STATE OF NEW JERSEY VS. MALIK FLOWERS (07-09-1501, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-5701-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MALIK FLOWERS,
a/k/a NATHANIEL SANDERS,
Defendant-Appellant.
___________________________
Submitted December 2, 2020 – Decided July 28, 2021
Before Judges Fuentes and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 07-09-1501.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Erin M. Campbell, Assistant Prosecutor,
on the brief).
PER CURIAM
Defendant Malik Flowers appeals from the order of the Criminal Part
denying his second post-conviction relief (PCR) petition. We affirm.
On April 6, 2009, defendant was tried before a jury and convicted of first
degree robbery, N.J.S.A. 2C:15-1, second degree possession of a firearm for an
unlawful purpose, N.J.S.A. 2C:39-4(a), fourth degree aggravated assault by
pointing a firearm, N.J.S.A. 2C:12-1(b)(4), third degree unlawful possession of
a handgun, N.J.S.A. 2C:39-5(a), 1 and second degree possession of a firearm by
a convicted felon pursuant to N.J.S.A. 2C:39-7(b).
On June 23, 2009, the trial judge granted the State's motion to impose a
discretionary extended term of thirty-five years, with an eighty-five percent
period of parole ineligibility and five years of parole supervision pursuant to the
No Early Release Act, N.J.S.A. 2C:43-7.2(b). The judge also imposed a ten-
year term of imprisonment with a five-year period of parole ineligibility on the
second degree unlawful possession of a firearm by a convicted felon, to run
consecutively to the thirty-five-year term.
This court affirmed defendant's conviction and sentence on direct appeal.
State v. Flowers, A-2401-09, (App. Div. Aug. 5, 2013), certif. den., 217 N.J.
1
Defendant committed this offense on April 17, 2007. Effective January 13,
2008, the Legislature amended the Criminal Code to make unlawful possession
of a firearm a second degree offense.
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588 (2014). We incorporate by reference this court's description of the evidence
the State presented to the jury that led to defendant's conviction. Id. slip op. at
2 to 5. On June 12, 2014, defendant filed his first PCR petition alleging
ineffective assistance of counsel. The Criminal Part assigned counsel to
represent defendant and heard oral argument on March 25, 2016. The PCR judge
denied defendant's first petition in an order dated May 28, 2015, supported by
an oral opinion placed on the record that day. We affirmed the denial of
defendant's first PCR petition. State v. Flowers, A-0683-15 (App. Div. Aug. 8,
2017), certif. denied, 232 N.J. 158 (2018).
Defendant filed this second PCR petition on November 21, 2018, more
than three years after the Criminal Part denied his first PCR petition. The matter
came for oral argument before Judge Sheila A. Venable on June 13, 2019.
Defense counsel argued that the judge who denied defendant's first PCR petition
should have recused herself because, in her then-position as Deputy Attorney
for the Office of the Public Defender, defendant's trial attorney returned the trial
file to her with a request that the case be appealed. In response, the prosecutor
urged the court to summarily dismiss defendant's second PCR petition as
untimely under Rule 3:22-4(b) and Rule 3:22-12(a)(2)(B) and (C).
Alternatively, the prosecutor argued that defendant failed to establish a prima
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facie case of ineffective assistance of counsel under the two-prong standard in
Strickland v. Washington, 466 U.S. 668 (1984) and State v. Fritz, 105 N.J. 42,
58 (1987).
At the conclusion of oral argument, Judge Venable found defendant failed
to provide a reasonable basis to question the impartiality of the judge who denied
his first PCR petition. Judge Venable explained the basis of her ruling in a
memorandum of opinion in which she thoroughly reviewed all relevant caselaw
and Court Rules that codify the standard for a judge's recusal and concluded:
The gist of [p]etitioner's claim is that trial counsel
returned [p]etitioner's trial file to the future [judge],
who was at that time working for the Office of the
Public Defender, for the purpose of initiating an appeal.
At the outset, the [c]ourt notes that there does not
appear to be any documentary evidence that [the future
judge] was involved in [p]etitioner's case in this
capacity. The Notice of Appeal included in the
appendix to [p]etitioner's brief is signed by [an]
Assistant Deputy Public Defender for the Intake Unit.
[The future judge's] name does not appear on that form.
Nor is it clear whether, assuming that [the future's
judge] was at the time involved in this matter in some
capacity, [she] was even aware of this as she presided
over [p]etitioner's first application for PCR. It does not
appear that this issue was mentioned in any of the
parties' briefings, and there is no record provided of the
PCR hearing. Were this [c]ourt to find that, based on
the record, [the future judge] was involved in
[p]etitioner's case in some capacity prior to her
becoming a judge, it might be necessary to hold an
evidentiary hearing simply in order to determine
4 A-5701-18
whether or not [the judge] recalled her past
involvement in this case while hearing the first
[p]etition, in order to determine whether or not it could
be inferred that this somehow compromised her
impartiality.
However, nothing has been provided to the [c]ourt to
suggest that the extent of [the future judge's] prior
involvement in this matter raised [an] appearance of
impropriety. The circumstances here suggest that there
existed, "at most mere ministerial involvement by" [the
future judge]. [State v. Harris, 181 N.J. 391, 511
(2004)] It appears that this simply involved receiving
[p]etitioner's trial file from trial counsel and assigning
appellate counsel. This, coupled with the absence of
any mention of [the future judge] on [p]etitioner's
appellate paperwork, suggest that her role was more
perfunctory in nature, and "not the sort of personal
involvement that compels disqualification." Ibid.Against this backdrop, defendant raises the following argument:
POINT I
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF FIRST PCR COUNSEL'S
INEFFECTIVENESS FOR NOT MOVING FOR THE
FIRST PCR COURT'S RECUSAL DUE TO THE
APPEARANCE OF IMPROPRIETY.
We reject this argument and affirm substantially for the reasons expressed
by Judge Venable. Defendant did not establish a prima facie case of ineffective
assistance of counsel under the two-prong standard in Strickland nor present
5 A-5701-18
sufficient evidence to question the impartiality of the judge who denied his first
PCR petition. As Judge Venable noted, the record shows "the future judge"
merely performed a ministerial function when she transmitted defense counsel's
trial records to the appellate section of the Office of the Public Defender.
Defendant's attempt to transmute this facially innocuous act into an indicia of a
conflict of interest lacks sufficient merit to warrant further discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed.
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