STATE OF NEW JERSEY v. LEE JOHNSON

NOT FOR PUBLICATION WITHOUT THE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-1596-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LEE JOHNSON,
a/k/a DUVAL JOHNSON,

     Defendant-Appellant.
_______________________

                   Submitted January 26, 2022 – Decided March 15, 2022

                   Before Judges Gilson and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 05-03-0305.

                   Lee Johnson, appellant pro se.

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Stephanie Davis Elson, Assistant
                   Prosecutor, on the brief).

PER CURIAM
      Defendant Lee Johnson appeals from the denial of his third petition for

post-conviction relief (PCR). We affirm because the petition was procedurally

barred under Rule 3:22-4(b)(2) and Rule 3:22-12(a)(2).

      In 2006, a jury convicted defendant of twelve crimes stemming from a

murder committed during an armed robbery. The most serious convictions were

for first-degree murder,  N.J.S.A. 2C:11-3(a)(1) and (2); and first-degree

attempted murder,  N.J.S.A. 2C:5-1. That same year, defendant was sentenced

to an aggregate term of life in prison plus twenty-five years subject to periods

of parole ineligibility and parole supervision as required by the No Early Release

Act,  N.J.S.A. 2C:43-7.2.     That sentence was run consecutive to sentences

defendant was serving on unrelated convictions.

      Defendant filed a direct appeal from his convictions and sentence. We,

however, rejected defendant's arguments and affirmed. State v. Johnson, Nos.

A-5330-06 and 6330-06 (App. Div. Apr. 9, 2010). The Supreme Court denied

certification. State v. Johnson,  203 N.J. 440 (2010).

      Defendant then filed his first PCR petition, which was denied by the Law

Division in an August 18, 2011 order. Defendant appealed, we affirmed, and

the Supreme Court denied certification. State v. Johnson, No. A-2085-11 (App.

Div.), certif. denied,  216 N.J. 15 (2013).


                                        2                                   A-1596-19
      In August 2012, defendant filed his second PCR petition. He argued that

his first PCR counsel had failed to develop and submit facts showing that his

trial counsel rendered ineffective assistance. The second PCR court denied that

petition and we affirmed. State v. Johnson, No. A-4224-12 (App. Div. Apr. 23,

2015). The Supreme Court denied certification in 2015. State v. Johnson,  223 N.J. 354 (2015).

      Three years later, in 2018, defendant filed a third PCR petition. On

December 3, 2018, the Law Division denied that petition without hearing oral

argument or conducting an evidentiary hearing. Defendant now appeals from

the December 3, 2018 order.

      Defendant's third petition raised nine arguments contending that his trial

counsel was ineffective.      Specifically, defendant articulates the arguments

presented to us as follows:

            GROUND I – TRIAL COUNSEL AS WELL AS CO-
            DEFENDANT'S WERE UNDER INVESTIGATION
            AT THE TIME OF TRIAL AND BECAUSE OF THIS
            FACT DEFENDANT WAS DENIED A FAIR TRIAL
            WITH APPROPRIATE DUE PROCESS.       THIS
            CONFLICT     OF    INTEREST   VIOLATED
            DEFENDANT'S CONSTITUTIONAL RIGHTS TO
            FAIR TRIAL.

            GROUND II – TRIAL        COUNSEL    WAS
            INEFFECTIVE FOR FAILURE TO VOIR DIRE THE



                                        3                                 A-1596-19
JURY.    THIS VIOLATED DEFENDANT'S
CONSTITUTION RIGHTS TO FAIR TRIAL.

GROUND III – TRIAL COUNSEL FAILURE TO
FILE ANY MOTIONS VIOLATED DEFENDANT'S
CONSTITUTIONAL RIGHT TO FAIR TRIAL.

GROUND IV – TRIAL COUNSEL WAS DECEITFUL
AND DISHONEST. AT THE TIME OF THE CRIME
DEFENDANT WAS VERY YOUNG AND HIS MIND
WAS NOT FULLY DEVELOPED, AND [HE]
LACKED EXPERIENCE AND LACKED GOOD
JUDGMENT. THE LAWYER TOOK ADVANTAGE
OF DEFENDANT.

GROUND V – TRIAL COUNSEL WAS STRESSED
BECAUSE OF CONFLICT DUE TO THE FACT HE
HIMSELF WAS UNDER INVESTIGATION AT THE
TIME OF DEFENDANT'S TRIAL. THIS VIOLATED
DEFENDANT'S CONSTITUTIONAL RIGHT TO A
FAIR TRIAL.

GROUND VI – TRIAL COUNSEL FAILED TO
CONDUCT ANY INVESTIGATION.      THIS
VIOLATED DEFENDANT'S CONSTITUTIONAL
RIGHT TO FAIR TRIAL.

GROUND VII – TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILURE TO PURSUE THE
ISSUE OF A HARSH AND EXCESSIVE SENTENCE.

GROUND VIII – TRIAL COUNSEL WAS
INEFFECTIVE FOR PERMITTING CASE TO GO TO
TRIAL WITHOUT FULL DISCOVERY.       THIS
VIOLATED DEFENDANT'S CONSTITUTIONAL
RIGHT TO FAIR TRIAL.




                   4                       A-1596-19
            GROUND IX – TRIAL COUNSEL DID NOT MEET
            WITH [DEFENDANT] TO DISCUSS [HIS] CASE.
            DEFENDANT NEVER HAD A CONFERENCE
            ABOUT THE EVIDENCE OR THE CASE. THIS
            VIOLATED DEFENDANT'S CONSTITUTIONAL
            RIGHT TO FAIR TRIAL.

      All of defendant's arguments are barred under Rule 3:22-12(a)(2) and Rule

3:22-4(b)(2). Those rules set out the time limitation and grounds for dismissing

a second or subsequent PCR petition. They provide that a defendant has one

year to raise arguments concerning a new constitutional rule, the discovery of

the factual predicates for the relief sought, or the ineffectiveness of PCR

counsel.

      The appellate proceedings on defendant's second PCR petition were

completed in 2015 when the Supreme Court denied certification. Defendant

filed his third PCR petition three years later. He does not allege that the petition

relies on a new rule of constitutional law. He also does not complain of

ineffective assistance of his prior PCR counsel.        Instead, defendant raises

arguments concerning the ineffective assistance of his trial counsel. The alleged

failures of trial counsel could have been discovered years before his third PCR

petition was filed. Accordingly, defendant failed to meet the requirements of

Rule 3:22-4(b)(2) and Rule 3:22-12(a)(2).




                                         5                                    A-1596-19
Affirmed.




            6   A-1596-19