NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3596-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUIS A. PEREZ, a/k/a LUIS PEREZ,
Defendant-Appellant. ________________________
Submitted February 25, 2025 – Decided March 11, 2025
Before Judges Gilson and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-12-2900.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
William E. Reynolds, Atlantic County Prosecutor, attorney for respondent (Courtney Cittadini, Chief Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Luis A. Perez appeals from an April 14, 2023 order denying
his second petition for post-conviction relief (PCR) and request for an
evidentiary hearing. Defendant argues he established a prima facie showing of
ineffective assistance of his first PCR counsel and PCR appellate counsel, his
second PCR petition should not have been time-barred, and he should have been
afforded an evidentiary hearing. We affirm the order because defendant's
second PCR petition was time-barred.
I.
The salient facts and procedural history were previously detailed in our
decision on defendant's direct appeal, State v. Perez, No. A-5903-13 (App. Div.
Mar. 10, 2015), where we affirmed the denial of the motion to withdraw the plea
and the sentence imposed. (slip op. at 1). In April 2012, defendant was charged
with first-degree murder and weapons charges after Joseph Hurt was shot and
killed. Defendant pled guilty to an amended charge of manslaughter and was
sentenced to eighteen years' imprisonment subject to the No Early Release Act,
N.J.S.A. 2C:43-7.2.
Thereafter, defendant filed his first PCR petition, which the first PCR
court denied, without conducting an evidentiary hearing. We affirmed denial of
the PCR. State v. Perez, No. A-5274-15 (App. Div. July 24, 2017). However,
A-3596-22 2 the Supreme Court remanded the matter to the trial court for an evidentiary
hearing. State v. Perez, 231 N.J. 423 (2017).
At the evidentiary hearing, the first PCR court heard testimony from
defendant and his two trial attorneys. The first PCR court found the attorneys
were credible and defendant was not credible. On July 30, 2018, the first PCR
court entered an order denying his first PCR petition. We affirmed on direct
appeal. State v. Perez, No. A-0848-18 (App. Div. Jan. 9, 2020).
Over a year later, on November 25, 2020, defendant filed his second PCR
petition, contending that his PCR counsel and PCR appellate counsel on the first
appeal were ineffective in not challenging the first PCR court's analysis of self -
defense.
The second PCR court denied the petition as time-barred under Rule 3:22-
12(a)(2), following a non-evidentiary hearing. In a comprehensive twenty-four-
page memorandum of decision, the second PCR court found the second PCR
petition was time-barred under Rule 3:22-12(a) because it was filed more than
one year after the denial of the first PCR petition. The second PCR court noted
that the second PCR petition did not allege a new constitutional right, or a newly
discovered factual predicate, and excusable neglect could not be argued for
relaxing the time-bar for a second PCR.
A-3596-22 3 Notwithstanding the time-bar, the second PCR court addressed
defendant's ineffective assistance of counsel claims and reasoned that the first
PCR court evaluated the self-defense statute thoroughly and that the outcome
would not have been any different. The first PCR court determined there was
no evidence the victim attempted to use deadly force against defendant and
rejected his argument that he "tussled" with the victim because no injuries were
found on either one of them. There was also no evidence the victim tried to rob
defendant as he claimed. Defendant had time to retreat and did not have to go
home to obtain a firearm. A memorializing order was entered denying the
second PCR petition.
II.
On this appeal, defendant presents one argument with subparts, which he
articulates as follows:
POINT ONE
DEFENDANT DEMONSTRATED A PRIMA FACIE CLAIM FOR [PCR] WHICH ENTITLED HIM TO AN EVIDENTIARY HEARING.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS FOR INEFFECTIVE ASSISTANCE OF COUNSEL AND PETITIONS FOR [PCR].
A-3596-22 4 B. THE PCR COURT IMPROPERLY DENIED DEFENDANT'S PETITION ON PROCEDURAL GROUNDS, AS THE TIME[-]BAR SET FORTH IN R[ULE] 3:22-12(a)(2) SHOULD HAVE BEEN RELAXED TO PREVENT A FUNDAMENTAL INJUSTICE.
C. APPELLATE COUNSEL AND THE FIRST PCR COUNSEL WERE INEFFECTIVE FOR FAILING TO CHALLENGE THE FIRST PCR COURT'S USE OF AN IMPROPER LEGAL STANDARD IN EVALUATING THE VIABILITY OF DEFENDANT'S CLAIM OF SELF-DEFENSE.
The second PCR court did not conduct an evidentiary hearing on
defendant's second PCR petition. Accordingly, we review the denial of the
petition de novo. State v. Harris, 181 N.J. 391, 420-21 (2004); State v.
Lawrence, 463 N.J. Super. 518, 522 (App. Div. 2020). The PCR court's decision
to proceed without an evidentiary hearing is reviewed for an abuse of discretion.
