STATE OF NEW JERSEY v. EMOTION BLACKWELL

NOT FOR PUBLICATION WITHOUT THE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-1716-20

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EMOTION BLACKWELL,
a/k/a BRENDON FORD, and
JAMIE JONES,

          Defendant-Appellant.


                   Submitted December 9, 2021 – Decided December 17, 2021

                   Before Judges Alvarez and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Atlantic County, Indictment No. 96-05-1060.

                   Emotion Blackwell, appellant pro se.

                   Cary Shill, Acting Atlantic County Prosecutor, attorney
                   for respondent (Mario C. Formica, Special Deputy
                   Attorney General/Acting Deputy First Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
       Defendant Emotion Blackwell appeals from a December 14, 2020 order

denying his fifth petition for post-conviction relief (PCR). We affirm.

       We recounted the facts including the "overwhelming evidence of

defendant's guilt" leading to his convictions in State v. Blackwell, No. A-4330-

01 (App. Div. June 9, 2003) (slip op. at 9), which we incorporate here. In State

v. Blackwell, No. A-2952-18 (App. Div. Dec. 12, 2019) (slip op. at 1-2), we

affirmed the denial of defendant's fourth PCR petition. There, he argued the

petition was improperly denied and he was entitled to a new trial because the

State withheld newly discovered evidence, which could be used to impeach the

State's eyewitness, Michael "Fuzzy" Hayes. Id. at 2. We rejected defendant's

arguments, noting the alleged impeachment evidence was produced by the State

prior to trial. Id. at 4.

       In defendant's fifth PCR petition, he argued appellate PCR counsel was

ineffective in failing to argue trial counsel was ineffective for not impeaching

Hayes with the evidence regarding his pending indictments. The PCR judge

found defendant's petition time barred because it was filed "more than [five]

years after the judgment of conviction in 1996[,]" and defendant had not shown

"excusable neglect for the untimeliness."     He also found the petition was

procedurally barred because "[d]efendant raised the same point in his prior PCR


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and motion for reconsideration and the recent [a]ppeal in December 2019, which

addressed this issue directly." The judge concluded "[a]s this very issue of

ineffective assistance of counsel . . . was already addressed directly on appeal

. . . and [it] was found that there was no ineffective assistance of counsel, the

new PCR petition should be dismissed."

      Defendant raises the following points on this appeal:

            POINT I. THE PCR COURT ERRED IN DENYING
            [DEFENDANT'S] REQUEST FOR A NEW FIRST
            PCR APPEAL BECAUSE FIRST PCR APPELLATE
            COUNSEL, IN DOCKET NO. A-4330-01[], FAILED
            TO RAISE ON APPEAL[] A MERITORIOUS CLAIM
            THAT WAS RAISED BELOW.

                  [A.] Pro      Se     Pleadings     Liberally
                  Construed

                  [B.   PCR] Standard of Review

                  [C.] Subsequent PCR Time Limitations

                  [D.] PCR Time Limitations Are Not
                  Inflexible

                  [E. Defendant]     Could     Not       have
                  Discovered The Issue Earlier

                  [F.] Failure To Show Bias of State's
                  Witness

                  [G.] Equitable Tolling Applies

                  [H.] Due Diligence/Reasonable Diligence

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                                       3
                     [I.] First PCR Appellate Counsel Was
                     Ineffective

                     [J.  Defendant] Is Actually Innocent Of
                     The Murder

                          [1.] Fundamental Injustice

                          [2.] Hayes' Open Charges

      We review the PCR court's conclusions of law de novo. State v. Nash,

 212 N.J. 518, 540-41 (2013) (citing State v. Harris,  181 N.J. 391, 415-16

(2004)). The familiar Strickland standard requires a defendant show counsel

rendered substandard professional assistance that prejudiced the outcome of the

proceedings. Strickland v. Washington,  466 U.S. 668, 687 (1984); see also State

v. Fritz,  105 N.J. 42, 58 (1987) (adopting the Strickland standard).

      In assessing whether excusable neglect justifies relaxation of the time bar

for PCR petitions set forth in Rule 3:22-12(a)(2), we "consider the extent and

cause of the delay, the prejudice to the State, and the importance of the

petitioner's claim in determining whether there has been an 'injustice' sufficient

to relax the time limits." State v. Norman,  405 N.J. Super. 149, 159 (App. Div.

2009) (quoting State v. Afanador,  151 N.J. 41, 52 (1997)).         More than "a

plausible explanation for [the defendant's] failure to file a timely PCR petition"

is required. Ibid.


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      Rule 1:1-2(a) permits courts in "exceptional circumstances" to relax the

five-year time bar, but only if a defendant can demonstrate an injustice "by a

preponderance of the credible evidence" that would entitle him to relief. State

v. Mitchell,  126 N.J. 565, 579 (1992). Our Supreme Court has required a

showing of "compelling, extenuating circumstances," State v. Milne,  178 N.J.
 486, 492 (2004) (quoting Afanador,  151 N.J. at 52); or alternatively,

"exceptional circumstances . . . ." State v. Murray,  162 N.J. 240, 246 (2000).

The five-year time bar may be set aside only to avoid a fundamental injustice

where the deficient representation of counsel affected "a determination of guilt

or otherwise wrought a miscarriage of justice." Nash,  212 N.J. at 546 (quoting

Mitchell,  126 N.J. at 587).

      Having considered defendant's arguments pursuant to these principles, we

affirm substantially for the reasons expressed by the PCR judge. We add the

following comments.

      As we noted in our last decision,

            the State produced an August 22, 1996 letter from the
            trial prosecutor to defendant's trial counsel, detailing
            the indictments related to the State's eyewitness.
            Moreover, during oral argument of defendant's first
            PCR petition in 2001, his counsel acknowledged the
            State made these disclosures. Finally, in our opinion
            affirming the denial of defendant's first petition, we
            noted "defendant claimed that his trial counsel was

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                                          5
               ineffective in . . . failing to cross-examine [the State's
               witness] concerning pending charges against him."

               [Blackwell, No. A-2952-18, slip op. at 4.]

      Given these facts, defendant has not demonstrated a miscarriage of justice

sufficient to warrant setting aside the five-year time bar. Moreover, we clearly

held there was no ineffective assistance of trial counsel for failing to question

Hayes. Notwithstanding the time bar, appellate PCR counsel was not ineffective

because counsel raised the claim on appeal and it was rejected. The PCR judge

did not err.

      Affirmed.




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