NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3018-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTWAN SHANNON,
Defendant-Appellant. _________________________
Submitted December 19, 2019 – Decided January 22, 2020
Before Judges Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-06-1043.
Antwan Shannon, appellant pro se.
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Assistant Prosecutor, on the brief).
PER CURIAM Defendant Antwan Shannon appeals from the June 2, 2015 order of the
Law Division denying his third petition for post-conviction relief (PCR) without
an evidentiary hearing. We affirm.
I.
In 2008, a jury convicted defendant of the following crimes arising from
the armed robbery and murder of a Jersey City convenience store owner and the
assault of a witness who happened upon the murder scene: first-degree murder,
N.J.S.A. 2C:11-3(a); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-
degree armed robbery, N.J.S.A. 2C:15-1; two counts of third-degree possession
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); two counts of third-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); two counts of
second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b); and
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2). The court sentenced
defendant to an aggregate term of life imprisonment with a thirty-year period of
parole ineligibility.
We affirmed defendant's convictions and sentence. State v. Shannon, No.
A-2082-08 (App. Div. Dec. 3, 2010). The Supreme Court denied certification.
State v. Shannon, 205 N.J. 519 (2011).
A-3018-17T3 2 In 2012, defendant filed his first PCR petition. The trial court assigned
counsel, who filed an amended petition. The amended petition argued defendant
was denied effective assistance of trial counsel who: (1) failed to call alibi
witnesses; (2) failed to cross-examine a witness, M.W., regarding medications
she was prescribed for a psychiatric disorder; and (3) induced defendant not to
testify by misinforming him polygraph examination results would be used
during his cross-examination.
Defendant's first PCR petition was denied by the trial court. We affirmed.
State v. Shannon, No. A-3126-12 (App. Div. May 21, 2014). The Supreme
Court denied certification. State v. Shannon, 220 N.J. 98 (2014).
While the appeal of the denial of the first PCR petition was pending,
defendant filed a second PCR petition. The trial court denied defendant's second
petition. Defendant did not file an appeal of that decision.
On January 13, 2015, defendant filed a third PCR petition alleging: (1)
"[t]rial counsel submitted defense motion pre-trial for 3rd party guilt of
Benjiman [sic] Wilson III[;]" (2) "[n]o investigation in association of 'defense'
was performed by counsel[;]" (3) "[n]o investigation was done on State's witness
[M.W.] who has a psychiatric ailment that is 'delusional' in nature[;]" and (4)
"State[']s witness Richard Salcedo was also not investigated." The third petition
A-3018-17T3 3 contains the notation "[c]ontinued [a]ttached." Neither party included a copy of
the third petition in their appendix. A copy of the third petition obtained by the
court has no attachment.
On June 2, 2015, the court denied defendant's third PCR petition without
an evidentiary hearing. The court concluded the claims made in defendant's
third PCR petition, "specifically, ineffective assistance of counsel[,]" were
previously addressed and adjudicated in his first petition. Thus, the court
concluded defendant's third PCR petition was barred by Rule 3:22-4.
This appeal follows. Defendant makes the following arguments for our
consideration:
POINT I
APPELLANT SHOULD NOT BE PROCEDURALLY BARRED FROM PRESENTING HIS CLAIMS DUE TO HIS MISUNDERSTANDING OF THE LAW, AND FOR FAILING TO EXPLAIN CLEARLY TO THE COURT THAT HIS SUBSEQUENT ATTEMPTS TO FILE A PCR PETITION CONTAINED ALLEGATIONS AGAINST PCR COUNSEL: [SIC] NOT AGAINST TRIAL COUNSEL.
POINT II
PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF PCR COUNSEL DUE TO COUNSEL'S FAILURE/REFUSAL TO PRESENT TO THE PCR COURT ALL ISSUES PETITIONER WANTED RAISED.
A-3018-17T3 4 POINT III
PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF PCR COUNSEL WHEN COUNSEL FAILED TO INTERVIEW ALIBI WITNESS GERRY WILLIAMS, AND ENSURE MR. WILLIAMS'[S] PROPOSED STATEMENT MET THE LEGAL STANDARD OF ADMISSIBILITY.
II.
"Post-conviction relief is New Jersey's analogue to the federal writ of
habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-
2(a), a defendant is entitled to post-conviction relief if there was a "[s]ubstantial
denial in the conviction proceedings of defendant's rights under the Constitution
of the United States or the Constitution or laws of the State of New Jersey . . .
