STATE OF NEW JERSEY VS. JOHN LOYAL (96-06-2036, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-2824-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN LOYAL,
Defendant-Appellant.
____________________________
Submitted September 18, 2018 – Decided September 26, 2018
Before Judges Hoffman and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 96-06-2036.
Joseph E. Krakora, Public Defender, attorney for
appellant (Richard Sparaco, Designated Counsel, on the
brief).
Theodore Stephens II, Acting Essex County Prosecutor,
attorney for respondent (Barbara A. Rosenkrans,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant John Loyal appeals from the December 4, 2015 Law Division
order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
I
In connection with the February 7, 1996 shooting death of Carl Watson,
an Essex County grand jury indicted defendant for purposeful or knowing
murder, N.J.S.A. 2C:11-3(a)(1) and (2); aggravated assault by pointing a
firearm, N.J.S.A. 2C:12-1(b)(4); possession of a handgun without a permit,
N.J.S.A. 2C:39-5(b); and possession of a handgun with the intent to use it
unlawfully against the person or property of another, N.J.S.A. 2C:39-4(a). After
defendant's first trial resulted in a mistrial, he moved to dismiss the indictment,
arguing a new trial would result in double jeopardy. The trial court denied the
motion.
A second jury found defendant guilty on all four counts. The trial court
sentenced defendant to life in prison with a thirty-year parole disqualifier on the
murder charge and concurrent sentences on the remaining charges. State v.
Loyal, 164 N.J. 418, 428 (2000).
We affirmed defendant's convictions and sentence on direct appeal. State
v. Loyal, No. A-1404-97 (App. Div. July 9, 1999) (slip op. at 22). Our Supreme
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Court granted certification, and also affirmed. Loyal, 164 N.J. at 443.
Subsequently, the United States District Court for the District of New Jersey
denied defendant's petition for a writ of habeas corpus. In 2003, the Third
Circuit Court of Appeals denied defendant's application for a certificate of
appealability. In 2004, the United States Supreme Court denied defendant's
application for a petition for writ of certiorari.
On July 8, 2014, defendant filed a pro se petition for PCR, and designated
PCR counsel subsequently filed a supporting brief. On December 4, 2015, the
PCR judge delivered an oral opinion denying defendant's petition without an
evidentiary hearing. This appeal followed.
On appeal, defendant argues:
POINT I — DEFENDANT WAS ENTITLED TO AN
EVIDENTIARY HEARING[.]
A. DEFENDANT ESTABLISHED A PRIMA
FACIE CASE OF INEFFECTIVE
ASSISTANCE OF COUNSEL IN TRIAL
COUNSEL'S FAILURE TO CALL A CRITICAL
WITNESS (SHARONDA POSEY) AT THE
RETRIAL.
B. TRIAL COUNSEL WAS INEFFECTIVE IN
FAILING TO PROPERLY AND
EFFECTIVELY IMPEACH THE
CREDIBILITY OF STATE'S WITNESS
WANDA COLON.
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C. APPELLATE COUNSEL WAS INEFFECTIVE
IN FAILING TO RAISE ON APPEAL THAT
DEFENDANT WAS ENTITLED TO A JURY
INSTRUCTION ON CROSS-RACIAL
IDENTIFICATION.
D. TRIAL COUNSEL FAILED TO CONDUCT
ADEQUATE PRETRIAL INVESTIGATION OF
THE CASE RESULTING IN THE FAILURE TO
CALL THREE ESSENTIAL WITNESSES AT
TRIAL, THEREBY DENYING DEFENDANT
THE RIGHT TO EFFECTIVE ASSISTANCE
OF COUNSEL.
i. TRIAL COUNSEL WAS INEFFECTIVE IN
FAILING TO CALL JEFFREY WISE AS A
WITNESS FOR THE DEFENSE.
ii. TRIAL COUNSEL WAS INEFFECTIVE IN
FAILING TO CALL VALERIE FIELDS AS
A WITNESS FOR THE DEFENSE.
iii. TRIAL COUNSEL WAS INEFFECTIVE IN
FAILING TO CALL ALJIVA A[.] POSEY
AS A WITNESS FOR THE DEFENSE.
POINT II — DEFENDANT'S PETITION WAS NOT
TIME BARRED UNDER R[ULE] 3:22-12.
II
We first consider defendant's argument that the PCR court erred in
determining his PCR petition was time-barred. We reject his argument.
Under Rule 3:22-12(a)(1), a petition for PCR, for reasons other than to
correct an illegal sentence, must be filed within five years of entry of the
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judgment of conviction, unless there is a showing of excusable neglect. State v.
Afanador, 151 N.J. 41, 52 (1997). "In the context of [PCR], a court should only
relax the bar of Rule 3:22-12 under exceptional circumstances." Ibid.Here, defendant claims the delay in filing his PCR petition resulted from
excusable neglect. He alleges he filed the petition within seven months after the
Supreme Court denied his application for a petition for writ of certiorari;
however, when he contacted the court after the federal appeals process ended,
he learned a record of his filing did not exist. He further contends he relied upon
his counsel to file for PCR, and therefore, was unaware of the five-year
limitation.
