State of New Jersey v. Jeremiah A. Jackson

• Court: New Jersey Superior Court Appellate Division
• Decided: August 4, 2025
• Docket: A-3713-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3713-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEREMIAH A. JACKSON,

Defendant-Appellant. _________________________

Argued March 26, 2025 – Decided August 4, 2025

Before Judges Rose and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-08-1955.

Kathryn Ann Marron, Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Kathryn Ann Marron, on the brief).

Matthew T. Mills, Assistant Prosecutor, argued the cause for respondent (William E. Reynolds, Atlantic County Prosecutor, attorney; Matthew T. Mills, of counsel and on the brief).

PER CURIAM Defendant Jeremiah A. Jackson appeals from a June 29, 2023 order

dismissing his second petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm because the petition was untimely and otherwise

unsupported.

I.

The facts underlying defendant's convictions are detailed in our prior

unpublished opinion affirming defendant's September 2013 convictions for

conspiracy, murder, felony murder, burglary, and possession of a shotgun and

handgun for an unlawful purpose, for his part in the December 9, 2011 shooting

death of "a reputed drug dealer['s]" father in the victim's home. State v. Jackson,

No. A-1425-13 (App. Div. Dec. 1, 2015) (Jackson I) (slip op. at 2-3). In the

same opinion, we also affirmed defendant's aggregate fifty-year prison term with

an eighty-five-percent parole disqualifier pursuant to the No Early Release Act,

N.J.S.A. 2C:43-7.2, on the applicable convictions. Id. at 24. The Supreme Court

denied certification. State v. Jackson, 223 N.J. 282 (2015).

The chronology that followed is pertinent to this appeal. In April 2016,

defendant filed a timely pro se PCR petition challenging trial counsel's

effectiveness. Through assigned counsel, defendant filed revised certifications

supporting his petition. See State v. Jackson, No. A-0708-18 (Mar. 11, 2020)

A-3713-22 2 (Jackson II) (slip op. at 8). Among other deficiencies, defendant alleged trial

counsel "failed to challenge the State's DNA evidence." Ibid. The PCR judge,

who was not the trial judge, denied relief in an oral decision memorialized by

an August 1, 2018 order. Id. at 9.

While his ensuing appeal before this court was pending, on December 3,

2019, defendant filed a pro se second PCR petition asserting ineffective

assistance of PCR counsel and appellate counsel. In his handwritten second

petition, defendant generally claimed both attorneys

failed to find any issues of th[eir] own. And issues [he] wanted to review, w[hi]ch [we]re sentencing, confidential informant, third party[-]guilt, lesser included offenses, questionable chain of custody, [B]rady[1] material from the [S]tate, [C]onfrontation [C]lause, signed certifications that w[ere] not done. Statement of a Joey Killian [and] John Jackson.

On January 17, 2020, the same PCR judge inexplicably issued an order

assigning counsel on "defendant's first Petition for [PCR]." (Emphasis added).

In the order, the judge directed the Office of the Public Defender's (OPD) PCR

Unit to assign counsel "within 90 days after receipt of th[e] orde r." A case

management conference was scheduled for May 21, 2020.

1 Brady v. Maryland, 373 U.S. 83 (1963).

A-3713-22 3 By notice dated June 17, 2020, assigned counsel (second PCR counsel)

entered her appearance on behalf of defendant. Second PCR counsel did not,

however, file an amended petition within ninety days of her assignment or

otherwise provide notice that an amended petition would not be filed. See R.

3:22-9. Nor did second PCR counsel file a brief supplementing defendant's pro

se claims.

On March 11, 2020, we affirmed the August 1, 2018 order denying

defendant's first PCR petition. Jackson II, slip op. at 19. Relevant to defendant's

DNA claim, we concluded defendant failed to "provide the PCR court with an

affidavit or certification from a qualified DNA expert, setting forth an opinion

with the basis upon which the State's DNA evidence could have been

challenged." Id. at 13.

On January 7, 2021, the same PCR judge dismissed defendant's second

PCR petition without prejudice pending the Supreme Court's disposition of

defendant's petition for certification, although the petition was not yet filed. In

the order, the PCR judge "preserved" the December 3, 2019 filing date. The

judge did not cite any authority supporting its order.2

2 By comparison, Rule 3:22-6A(2) mandates dismissal of a PCR petition, upon the OPD's notification that "a direct appeal, including a petition for certification,

A-3713-22 4 On March 25, 2021, defendant filed his petition for certification. The

Court denied certification on July 9, 2021. State v. Jackson, 247 N.J. 240

(2021).

We glean from the record, on August 23, 2021, second PCR counsel

refiled defendant's second PCR petition. Shortly thereafter, "the court" "re-

uploaded" the petition. Second PCR counsel did not file an amended petition

elaborating upon defendant's pro se claims.

On March 15, 2022, another judge (second PCR judge) issued a briefing

schedule on defendant's petition. The order reflects a hearing was scheduled for

June 7, 2022. Instead of filing a brief in support of defendant's second petition,

second PCR counsel moved for post-conviction discovery.

