STATE OF NEW JERSEY v. JOSE CARRANZA

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-1531-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOSE CARRANZA, a/k/a
JOSE LACHIRA,

     Defendant-Appellant.
_______________________

                   Argued October 14, 2021 – Decided November 1, 2021

                   Before Judges Whipple and Geiger.

                   On appeal from the State of New Jersey, Law Division,
                   Essex County, Indictment No. 08-09-2688.

                   Jose Carranza, appellant, argued the cause pro se.

                   Frank J. Ducoat, Special Deputy Attorney
                   General/Acting Assistant Prosecutor, argued the cause
                   for respondent (Theodore N. Stephens II, Acting Essex
                   County Prosecutor, attorney; Frank J. Ducoat, of
                   counsel and on the brief).

PER CURIAM
      Defendant Jose Carranza appeals from the June 5, 2019, denial of his

second petition for post-conviction relief (PCR). Defendant filed his second

PCR petition in May 2019, more than four years since the court denied his first

PCR petition in October 2014. Because Rule 3:22-12(a)(2) imposes a one-year

limitation on second and subsequent PCR petitions, we affirm.

      Defendant raised the following points in this appeal.

            POINT I:
            PCR COUNSEL DID NOT ADVANCE THE
            GROUNDS NOR SUPPORTING ARGUMENTS
            GERMANE TO THE SECOND PRO SE PETITION
            INSISTED BY MR. JOSE [CARRANZA] . . . WITH
            SEPARATE INEFFECTIVE ASSISTANCE OF
            COUNSEL CLAIMS. THUS, THE EVIDENTIARY
            HEARING HELD ON AUGUST 20, 2014 DID NOT
            RESULT IN A COMPLETE ADJUDICATION.
            BECAUSE PCR COUNSEL "INADVERTENTLY
            DID NOT ATTACH[]" . . . THEM TO HIS PCR
            BRIEF. AS A RESULT NEITHER THE PCR COURT,
            TRIAL COUNSEL, NOR RESPONDENT [WERE]
            ABLE TO REVIEW THE GROUNDS FOR RELIEF
            NOR SUPPORTING ARGUMENTS, SINCE PCR
            COUNSEL [VIOLATED] RULE 3:22-6(d) AND THE
            HOLDING IN RUE AND WEBSTER . . . CAUSING
            NO FINALITY TO THE EVIDENTIARY HEARING
            HELD ON AUGUST 20, 2014. THUS, "GOOD
            CAUSE," RULE 3:22-6(b) EXIST[S] TO RE-ASSIGN
            AN    ATTORNEY       FROM     THE     PUBLIC
            DEFENDER[']S OFFICE, IN ACCORDANCE WITH
            THE SMITH AND WEBSTER HOLDINGS TO
            GRANT REVERSAL OF THE TRIAL COURT'S PCR



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                                       2
            ORDER   AND   REMAND    FOR  FURTHER
            COLLATERAL EVIDENTIARY HEARINGS.1

            POINT II:
            THE SECOND PETITION WAS SECURED FOR THE
            RECORD SINCE AUGUST 20, 2014, THEREFORE
            IT WAS NOT [UNTIMELY] NOR ARE THERE ANY
            PROCEDURAL BANS THAT APPLY.

            POINT III:
            APPELLANT ADOPTS AND INCORPORATES BY
            REFERENCE ALL FACTS, LAW, AND EVIDENCE
            FROM THE ISSUES RAISED BY APPELLANT IN
            HIS SUPPLEMENTAL [LETTER] BRIEF AND
            APPENDI[C]ES FILED IN THIS APPEAL.

      On September 12, 2008, defendant was indicted for nineteen counts of

numerous offenses. On February 14, 2012, a jury found defendant guilty of four

counts of first-degree armed robbery,  N.J.S.A. 2C:15-1, and three counts of

felony murder,  N.J.S.A. 2C:11-3(a)(3).    Following mergers, the trial court

sentenced defendant to an aggregate sentence of 155 years subject to the No

Early Release Act,  N.J.S.A. 2C:43-7.2. On November 16, 2013, we affirmed

his convictions and sentence. State v. Carranza, No. A-4139-11T1 (App. Div.

Nov. 6, 2013) (slip op. at 1-2).




