NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1732-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SEAN D. HARRIS, a/k/a TWIZ TWITTER,
Defendant-Appellant.
Submitted October 23, 2024 – Decided December 24, 2024
Before Judges Currier and Marczyk.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-12- 2438.
Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Christopher W. Hsieh, Designated Counsel, on the brief).
Raymond S. Santiago, Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Sean Harris appeals from the November 9, 2022 order denying
his second application for post-conviction relief (PCR). Following our review
of the record and the applicable legal principles, we affirm.
I.
On June 7, 1997, nineteen-year-old Andrew Williams left his apartment
in Asbury Park he shared with his girlfriend planning to meet her later at a
concert. However, he never made it to the concert and never returned to the
apartment. Williams' decomposed body was found five days later in a Neptune
park by public works employees.
The murder remained unsolved for several years. In June 2005, Wayne
Davis advised the Monmouth County Prosecutor's Office he was aware of
information regarding the murder, which ultimately led to several individuals
being identified as possibly participating in the murder: defendant, Alphonso
Edwards, Jr.,1 Darren Sims, Cedric Smith, Jason Turner, Antonio Grant, and
Philip Wylie. Defendant was viewed as the "father figure" of the group. The
1 When Edwards, Jr., learned Grant had been questioned about the homicide, he confided in his father, Alphonso Edwards, Sr., that he was present when Williams was tied to a chair, beaten, and stabbed by defendant. Believing his son had not committed the murder, Edwards Sr. also provided the police with the names of the individuals involved in Williams' killing, including defendant.
A-1732-22 2 suspects grew up together in Asbury Park and referred to themselves as the
"Dirty Dwellers."
Edwards, Jr., Sims, Smith, Turner, Grant, and Wylie all testified at
defendant's trial.2 The testimony revealed that Williams went to defendant's
apartment in Asbury Park on the evening of June 7, 1997. Edwards, Jr., Sims,
Smith, Turner, Grant, and Wylie were also at the apartment. Wylie and Williams
got in a physical fight and defendant joined in assaulting Williams. Defendant
subsequently ordered the other co-defendants to tie Williams to a chair. They
then "beat him with brass knuckles, burned him repeatedly with cigarette butts,
[and] stabbed him." They also strangled Williams with a cord and then hanged
him from a pipe in the ceiling of the apartment.
This attack stemmed from defendant's suspicion that Williams had
burglarized defendant's home and, on another occasion, robbed his sister.
Defendant also pointed a gun at Williams' head during the assault to get him to
confess. After Williams was dead, defendant wrapped his body in a sheet and
drove it to a park in Neptune where he dumped it, but not before stabbing
2 Defendant and his six co-defendants were arrested and charged with murder in May 2009. Five of the six co-defendants pled guilty to aggravated manslaughter, and Turner pled guilty to reckless manslaughter. Their plea agreements required them to provide truthful testimony at trial.
A-1732-22 3 Williams and cutting his throat with a knife to ensure his death. Defendant
directed Edwards, Turner, and Grant to clean up the apartment while defendant,
Wylie, and Smith dumped the body.
Later at the apartment, defendant instructed the six co-defendants to "say
nothing" about the murder and to indicate as an alibi they were at a concert at
the time of the killing. Defendant also collected and disposed of the cleaning
supplies and clothes of the co-defendants. Despite defendant's directions, Wylie
told Davis about the killing that same evening, which led to Davis' disclosure
several years later.
All of the individuals involved, except defendant, eventually confessed to
police regarding their involvement in Williams' killing. They testified they
participated in the killing because they were afraid of defendant and did not want
to end up like Williams.
Defendant was convicted following a jury trial of first-degree murder,
N.J.S.A. 2C:11-3(a)(1) and/or (2). He was sentenced to forty-five years in
prison, subject to thirty-five years parole ineligibility.
Defendant appealed his conviction and sentence, raising five points: the
prosecutor's comments in summation exceeded the bounds of propriety and a
mistrial should have been granted; the entire testimony of Edwards, Sr.
