STATE OF NEW JERSEY VS. ABDUL J. WEBSTER (11-08-1342, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5206-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ABDUL J. WEBSTER,
Defendant-Appellant.
________________________
Submitted August 28, 2019 – Decided September 25, 2019
Before Judges Alvarez and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 11-08-1342.
Abdul J. Webster, appellant pro se.
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Stephanie Davis Elson, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant appeals from the June 22, 2018 Law Division order, denying
his second petition for post-conviction relief (PCR) without an evidentiary
hearing, raising the following single point for our consideration:
DEFENDANT[']S RIGHT TO DUE PROCESS OF
LAW AS GUARANTEED BY THE FOURTEENTH
AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ART. [I], [PARAGRAPH
TEN] OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE PCR COURT[']S REFUSAL TO
HOLD A SECOND [PCR] EVIDENTIARY HEARING
TO ADJUDICATE . . . DEFENDANT[']S CLAIM
THAT HE WAS DENIED EFFECTIVE ASSISTANCE
OF COUNSEL.
We affirm.
We incorporate by reference the facts and procedural history set forth at
length in our order summarily affirming the denial of defendant's first PCR
petition, State v. Webster, No. A-4744-15 (App. Div. Feb. 15, 2018), and in our
unpublished decision affirming his drug related convictions and sentence
following his direct appeal. State v. Webster, No. A-3890-12 (App. Div. Feb.
23, 2015), certif. denied, 222 N.J. 17 (2015). We briefly summarize those facts
to lend context to the present appeal.
On April 22, 2011, Jersey City police officers arrested defendant
following a narcotics investigation, during which the officers observed
defendant interact with several people, make some type of exchange with some
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of them, and approach a tree in the area a total of five times. A search incident
to defendant's arrest uncovered seven bags of heroin stamped "Elvis" and
approximately $185 in small denominations on defendant's person. The officers
also recovered additional bags of heroin stamped "Elvis" in the tree, as well as
empty bags stamped "Elvis" in a nearby alley defendant had entered and exited
with some of the individuals with whom he had interacted while under
surveillance.
Following a jury trial, defendant was convicted of third-degree possession
of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-
degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and
(b)(3); and third-degree possession of CDS with intent to distribute within 1000
feet of school property, N.J.S.A. 2C:35-7.1 After appropriate mergers,
defendant was sentenced to a mandatory extended term of ten years'
imprisonment with a five-year period of parole ineligibility.
1
On the State's motion, the trial court dismissed the charge of second-degree
possession of CDS with intent to distribute within 500 feet of public housing,
N.J.S.A. 2C:35-7.1., and the jury acquitted defendant of the additional charges
of fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a), fourth-degree obstructing
the administration of law, N.J.S.A. 2C:29-1, and third-degree aggravated assault
of a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a).
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After we affirmed the convictions and sentence, and the Supreme Court
denied defendant's petition for certification, defendant filed his first PCR
petition on August 10, 2015, asserting trial counsel was ineffective by failing to
thoroughly investigate two purported witnesses, J.C. and J.R., thereby depriving
him of the opportunity to present their testimony at trial. In support, defendant
obtained notarized statements from the witnesses, who certified that the officers
did not remove any narcotics from defendant's pockets during his arrest.
However, on May 12, 2016, the PCR court denied defendant's petition without
an evidentiary hearing, and we affirmed the denial.
In an oral decision, the PCR court concluded that defendant failed to
establish a prima facie case of ineffective assistance of counsel (IAC) under the
standard formulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and
adopted by our Supreme Court in State v. Fritz, l05 N.J. 42, 49 (l987). 2
Specifically, the court found that defense counsel's representation was not
deficient because, in addition to personally attempting to locate the two
witnesses, defense counsel had submitted a comprehensive investigation request
2
To prevail on a claim of IAC, a defendant must satisfy a two-part test.
Specifically, the defendant must show that his attorney's performance was
deficient and that the "deficient performance prejudiced the defense."
Strickland, 466 U.S. at 687.
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to his investigator in an effort to locate and interview them. The court also
determined that even if J.C. and J.R. had testified at trial, the result would not
have been different since their purported testimony was not clearly exculpatory
and the proofs against defendant, which included police observations and video
surveillance, were overwhelming.
On May 29, 2018, defendant filed his second PCR petition, which is the
subject of this appeal. In his petition, defendant asserted that his trial counsel
was ineffective by failing to investigate or subpoena two additional witnesses,
Ja.C. and C.R., to ascertain the nature of their interactions with defendant at the
time in question. According to defendant, these purported witnesses were
identified in police reports provided in discovery as individuals with whom
defendant had interacted in the nearby alley. However, searches conducted by
police immediately after these individuals exited the alley uncovered no drugs,
and Ja.C. allegedly advised police he had simply asked defendant for directions.
Despite acknowledging that Ja.C. and C.R. were "characterized" in "[p]olice
reports and trial testimony" as "lacking candor[,]" defendant asserted that their
testimony could have supported his defense that he was not selling heroin and
rebutted the State's contrary version. Defendant also asserted in his PCR
A-5206-17T4
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petition that his appellate and PCR counsel were ineffective for failing to raise
trial counsel's failure to investigate Ja.C. and C.R.
