State of New Jersey v. Qumere McClendon

• Court: New Jersey Superior Court Appellate Division
• Decided: July 24, 2024
• Docket: A-3102-21
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3102-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

QUMERE MCCLENDON, a/k/a QUMERE JAQUELL MCCLENDON,

Defendant-Appellant. ________________________

Submitted January 18, 2024 – Decided July 24, 2024

Before Judges Gummer and Walcott-Henderson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-09-0125.

Joseph E. Krakora, Public Defender, attorney for appellant (John J. Bannan, Designated Counsel, on the brief).

Matthew J. Platkin, Attorney General, attorney for respondent (Regina M. Oberholzer, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Qumere McClendon appeals from an April 5, 2022 order

denying his second petition for post-conviction relief (PCR) based on ineffective

assistance of counsel, filed nearly three years after the court denied his first PCR

petition. Defendant claims the second PCR court erred in denying him an

evidentiary hearing on claims his PCR counsel rendered ineffective assistance

by failing to argue trial counsel was ineffective for not: investigating allegations

of wrongdoing by the State's expert witness, challenging the imposition of

consecutive sentences, challenging the applicability of the child endangerment

statute to defendant, challenging jury instructions, raising an A.D.G.1 objection

to the admissibility of his statements to police, and advising defendant about the

consequences of pleading guilty in a separate case. The court found defendant's

PCR petition untimely and without merit. We agree and affirm.

We previously affirmed defendant's conviction and sentence on direct

appeal and recount only the facts pertinent to this appeal. Defendant was

convicted by a jury in 2011 of first-degree aggravated manslaughter and first-

degree felony murder, among other offenses, arising from the death of Keith

1 State v. A.G.D., 178 N.J. 56 (2003). A-3102-21 2 Mason, who was shot and killed by defendant during a robbery. Defendant also

convicted of second-degree conspiracy to commit burglary and robbery, second-

degree tampering with a witness, second-degree certain persons not to have

weapons, and third-degree endangering the welfare of Mason's young son, who

was found near the body of his slain father. State v. McClendon, No. A-0589-

11 (App. Div. March 7, 2014) (slip op at 3-9). The Supreme Court denied

defendant's petition for certification. State v. McClendon, 219 N.J. 628 (2014).

Defendant filed a timely petition for PCR on January 22, 2015, arguing

his trial and appellate counsel had been ineffective by failing to: object to the

testimony of the State's medical examiner who did not perform the autopsy of

the victim, challenge the legality of defendant's arrest and custodial

interrogation, call defendant and his mother to testify at the suppression hearing,

and properly advise him on whether to testify at trial. State v. McClendon, No.

A-4731-16 (App. Div. Jan. 29, 2019) (slip op at 4-5).

Without conducting an evidentiary hearing, the first PCR court denied

defendant's petition on January 30, 2017, following oral argument on procedural

and substantive grounds. We affirmed the first PCR court's denial of defendant's

petition on January 29, 2019. Id. at 5. We held defendant had failed to sustain

his burden of proving a prima facie claim of ineffective assistance of trial or

A-3102-21 3 appellate counsel under Strickland 2 and determined defendant had presented no

facts in support of his claims he was deprived of effective assistance of counsel

as counsel had no obligation to advance meritless issues. Id. at 8-11.

Specifically, as to defendant's claim he was unlawfully arrested and his

statement to police should have been suppressed, we agreed with the first PCR

court's determination this argument was procedurally barred because it had been

raised and rejected on direct appeal. Id. at 8-9.

On November 18, 2019, defendant filed a second PCR petition alleging

ineffective assistance of his first PCR counsel, which is the operative petition at

issue in this appeal.

On April 5, 2022, in an oral decision, the court denied defendant's second

PCR petition as "clearly" untimely and concluded that defendant had "failed to

establish a prima facie case of ineffective assistance of counsel, and is not

entitled to an evidentiary hearing [under Rule 3:22-10(b)]." The court

determined that "appellate review of defendant's conviction or prior PCR

petition [did] not toll the time limitation imposed by Rule 3:22-12." Moreover,

the court thoroughly addressed each of defendant's arguments and dismissed

2 Strickland v. Washington, 466 U.S. 668 (1984). A-3102-21 4 them as either meritless or barred under Rule 3:22-5 as having been previously

raised and rejected on direct appeal and in the first PCR petition. 3

Defendant appealed, making the following arguments:

POINT I

THE PCR COURT ERRED IN FINDING THAT THE SECOND PETITION FOR POST-CONVICTION RELIEF WAS PROCEDURALLY BARRED.

(A) Legal Standards Governing Applications For Post-Conviction Relief.

(B) Defendant's Second Petition for Post-Conviction Relief Is not Procedurally Barred.

POINT II

BECAUSE MR. MCCLENDON RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, THE PCR COURT ERRED IN DENYING MR. MCCLENDON'S SECOND PETITION FOR PCR.

(A) Legal Standards Governing Applications For Post-Conviction Relief.

(B) Defense Counsel were Ineffective for Failing to Object to Erroneous Jury Instructions or Raise a Jury Instruction Argument on Appeal.

3 Under Rule 3:22-5, "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings." [R. 3:22-5.] A-3102-21 5 (C) Defense Counsel were Ineffective for Failing to Challenge the Applicability of N.J.S.A. 2C:24-4(a), Child Endangerment to the Facts.

(D) Defense Counsel were Ineffective for Failing to Challenge the Imposition of Consecutive Sentences for Witness Tampering and Child Endangerment.

