RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0036-24
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARTY D. ROSS,
Defendant-Appellant. _________________________
Submitted November 5, 2025 – Decided November 13, 2025
Before Judges Sumners and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-10- 2303.
Marty D. Ross, appellant pro se.
Raymond S. Santiago, Monmouth County Prosecutor, attorney for respondent (Monica do Outiero, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Marty Ross appeals from a May 30, 2024 order dismissing his
second petition for post-conviction relief ("PCR") without an evidentiary
hearing. We affirm.
I.
The facts underlying defendant's convictions are detailed at length in our
prior unpublished opinions and we do not repeat them here. State v. Ross (Ross
I), No. A-4762-06 (App. Div. July 10, 2009), cert. denied, 200 N.J. 505 (Nov.
17, 2009); State v. Ross (Ross II), No. A-6257-09 (App. Div. June 28, 2011),
cert. denied, 209 N.J. 231 (Jan. 30, 2012); State v. Ross (Ross III), No. A-3992-
14 (App. Div. Dec. 15, 2016). Instead, we summarize key background
information for context.
In 2005, defendant abducted a seventeen-year-old girl off the street at
knifepoint and took her to a motel room in Neptune where he forced her to smoke
crack cocaine and sexually assaulted her on multiple occasions over a prolonged
period of time. Ross I, Slip op. at 3.
Following a jury trial, defendant was convicted of first-degree kidnapping,
N.J.S.A. 2C:13-1(b); two counts of fourth-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(d); two counts of third-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); third-degree terroristic
A-0036-24 2 threats, N.J.S.A. 2C:12-3(b); third-degree criminal restraint, N.J.S.A. 2C:13-
2(a); two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-
2(a)(3)-(4); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1); third-degree
possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of
cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(3); and third-degree
distribution of cocaine, N.J.S.A. 2C:35-5(b)(3). Id. at 1-2.
The court granted the State's motion to sentence defendant as a persistent
offender pursuant to N.J.S.A. 2C:44-3(a). After appropriate merger of certain
counts, the court imposed an aggregate sentence of seventy-years, with an
eighty-five percent period of parole ineligibility pursuant to the No Early
Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Ibid. Because of a flawed jury
charge, we vacated the sentence and remanded for the trial court to amend the
judgment of conviction and re-sentence defendant to reflect a molded verdict of
second-degree kidnapping. Id. at 5. In December 2009, defendant was
resentenced to an aggregate sentence of seventy-years subjected to NERA. Ross
III at 5. We affirmed the sentence. Ross II.
In 2010, defendant filed his first petition for PCR, however, he dismissed
this petition. See R. 3:22-6A(2). Defendant refiled the PCR in May 2013, and
A-0036-24 3 it was denied as untimely. See R. 3:22-12(a)(1) and R. 3:22-12(a)(3). We
affirmed. Ross III.
Defendant then filed a Petition for Habeas Corpus with the District Court.
The District Court dismissed the petition as time barred and also denied a
certificate of appealability. Ross v. Johnson, No. 17-3135 (D.N.J. July 24,
2017); Reconsideration denied by Ross v. Johnson, (D.N.J. Nov. 7, 2017);
Certif. of Appealability denied by Ross v. Adm'r N.J. State Prison, (3d Cir. N.J.,
Nov. 20, 2017). Defendant then filed an amended habeas petition. Ross v.
Johnson, (D.N.J. Jan. 19, 2021). In 2023, the court issued an opinion that found
that defendant's 2017 direct appeal to our Supreme Court did not raise the
argument "that the indictment was defective because it omitted the three
elements that raise kidnapping from a second to a first-degree crime." Ross v.
Johnson, (D.N.J. June 26, 2023). After defendant filed a motion, the court
entered an order "staying defendant's Petition for a Writ of Habeas Corpus," to
allow defendant to exhaust his state court remedy. Ross v. Johnson, (D.N.J.
Dec. 12, 2023).
In January 2024, defendant filed a second petition for PCR to challenge
the ineffective assistance of his appellate counsel on direct appeal. On May 30,
2024, the PCR court dismissed the petition as untimely filed.
A-0036-24 4 On appeal, defendant raises the following point for our consideration:
THE LOWER COURT ERRED IN DENYIING [DEFENDANT'S] SECOND PCR PETITION AS UNTIMELY FILED AND MUST BE RVERSED FOR A NEW HEARING.
II.
"Post-conviction relief is New Jersey's analogue to the federal writ of
habeas corpus." State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v.
Preciose, 129 N.J. 451, 459 (1992)). "[PCR] provide[s] a built-in 'safeguard that
ensures that a defendant was not unjustly convicted.'" State v. Nash, 212 N.J.