On June 22, 2018, in a written decision, the PCR court denied defendant's
petition on the papers. Applying Rule 3:22-6(b), the PCR court explained that
"a second petition for [PCR] is reviewed differently than . . . the first
application" and that "'[u]pon any second or subsequent petition . . . attacking
the same conviction, the matter shall be assigned to the Office of the Public
Defender only upon . . . [a] showing of good cause.'" Noting that "'good cause
exists only when the court finds that a substantial issue of fact or law requires
assignment of counsel and when a second . . . petition alleges on its face a basis
to preclude dismissal under [Rule] 3:22-4[,]'" the PCR court concluded that
defendant failed to demonstrate "good cause," and his petition was procedurally
barred. The court entered a memorializing order and this appeal followed.
"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,
[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:
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(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
. . . application for [PCR].
[R. 3:22-4(b).]
Rule 3:22-12(a)(2) delineates the requirements for filing a timely second
petition for PCR as follows:
Notwithstanding any other provision in this rule, no
second . . . 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
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(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 . . . application for
post-conviction relief where ineffective assistance of
counsel that represented the defendant on the first . . .
application for post-conviction relief is being alleged.
Here, defendant correctly points out that in analyzing his IAC claim, the
PCR court mistakenly referred to J.C. and J.R., the two purported witnesses
identified in his first PCR petition, instead of Ja.C. and C.R., the potential
witnesses involved in this appeal. Nonetheless, defendant's second PCR petition
is untimely under Rule 3:22-12(a)(2)(C) because although defendant alleged
ineffective assistance of counsel who represented him in his first PCR petition,
defendant failed to file his second PCR petition within one year of the order
denying his first. Indeed, notwithstanding any appeal, defendant's first petition
was denied in May, 2016, and his second petition was filed on May 29, 2018.
See State v. Dillard, 208 N.J. Super. 722, 727 (App. Div. 1986) (holding that the
appeal of the defendant's first PCR petition did not toll the time limitation of
Rule 3:22-12). Moreover, defendant claims no newly recognized constitutional
right, R. 3:22-12(a)(2)(A), and asserts no recently discovered previously
unknown factual predicate for the relief sought. R. 3:22-12(a)(2)(B). In fact,
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as defendant concedes, Ja.C. and C.R. were identified "at the time of the
arraignment" through police reports.
Because "enlargement of Rule 3:22-12's time limits 'is absolutely
prohibited[,]'" defendant's present PCR petition was properly dismissed as
mandated by Rule 3:22-4(b)(1). State v. Jackson, 454 N.J. Super. 284, 292
(App. Div.), certif. denied, 236 N.J. 35 (2018) (citations omitted). See also R.
1:3-4(c) (providing that "[n]either the parties nor the court may . . . enlarge the
time specified by . . . [Rule] 3:22-12"). Further, "[b]y mandating in Rule 3:22-
12(a)(2) that the one-year time limit applied '[n]otwithstanding any other
provision of this rule,' the Supreme Court made clear that the late filing of a
second . . . PCR petition could not be excused in the same manner as the late
filing of a first PCR petition." Jackson, 454 N.J. Super. at 293 (quoting R. 3:22-
12(a)(2)). Thus, contrary to defendant's argument, neither a showing of
"'excusable neglect'" nor any resulting "'fundamental injustice'" excuses a late
filing of a second PCR petition under Rule 3:22-12(a)(2). Id. at 293-94 (quoting
R. 3:22-12(a)(1)(A)).
We also reject defendant's contention that the PCR court erred by not
conducting an evidentiary hearing. While a claim of IAC is subject to "a de
novo review of both the factual findings and legal conclusions of the PCR
A-5206-17T4
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court[,]" State v. Harris, 181 N.J. 391, 419 (2004), (alteration in original)
(citation omitted), "we review under the abuse of discretion standard the PCR
court's determination to proceed without an evidentiary hearing." State v.
Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013). "'If the court perceives
that holding an evidentiary hearing will not aid the court's analysis of whether
the defendant is entitled to post-conviction relief, . . . then an evidentiary hearing
need not be granted.'" Ibid. (quoting State v. Marshall, 148 N.J. 89, 158 (1997)
(alteration in original)).
Here, the PCR court correctly concluded that an evidentiary hearing was
not warranted and we discern no abuse of discretion, particularly since defendant
provided no supporting certifications to establish a prima facie claim of IAC,
and to support his contention that Ja.C. and C.R. would have "counter[ed] or
neutraliz[ed]" the testimony of the police witnesses. See State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999) ("[I]n order to establish a prima facie
claim [of IAC], a petitioner must do more than make bald assertions that he was
denied the effective assistance of counsel. He must allege facts sufficient to
demonstrate counsel's alleged substandard performance"); State v. Porter, 216
N.J. 343, 353 (2013) ("[W]hen a petitioner claims his trial attorney inadequately
investigated his case, he must assert the facts that an investigation would have
A-5206-17T4
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revealed, supported by affidavits or certifications based upon the personal
knowledge of the affiant or the person making the certification") (quoting
Cummings, 321 N.J. Super. at 170) (alteration in original).
Affirmed.
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