We find defendant's allegations insufficient to warrant relaxing the time-
bar. Defendant's judgment of conviction was entered on September 8, 1997,
therefore, he had until September 2002 to timely file his PCR petition. The
Supreme Court denied certiorari in 2004. Accordingly, even had defendant filed
his PCR petition within seven months of the Supreme Court's denial, he still
would have filed his petition beyond the five-year time-bar. See also State v.
Milne, 178 N.J. 486, 494 (2004) (holding federal habeas corpus proceedings
"ordinarily" do not toll the Rule 3:22-12 time-bar). Moreover, defendant's
assertion that he was unaware of the time-bar fails to constitute excusable
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neglect. See State v. Murray, 162 N.J. 240, 246 (2000) (holding a lack of
"sophistication in the law does not satisfy the exceptional circumstances
required" to overcome the time-bar).
III
We analyze ineffective assistance of counsel claims by using the two -
prong test established by the Supreme Court in Strickland v. Washington, 466
U.S. 668, 694 (1984). See State v. Preciose, 129 N.J. 451, 463(1992); see also
State v. Fritz, 105 N.J. 42, 58 (1987). The first prong of the Strickland test
requires a defendant to establish counsel's performance was deficient. Preciose,
129 N.J. at 463. "The second, and far more difficult, prong . . . is whether there
exists 'a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.'" Id. at 463-64 (quoting
Strickland, 466 U.S. at 694).
There exists a strong presumption that counsel rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment. Strickland, 466 U.S. at 689. Further, because prejudice
is not presumed, defendant must demonstrate how specific errors of counsel
undermined the reliability of the proceeding. Fritz, 105 N.J. at 61.
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Defendant's substantive arguments lack persuasion. His first argument,
that trial counsel was ineffective in failing to call Sharonda Posey1 as a witness
at the second trial, fails to satisfy the first Strickland prong. At the first trial,
Sharonda's credibility was undermined after she recanted her original statement
that defendant shot the victim, instead identifying another individual, and
admitted her boyfriend at the time was the individual who ordered the victim's
murder. Accordingly, the PCR judge did not err in finding her testimony could
be "more of a liability than an asset to the defense," and that trial counsel's
failure to call her as a witness was a reasonable, strategic decision.
Defendant next contends his trial counsel provided ineffective assistance
in failing to impeach Wanda Colon, the State's eyewitness. He argues Colon's
testimony about her heroin use was inconsistent between the first and second
trials, and counsel should have impeached her on those statements.
The record reflects trial counsel effectively impeached Colon at the
second trial. As the PCR judge noted,
[T]he record clearly indicates that defense counsel
vigorously attempted to undermine Colon's credibility
on cross examination. . . . [C]ounsel pointed out how
Colon had lied [about] material facts when she gave her
sworn statement to [the detective], as well as how
Colon misidentified [an individual] . . . . Counsel also
1
To avoid confusion, but intending no disrespect, we refer to Sharonda Posey
and Aljiva A. Posey by their first names.
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examined both Colon and [the detective] on their prior,
personal relationship[,] suggesting . . . perhaps some
bias on the part of both witnesses.
Accordingly, the record reflects trial counsel provided effective
assistance. As such, defendant's argument fails.
Defendant next argues trial counsel failed to adequately investigate
Jeffery Wise, Valerie Fields, and Aljiva as potential witnesses. In support,
defendant submitted the certifications of Wise and Aljiva, who stated they were
witnesses to the shooting and someone other than defendant committed the
murder. Defendant also submitted Field's certification, which states she
witnessed the victim arguing with two men — neither of whom were defendant
— shortly before the victim's murder.
We decline to address defendant's argument. The record reflects the
witnesses' certifications lack signatures, as required under Rule 1:4-4(c);
accordingly, defendant failed to present competent evidence supporting his
claim. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)
("[W]hen a petitioner claims his [or her] . . . attorney inadequately investigated
[the] case, he [or she] must assert the facts that the investigation would have
revealed, supported by affidavits or certifications based upon the personal
knowledge of the affiant or the person making the certification.").
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Finally, defendant argues appellate counsel provided ineffective
assistance in failing to argue defendant was entitled to a cross-racial
identification jury instruction. See State v. Cromedy, 158 N.J. 112, 132 (1999)
(instructing courts to provide cross-racial jury instructions under specific
circumstances). We disagree.
As the PCR judge noted, our Supreme Court did not decide Cromedy until
two years after defendant's trial. Accordingly, trial counsel was under no
obligation to argue for a cross-racial identification instruction, and his appellate
counsel did not provide ineffective assistance in failing to raise that issue on
appeal. Moreover, defendant fails to present any evidence demonstrating his
appellate counsel's allegedly deficient performance prejudiced the outcome of
his appeal, particularly in light of appellate counsel's zealous advocacy
pertaining to the viable double jeopardy defense.
Affirmed.
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