518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)). The
Sixth Amendment to the United States Constitution and Article I, Paragraph 10
of the New Jersey Constitution guarantee a defendant in a criminal proceeding
"the right to the effective assistance of counsel." Nash, 212 N.J. at 541 (quoting
Strickland v. Washington, 466 U.S. 668, 686 (1984)) (internal quotation marks
omitted).
Where a PCR court does not conduct an evidentiary hearing, we "conduct
a de novo review of both the factual findings and legal conclusions of the PCR
court." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (quoting State
v. Harris, 181 N.J. 391, 421 (2004)). "[S]econd or subsequent petition[s] for
post-conviction relief shall be dismissed unless . . . [they are] timely under Rule
A-0036-24 5 3:22-12(a)(2)[.]" State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018)
(fourth alteration in original) (quoting R. 3:22-4(b)).
Defendant concedes his second PCR petition did not fall within the
exceptions under Rule 3:22-4(b). Rather, he argues the PCR rules "must bend
to accommodate violations of those rules in the rare case where fundamental
fairness demands it to correct a serious and manifest injustice." We are not
persuaded.
Pursuant to Rule 3:22-4(b), "[a] second or subsequent petition for [PCR]
shall be dismissed unless" two requirements are met. See State v. Sorensen, 439
N.J. Super. 471, 488 n.6 (App. Div. 2015) ("the words 'must' and 'shall' are
generally mandatory"). The first is that the second or subsequent PCR be timely
under Rule 3:22-12(a)(2). R. 3:22-4(b)(1).
Rule 3:22-12(a)(2) imposes strict time limits on the filing of a second PCR
petition, requiring a defendant to file within one year of the latest of three
defined events: the date a new constitutional right is recognized by the United
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RECORD IMPOUNDED
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-0036-24
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARTY D. ROSS,
Defendant-Appellant. _________________________
Submitted November 5, 2025 – Decided November 13, 2025
Before Judges Sumners and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-10- 2303.
Marty D. Ross, appellant pro se.
Raymond S. Santiago, Monmouth County Prosecutor, attorney for respondent (Monica do Outiero, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Marty Ross appeals from a May 30, 2024 order dismissing his
second petition for post-conviction relief ("PCR") without an evidentiary
hearing. We affirm.
I.
The facts underlying defendant's convictions are detailed at length in our
prior unpublished opinions and we do not repeat them here. State v. Ross (Ross
I), No. A-4762-06 (App. Div. July 10, 2009), cert. denied, 200 N.J. 505 (Nov.
17, 2009); State v. Ross (Ross II), No. A-6257-09 (App. Div. June 28, 2011),
cert. denied, 209 N.J. 231 (Jan. 30, 2012); State v. Ross (Ross III), No. A-3992-
14 (App. Div. Dec. 15, 2016). Instead, we summarize key background
information for context.
In 2005, defendant abducted a seventeen-year-old girl off the street at
knifepoint and took her to a motel room in Neptune where he forced her to smoke
crack cocaine and sexually assaulted her on multiple occasions over a prolonged
period of time. Ross I, Slip op. at 3.
Following a jury trial, defendant was convicted of first-degree kidnapping,
N.J.S.A. 2C:13-1(b); two counts of fourth-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(d); two counts of third-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); third-degree terroristic
A-0036-24 2 threats, N.J.S.A. 2C:12-3(b); third-degree criminal restraint, N.J.S.A. 2C:13-
2(a); two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-
2(a)(3)-(4); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1); third-degree
possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of
cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(3); and third-degree
distribution of cocaine, N.J.S.A. 2C:35-5(b)(3). Id. at 1-2.
The court granted the State's motion to sentence defendant as a persistent
offender pursuant to N.J.S.A. 2C:44-3(a). After appropriate merger of certain
counts, the court imposed an aggregate sentence of seventy-years, with an
eighty-five percent period of parole ineligibility pursuant to the No Early
Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Ibid. Because of a flawed jury
charge, we vacated the sentence and remanded for the trial court to amend the
judgment of conviction and re-sentence defendant to reflect a molded verdict of
second-degree kidnapping. Id. at 5. In December 2009, defendant was
resentenced to an aggregate sentence of seventy-years subjected to NERA. Ross
III at 5. We affirmed the sentence. Ross II.
In 2010, defendant filed his first petition for PCR, however, he dismissed
this petition. See R. 3:22-6A(2). Defendant refiled the PCR in May 2013, and
A-0036-24 3 it was denied as untimely. See R. 3:22-12(a)(1) and R. 3:22-12(a)(3). We
affirmed. Ross III.
Defendant then filed a Petition for Habeas Corpus with the District Court.
The District Court dismissed the petition as time barred and also denied a
certificate of appealability. Ross v. Johnson, No. 17-3135 (D.N.J. July 24,
2017); Reconsideration denied by Ross v. Johnson, (D.N.J. Nov. 7, 2017);
Certif. of Appealability denied by Ross v. Adm'r N.J. State Prison, (3d Cir. N.J.,
Nov. 20, 2017). Defendant then filed an amended habeas petition. Ross v.
