STATE OF NEW JERSEY VS. LOUIS WATLEY (98-01-0099, UNION COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3220-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LOUIS WATLEY,
Defendant-Appellant.
_________________________
Argued May 23, 2017 — Decided July 26, 2017
Before Judges Reisner and Koblitz.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Indictment
No. 98-01-0099.
Louis Watley, appellant, argued the cause pro
se.
Milton S. Leibowitz, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Grace H. Park,
Acting Union County Prosecutor, attorney for
respondent; Mr. Liebowitz, of counsel and on
the brief).
PER CURIAM
Defendant Louis Watley appeals from the January 30, 2015
order denying his second petition for post-conviction relief (PCR)
without an evidentiary hearing. Defendant argues that his
privately retained PCR appellate attorney was prejudicially
ineffective because he did not argue the appeal before us, although
retained to do so. The PCR judge, Judge Robert J. Mega, found
counsel was ineffective, but the failure to argue was not
prejudicial. We affirm.
Defendant was convicted in 2000 of the 1997 kidnapping and
aggravated sexual assault of an eighteen-year-old woman who was
an employee at his accounting office. The assault occurred on a
bed in defendant's home while the victim was menstruating. Blood
and DNA evidence were found on the bed sheets. He was sentenced
to an aggregate term of eighteen years imprisonment.1
On direct appeal, we affirmed defendant's conviction. State
v. Watley, No. A-4295-00 (App. Div. April 23, 2004) (Watley I),
certif. denied, 180 N.J. 458 (2004). On April 5, 2007, we reversed
the denial of defendant's first petition for PCR "with respect to
his trial counsel's treatment of blood evidence produced at trial."
State v. Watley, No. A-5970-04 (App. Div. April 5, 2007) (slip op.
at 19) (Watley II). We remanded for an evidentiary hearing on
that issue. After holding the evidentiary hearing, defendant's
1
Defendant was released from custody in 2011.
2 A-3220-14T3
petition was denied in 2007 by Judge Ross R. Anzaldi, who had also
been the trial judge.
Defendant appealed the denial of PCR and hired private
appellate counsel to argue on his behalf. However, oral argument
was not held because counsel failed to make a timely request. We
affirmed the trial court's denial of defendant's PCR petition.
State v. Watley, No. A-1132-07 (App. Div. December 17, 2008) (slip
op. at 12) (Watley III). He now appeals from the denial of his
second petition for PCR without an evidentiary hearing, claiming
ineffective assistance of appellate PCR counsel.
On appeal defendant raised the following points:2
POINT I: PCR COURT ERRED IN DENYING DEFENDANT
RELIEF WHERE IT WAS CLEAR PROSECUTOR PRESENTED
FALSE SEROLOGIC (ABO BLOOD TYPE) EVIDENCE TO
THE JURY. THAT EVIDENCE WAS THE PRINCIPLE
PIECE OF FORENSIC EVIDENCE LINKING THE
DEFENDANT TO THE CRIME. IN ADDITION BRADY
EVIDENCE ALSO WITHHELD RELATED TO THE SAME.
Laboratory Report Produced by Prosecutor Was
Improper and Deceptive
1. Material Evidence Withheld
2. Evidence Altered and Withheld From Defense
3. Blood Type Data Missing From Evidence
Report
4. Material Evidence Altered and Brady
Evidence Withheld
POINT II: PCR COURT ERRED IN DENYING
DEFENDANT RELIEF WHERE IT WAS CLEAR PROSECUTOR
PRESENTED FALSE AND MISLEADING DNA BLOOD
2
We reproduce the point headings as written, without any
corrections.
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EVIDENCE. THE BLOOD EVIDENCE WAS THE
PRINCIPLE PIECE OF FORENSIC EVIDENCE LINKING
THE DEFENDANT TO THE CRIME.
A. Applicable Law
B. Prosecutor misrepresented DNA Evidence
Connected to non-sperm fraction of Specimen
and failed to disclose lack of Genetic
material finding in blood sample To the jury
C. Document Evidence establish prosecutor
acted In bad faith by planning to use false
DNA To corroborate the tainted serologic
report
POINT III: PCR COURT ERRED IN DENYING
DEFENDANT RELIEF ON INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIM WHERE IT WAS CLEAR COUNSEL
KNOWING ALLOW PROSECUTOR TO PRESENT FALSE
SEROLOGIC (ABO BLOOD TYPE) EVIDENCE TO THE
JURY. THAT EVIDENCE WAS THE PRINCIPLE PIECE
OF FORENSIC EVIDENCE LINKING THE DEFENDANT TO
THE CRIME.