Following oral argument, on June 22, 2022, the second PCR judge granted

defendant's motion to produce DNA materials by July 27, 2022. After oral

argument, on December 6, 2022, the judge issued separate orders: granting

defendant's motion for an in camera review of an investigating officer's

personnel records; and denying defendant's motion to compel documents

regarding the cooperation of two State's witnesses. Defendant does not appeal

is pending." In addition, the defendant must then "refile[] the petition within 90 days of the date of the judgment on direct appeal" or "petition for certification ," ibid., and the petition is then "treated as a first petition," R. 3:22-12(a)(3). A-3713-22 5 from the adverse order and, as such, it is deemed abandoned on appeal. See

State v. Huang, 461 N.J. Super. 119, 125 (App. Div. 2018).

We glean from the record, at defendant's request, the PCR hearing was

rescheduled three times between January 12, and May 11, 2023. In response to

defendant's fourth application for a postponement, the State asked the second

PCR judge to determine the timeliness of his second petition. Second PCR

counsel countered the State's request was "unripe because defendant ha[d] not

yet filed his Amended Verified Petition, accompanying legal-brief, or

supporting exhibits." Emphasizing the investigation was ongoing, second PCR

counsel stated she was "continuing to seek missing discovery from the State."

The parties thereafter submitted briefs on the timeliness issue.

In a written decision accompanying the June 29, 2023 order, the second

PCR judge granted the State's application to dismiss defendant's second PCR

petition as untimely. The second PCR judge first found his predecessor accepted

the petition for filing and found "'good cause' for the assignment of counsel,"

but those determinations "d[id] not cure the untimely filing." The judge found

defendant's petition failed to satisfy the criteria for timely second or subsequent

petitions under Rule 3:22-12(a)(2). In particular, the petition: did not allege "a

newly recognized constitutional right" made retroactive by the Supreme Courts

A-3713-22 6 of the United States or this state, R. 3:22-12(a)(2)(A); did not allege a "newly

discovered factual predicate," R. 3:22-12(a)(2)(B); or was not filed within a year

of the denial of his first PCR petition, R. 3:22-12(a)(2)(C). As the judge later

noted, subparagraph (a)(2)(C) requires, as defendant generally asserted,

ineffective assistance of PCR counsel. The judge thus found the second petition

was untimely filed on December 3, 2019, and the time constraints were not

relaxable under Rule 3:22-12(b).

Citing defendant's request for "an indefinite amount of time, for some

expansive post-trial investigation, to file some undetermined amended petition,"

the judge reasoned "[t]he matter [w]as 'ripe' for disposition on procedural

grounds as raised by the State." The judge was not persuaded by defendant's

assertion that he was "bound to hear [the untimely second PCR petition] to its

conclusion" because the first PCR judge "accepted" the petition. Finally, the

judge found "most if not all the claims" asserted in defendant's second PCR

petition were previously raised and thus barred under Rule 3:22-5, or

On appeal, defendant raises the following points for our consideration:

A-3713-22 7 POINT ONE

THE PCR JUDGE ERRED IN SUMMARILY DISMISSING WITH PREJUDICE [DEFENDANT]'S SECOND [PCR] PETITION.

A. [Defendant]'s PCR [Petition] should be remanded for further proceedings because the dismissal of the PCR [Petition] prior to submissions and oral argument is premature.

B. [Defendant]'s PCR [Petition] raises grounds that are not subject to the one-year time bar in R[ule] 3:22- 12(a)(2)(C).

C. The Court should find exceptional circumstances exist to relax the second PCR time bar in the interests of justice.

POINT TWO

NEW JERSEY COURT RULE 3:22-12(a)(2)(C) SHOULD BE INTERPRETED TO START THE ONE YEAR FILING REQUIREMENT FROM THE DATE O[N] WHICH THE JUDGMENT BECOMES FINAL BY THE CONCLUSION OF DIRECT REVIEW OR THE EXPIRATION OF THE TIME SEEKING SUCH REVIEW, AKIN TO FEDERAL HABEAS LAW 28 U.S. CODE 224, WHICH WOULD THUS RENDER [DEFENDANT]'S SECOND PCR [PETITION] TIMELY. [3]

3 In his merits brief, defendant incorrectly notes the second PCR judge issued the June 29, 2023 order without an accompanying statement of reasons. During oral argument before us, appellate counsel acknowledged the error and declined our request to submit a supplemental letter addressing the judge's decision .

A-3713-22 8 We reject defendant's contentions and affirm.

II.

As a preliminary matter, because the State did not move or cross-move

from the January 17, 2020 order appointing counsel, we decline to consider its

argument that the first PCR judge erroneously determined good cause existed

for the appointment of counsel on defendant's second PCR petition. See State

v. McIlhenny, 333 N.J. Super. 85, 87 (App. Div. 2000); see also State v.