A-1732-22 4 constituted inadmissible hearsay; the prosecutor questioned a cooperating
witness about his fear of defendant, thereby interjecting that defendant had bad
character and a propensity for violence; the prosecutor used the "truthful
testimony" requirement of the plea to bolster the co-defendants' credibility
which constituted "vouching;" and the court doubled counted defendant's prior
record in sentencing him. In August 2015, we affirmed. State v. Harris, No. A-
6339-11 (App. Div. Aug. 27, 2015) (slip op. at 9-10).
Defendant filed, pro se, his first PCR petition on February 25, 2016. He
raised five claims of ineffective assistance counsel, alleging his trial attorney
failed to: (1) challenge the allegedly defective criminal complaint; (2) argue
prosecutorial misconduct in violation of Brady v. Maryland 3; (3) conduct their
own independent investigation; (4) challenge the grand jury proceedings; and
(5) contest the prosecutor's alleged improper vouching for a State witness during
summation. Defendant was appointed counsel for his first PCR, and counsel
filed an amended PCR petition incorporating defendant's pro se arguments. On
June 29, 2018, the first PCR court denied the petition.
Defendant appealed, arguing the case should be remanded for an
evidentiary hearing based on trial counsel's alleged failure to conduct a proper
3 373 U.S. 83 (1963). A-1732-22 5 investigation. On October 8, 2019, we affirmed, holding that "the record
supports the [first] PCR court's conclusion that defendant failed to present a
prima facie case of ineffective assistance of counsel," and thus "defendant was
not entitled to an evidentiary hearing." State v. Harris, No. A-5830-17 (App.
Div. Oct. 8, 2019) (slip op. at 9).
Defendant then filed a petition for writ of habeas corpus in the United
States District Court, District of New Jersey, for relief from his convictions
under 28 U.S.C. §2254. Defendant moved to stay those proceedings pending
the state court's consideration of a second PCR as to his "five unexhausted pro
se claims of ineffective assistance of counsel." The district court granted the stay
on April 26, 2021, "until [defendant] has exhausted the claims in his second
PCR" and that "within thirty (30) days of exhausting his claims . . . [defendant]
may request that this Court reopen this matter and lift the stay . . . ." Harris v.
Grewal, No. 20-7180, 2021 U.S. Dist. LEXIS 79755, at *3 (D.N.J. Apr. 26,
2021).
In June 2021, defendant filed his second PCR petition alleging ineffective
trial counsel on the five pro se claims asserted in his first PCR, which he asserts
were not properly addressed by the first PCR court. Specifically, plaintiff
alleged: (1) trial and appellate counsel failed to challenge the allegedly
A-1732-22 6 defective criminal complaint; (2) trial and appellate counsel failed to argue
prosecutorial misconduct in violation of Brady v. Maryland; (3) trial counsel
failed to conduct his own independent investigation; (4) trial and appellate
counsel failed to challenge the grand jury proceedings; and (5) trial and appellate
counsel failed to challenge the prosecutor's allegedly improper vouching for a
State witness during summation.
Defendant's counsel for his second PCR also filed a brief arguing that the
first PCR counsel failed to properly preserve and raise the original pro se claims,
which were not addressed in the first PCR judge's opinion. Second PCR counsel
further argued that first PCR counsel failed to file a motion for reconsideration
to remedy the first PCR court's failure to consider defendant's pro se claims, and
that the first PCR appellate counsel failed to address the five pro se issues and
failed to seek a remand due to the first PCR court's failure to address them.
Second PCR counsel asserted that these errors deprived defendant of an
opportunity to preserve his claims in the federal writ of habeas corpus.
On November 9, 2022, the second PCR court issued an order and written
decision dismissing the second PCR petition. The court stated that under Rule
3:22-4(b), a "subsequent petition for [PCR] shall be dismissed unless: (1) it is
timely under [Rule] 3:22-12(a)(2); and (2) it alleges on its face . . . (C) a prima
A-1732-22 7 facie case of ineffective assistance of counsel that represented the defendant on
the first . . . application for [PCR]." (alterations in original). The court noted
that Rule 3:22-12(a)(2) states that "no second or subsequent petition shall be
filed more than one year after . . . (C) the date of the denial of the first or
subsequent application for [PCR] where ineffective assistance of counsel that
represented the defendant on the first or subsequent application for [PCR] is
being alleged." (alterations in original). Because the first PCR court denied
defendant's first PCR on June 29, 2018, and defendant filed his second PCR on
June 9, 2021, the second PCR court determined his petition was untimely under
Rule 3:22-12(a)(2)(C). 4
The second PCR court also held that even if it "were to consider the merits
of defendant's petition, he [did] not present[] a prima facie case of ineffective
assistance" of counsel. The court stated that defendant's pro se claims "were
either previously considered or totally lack merit."
