STATE OF NEW JERSEY VS. TIEHEEN FLETCHER (97-10-4248, 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NOT FOR PUBLICATION WITHOUT THE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-5414-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIEHEEN FLETCHER,
Defendant-Appellant.
_________________________
Submitted May 1, 2019 — Decided May 16, 2019
Before Judges Nugent and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 97-10-4248.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Matthew E.
Hanley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Tieheen Fletcher appeals from a June 30, 2017 order, which
denied his second post-conviction relief (PCR) petition. We affirm for the
reasons expressed in the thorough and well-reasoned written decision of Judge
Mark S. Ali.
We take the following facts from the record. The underlying incident
occurred on August 8, 1997. The victim, Gregory Brantley, was standing
outside of a building he intended to purchase in Newark, discussing its
rehabilitation. An eyewitness observed defendant, a known drug dealer, argue
with the victim. The witness saw the victim get into his car, heard several
gunshots, and saw defendant walking away with a gun in his hand. The witness
heard defendant state he "got his fat ass" and then saw him tuck the gun into his
pants. Another eyewitness identified defendant as the man who shot at the
victim's car from behind a tree.
A jury convicted defendant of first-degree murder, N.J.S.A. 2C:11-3(a)(1)
and (2); third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-
5(b); and second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a). Defendant received a life sentence with a thirty-year
parole disqualifier on the murder conviction. The sentencing judge merged the
weapons possession convictions and sentenced defendant to a five-year
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concurrent term. We affirmed defendant's conviction and sentences. State v.
Fletcher, No. A-4398-98 (App. Div. Jan. 9, 2001), slip op. at 28.
Defendant filed his first PCR petition, which the PCR court denied.
Defendant appealed and we affirmed in part and remanded in part for the PCR
court to consider claims defendant had raised for the first time on appeal. State
v. Fletcher, No. A-4155-07 (App. Div. May 21, 2010), slip op. at 32-33. On
remand, the PCR court denied defendant's petition. On defendant's second
appeal, we affirmed and summarized his claims as follows:
In this appeal, defendant has not challenged the
remand court's decision denying his claims that his
PCR counsel was ineffective. Rather, he argues that his
trial counsel ineffectively represented him in four
ways: by successfully moving to suppress a statement
defendant gave to police, abandoning a theory of self-
defense, inadequately advising him about his right to
testify, and failing to "seek appropriate relief" when
hearsay testimony was introduced at trial. In
defendant's previous appeal from the denial of his PCR
petition, we rejected his arguments that trial counsel
was ineffective for moving to suppress his statement
and inadequately advising him about his right to testify.
As to his new claims, counsel's decision not to pursue a
claim of self-defense was a matter of trial strategy that
we will not second-guess. . . . Thus, having exercised
our discretion to consider this appeal, and having
considered defendant's arguments in light of the record
and controlling law, we affirm the denial of defendant's
PCR petition.
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[State v. Fletcher, No. A-5720-11 (App. Div. Oct. 21,
2014), slip op. at 2-3.]
On October 23, 2015, defendant filed a second PCR petition, re-asserting
the ineffective assistance of counsel claims he had raised in the first PCR
petition, and asserting a claim of ineffective assistance of PCR and appellate
counsel for failing to argue his trial counsel was ineffective for failing to notify
defendant she would not argue self-defense at trial. Judge Ali denied the petition
without an evidentiary hearing.
The judge concluded the second petition, as it related to the claims against
both trial and PCR counsel, was time-barred pursuant to Rule 3:22-12(a)(2)(c)
because it was not made within one year of the denial of the first PCR petition.
Likewise, the judge concluded the claims against appellate PCR counsel were
time-barred because they were not made within one year of our decision
affirming the denial of the first PCR petition.
Judge Ali also found the petition failed to present a prima facie case for
relief on the merits. Specifically, the judge noted the claim of self-defense
contradicted defendant's own testimony that he knew nothing about the
shooting, and the fact his trial counsel advised him accordingly on five occasions
and also in a letter before defendant rejected a plea and proceeded to trial. The
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judge also noted the first PCR petition had already adjudicated this claim on its
merits. This appeal followed.
Defendant raises the following points:
POINT I – THE DEFENDANT'S SECOND PCR
PETITION SHOULD NOT HAVE BEEN TIME-
BARRED.
POINT II – THIS MATTER MUST BE REMANDED
FOR AN EVIDENTIARY HEARING BECAUSE THE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF PCR APPELLATE COUNSEL'S
INEFFECTIVENESS FOR NOT PURSUING TRIAL
COUNSEL'S FAILURE TO ADVISE THE
DEFENDANT AS TO ABANDONING SELF-
DEFENSE PRIOR TO THE PLEA CUT-OFF DATE.
When the PCR court does not hold an evidentiary hearing, we "conduct a
de novo review[.]" State v. Harris, 181 N.J. 391, 421 (2004). To show
ineffective assistance of counsel, a defendant must satisfy the two-pronged test
of Strickland v. Washington, 466 U.S. 668 (1984), adopted in State v. Fritz, 105
N.J. 42 (1987). "The defendant must demonstrate first that counsel's
performance was deficient, i.e., that 'counsel made errors so serious that counsel
was not functioning as the "counsel" guaranteed the defendant by the Sixth
Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland,
466 U.S. at 687). The defendant must overcome a "strong presumption that
counsel rendered reasonable professional assistance." Ibid. Second, "a
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defendant must also establish that the ineffectiveness of his attorney prejudiced
his defense. 'The 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 279-80 (quoting Strickland, 466 U.S. at 694).
A PCR court need not grant an evidentiary hearing unless "a defendant
has presented a prima facie [case] in support of post-conviction relief." State v.
Marshall, 148 N.J. 89, 158 (1997) (alteration in original) (quoting State v.
Precoise, 129 N.J. 451, 462 (1992)). "To establish such a prima facie case, the
defendant must demonstrate a reasonable likelihood that his or her claim will
ultimately succeed on the merits." Ibid. The court must view the facts "in the
light most favorable to defendant." Ibid. (quoting R. 3:22-10(b)).
Rule 3:22-4(b)(1) provides that "[a] second or subsequent petition for
post-conviction relief shall be dismissed unless: (1) it is timely under [Rule]
3:22-12(a)(2)[.]" In pertinent part, Rule 3:22-12(a)(2) provides:
Notwithstanding any other provision in this rule, no
second or subsequent petition shall be filed more than
one year after the latest of:
....
(C) the date of the denial of the first or
subsequent application for post-conviction relief
where ineffective assistance of counsel that
represented the defendant on the first or
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subsequent application for post-conviction relief
is being alleged.
"Neither the parties nor the court may . . . enlarge the time specified by . . .
[Rule] 3:22-12[.]" R. 1:3-4(c); see R. 3:22-12(c) (2009); see also In re
Rosenthal, 118 N.J. 454, 458 (1990).
Having considered defendant's claims under the aforementioned
standards, we affirm for the reasons set forth in Judge Ali's decision. Defendant
simply presented no evidence of a prima facie case of ineffective assistance of
appellate PCR counsel, where such a claim was neither sustainable against trial
counsel or PCR counsel nor meritorious in its own right. Moreover, because
defendant's claims were untimely under Rule 3:22-12(a)(2), they must be
dismissed pursuant to Rule 3:22-4(b)(1).
Affirmed.
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