State v. Vanness, 474 N.J. Super. 609, 623 (App. Div. 2023) (citing State v.
Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013)).
To establish a claim of ineffective assistance of counsel, a defendant must
satisfy a two-prong test: (1) "counsel made errors so serious that counsel was
not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment," and (2) "the deficient performance prejudiced the defense."
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42,
A-3596-22 5 58 (1987) (adopting the two-prong Strickland test in New Jersey). To be entitled
to an evidentiary hearing on an ineffective assistance of counsel claim, a
petitioner must make a prima facie showing of ineffective assistance of counsel.
R. 3:22-10(b); State v. Porter, 216 N.J. 343, 354-55 (2013).
Defendant argues the second PCR court improperly denied his petition on
procedural grounds and that the time-bar should have been relaxed to prevent a
fundamental injustice. We reject defendant's arguments for two reasons.
First, all the arguments raised in defendant's second PCR petition are time-
barred. Rule 3:22-4(b)(2) states that a second or subsequent PCR petition "shall
be dismissed unless" it alleges either: (1) "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"; (2) "that the factual predicate
for the relief sought could not have been discovered earlier through the exercise
of reasonable diligence"; or (3) "that the petition alleges a prima facie case of
ineffective assistance of counsel that represented the defendant on the first or
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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-3596-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUIS A. PEREZ, a/k/a LUIS PEREZ,
Defendant-Appellant. ________________________
Submitted February 25, 2025 – Decided March 11, 2025
Before Judges Gilson and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-12-2900.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
William E. Reynolds, Atlantic County Prosecutor, attorney for respondent (Courtney Cittadini, Chief Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Luis A. Perez appeals from an April 14, 2023 order denying
his second petition for post-conviction relief (PCR) and request for an
evidentiary hearing. Defendant argues he established a prima facie showing of
ineffective assistance of his first PCR counsel and PCR appellate counsel, his
second PCR petition should not have been time-barred, and he should have been
afforded an evidentiary hearing. We affirm the order because defendant's
second PCR petition was time-barred.
I.
The salient facts and procedural history were previously detailed in our
decision on defendant's direct appeal, State v. Perez, No. A-5903-13 (App. Div.
Mar. 10, 2015), where we affirmed the denial of the motion to withdraw the plea
and the sentence imposed. (slip op. at 1). In April 2012, defendant was charged
with first-degree murder and weapons charges after Joseph Hurt was shot and
killed. Defendant pled guilty to an amended charge of manslaughter and was
sentenced to eighteen years' imprisonment subject to the No Early Release Act,
N.J.S.A. 2C:43-7.2.
Thereafter, defendant filed his first PCR petition, which the first PCR
court denied, without conducting an evidentiary hearing. We affirmed denial of
the PCR. State v. Perez, No. A-5274-15 (App. Div. July 24, 2017). However,
A-3596-22 2 the Supreme Court remanded the matter to the trial court for an evidentiary
hearing. State v. Perez, 231 N.J. 423 (2017).
At the evidentiary hearing, the first PCR court heard testimony from
defendant and his two trial attorneys. The first PCR court found the attorneys
were credible and defendant was not credible. On July 30, 2018, the first PCR
court entered an order denying his first PCR petition. We affirmed on direct
appeal. State v. Perez, No. A-0848-18 (App. Div. Jan. 9, 2020).
Over a year later, on November 25, 2020, defendant filed his second PCR
petition, contending that his PCR counsel and PCR appellate counsel on the first
appeal were ineffective in not challenging the first PCR court's analysis of self -
defense.
The second PCR court denied the petition as time-barred under Rule 3:22-
12(a)(2), following a non-evidentiary hearing. In a comprehensive twenty-four-
page memorandum of decision, the second PCR court found the second PCR
petition was time-barred under Rule 3:22-12(a) because it was filed more than
one year after the denial of the first PCR petition. The second PCR court noted
that the second PCR petition did not allege a new constitutional right, or a newly
discovered factual predicate, and excusable neglect could not be argued for
relaxing the time-bar for a second PCR.
A-3596-22 3 Notwithstanding the time-bar, the second PCR court addressed
defendant's ineffective assistance of counsel claims and reasoned that the first
PCR court evaluated the self-defense statute thoroughly and that the outcome
would not have been any different. The first PCR court determined there was
no evidence the victim attempted to use deadly force against defendant and
rejected his argument that he "tussled" with the victim because no injuries were
found on either one of them. There was also no evidence the victim tried to rob
defendant as he claimed. Defendant had time to retreat and did not have to go
home to obtain a firearm. A memorializing order was entered denying the
second PCR petition.
II.
