STATE OF NEW JERSEY VS. JIHAD SHARRIEFF (00-06-1713, 00-04-1146, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0264-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JIHAD SHARRIEFF, a/k/a
ABDULLAH SHARIFF,1
Defendant-Appellant.
________________________
Submitted March 24, 2021 – Decided May 5, 2021
Before Judges Ostrer and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment Nos. 00-06-1713
and 00-04-1146.
Ferro and Ferro, attorneys for appellant (Nancy C.
Ferro, of counsel and on the briefs).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Hannah F. Kurt,
1
The record reflects defendant is known by several aliases, many of which
involve different spellings of his surname.
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from an August 13, 2019 order denying his third post-
conviction relief (PCR) petition. We affirm.
We assume the reader’s familiarity with the facts and procedural history
extensively set forth in our unpublished decision affirming defendant's
convictions and sentence on direct appeal, State v. Sharrif, No. A-2956-01 (App.
Div. Apr. 8, 2004) (slip op. at 31-32), certif. denied, 182 N.J. 629 (2005), and
our unpublished opinion affirming the denial of defendant's first PCR petition,
State v. Sharrieff, No. A-0728-11 (App. Div. May 21, 2013) (slip op. at 13). We
briefly summarize those facts to lend context to the present appeal.
Following a jury trial on consolidated indictments in 2001, defendant was
convicted of two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; third-
degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b); and second-
degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a).
The jury deadlocked on the remaining charges, and upon retrial, defendant was
found guilty of purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) or
N.J.S.A. 2C:11-3(a)(2); third-degree unlawful possession of a firearm, N.J.S.A.
2C:39-5(b); and second-degree possession of a firearm for an unlawful purpose,
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N.J.S.A. 2C:39-4(a). The State dismissed or defendant was acquitted of all
remaining charges.
On October 12, 2001, the trial court imposed an aggregate sentence of life
plus forty years, with sixty-four years of parole ineligibility. We affirmed
defendant's convictions and the terms of his sentence, but remanded to correct
merger errors and to amend the judgment of conviction.
Defendant pursued federal appeals, and resentencing was ordered for the
armed robbery convictions. Sharrieff v. Cathel, 574 F.3d 225, 230 (3d Cir.
2009), cert. denied, Sharrieff v. Ricci, 558 U.S. 1120 (2010). On resentencing,
the judge imposed two concurrent fifteen-year terms subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2. Thus, defendant's aggregate sentence was life
plus fifteen years, with forty-two years and nine months of parole ineligibility.
Defendant's first PCR petition was filed on March 18, 2010. It was denied
as procedurally barred. We affirmed this denial in May 2013, concluding
defendant's PCR petition was "well out of time," as it was filed almost nine years
after the judgment of conviction was entered. Defendant filed a second PCR on
January 19, 2012, alleging PCR counsel was ineffective. On June 11, 2013, the
PCR judge denied this second petition as "untimely," "insufficient on its face
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and . . . both procedurally and substantively flawed." It is unclear whether
defendant appealed from this denial.
Defendant filed his third PCR on April 8, 2019, contending his trial
attorney was ineffective for failing to advise him of the maximum sentence
defendant could serve for his charged offenses. Defendant also argued the trial
judge failed to inform him of his exposure to lengthy custodial terms. The PCR
judge denied this application on August 8, 2019, finding
the issue of any failure to inform [defendant] of
sentence exposure was raised by [defendant] in his first
Motion for [PCR] and was denied, as [he] conceded that
there was never a plea offer extended to him by the
State;
....
[Defendant's] current motion does not meet any criteria
under R. 3:22-4(b) for a subsequent post-conviction
relief motion to proceed, and this court does not find
good cause for the assignment of counsel.
On appeal, defendant raises the following argument:
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S [PCR] APPLICATION BECAUSE
PETITIONER MET THE PROCEDURAL AND
SUBSTANTIVE REQUIREMENTS FOR [PCR].
We find this argument unpersuasive.
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"Procedural bars exist in order to promote finality in judicial
proceedings." State v. McQuaid, 147 N.J. 464, 483 (1997). To that end,
pursuant to Rule 3:22-4(b), "[a] second or subsequent petition for post-
conviction relief shall be dismissed unless:"
(1) it is timely under [Rule] 3:22-12(a)(2); and
(2) it alleges on its face either:
(A) that the petition relies on a new rule of
constitutional law, made retroactive to defendant's
petition by the United States Supreme Court or the
Supreme Court of New Jersey, that was unavailable
during the pendency of any prior proceedings; or
(B) that the factual predicate for the relief sought could
not have been discovered earlier through the exercise
of reasonable diligence, and the facts underlying the
ground for relief, if proven and viewed in light of the
evidence as a whole, would raise a reasonable
probability that the relief sought would be granted; or
(C) that the petition alleges a prima facie case of
ineffective assistance of counsel that represented the
defendant on the first or subsequent application for
[PCR].
[R. 3:22-4(b).]
Additionally, Rule 3:22-12(a)(2) delineates the requirements for filing a
timely second or subsequent petition for PCR as follows:
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Notwithstanding any other provision in this rule, no
second or subsequent petition shall be filed more than
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.
Here, defendant contends Rule 3:9-1 was amended, in part, in 2016 and
the "new rule [is] entitled to retroactivity under the 'Teague Doctrine,'" citing to
Teague v. Lane, 489 U.S. 288, 301, 310 (1989). Defendant argues the "Teague
Doctrine" does not bar him from raising the amended Rule on his PCR
application. This argument lacks merit.
Defendant's third PCR petition is untimely under Rule 3:22-12(a)(2)
because he failed to file his third petition within one year of the rule change on
which he relies. His petition also is untimely because he does not assert he
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recently discovered a previously unknown factual predicate for the relief sought.
Additionally, his third PCR petition is well out of time because it was filed on
April 8, 2019, more than seven years after his second PCR petition alleged
ineffective assistance of PCR counsel. In short, defendant's latest PCR does not
fall within any of the exceptions outlined under Rule 3:22-12(a)(2).
Because "enlargement of Rule 3:22-12's time limits 'is absolutely
prohibited[,]'" defendant's third PCR petition was properly dismissed as
mandated by Rule 3:22-4(b)(1). See also Rule 1:3-4(c) (providing that
"[n]either the parties nor the court may . . . enlarge the time specified by . . .
[Rule] 3:22-12"). Accordingly, contrary to defendant's argument, the PCR court
properly determined no evidentiary hearing was warranted with respect to
defendant's petition. Likewise, the PCR judge properly found good cause was
lacking for the assignment of PCR counsel. R. 3:22-6(b).
To the extent we have not addressed defendant's remaining arguments, we
find they lack sufficient merit to warrant further discussion in a written opinion.
R. 2:11-3(e)(2).
Affirmed.
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