Citation Numbers: 365 N.J. Super. 82, 838 A.2d 470
Filed Date: 12/9/2003
Status: Precedential
Modified Date: 7/25/2022
Defendant appeals from the denial of his second petition for post-conviction relief. He is serving a thirty-year term for murder, armed robbery and aggravated assault. We affirm.
In this second petition for post-conviction relief,
On appeal, defendant raises the following arguments:
POINT I.
THE JUDGE AT DEFENDANT’S CRIMINAL TRIAL COMMITTED PLAIN ERROR WHEN HE BOTH FAILED TO INSTRUCT DEFENDANT’S TRIAL JURY ABOUT NJS HCS-Sb WITH RESPECT TO THE ISSUE OF CAUSATION, AND INSTEAD INSTRUCTED THE JURY ABOUT THE PREVIOUSLY REPEALED STATUTORY AFFIRMATIVE DEFENSE OF "MISADVENTURE”.
POINT II.
THE COURT BELOW COMMITTED REVERSIBLE ERROR WHEN IT RULED THAT DEFENDANT’S PETITION FOR POST-CONVICTION RELIEF WAS TIME-BARRED.
A. Defendant’s Petition For Postr-Conviction Relief Alleged, Facts Demonstrating Excusable Neglect For Defendant’s Delayed Filing Of the Petition.
*84 B. The Court Below Abused Its Discretion When It Refused To Relaxe The Time-Bar Of R.3:22-12 Pursuant to R.1:1-2.
POINT III.
THE COURT BELOW COMMITTED REVERSIBLE ERROR BY DENYING DEFENDANT’S PETITION FOR POST-CONVICTION RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING ON DEFENDANT’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM BECAUSE, FOR THE REASONS SET FORTH IN POINTS I AND II, DEFENDANT HAD DEMONSTRATED A REASONABLE LIKELIHOOD OF SUCCESS ON THE MERITS.
Judge Ryan held that this second petition was proeedurally barred because defendant filed this petition more than fifteen years after entry of the judgment of conviction and more than ten years beyond the five-year time limitation established by rule. R. 3:22-12. He also concluded that defendant failed to establish excusable neglect or exceptional circumstances such that strict adherence to the five-year time bar would result in an injustice. We agree with this analysis and affirm substantially for the reasons expressed by Judge Ryan in his March 15, 2002 opinion.
Affirmed.
Defendant has also filed two petitions for writ of habeas corpus in federal court, both of which have been denied.