(E) Defense Counsel were Ineffective Because They Failed to Investigate Allegations of Wrongdoing by the State's Expert Witness and Failed To Assert Brady4 and Giglio5 Violations.

(F) Defense Counsel was Ineffective When She Advised Defendant To Plead Guilty and be Sentenced on an Unrelated Case with the Result that He Received Gap Time Credit Instead of Jail Credit.

(G) Defense Counsel were Ineffective for Failing to Raise an A.G.D. Objection to the Admissibility of the Statements to the Police.

Defendant also filed a pro se brief with two additional arguments:

POINT [I]

DEFENSE WAS INEFFECTIVE FOR FAILING TO RAISE AN A.G.D. OBJECTION TO THE ADMISSIBILITY OF [HIS] STATEMENT POLICE.

DEFENDANT'S CONSTITUTIONAL RIGHT TO AN UNANIMOUS JURY VERDICT WAS VIOLATED[.]

4 Brady v. Maryland, 373 U.S. 83 (1963). 5 Giglio v. U.S., 405 U.S. 150 (1972). A-3102-21 6 Defendant acknowledges that his second PCR petition was not filed within

one year of the denial of the first PCR petition but argues that it was nonetheless

timely because it was filed within one year of our affirmance of the denial of his

first PCR petition.

Under Rule 3:22-12(a)(2), no second or subsequent petition for PCR,

"[n]otwithstanding any other provision in [Rule 3:22-12] . . . shall be filed more

than one year after the latest of":

(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) to (C).]

A-3102-21 7 When a petitioner files a second or subsequent PCR, he must meet the

requirements set forth in Rule 3:22-4. Rule 3:22-4(b)(1) requires dismissal of a

second PCR petition if untimely under Rule 3:22-12(a)(2).

Application of those Rules makes plain the PCR court was correct in

dismissing defendant's second PCR petition as untimely. Defendant filed his

second petition on November 18, 2019, almost three years after the court denied

his first PCR petition on January 30, 2017. Under Rule 3:22-12(a)(2)(A)-(C),

the one-year time limitation in which to file a second or subsequent PCR petition

is not subject to relaxation. Moreover, under Rule 3:22-12(a)(2) and Rule 3:22-

4(b), the one-year period began to run on January 30, 2017, the date the first

PCR court denied his first petition. See State v. Szemple, 247 N.J. 82, 98 (2021)

(explaining "[s]econd or subsequent petitions are barred unless they are filed

within one year of the denial of the previous PCR petition"); State v. Jackson,

454 N.J. Super. 284, 292 (App. Div. 2018) (beginning calculation of the one-

year period on the day the first PCR petition was denied, even though the

defendant had filed an appeal with this court and subsequently filed a petition

for certification with the Supreme Court).

Accordingly, given the passage of more than one year between the denial

of defendant's first petition and filing of the second PCR petition, the court

A-3102-21 8 properly dismissed defendant's second PCR petition. We therefore reject

defendant's argument the one-year window for filing his second PCR petition

began on January 29, 2019, the date of our decision affirming the denial of his

first PCR petition, and agree with the PCR court that defendant's second petition

was untimely.

Although the PCR court concluded defendant's second PCR petition was

untimely, the court analyzed the merits of each of defendant's claims, thoroughly

explaining why none would have established a prima facie case of ineffective

assistance of counsel, entitling defendant to an evidentiary hearing. The court

also noted that PCR counsel could not be deemed ineffective for failing to raise

meritless arguments. See State v. Worlock, 117 N.J. 596, 625 (1990) ("The

failure to raise unsuccessful legal arguments does not constitute ineffective

assistance of counsel.").

To establish a right to relief under Strickland, a petitioner must show not

only that his attorney rendered ineffective assistance of counsel, but that the

attorney's substandard representation prejudiced the defense. See Strickland,

466 U.S. at 687. Here, the PCR court determined that in defendant's second

petition "the alleged deficiencies of prior counsel raised by [p]etitioner are

numerous, and at times, exactly the same as those previously raised and disposed

A-3102-21 9 of at his PCR or in appeal."6 State v. McQuaid, 147 N.J. 464, 484 (1997) ("when

the issue of ineffective assistance of counsel has already been raised on direct

appeal, it may be procedurally barred on PCR[]") (citing R. 3:22–5).

The PCR court considered the merits of defendant's claims of ineffective

assistance, including: trial counsel was ineffective for failing to object to

erroneous jury instructions, failing to seek dismissal of the endangering charge

on the basis of insufficient evidence, failing to impeach the medical examiner

based on evidence allegedly withheld by the State, and advising him to plead

guilty in an unrelated case, and appellate and first PCR counsel were ineffective

for failing to raise those claims. The PCR court found defendant had failed to

make a showing under either prong of Strickland. See Strickland, 466 U.S. at

700 (explaining a failure to satisfy either prong of the Strickland standard

requires rejection of a PCR petition). We agree. Based on our de novo review

of these claims, defendant cannot establish PCR, appellate or trial counsel

rendered constitutionally deficient performance under either prong of

Strickland.

6 Specifically, the court determined defendant's ineffective assistance of counsel claims on issues related to his arrest and custodial interrogation, the imposition of consecutive sentences on the witness tampering and endangering charges had been previously raised and rejected on direct appeal and in his first PCR petition. A-3102-21 10 Further, because defendant failed to establish a prima facie case of

ineffective assistance of counsel under Strickland, no evidentiary hearing was

warranted. See State v. Marshall, 148 N.J. 89, 158 (1992).

To the extent we have not specifically addressed any of defendant's

arguments, it is because we have determined they are of insufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

A-3102-21 11