State of New Jersey v. Dong B. Lin ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0706-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONG B. LIN, a/k/a DONG
BIAO LIN,
Defendant-Appellant.
________________________
Submitted on January 31, 2024 – Decided February 16, 2024
Before Judges Susswein and Vanek.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 10-10-
1964.
Dong B. Lin, appellant pro se.
Raymond Scott Santiago, Monmouth County
Prosecutor, attorney for respondent (Daniel Ian
Bornstein, of counsel and on the brief).
PER CURIAM
Defendant Dong B. Lin appeals from an August 17, 2022 order dismissing
a second petition for post-conviction relief (PCR) contending his appellate and
first PCR counsel rendered ineffective assistance. Judge Richard W. English
found defendant's second PCR petition to be procedurally time-barred. Based
upon our review of the record and well-settled legal principles governing
limitations on filing PCR petitions, we affirm.
The salient facts and procedural history were previously detailed in our
decision on defendant's first PCR petition, State v. Lin, No. A-0929-20 (App
Div. Dec. 28, 2021) (Lin II). We briefly set forth the facts material to our
determination of defendant's second PCR appeal.
On June 16, 2010, defendant and co-defendant, Zeng Liang Chen, broke
into the home of a former employer in Freehold armed with a knife and brass
knuckles. Upon entering the home, they tied up the male victim with telephone
wire. Defendant proceeded to search the home for valuables and subsequently
found a female victim upstairs in bed. Defendant then stabbed the female victim
repeatedly through her bedding. Upon hearing the male victim yelling
downstairs, defendant returned and stabbed him until his knife broke. Defendant
then found another knife in the home and used it to continue the attack. Both
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victims died from multiple stab wounds. Approximately an hour later, police
arrested defendant and co-defendant walking nearby.
On January 8, 2014, defendant pled guilty to two counts of first-degree
murder, N.J.S.A. 20:11-3(a)(2) (counts two and three), and two counts of first-
degree felony murder, N.J.S.A. 2C:11-3(a)(3) (counts four and five). On May
5, 2015, Judge Anthony J. Mellaci, Jr., imposed the recommended sentence
negotiated by the parties: life imprisonment with an eighty-five percent parole
bar and five years of parole supervision upon release from incarceration on count
two pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a
concurrent sentence of thirty years with no parole and five years of parole
supervision upon release from incarceration on count three. Defendant appealed
and we affirmed the entry of the judgment of conviction and sentence on April
12, 2018 in State v. Lin, No. A-4559-14 (App. Div. Apr. 12, 2018) (Lin I). On
October 24, 2018, the Supreme Court of New Jersey denied defendant's petition
for certification. State v. Lin, 235 N.J. 456 (2018).
On December 4, 2018 defendant filed his first PCR petition, alleging that
trial counsel was ineffective by misleading him into believing he would get a
thirty-year sentence without parole if he pled guilty. Defendant also alleged that
his guilty plea was not knowing and voluntary.
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On March 4, 2020, Judge Paul X. Escandon heard oral argument on
defendant's first PCR petition. On March 9, 2020, Judge Escandon denied that
petition in a written decision finding defendant failed to present a prima facie
case of ineffective assistance of counsel. The court found "defendant engaged
in colloquy with the [c]ourt indicating that plea counsel explained the
consequences of the plea, that he fully understood the plea, and that he was
satisfied with plea counsel's representations." Defendant appealed.
On December 28, 2021, we affirmed Judge Escandon's decision and
concluded that defendant failed to set forth a prima facie case of ineffective
assistance of counsel. Lin II, slip op. at 16-17. In affirming, we determined
"[t]he court reasonably exercised its discretion to deny defendant an evidentiary
hearing under Rule 3:22-10 because defendant's ineffective assistance claim was
resolvable by reference to the plea record." Ibid. Defendant and his counsel,
with the aid of an interpreter, reviewed the plea together. Id. at 6. Defendant
confirmed he was pleading guilty "freely and voluntarily." Ibid. On May 3,
2022, the Court denied defendant's petition for certification. State v. Lin, 250
N.J. 503 (2022).
