STATE OF NEW JERSEY v. EUSTACE CROMER

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. EUSTACE CROMER, Defendant–Appellant.

DOCKET NO. A–0471–12T4

-- December 10, 2013

Before Judges Alvarez and Carroll. Eustace Cromer, appellant pro se. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Defendant Eustace Cromer appeals from an August 7, 2012 Law Division order denying his second petition for post-conviction relief (PCR).  For the reasons that follow, we affirm.

The record reveals that following a February 1999 jury trial, defendant was convicted of first-degree attempted murder, N.J.S.A. 2C:5–1 and N.J.S.A. 2C:11–3;  second-degree conspiracy to commit murder, N.J.S.A. 2C:5–2;  third-degree aggravated assault, N.J.S.A. 2C:12–1(b);  third-degree unlawful possession of a weapon, N.J.S.A. 2C:39–5b;  and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4a.   The State successfully moved for an extended term sentence, and on March 12, 1999, Judge Peter J. Vazquez imposed an aggregate sentence of fifty-five years imprisonment with a twenty-year period of parole ineligibility.

Defendant's conviction arises from a shooting on the Garden State Parkway on October 17, 1995.   The victim was Bryant Jackson, who was shot while driving on the Parkway at approximately 1:40 a.m. Defendant's vehicle, with its headlights off, had pursued and overtaken Jackson's vehicle.   A passenger in Jackson's vehicle, Deirdre Mullen, identified defendant by his nickname as the person who allegedly fired several shots at Jackson.   Mullen did not testify at trial.   Jackson and another passenger who knew defendant, Checora Washington, did testify, but repudiated their similar prior identifications of defendant.   However, their identifications were admitted as prior inconsistent statements after a Gross hearing.   See State v. Gross, 121 N.J. 1 (1990).

Defendant appealed the conviction and sentence.   Appellate counsel argued that the identification evidence was improperly admitted, and was insufficient to support a conviction;  that the jury charge on identification was erroneous and unduly prejudicial;  and that defendant's sentence was excessive.   In addition, in a pro se brief, defendant argued that his confrontation rights were violated;  that the evidence was insufficient to support the conspiracy to commit murder and aggravated assault convictions;  that the prosecutor's comments on summation amounted to prosecutorial misconduct;  and that his extended term sentence was illegal.   We rejected these arguments, and affirmed defendant's conviction and sentence.  State v. Cromer, No. A–5226–98 (App.Div. January 23, 2001), certif. denied, 168 N.J. 291 (2001).

Defendant's first PCR petition was dated September 11, 2001, although Judge Michael L. Ravin specifically noted that its filing date was in dispute.   In his supporting pro se brief, defendant argued that trial counsel was ineffective because he failed to (1) investigate or interview witnesses;  (2) consult with experts;  and (3) proffer adequate jury charges.   Defendant also argued ineffective assistance of appellate counsel.   On August 30, 2006, defendant's appointed counsel filed a supplemental brief in which he argued that trial counsel did not investigate an alibi defense, presented no notice of alibi, and called no alibi witness, and that trial counsel also failed to investigate and interview Jackson, who purportedly now claimed that someone other than defendant was the shooter.   PCR counsel further argued that defendant's confrontation rights were violated, and that the petition was not time-barred.   On January 15, 2007, substitute PCR counsel filed an additional brief, essentially reiterating those arguments.

Judge Ravin concluded that the petition was not time-barred, see Rule 3:22–12, and granted an evidentiary hearing, at which defendant, Jackson, and Al–Tariq Little, defendant's alibi witness, testified.   The judge found that all three of those witnesses lacked credibility.   In contrast, Judge Ravin found defense counsel “credible” in testifying that he attempted to have an investigator contact “Jackson as there was a possibility of his recantation.”   He also found defense counsel endeavored to investigate and “made a good faith attempt to contact” Jackson.   Judge Ravin denied defendant's PCR application in a comprehensive written opinion on August 31, 2007.   We affirmed Judge Ravin's order.  State v. Weeks, a/k/a Cromer, No. A–2343–07 (App.Div. October 29, 2009), certif. denied, 201 N.J. 497 (2010).

Defendant filed a second pro se petition for PCR on April 20, 2012.   Defendant's supporting brief contended, among other things, that his trial counsel was ineffective in failing to investigate and call Mullen as a witness at trial, that the trial judge erred in admitting testimony concerning Mullen's statement identifying him as the shooter, that the prosecutor committed misconduct in withholding evidence of defendant's prior arrest in Virginia, and that his extended term sentence was illegal.