1
   Defendant omitted citations to State v. Rue,  175 N.J. 1 (2002); State v.
Webster,  187 N.J. 254 (2006); State v. Smith, No. A-4371-11 (App. Div. June
19, 2014).
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      On February 6, 2014, defendant filed his first PCR petition, which the

court denied on October 22, 2014. We affirmed, State v. Carranza, No. A-2777-

14T2 (App. Div. Apr. 17, 2017) (slip op. at 2), and the Supreme Court denied

certification, State v. Carranza,  231 N.J. 208 (2017). Defendant filed his second

PCR petition on May 29, 2019, which the court denied with its order dated June

5, 2019. This appeal followed.

      "Post-conviction relief is New Jersey's analogue to the federal writ of

habeas corpus." State v. Pierre,  223 N.J. 560, 576 (2015) (quoting State v.

Preciose,  129 N.J. 451, 459 (1992)). Post-conviction relief provides "a built-in

'safeguard that ensures that a defendant was not unjustly convicted.'" State v.

Nash,  212 N.J. 518, 540 (2013) (quoting State v. McQuaid,  147 N.J. 464, 482

(1997)). Appellate court "review is necessarily deferential to a PCR cou rt's

factual findings based on its review of live witness testimony." Nash,  212 N.J.

at 540. We review the PCR court's interpretation of the law de novo. Id. at 540-

41.

      Rule 3:22-2(e) provides that "[a] petition for post-conviction relief is

cognizable if based upon . . . [a] claim of ineffective assistance of counsel based

on trial counsel's failure to file a direct appeal of the judgment of conviction and

sentence upon defendant's timely request." "A petitioner is generally barred


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from presenting a claim on PCR that could have been raised at trial or on direct

appeal, R. 3:22-4(a), or that has been previously litigated, R. 3:22-5." Nash,  212 N.J. at 546. A petition for PCR is not a substitute for a direct appeal. State v.

Mitchell,  126 N.J. 565, 583-84 (1992).

      But "petitioners are rarely barred from raising ineffective-assistance-of-

counsel claims on post-conviction review. Such claims may fall within Rule

[3:22-4(a)(3)], which affords post-conviction review for constitutional claims

that could have been raised earlier, because those claims are grounded in the
 Sixth Amendment and the New Jersey Constitution." Preciose,  129 N.J. at 459-

60. Falling within Rule 3:22-4(a)(3) for claims not raised during the conviction

proceeding or appeal proceeding will not, however, mean that a petitioner has

timely filed pursuant to Rule 3:22-12(a)'s enumerated exceptions to time

limitations.

      A first petition for PCR must be filed within five years of the date of entry

of the judgment of conviction, unless, among other things, the petitioner "alleges

facts showing that the delay beyond said time was due to defendant's excusable

neglect and that there is a reasonable probability that if the defendant's factual

assertions were found to be true enforcement of the time bar would result in a

fundamental injustice . . . ." R. 3:22-12(a)(1)(A).


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       A second or subsequent petition must be filed within one year after the

latest of:

             (A) the date on which the constitutional right asserted
             was initially recognized by the United States Supreme
             Court or the Supreme Court of New Jersey, if that right
             has been newly recognized by either of those Courts
             and made retroactive by either of those Courts to cases
             on collateral review; or

             (B) the date on which the factual predicate for the relief
             sought was discovered, if that factual predicate could
             not have been discovered earlier through the exercise
             of reasonable diligence; or

             (C) the date of the denial of the first or subsequent
             application for post-conviction relief where ineffective
             assistance of counsel that represented the defendant on
             the first or subsequent application for post-conviction
             relief is being alleged.

             [R. 3:22-12(a)(2).]

The time limitations shall not be relaxed, except as provided in Rule 3-22:12(a).

       In this case, defendant fails to satisfy any condition under Rule 3:22-

12(a)(2) that might permit his second PCR petition. First, defendant fails to

allege new constitutional rights or factual predicates. Defendant exclusively

relies on case law and facts that were known at the time of trial in 2012 and at

the time he filed his first PCR petition in February 2014. Second, defendant

filed his second PCR petition in May 2019—more than four years after the court


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denied his first PCR petition in October 2014. This far exceeds the one-year

limitation set forth in Rule 3:22-12(a)(2).

      Because defendant fails to demonstrate any condition under Rule 3:22-

12(a)(2), we affirm the trial court's denial of his second PCR petition. Further,

because Rule 3:22-12(a)(2) bars defendant's second PCR petition for

untimeliness, we decline to address any of defendant's additional arguments.

      Affirmed.




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