4 The second PCR court also rejected defendant's argument that the court should "relax the strict time bar because [defendant's second] PCR was filed after the issuance of a stay of proceedings in his application for a writ for habeas corpus relief." The court stated that "a defendant's pursuit of federal habeas corpus relief will not 'extend the time frame within which to file a PCR petition.'" (quoting State v. Milne, 178 N.J. 486, 494 (2004)).
A-1732-22 8 II.
Defendant raises the following points on appeal:
POINT I
THE PCR COURT ERRED IN ORDERING PROCEDURAL DISMISSAL OF THE PCR PETITION AND DEPRIVING PETITIONER OF MEANINGFUL REVIEW OF HIS PROPERLY RAISED CLAIMS.
POINT II
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF FIRST PCR COUNSEL AND APPELLATE COUNSEL AND HIS DUE PROCESS RIGHTS WERE VIOLATED BECAUSE COUNSEL FAILED TO PROPERLY ADVANCE HIS PRO SE PCR CLAIMS.
A. PCR Trial Counsel And Appellate Counsel Were Ineffective for Failing to Challenge the Defective Complaint in this Matter.
B. PCR Counsel and Appellate Counsel Were Ineffective for Failing to Properly Address the Allegation that Trial Counsel Never Challenged the State's Brady v. Maryland Violation.
C. PCR Counsel and Appellate Counsel Were Ineffective for Failing to Preserve and Address Trial and Appellate Counsels' Failure to Challenge the Grand Jury Proceeding.
A-1732-22 9 D. Appellate Counsel Was Ineffective For Failing to Preserve and Address Petitioner's Pro Se Issue That Trial and Appellate Counsel Were Ineffective For Failing to Challenge the Prosecutor's Improper Vouching For State Witnesses During Trial.
POINT III
PETITIONER IS ENTITLED TO AN EVIDENTIARY HEARING.
In the absence of an evidentiary hearing, we review de novo the factual
inferences drawn from the record by the PCR judge, as well as the judge's legal
conclusions. State v. Harris, 181 N.J. 391, 421 (2004); see also State v.
Aburoumi, 464 N.J. Super. 326, 338-39 (App. Div. 2020). We review a PCR
judge's decision to deny a defendant's request for an evidentiary hearing under
an abuse of discretion standard. See State v. L.G.-M., 462 N.J. Super. 357, 365
(App. Div. 2020).
To succeed on a claim of ineffective assistance of counsel, a defendant
must satisfy both prongs of the test set forth in Strickland v. Washington, 466
U.S. 668 (1999), as adopted by State v. Fritz, 105 N.J. 42, 58 (1987), by a
preponderance of the evidence. "First, the defendant must show that counsel's
performance was deficient." Strickland, 466 U.S. at 687. This requires
demonstrating that "counsel made errors so serious that counsel was not
A-1732-22 10 functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
Ibid. The United States Constitution requires "reasonably effective assistance."
Ibid. An attorney's performance will not be deemed deficient if counsel acted
"within the range of competence demanded of attorneys in criminal cases." Ibid.
(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). Therefore,
"[w]hen a convicted defendant complains of the ineffectiveness of counsel's
assistance, the defendant must show that counsel's representation fell below an
objective standard of reasonableness." Id. at 687-88.
When assessing the first Strickland prong, "[j]udicial scrutiny of counsel's
performance must be highly deferential," and "every effort [must] be made to
eliminate the distorting effects of hindsight." Id. at 689. "Merely because a trial
strategy fails does not mean that counsel was ineffective." State v. Bey, 161
N.J. 233, 251 (1999). Thus, a trial court "must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional
assistance," and "the defendant must overcome the presumption that, under the
circumstances, the challenged action [by counsel] 'might be considered sound
trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955)). Further, the court must not focus on the defendant's
dissatisfaction with counsel's "exercise of judgment during the trial . . . . while
A-1732-22 11 ignoring the totality of counsel's performance in the context of the State's
evidence of [the] defendant's guilt." State v. Castagna, 187 N.J. 293, 314 (2006)
(internal citation omitted).