On July 1, 2022, defendant filed the second PCR petition which is the
subject of this appeal. On August 17, 2022, Judge English dismissed the second
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PCR petition pursuant to Rule 3:22-12(a)(2) and (3). Judge English entered an
order stating that since defendant's first PCR petition was denied by the court
on March 9, 2020, defendant's second petition was time-barred under Rule 3:22-
12(a)(3), because it was not filed within 90 days of the date of the December 28,
2021 judgment on direct appeal. Judge English also found that defendant's PCR
petition was untimely pursuant to Rule 3:22-12(a)(2), which required the second
PCR petition to be filed within one year of the March 9, 2020 denial of the first
petition. This appeal followed.
Defendant raises the following arguments for our consideration:
POINT I
THE PCR COURT ERRED IN DENYING
DEFENDANT'S SECOND PETITION FOR POST-
CONVICTION RELIEF AS TIME BARRED AND
THE MATTER MUST BE REMANDED FOR
FURTHER PROCEEDINGS.
POINT II
PETITIONER HAS ESTABLISHED A PRIMA FACIE
SHOWING SUFFICIENT TO WARRANT THE
ORDER OF AN EVIDENTIARY HEARING. State v.
Preciose, 129 N.J 451 (1992); Rule 3:22-10.
POINT III
PETITIONER IS NOT PROCEDURALLY (OR
OTHERWISE) BARRED FROM RAISING THE
CLAIMS ADVANCED HEREIN.
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We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard also applies to
mixed questions of law and fact. Id. at 420. Where an evidentiary hearing has
not been held, we "conduct a de novo review of both the factual findings and
legal conclusions of the PCR court." Id. at 421.
PCR "is New Jersey's analogue to the federal writ of habeas corpus." State
v. Afanador, 151 N.J. 41, 49 (1997) (citing State v. Preciose, 129 N.J. 451, 459
(1992)). It is the vehicle through which a defendant may, after conviction and
sentencing, challenge a judgment of conviction by raising issues that could not
have been raised on direct appeal and, therefore, "ensures that a defendant was
not unjustly convicted." State v. McQuaid, 147 N.J. 464, 482 (1997).
To establish a prima facie case of ineffective assistance of counsel,
defendant must satisfy the two-prong test articulated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in
State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . .
counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed . . . by the Sixth Amendment." Fritz, 105 N.J. at 52 (quoting
Strickland, 466 U.S. at 687). Defendant must then show counsel's "deficient
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performance prejudiced the defense." Ibid. To show prejudice, defendant must
establish by "a reasonable probability" that the deficient performance
"materially contributed to defendant's conviction . . . ." Id. at 58.
We need not address whether defendant's second PCR petition meets the
Strickland standard as we affirm Judge English's determination that defendant's
petition is time-barred under Rule 3:22-12(a)(2) and (3).
The rules governing PCR petitions are set forth in Rule 3:22. Second or
subsequent PCR petitions must comply with the requirements of Rule 3:22-4(b)
and Rule 3:22-12(a)(2). Rule 3:22-12(a)(3) requires a PCR petition to be filed
within ninety days of the date judgment is entered on direct appeal. To avoid
dismissal of a second—or subsequent—PCR petition, the petition must be
timely filed under Rule 3:22-12(a)(2). R. 3:22-4(b)(1). Rule 3:22-4(b) contains
no exceptions to the time-bar for second or subsequent PCR petitions. Rule
3:22-12(a)(2)(C) specifically provides "no second or subsequent petition shall
be filed more than one year after . . . the date of the denial of the first . . .
application for [PCR]" based on ineffective assistance of counsel.
Defendant was required to file the second PCR petition before us within
one year of March 9, 2020, the date his first PCR petition was denied. However,
he did not file his second PCR petition until July 1, 2022, and, therefore, it is
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time-barred under Rule 3:22-12(a)(2)(C). The second petition could also be
deemed untimely under Rule 3:22-12(a)(3), because it was not filed within
ninety days of the date of the December 28, 2021 judgment on direct appeal.
Because defendant's second PCR petition was not filed in accordance with
the time limitations proscribed under Rule 3:22-12(a)(2) and (3), dismissal was
mandatory. Therefore, we do not reach the substantive merits of the second
PCR petition.
Affirmed.
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