N.J. Super. at 292.

Defendant does not assert that he could not have obtained the loss prevention

officer's county employment records earlier, and nothing in the record suggests

it. Not only was the petition filed beyond the one-year non-relaxable

limitation of Rule 3:22-12(a)(2)(A) to (C), thus requiring its dismissal under

Rule 3:22-4(b), but defendant raised, and we rejected, the claim that he

received ineffective assistance on his first PCR petition in his appeal from the

denial of that petition. Duffus, No. A-1573-17, slip op. at 5-6. Dismissal of

the petition was thus appropriate under Rule 3:22-5 as well.

      Because defendant's second petition is obviously time-barred under Rule

3:22-4(b), as noted by the trial court in its order, our review was not impeded

by the court's failure to more fully explain its findings pursuant to Rule 1:7-4.

      Affirmed.




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