On this appeal, defendant presents one argument with subparts, which he
articulates as follows:
POINT ONE
DEFENDANT DEMONSTRATED A PRIMA FACIE CLAIM FOR [PCR] WHICH ENTITLED HIM TO AN EVIDENTIARY HEARING.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS FOR INEFFECTIVE ASSISTANCE OF COUNSEL AND PETITIONS FOR [PCR].
A-3596-22 4 B. THE PCR COURT IMPROPERLY DENIED DEFENDANT'S PETITION ON PROCEDURAL GROUNDS, AS THE TIME[-]BAR SET FORTH IN R[ULE] 3:22-12(a)(2) SHOULD HAVE BEEN RELAXED TO PREVENT A FUNDAMENTAL INJUSTICE.
C. APPELLATE COUNSEL AND THE FIRST PCR COUNSEL WERE INEFFECTIVE FOR FAILING TO CHALLENGE THE FIRST PCR COURT'S USE OF AN IMPROPER LEGAL STANDARD IN EVALUATING THE VIABILITY OF DEFENDANT'S CLAIM OF SELF-DEFENSE.
The second PCR court did not conduct an evidentiary hearing on
defendant's second PCR petition. Accordingly, we review the denial of the
petition de novo. State v. Harris, 181 N.J. 391, 420-21 (2004); State v.
Lawrence, 463 N.J. Super. 518, 522 (App. Div. 2020). The PCR court's decision
to proceed without an evidentiary hearing is reviewed for an abuse of discretion.
State v. Vanness, 474 N.J. Super. 609, 623 (App. Div. 2023) (citing State v.
Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013)).
To establish a claim of ineffective assistance of counsel, a defendant must
satisfy a two-prong test: (1) "counsel made errors so serious that counsel was
not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment," and (2) "the deficient performance prejudiced the defense."
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42,
A-3596-22 5 58 (1987) (adopting the two-prong Strickland test in New Jersey). To be entitled
to an evidentiary hearing on an ineffective assistance of counsel claim, a
petitioner must make a prima facie showing of ineffective assistance of counsel.
R. 3:22-10(b); State v. Porter, 216 N.J. 343, 354-55 (2013).
Defendant argues the second PCR court improperly denied his petition on
procedural grounds and that the time-bar should have been relaxed to prevent a
fundamental injustice. We reject defendant's arguments for two reasons.
First, all the arguments raised in defendant's second PCR petition are time-
barred. Rule 3:22-4(b)(2) states that a second or subsequent PCR petition "shall
be dismissed unless" it alleges either: (1) "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"; (2) "that the factual predicate
for the relief sought could not have been discovered earlier through the exercise
of reasonable diligence"; or (3) "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." Defendant has not
established any of these enumerated grounds.
A-3596-22 6 The second or subsequent PCR petition must also be timely under Rule
3:22-12(a)(2), which states that "no second or subsequent petition shall be filed
more than one year after the latest of" either the recognition of the constitutional
right, "the date on which the factual predicate for relief was discovered," or "the
date of the denial of the first or subsequent" PCR petition in which counsel was
alleged to be ineffective. This time limit is not tolled by federal habeas corpus
proceedings. See State v. Milne, 178 N.J. 486, 494 (2004) (explaining that "a
defendant's pursuit of federal review ordinarily would not extend the time frame
within which to file a PCR petition in State court"). Moreover, there is no
provision for relaxing this time limit: "the late filing of a second or subsequent
PCR petition [cannot] be excused in the same manner as the late filing of a first
PCR petition." State v. Jackson, 454 N.J. Super. 284, 293 (App. Div. 2018).
We denied defendant's appeal of his first PCR petition in January 2020.
It was over a year later that defendant filed his second PCR petition, well-beyond
the one-year denial of his first PCR petition. Therefore, the second PCR petition
is time-barred under Rule 3:22-12(a)(2).
Second, even if we were to address the substance of defendant's
contentions for ineffective assistance of PCR counsel and PCR appellate
counsel, they lack merit. Defendant claims the first PCR court did not address
A-3596-22 7 the reasonableness of his belief under the self-defense statute, N.J.S.A. 2C:3-4,
that deadly force was necessary, and his PCR and appellate counsel were
ineffective for failing to raise this issue. However, the first PCR court did
thoroughly address the self-defense statute and determined defendant did not
have a viable self-defense claim. Thus, since this claim was previously
adjudicated, it is barred under Rule 3:22-5.
Additionally, defendant was granted an evidentiary hearing by our
Supreme Court on his first PCR petition. At the hearing, defendant testified he
did not shoot the victim in self-defense. The first PCR court considered
defendant's testimony on this issue and rejected it. Thus, defendant cannot show
ineffectiveness of PCR counsel or PCR appellate counsel and cannot show
prejudice.
Affirmed.
A-3596-22 8