STATE OF NEW JERSEY VS. EMOTION BLACKWELL (96-05-1060, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-1716-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EMOTION BLACKWELL,
a/k/a BRENDON FORD, and
JAMIE JONES,
Defendant-Appellant.
Submitted December 9, 2021 – Decided December 17, 2021
Before Judges Alvarez and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 96-05-1060.
Emotion Blackwell, appellant pro se.
Cary Shill, Acting Atlantic County Prosecutor, attorney
for respondent (Mario C. Formica, Special Deputy
Attorney General/Acting Deputy First Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Emotion Blackwell appeals from a December 14, 2020 order
denying his fifth petition for post-conviction relief (PCR). We affirm.
We recounted the facts including the "overwhelming evidence of
defendant's guilt" leading to his convictions in State v. Blackwell, No. A-4330-
01 (App. Div. June 9, 2003) (slip op. at 9), which we incorporate here. In State
v. Blackwell, No. A-2952-18 (App. Div. Dec. 12, 2019) (slip op. at 1-2), we
affirmed the denial of defendant's fourth PCR petition. There, he argued the
petition was improperly denied and he was entitled to a new trial because the
State withheld newly discovered evidence, which could be used to impeach the
State's eyewitness, Michael "Fuzzy" Hayes. Id. at 2. We rejected defendant's
arguments, noting the alleged impeachment evidence was produced by the State
prior to trial. Id. at 4.
In defendant's fifth PCR petition, he argued appellate PCR counsel was
ineffective in failing to argue trial counsel was ineffective for not impeaching
Hayes with the evidence regarding his pending indictments. The PCR judge
found defendant's petition time barred because it was filed "more than [five]
years after the judgment of conviction in 1996[,]" and defendant had not shown
"excusable neglect for the untimeliness." He also found the petition was
procedurally barred because "[d]efendant raised the same point in his prior PCR
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and motion for reconsideration and the recent [a]ppeal in December 2019, which
addressed this issue directly." The judge concluded "[a]s this very issue of
ineffective assistance of counsel . . . was already addressed directly on appeal
. . . and [it] was found that there was no ineffective assistance of counsel, the
new PCR petition should be dismissed."
Defendant raises the following points on this appeal:
POINT I. THE PCR COURT ERRED IN DENYING
[DEFENDANT'S] REQUEST FOR A NEW FIRST
PCR APPEAL BECAUSE FIRST PCR APPELLATE
COUNSEL, IN DOCKET NO. A-4330-01[], FAILED
TO RAISE ON APPEAL[] A MERITORIOUS CLAIM
THAT WAS RAISED BELOW.
[A.] Pro Se Pleadings Liberally
Construed
[B. PCR] Standard of Review
[C.] Subsequent PCR Time Limitations
[D.] PCR Time Limitations Are Not
Inflexible
[E. Defendant] Could Not have
Discovered The Issue Earlier
[F.] Failure To Show Bias of State's
Witness
[G.] Equitable Tolling Applies
[H.] Due Diligence/Reasonable Diligence
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[I.] First PCR Appellate Counsel Was
Ineffective
[J. Defendant] Is Actually Innocent Of
The Murder
[1.] Fundamental Injustice
[2.] Hayes' Open Charges
We review the PCR court's conclusions of law de novo. State v. Nash,
212 N.J. 518, 540-41 (2013) (citing State v. Harris, 181 N.J. 391, 415-16
(2004)). The familiar Strickland standard requires a defendant show counsel
rendered substandard professional assistance that prejudiced the outcome of the
proceedings. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State
v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland standard).
In assessing whether excusable neglect justifies relaxation of the time bar
for PCR petitions set forth in Rule 3:22-12(a)(2), we "consider the extent and
cause of the delay, the prejudice to the State, and the importance of the
petitioner's claim in determining whether there has been an 'injustice' sufficient
to relax the time limits." State v. Norman, 405 N.J. Super. 149, 159 (App. Div.
2009) (quoting State v. Afanador, 151 N.J. 41, 52 (1997)). More than "a
plausible explanation for [the defendant's] failure to file a timely PCR petition"
is required. Ibid.A-1716-20
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Rule 1:1-2(a) permits courts in "exceptional circumstances" to relax the
five-year time bar, but only if a defendant can demonstrate an injustice "by a
preponderance of the credible evidence" that would entitle him to relief. State
v. Mitchell, 126 N.J. 565, 579 (1992). Our Supreme Court has required a
showing of "compelling, extenuating circumstances," State v. Milne, 178 N.J.
486, 492 (2004) (quoting Afanador, 151 N.J. at 52); or alternatively,
"exceptional circumstances . . . ." State v. Murray, 162 N.J. 240, 246 (2000).
The five-year time bar may be set aside only to avoid a fundamental injustice
where the deficient representation of counsel affected "a determination of guilt
or otherwise wrought a miscarriage of justice." Nash, 212 N.J. at 546 (quoting
Mitchell, 126 N.J. at 587).
Having considered defendant's arguments pursuant to these principles, we
affirm substantially for the reasons expressed by the PCR judge. We add the
following comments.
As we noted in our last decision,
the State produced an August 22, 1996 letter from the
trial prosecutor to defendant's trial counsel, detailing
the indictments related to the State's eyewitness.
Moreover, during oral argument of defendant's first
PCR petition in 2001, his counsel acknowledged the
State made these disclosures. Finally, in our opinion
affirming the denial of defendant's first petition, we
noted "defendant claimed that his trial counsel was
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ineffective in . . . failing to cross-examine [the State's
witness] concerning pending charges against him."
[Blackwell, No. A-2952-18, slip op. at 4.]
Given these facts, defendant has not demonstrated a miscarriage of justice
sufficient to warrant setting aside the five-year time bar. Moreover, we clearly
held there was no ineffective assistance of trial counsel for failing to question
Hayes. Notwithstanding the time bar, appellate PCR counsel was not ineffective
because counsel raised the claim on appeal and it was rejected. The PCR judge
did not err.
Affirmed.
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