Under the second prong of the Strickland test, the defendant must show
"the deficient performance prejudiced the defense." 466 U.S. at 687. This
means "counsel's errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable." Ibid. It is insufficient for the defendant to show
the errors "had some conceivable effect on the outcome." Id. at 693. Ultimately,
"[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if [it] had no effect on the
judgment." Id. at 691.
A.
Defendant asserts the second PCR court erred in dismissing his petition
on procedural timeliness grounds, without consideration of the merits .
Defendant relies on State v. Hannah, 248 N.J. 148 (2021), because his
"ineffective assistance of trial counsel claims evaded meaningful judicial review
despite his continuous efforts to have those claims considered." He contends
the first PCR court failed to address all of his pro se claims and that first PCR
A-1732-22 12 counsel and appellate counsel "failed to take the rudimentary steps necessary to
advance and preserve the unconsidered claims."
Defendant argues that a court is not "'powerless to correct a fundamental
injustice' merely because a procedural rule might otherwise bar a PCR claim
from being considered." (quoting Hannah, 248 N.J. at 178). He maintains he
"was denied fair proceedings, as the first PCR court ignored his pro se
ineffective assistance of trial counsel claims." He also cites to State v. DiFrisco,
187 N.J. 156, 165-66 (2006), for the proposition that a court will lift the
procedural bar when failure to file a second PCR within the time limit is due to
excusable neglect.
Defendant further argues that "the filing delay for the second PCR petition
was minimal, only seven months after the time limitation expired." He asserts
that his "ineffective assistance of appellate PCR counsel did not materialize until
the Appellate Division affirmed the first PCR denial, on October 8, 2019, which
is the earliest date that [defendant] could learn that PCR appellate counsel
performed ineffectively." Thus, he urges this court to find that the one-year
filing limit for filing his second PCR is October 8, 2020. He alleges this
"minimal" delay of seven months should not be held against him.
A-1732-22 13 Defendant also posits that when the court is considering whether to relax
the time bar of Rule 3:22-12, "[t]he court should consider the extent and cause
of the delay, the prejudice to the State, and the importance of the [defendant]'s
claim in determining whether there has been an 'injustice' sufficient to relax the
time limits." State v. Mitchell, 126 N.J. 565, 580 (1992). He argues that the
second PCR court did not consider these factors, and that the delay in filing his
petition "was caused largely by first PCR and appellate counsel's incompetence
in failing to properly advance" his pro se claims.
Defendant next asserts that because the second PCR court, after finding
defendant's petition was time-barred, went on to declare that the pro se claims
"were either previously considered or totally lack merit," the court failed to
adhere to Rule 1:7-4(a) by not providing an explanation by way of facts or law
to support its conclusion.
Finally, defendant asserts that the second PCR court's reliance on State v.
Jackson, 454 N.J. Super. 284 (App. Div. 2018), was "misplaced" and that his
case is "readily distinguishable." He contends that "[u]nlike in Jackson, where
all of the pro se claims were considered by the court, the [defendant] here was
deprived of review of his ineffective assistance claims." Furthermore, he asserts
A-1732-22 14 that the untimely PCR petition in Jackson was seven years late, whereas his
petition was only seven months late.
The State counters that defendant concedes its second PCR application
was untimely. It further argues defendant improperly relies on "cases that
address the rules applicable to first PCRs and/or prior versions of the applicable
Rules . . . and rejects as 'misplaced' on point precedent of this court." It argues
that "[b]ecause defendant's second PCR focused entirely on allegations of
ineffective assistance by PCR counsel and PCR appellate counsel, the only [rule]
. . . that could apply to his PCR [petition] was . . . Rule 3:22-12(a)(2)(C) . . . ."
Therefore, the State asserts defendant had to file his second PCR by June 29,
2019, but instead filed his second PCR petition roughly one year and eleven
months later on June 9, 2021.