Johnson, (D.N.J. Jan. 19, 2021). In 2023, the court issued an opinion that found
that defendant's 2017 direct appeal to our Supreme Court did not raise the
argument "that the indictment was defective because it omitted the three
elements that raise kidnapping from a second to a first-degree crime." Ross v.
Johnson, (D.N.J. June 26, 2023). After defendant filed a motion, the court
entered an order "staying defendant's Petition for a Writ of Habeas Corpus," to
allow defendant to exhaust his state court remedy. Ross v. Johnson, (D.N.J.
Dec. 12, 2023).
In January 2024, defendant filed a second petition for PCR to challenge
the ineffective assistance of his appellate counsel on direct appeal. On May 30,
2024, the PCR court dismissed the petition as untimely filed.
A-0036-24 4 On appeal, defendant raises the following point for our consideration:
THE LOWER COURT ERRED IN DENYIING [DEFENDANT'S] SECOND PCR PETITION AS UNTIMELY FILED AND MUST BE RVERSED FOR A NEW HEARING.
II.
"Post-conviction relief is New Jersey's analogue to the federal writ of
habeas corpus." State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v.
Preciose, 129 N.J. 451, 459 (1992)). "[PCR] provide[s] a built-in 'safeguard that
ensures that a defendant was not unjustly convicted.'" State v. Nash, 212 N.J.
518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)). The
Sixth Amendment to the United States Constitution and Article I, Paragraph 10
of the New Jersey Constitution guarantee a defendant in a criminal proceeding
"the right to the effective assistance of counsel." Nash, 212 N.J. at 541 (quoting
Strickland v. Washington, 466 U.S. 668, 686 (1984)) (internal quotation marks
omitted).
Where a PCR court does not conduct an evidentiary hearing, we "conduct
a de novo review of both the factual findings and legal conclusions of the PCR
court." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (quoting State
v. Harris, 181 N.J. 391, 421 (2004)). "[S]econd or subsequent petition[s] for
post-conviction relief shall be dismissed unless . . . [they are] timely under Rule
A-0036-24 5 3:22-12(a)(2)[.]" State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018)
(fourth alteration in original) (quoting R. 3:22-4(b)).
Defendant concedes his second PCR petition did not fall within the
exceptions under Rule 3:22-4(b). Rather, he argues the PCR rules "must bend
to accommodate violations of those rules in the rare case where fundamental
fairness demands it to correct a serious and manifest injustice." We are not
persuaded.
Pursuant to Rule 3:22-4(b), "[a] second or subsequent petition for [PCR]
shall be dismissed unless" two requirements are met. See State v. Sorensen, 439
N.J. Super. 471, 488 n.6 (App. Div. 2015) ("the words 'must' and 'shall' are
generally mandatory"). The first is that the second or subsequent PCR be timely
under Rule 3:22-12(a)(2). R. 3:22-4(b)(1).
Rule 3:22-12(a)(2) imposes strict time limits on the filing of a second PCR
petition, requiring a defendant to file within one year of the latest of three
defined events: the date a new constitutional right is recognized by the United
States Supreme Court or our Supreme Court and is retroactive to cases on
collateral review; the date the factual predicate for the claim is first discovered,
if through reasonable diligence it could not have been discovered earlier; and
the date of the denial of a prior PCR petition where it is claimed prior PCR
A-0036-24 6 counsel was ineffective. R. 3:22-12(a)(2)(A)-(C). Because defendant's first
PCR was denied in December 2016, defendant was well-beyond the one-year
time limit to file his second PCR in 2024.
Additionally, defendant does not meet any of the grounds under Rule
3:22-12(a)(2). His petition does not rely on a new constitutional right. Further,
defendant's PCR allegations of a defect in the indictment could have been
discovered earlier and have been waived. See R. 3:10-2(c). Last, he does not
maintain that prior PCR counsel was ineffective.
The time bar under Rule 3:22-12(a)(2) may not be ignored or relaxed.
Jackson, 454 N.J. Super. at 292-93 (citing Aujero v. Cirelli, 110 N.J. 566, 577
(1988)); 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). Indeed, Rule 3:22-4(b)
requires the dismissal of a second PCR petition if untimely as defined under
Rule 3:22-12(a)(2).
Since defendant's second PCR petition was properly time barred, an
evidentiary hearing on his application was not required. See State v. Brewster,
429 N.J. Super. 387, 401 (App. Div. 2013) ("If the court perceives that holding
an evidentiary hearing will not aid the court's analysis of whether the defendant
is entitled to post-conviction relief, . . . then an evidentiary hearing need not be
A-0036-24 7 granted." (omission in original) (quoting State v. Marshall, 148 N.J. 89, 158
(1997))).
The remainder of defendant's arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-0036-24 8