In an August 7, 2012 order, Judge Vazquez, the trial judge, denied defendant's second petition without an evidentiary hearing.   Judge Vazquez held that the petition was time-barred pursuant to Rule 3:22–12(a), and that “[n]o credible facts have been alleged by [defendant] demonstrating that the delay beyond the [five-year limitations period] was due to [defendant's] excusable neglect.”   Further, the judge “considered the extent and cause of the delay, the prejudice to the State, and the importance of [defendant's] claim,” and concluded that “the circumstances of this case do not present the potential for ‘injustice’ that would justify relaxing the five year rule.”   The judge also found that defendant was “attempting to relitigate issues that have already been decided and affirmed on appeal,” and were therefore procedurally barred pursuant to Rule 3:22–5.

Despite finding the second petition procedurally barred, Judge Vazquez substantively addressed several of defendant's contentions.   The judge's review of the record “show[ed] that defendant was provided a rigorous, viable defense [ ] and appeal, and that his counsels' performance were not inadequate.”   Additionally the judge, citing State v. Williams, 299 N.J.Super. 264, 272–73 (App.Div.1997), rejected defendant's argument that the imposition of multiple extended sentences violated N.J.S.A. 2C:44–5, where, as here, the extended term sentences were imposed by two different courts for different offenses and at different times.

On appeal, defendant raises the following arguments:

Point I:  THE PROCEDURAL BAR IN DEFENDANT'S CASE SHOULD BE EXCUSED PURSUANT TO R. 1:1–2, BECAUSE THE PCR COURT ERRED BY HOLDING THAT DEFENDANT'S PCR PETITION WAS UNTIMELY, WHEN IN FACT THE CRIMINAL DIVISION MANAGERS OFFICE HAD LOST THE DEFENDANT'S PETITION WHICH WAS TIMELY FILED

Point II:  THE PCR JUDGE ERRED IN DENYING PETITIONERS POST CONVICTION RELIEF APPLICATION BASED ON PETITIONER'S FAILURE TO COMPLY WITH R. 3:22–12

Point III:  THE PCR JUDGE ERRED IN DENYING PETITIONERS POST CONVICTION RELIEF APPLICATION BASED ON PETITIONER'S FAILURE TO COMPLY WITH R. 3:22–5

We begin with a review of the relevant well-settled principles governing our analysis.   PCR constitutes “New Jersey's analogue to the federal writ of habeas corpus.”  State v. Preciose, 129 N.J. 451, 459 (1992);  see also State v. Nash, 212 N.J. 518, 540 (2013) (noting that PCR represents a defendant's “last chance” to challenge the fairness and reliability of a criminal verdict).   To protect against courts addressing endless issues in a piecemeal fashion, certain procedural rules govern PCR petition filings.   Under the current version of the rule, which was in effect when defendant filed his present petition in April 2012, Rule 3:22–12(a)(1) imposes a five-year limitation on filing a petition after the entry of the judgment sought to be challenged.   A second or subsequent PCR petition may only be filed within one year of the recognition of a new constitutional right, discovery of a new factual predicate, or denial of the last PCR to address ineffective assistance of PCR counsel.   R. 3:22–12(a)(2).

Although the time limitations are not absolute and may be waived to prevent a fundamental injustice, the rules must be viewed in light of their dual key purposes:  to ensure that the passage of time does not prejudice the State's retrial of a defendant and to respect the need for achieving finality.   State v. DiFrisco, 187 N.J. 156, 166–67 (2006).   Moreover, a PCR petition is not a substitute for an appeal of a conviction, Rule 3:22–3, and any available ground for relief not asserted in a prior proceeding is barred if it could have been raised earlier, Rule 3:22–4, or was asserted earlier, Rule 3:22–5.

We have carefully considered defendant's arguments and the applicable law, and we conclude that the arguments advanced by defendant are without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(2).   We affirm substantially for the reasons stated by Judge Vazquez in his cogent and thorough written opinion on August 7, 2012.

We are satisfied that defendant's second PCR petition, filed thirteen years after the judgment of conviction without any showing of excusable neglect or manifest injustice, is clearly time-barred.   R. 3:22–12(a).   Defendant has articulated no basis to relax the clear restrictions concerning second PCR petitions imposed by this rule.   We also agree that the present claims are barred by Rule 3:22–4 and Rule 3:22–5 as they could have been raised, or were raised, either on direct appeal or in defendant's previous PCR petition and subsequent appeal.

Moreover, in order to obtain relief on an ineffective assistance of counsel claim, a defendant must show both that his counsel's performance was deficient and that counsel's performance prejudiced his defense.  State v. Fritz, 105 N.J. 42, 52 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984)).   We are in accord with Judge Vazquez that defendant failed to establish a prima facie case for PCR.

Affirmed.

PER CURIAM

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