The State also asserts that even if we were to accept defendant's argument
that the one-year clock under Rule 3:22-12(a)(2)(C) starts at the denial of his
second PCR appeal, his second PCR petition would still be untimely as he filed
his petition eight months after the one-year time bar. As such, the State contends
that defendant's "failure to timely-file his second PCR bound the [second] PCR
court's hand."
A-1732-22 15 The State argues that "defendant ignores that the procedural bars at issue
[in Hannah] [was] not the time bar" and that the petition in Hannah was timely
filed. It asserts that "[b]y ignoring this dispositive difference between Hannah
and [t]his case, defendant likewise ignores the clarity of the [rules] that
specifically disallow the enlargement of time for untimely second PCRs."
The State further contends that defendant's reliance on DiFrisco, 187 N.J.
at 165-66, is misplaced, as "the version of R[ule] 3:22-12 being applied there"
is a different version of the rule, which at the time "treated all PCRs—first,
second, or any filed thereafter—the same for purposes of timely filing; all had
to be filed within five years of conviction and all late filings were subject to the
excusable neglect exception and/or relaxation under R[ule] 1:1-2." However,
the State asserts that "[a]mendments to R[ules] 1:3-4(c) and 3:22-12 in 2009 and
2010 . . . remove excusable neglect and relaxation from application to second or
subsequent PCRs," as the court recognized in Jackson. 454 N.J. Super. at 294-
95.
B.
Rule 3:22-4(b) places strict limitations on second and subsequent petitions
for PCR. Pursuant to Rule 3:22-4(b), a second or subsequent petition for PCR
is barred unless:
A-1732-22 16 (1) it is timely under [Rule] 3:22-12(a)(2); and
(2) it alleges on its face either:
(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 [PCR].
Rule 3:22-12(a)(2), in turn, provides:
[N]o second or subsequent petition 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
A-1732-22 17 (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 [PCR] where ineffective assistance of counsel that represented the defendant on the first or subsequent application for [PCR] is being alleged.
The time bar imposed in these court rules may not be relaxed except as
provided under Rule 3:22-12(a)(2). R. 3:22-12(b); Jackson, 454 N.J. Super. at
292-94. Rule 1:3-4(c) also specifically provides that "neither the parties nor the
court" may enlarge the time specified for the filing of PCR petitions under Rule
3:22-12. Although time limitations are not completely absolute and may be
waived to prevent fundamental injustice, this court must view the Rules in light
of their dual purposes: "to ensure . . . the passage of time does not prejudice the
State's retrial of a defendant" and "to respect the need for achieving finality."
DiFrisco, 187 N.J. at 166-67 (quoting Mitchell, 126 N.J. at 576). We noted in
Jackson:
By mandating in Rule 3:22–12(a)(2) that the one-year time limit applied "[n]otwithstanding any other provision of this rule," the Supreme Court made clear that the late filing of a second or subsequent PCR
A-1732-22 18 petition could not be excused in the same manner as the late filing of a first PCR petition.
[454 N.J. Super. at 293 (alteration in original).]
Defendant asserts that his case is similar to Hannah because his pro se
claims raised in the first PCR have "evaded meaningful judicial review despite
his continuous efforts to have those claims considered." However, Hannah did
not discuss the strict time bar imposed under Rule 3:22-12(a)(2). Instead,
Hannah dealt with procedural bars "generally barr[ing a defendant] from
presenting a claim on PCR [petition] that could have been raised at trial or on
direct appeal, R[ule] 3:22-4(a), or that has been previously litigated, R[ule]
3:22-5." 248 N.J. at 178 (quoting State v. Nash, 212 N.J. 518, 546 (2013)). The
court stated that "those rules" do not require the court to ignore a fundamental
unfairness. Ibid. (emphasis added). Furthermore, Hannah dealt with a PCR
petition "based on newly discovered evidence," possibly "exculpatory evidence"
and "critical evidence." Id. at 168, 155.