Elkwisni, 190 N.J. 169, 175 (2007).4

Nonetheless, in defendant's brief and during oral argument before us, appellate counsel thoroughly addressed the issues raised. 4 We observe, however, the first PCR judge did not issue the Judiciary's form of order for second or subsequent PCR petitions. Super. Ct. of N.J., CN 10287, Post-Conviction Relief Order Assigning Counsel and Designating Judge (second or subsequent petition) (March 31, 2011). That form of order specifically acknowledges the PCR court's "finding [of] good cause for assignment of counsel as required by R[ule] 3:22-6(b)," followed by a space for the court to explicitly state its findings. Contrary to the second PCR judge's finding, the first PCR judge made no such determination.

Moreover, under Rule 3:22-6(b), "good cause" for the filing of a second or subsequent petition "exists only when the court finds that a substantial issue of fact or law requires assignment of counsel and when . . . [the] petition alleges on its face a basis to preclude dismissal under R[ule] 3:22-4." One such basis is a timely filed petition under Rule 3:22-12(a)(2). R. 3:22-4(b)(1). As discussed below, the second PCR judge correctly determined defendant's second petition was untimely. A-3713-22 9 Our analysis of the issues raised on appeal is guided by a review of the

relevant provisions of the two court rules that explicitly apply to a second or

subsequent PCR petition. Rule 3:22-4(b) places strict limitations on second and

subsequent petitions for PCR. The Rule compels dismissal of a subsequent PCR

petition unless the defendant can satisfy the time requirement under Rule 3:22-

12(a)(2), and alleges the following grounds for relief:

(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 or subsequent application for post-conviction relief.

[R. 3:22-4(b)(2).]

In turn, Rule 3:22-12(a)(2) imposes a time limitation for subsequent PCR

petitions. Under the Rule, a second or subsequent petition for PCR must be filed

within one year after the latest of:

A-3713-22 10 (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

(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 or subsequent application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief is being alleged.

[R. 3:22-12(a)(2).]

A 2009 amendment to the Rule makes clear beyond question that the one-

year limitation for second or subsequent petitions is non-relaxable. See R. 3:22-

12(b); State v. Jackson, 454 N.J. Super. 284, 293 (App. Div. 2018); see also R.

1:3-4(c) (prohibiting the court and the parties from enlarging the time to file a

petition for PCR under Rule 3:22-12). Moreover, in State v. Brown, we held:

[W]hen a first PCR petition shows it was filed more than five years after the date of entry of the judgment of conviction, . . . a PCR judge has an independent, non- delegable duty to question the timeliness of the petition, and to require that defendant submit competent evidence to satisfy the standards for relaxing the rule's time restrictions pursuant to Rule 3:22-12. Absent sufficient competent evidence to satisfy this standard,

A-3713-22 11 the court does not have the authority to review the merits of the claim.

[455 N.J. Super. 460, 470 (App. Div. 2018).]

We discern no reason why a similar duty would not apply to the PCR

court's consideration of a second or subsequent PCR petition, especially because

– unlike the "excusable neglect" and "fundamental fairness" exceptions for

untimely first petitions – the time bar is non-relaxable. Indeed, application of

these rules makes plain defendant's second PCR petition was procedurally

barred because his petition was filed four months beyond the one-year time

requirement embodied in Rule 3:22-12(a)(2).

Nor are we persuaded by the arguments raised in defendant's second point.

Citing the federal habeas corpus rule, 28 U.S.C. § 2244(d)(1)(A), defendant

argues we should interpret the one-year time limit under Rule 3:22-12(a)(2)(C)

commences after appellate review of the order denying a first petition.

Defendant's argument is misplaced. Our courts have uniformly held appellate

review does not toll the five-year time bar in Rule 3:22-12(a)(1). See State v.

Dillard, 208 N.J. Super. 722, 727 (App. Div. 1986). Nor is the time bar extended

when appellate proceedings result in a remand. See State v. Dugan, 289 N.J.

Super. 15, 20-21 (App. Div. 1996).

A-3713-22 12 We discern no basis to apply a tolling provision to the one-year time bar

in Rule 3:22-12(a)(2)(C). Defendant's argument is better addressed to the

Supreme Court's Committee on Criminal Practice. We note only, unlike Rule

3:22-12(a)(1)'s five-year limitation period, 28 U.S.C. § 2244 provides a one-

year filing period for a first PCR. We conclude the second motion judge

properly dismissed defendant's second PCR petition as untimely.

Because the second PCR judge recognized the procedural bar and

nonetheless considered the merits of defendant's petition, we have likewise done

so and conclude his claims lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated

in the judge's cogent written decision.

In summary, similar to the second PCR judge, we agree defendant's

ineffective assistance of counsel claims against PCR counsel were wholly

unsupported, notwithstanding the lengthy pendency of his petition following the

assignment of second PCR counsel. Although the second PCR judge adjourned

the hearing several times, affording second PCR counsel time to obtain

discovery on defendant's bald assertions, the second petition neither was

amended nor supplemented with a brief expounding upon his claims.

Affirmed.

A-3713-22 13