STRICKLAND TEST 1: Deficient Performance
QUESTION 1: Opening Statement
QUESTION 2: Evans blood testimony
QUESTION 3: N.R. Blood Testimony
QUESTION 4: Prosecutor's Closing
STRICKLAND TEST 2: Prejudice to defendant
STIPULATED FACT
POINT IV: WITNESS DURING THE FIRST POST-
CONFICTION EVIDENTIARY HEARING PROVIDED FALSE
TESTIMONY WHICH WARRANTS NEW HEARING.
POINT V: ABUSE OF DISCRESION BY PCR COURT
JUDGE SUBSTANTIALLY PREJUDICED THE
DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL
REMAND EVIDENTIARY HEARING THEREBY DENYING THE
DEFENDANT THE CONSTITUTIONAL RIGHT TO DUE
PROCESS.
A. CLAIM 1: PCR court made collateral review
of Appellate Division order, altering it's
contents to favor the State
4 A-3220-14T3
B. CLAIM 2: PCR court vouched for the
credibility of defense expert whose statements
were false, inconsistent and perjurious.
C. CLAIM 3: PCR court denied material evidence
connected to tainted blood report to pro-se
counsel on appeal
D. CLAIM 4: PCR court prohibited the testimony
of a the material witness Donna Hansen,
chemist who manufacture the tainted report
used by the State at trial
POINT VI: ABUSE OF DISCRETION BY PCR COURT
JUDGE AS ARTICULATED IN THE PCR COURTS JANUARY
30, 2015 OPINION SUBSTANTIALLY PREJUDICE THE
DEFENDANT'S RIGHT TO A FAIR AND PCR PROCEEDING
THEREBY DENYING THE PETITIONER HIS
CONSTITUTIONAL RIGHT TO DUE PROCESS.
I. Whether Petitioner Is Entitled to an
Evidentiary Hearing
II. Whether Petitioner's Appellate Counsel
Provided Petitioner with Ineffective
Representation and Prejudiced Defendant
Thereby denying the defendant his
constitutional right to due process
III. Whether Alteration of Appellate Documents
by the Appellate Division Warrants a New Trial
IV. Whether Witness during the First Post-
Conviction Relief Evidentiary Hearing
Provided False Testimony, Requiring a New
Hearing
V. Whether Petitioner is Entitled to New
Counsel
Defendant argues in Points I, II and III of his brief that
Judge Mega, the PCR judge for defendant's second PCR petition,
erred by denying his petition without an evidentiary hearing. He
argues that the prosecutor intentionally perpetrated a fraud on
the trial court by presenting "false and fabricated" DNA blood and
serologic evidence and that his trial attorney was deficient for
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failing to challenge the prosecutor's actions. This is the issue
that was resolved in defendant's first PCR. Watley II, supra,
slip op. at 19.
Prior adjudication of any issue on the merits bars PCR. See
R. 3:22-4(b); R. 3:22-5. An issue raised on PCR is procedurally
barred if it is "'identical or substantially equivalent' to the
issue already adjudicated on the merits." State v. Afanador, 151
N.J. 41, 51 (1997) (quoting State v. McQuaid, 147 N.J. 464, 484
(1997)). PCR is not "an opportunity to relitigate matters already
decided on the merits." Id. at 50.
Defendant's claims about the blood and serologic evidence are
procedurally barred because defendant raised identical issues on
appeal of the denial of his first PCR petition. Watley II, supra,
slip op. at 8. We denied these claims, finding that they lacked
merit. Id. at 11-12. We remanded only on the issue of defense
counsel's handling of the blood evidence. Id. at 19.
Defendant argues in Point IV of his brief that he is entitled
to an evidentiary hearing because defendant's forensic expert, Dr.
Robert Shaler, testified falsely during the evidentiary hearing
after our remand stemming from his first PCR appeal. Defendant
alleges that we determined in an affirmance of the dismissal of
his civil suit against Dr. Shaler that Dr. Shaler gave false
testimony to further conceal the State's plot to frame defendant.
6 A-3220-14T3
In his January 30, 2015 written opinion denying defendant's
second PCR petition, Judge Mega discussed defendant's civil suit
against Dr. Shaler. In that suit, defendant claimed he was
fraudulently induced to retain Dr. Shaler, who then testified at
the PCR hearing contrary to previous statements he made in
preparation for testimony. Watley v. Shaler, No. A-0893-12 (App.
Div. September 23, 2013) (slip op. at 1-2). The trial court
granted Dr. Shaler's motion to dismiss on the basis that Dr. Shaler
was protected by the litigation privilege. Id. at 3. We affirmed.
Id. at 6.
In defendant's current appellate brief, he alleges that we
"made it clear that Dr. Shaler had in fact perpetrated a fraud on
the court" because in our decision we stated "we accept as true
plaintiff's allegations, Printing Mart-Morristown v. Sharp Elecs.