The Hannah Court found a fundamental injustice because "critical
evidence was withheld from the jury that supported [Hannah's] third-party-guilt
defense." Id. at 155. Hannah did not overrule Jackson but rather addressed a
unique circumstance involving the defendant's "fourteen-year odyssey" through
the PCR process with a complex procedural history to correct what the Court
A-1732-22 19 viewed as fundamental injustice that denied the defendant a fair trial. Id. at 155,
190. That new evidence was crucial to the Court's decision to not allow such
procedural bars to apply, because the new information "likely would have
altered the outcome of the trial." Id. at 155.
Here, however, defendant is time barred under Rule 3:22-12(a)(2)(C), and
such "time limitations shall not be relaxed." R. 3:22-12(b). Such "late filing of
a second or subsequent PCR petition [cannot] be excused." Jackson, 454 N.J.
Super. at 293. Furthermore, defendant does not posit that new evidence has been
discovered. Defendant's claims are distinguishable from the facts and "tortuous"
procedural history in Hannah. Id. at 175. In short, the facts here do not present
that rare case requiring relief from the procedural limitations imposed on a
second or subsequent PCR petitions under Rule 3:22-12.
Defendant also asserts that under DiFrisco, the court should lift the
procedural bar when failure to file a timely second PCR petition is due to
excusable neglect. 187 N.J. at 165-66. However, DiFrisco was decided prior to
the amendments to Rule 1:3-4(c) in 2009, which now states that "[n]either the
parties nor the court may . . . enlarge the time specified by . . . R[ule] 3:22-12."
Moreover, the amendments to Rule 3:22-12 in 2010 no longer allow "excusable
neglect" as an exception for second or subsequent PCR petitions. For these
A-1732-22 20 reasons, DiFrisco does not apply here. See Jackson, 454 N.J. Super at 293. The
PCR court reasonably relied on Jackson in rejecting defendant's contentions that
the amended rules can be interpreted with flexibility, under the facts of this case,
to allow for the late PCR petition. 5
The second PCR court did not substantively address defendant's claims
after finding them time barred, but did note the ineffective assistance claims—
for failing to challenge the defective complaint, failing to address the Brady
violation, failing to properly investigate, and failing to challenge the grand jury
proceeding—"were either previously considered or totally lack merit."
Defendant asserts first PCR counsel failed to properly advance his pro se claims
before the first PCR court, and PCR appellate counsel failed to raise the issues
on appeal or request a remand for the trial court to consider the issues. We
briefly address these issues.
Defendant asserts PCR counsel and PCR appellate counsel failed to
challenge the defective complaint. Moreover, defendant argues PCR counsel
5 Defendant also asserts that, if we were to start the one-year clock under Rule 3:22-12(a)(2) from the time of the appellate court's affirmance of his first PCR petition denial, his untimeliness is "minimal" as his petition was filed only seven months past the deadline, at least with respect to PCR appellate counsel. However, defendant provides no controlling authority to support the proposition that a "minimal" delay is acceptable under the strict time bar set forth in Rule 3:22-12(b). A-1732-22 21 and PCR appellate counsel failed to challenge the grand jury proceedings. Both
arguments suffer the same infirmity.
To satisfy the second Strickland prong, "[t]he defendant must show that
there is a reasonable probability that, but for counsel's . . . errors, the result of
the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome." 466 U.S. at
694. "[A] court need not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant as a result of the
alleged deficiencies." Id. at 697. "If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will often
be so, that course should be followed." Ibid.
The challenges to the complaint and grand jury proceedings are moot
following a jury trial and subsequent conviction. Generally, any defect in a
grand jury proceeding affecting the decision to indict is cured or rendered moot
once a jury convicts, because a jury verdict establishes that there was probable
cause to indict. United States v. Mechanik, 475 U.S. 66, 70 (1986); State v.
Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994). Moreover, defendant's
allegations are conclusory in nature and no more than bald assertions.
A-1732-22 22 Defendant also argues that PCR appellate counsel was ineffective for
failing to address the prosecutor's improper vouching during closing arguments.
This issue was raised by the first PCR counsel, and the first PCR court correctly
noted this issue was previously raised on direct appeal and that we rejected the
argument. Because this issue was argued and decided on direct appeal, it is
barred here under Rule 3:22-5.
To the extent we have not addressed any other arguments raised by
defendant, we are satisfied they are without sufficient merit to warrant further
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-1732-22 23