Corp., 116 N.J. 739, 746 (1989)." Watley v. Shaler, supra, slip
op. at 5. Judge Mega correctly discredited this assertion. At
the summary judgment posture, we must make all inferences in favor
of the non-moving party. Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995). We thus determined in our decision
that, even assuming defendant's assertions were true, his civil
case should be dismissed. We did not find that defendant's claims
were in any way demonstrated to be valid.
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Judge Mega further correctly determined that defendant's
argument was procedurally barred by Rule 3:22-5 because Judge
Anzaldi, during defendant's first PCR hearing, determined Dr.
Shaler to be a credible witness, a finding we affirmed in Watley
III, supra, slip op. at 12.
Defendant argues in Point V of his brief that Judge Anzaldi,
"turned a blind eye" to the State's fraud and "actively
participated in its concealment." Defendant raised this issue of
Judge Anzaldi's purported improprieties on appeal of his first PCR
denial and we determined the claim lacked merit. We stated that
"defendant's complaints about the manner in which the evidentiary
hearing was conducted are wholly unsupported by the record. To
the contrary, the record demonstrates that Judge Anzaldi
diligently and patiently received and thoroughly considered and
analyzed the evidence presented." Id. at 11-12. We will not
reconsider this meritless issue.
Defendant argues in Point VI of his brief that the PCR court
erred by denying his second PCR petition without an evidentiary
hearing because his appellate counsel was ineffective. A hearing
was not necessary because there was no disputed factual issue.
The second PCR judge, Judge Mega, found appellate counsel committed
an error in not seeking oral argument when retained to do so.
8 A-3220-14T3
To establish ineffective assistance of counsel, a defendant
must prove that: (1) "counsel made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by
the Sixth Amendment," and (2) "the deficient performance
prejudiced the defense." Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To
satisfy the prejudice requirement, "[t]he defendant must show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at
698. The standard for ineffectiveness is applied to both trial
and appellate counsel. State v. Harris, 181 N.J. 391, 518 (2002),
cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898(2005).
Judge Mega found that defendant satisfied the first prong of
the Strickland test because appellate counsel failed to request
oral argument "and as a result never argued on [p]etitioner's
behalf before the Appellate Division." Judge Mega found, however,
that defendant did not satisfy the second prong of the Strickland
test because defendant did not establish that he was prejudiced
by appellate counsel's deficient performance. Judge Mega wrote:
The Court now examines the facts to consider
whether oral arguments on appeal would have
caused a different result. Petitioner has not
indicated that Appellate Counsel's oral
9 A-3220-14T3
argument would have created a different
result. Petitioner had filed a detailed pro
se brief in support of his claim. Petitioner
also indicated that he provided Appellate
Counsel with visual aids, "serologic
laboratory reports which were blown up and
modified for simplicity."
. . . .
In the present matter, the use of visual aids
would not have changed the outcome of
Petitioner's First PCR appeal because the
scope of appellate review is based upon the
factual record below. The Appellate Division
indicated it relied upon the record in
rendering its decision. The record before the
Appellate Division was such that oral
arguments would not have caused a different
outcome. . . . Any oral argument provided on
appeal would have had to rely upon the facts
that the Appellate Division found did not
support any of Petitioner's claims. Moreover,
Petitioner has not indicated what new
arguments counsel could have raised at oral
argument. Therefore, as the Appellate
Division had already determined Petitioner's
claim to be without merit, this Court finds
and relies on the findings by the Appellate
Division such that Petitioner failed to
demonstrate prejudice from Appellate
Counsel's deficient conduct. Thus Petitioner
fails the second prong of the Strickland Test
and his request for an evidentiary hearing is
denied.
Unlike in PCR applications before the trial court, oral
argument of PCR appeals is seldom sought. See R. 2:11-1(b). After
detailing the history and testimony at the hearing, we expressed
our reasons for affirming defendant's appeal after the first PCR
evidentiary hearing, stating:
10 A-3220-14T3
The denial of defendant's application for
post-conviction relief is affirmed
substantially for the reasons stated by Judge
Anzaldi. Although the defendant established
a prima facie case on his prior appeal, on
remand the substantial credible evidence on
the record as a whole did not overcome the
"strong presumption that counsel's conduct
falls within the wide range of reasonable
professional assistance." For that reason,
there is no basis for concluding that
counsel's allegedly deficient performance
"materially contributed to defendant's
conviction."
Watley III, supra, slip op. at 11-12 (internal
citations omitted).
Oral argument would not have influenced our decision because
counsel is not permitted to present new arguments not set forth
in the appellate brief, nor introduce facts not contained in the
trial court record. R. 2:5-4.
Defendant also argues in Point VI that we tampered with
documents during the appeal of his first PCR petition. Judge Mega
found that this argument lacked merit as defendant provided no
evidence to support his allegation. This claim, as well as any
others we have neglected to mention, is without sufficient merit
to require discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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