." "A petitioner must establish the right to such relief by a preponderance of the
credible evidence." Preciose, 129 N.J. at 459. "To sustain that burden, specific
facts" that "provide the court with an adequate basis on which to rest its
decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
A hearing on a PCR petition is required only when: (1) a defendant
establishes a prima facie case in support of PCR; (2) the court determines that
there are disputed issues of material fact that cannot be resolved by review of
the existing record; and (3) the court determines that an evidentiary hearing is
A-3018-17T3 5 required to resolve the claims asserted. State v. Porter, 216 N.J. 343, 354 (2013)
(citing R. 3:22-10(b)). "A prima facie case is established when a defendant
demonstrates 'a reasonable likelihood that his or her claim, viewing the facts
alleged in the light most favorable to the defendant, will ultimately succeed on
the merits.'" Id. at 355 (quoting R. 3:22-10(b)).
We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004). Where an evidentiary hearing has not been held, it is
within our authority "to conduct a de novo review of both the factual findings
and legal conclusions of the PCR court . . . ." Id. at 421. We review a judge's
decision to deny a PCR petition without an evidentiary hearing for abuse of
discretion. Preciose, 129 N.J. at 462.
We agree with the trial court's conclusion that defendant's third PCR
petition was barred. Rule 3:22-5 provides:
[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 in any appeal taken from such proceedings.
Defendant's third PCR petition alleges the same claims of ineffective
assistance of trial counsel he asserted in his first petition. Those claims were
A-3018-17T3 6 adjudicated by the trial court, which dismissed the first PCR petition as
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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-3018-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTWAN SHANNON,
Defendant-Appellant. _________________________
Submitted December 19, 2019 – Decided January 22, 2020
Before Judges Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-06-1043.
Antwan Shannon, appellant pro se.
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Assistant Prosecutor, on the brief).
PER CURIAM Defendant Antwan Shannon appeals from the June 2, 2015 order of the
Law Division denying his third petition for post-conviction relief (PCR) without
an evidentiary hearing. We affirm.
I.
In 2008, a jury convicted defendant of the following crimes arising from
the armed robbery and murder of a Jersey City convenience store owner and the
assault of a witness who happened upon the murder scene: first-degree murder,
N.J.S.A. 2C:11-3(a); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-
degree armed robbery, N.J.S.A. 2C:15-1; two counts of third-degree possession
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); two counts of third-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); two counts of
second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b); and
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2). The court sentenced
defendant to an aggregate term of life imprisonment with a thirty-year period of
parole ineligibility.
We affirmed defendant's convictions and sentence. State v. Shannon, No.
A-2082-08 (App. Div. Dec. 3, 2010). The Supreme Court denied certification.
State v. Shannon, 205 N.J. 519 (2011).
A-3018-17T3 2 In 2012, defendant filed his first PCR petition. The trial court assigned
counsel, who filed an amended petition. The amended petition argued defendant
was denied effective assistance of trial counsel who: (1) failed to call alibi
witnesses; (2) failed to cross-examine a witness, M.W., regarding medications
she was prescribed for a psychiatric disorder; and (3) induced defendant not to
testify by misinforming him polygraph examination results would be used
during his cross-examination.
Defendant's first PCR petition was denied by the trial court. We affirmed.
State v. Shannon, No. A-3126-12 (App. Div. May 21, 2014). The Supreme
Court denied certification. State v. Shannon, 220 N.J. 98 (2014).
While the appeal of the denial of the first PCR petition was pending,
defendant filed a second PCR petition. The trial court denied defendant's second
petition. Defendant did not file an appeal of that decision.
On January 13, 2015, defendant filed a third PCR petition alleging: (1)
"[t]rial counsel submitted defense motion pre-trial for 3rd party guilt of
Benjiman [sic] Wilson III[;]" (2) "[n]o investigation in association of 'defense'
was performed by counsel[;]" (3) "[n]o investigation was done on State's witness
[M.W.] who has a psychiatric ailment that is 'delusional' in nature[;]" and (4)
"State[']s witness Richard Salcedo was also not investigated." The third petition
A-3018-17T3 3 contains the notation "[c]ontinued [a]ttached." Neither party included a copy of
the third petition in their appendix. A copy of the third petition obtained by the
court has no attachment.
On June 2, 2015, the court denied defendant's third PCR petition without
an evidentiary hearing. The court concluded the claims made in defendant's
third PCR petition, "specifically, ineffective assistance of counsel[,]" were
previously addressed and adjudicated in his first petition. Thus, the court
concluded defendant's third PCR petition was barred by Rule 3:22-4.
This appeal follows. Defendant makes the following arguments for our
consideration:
POINT I
APPELLANT SHOULD NOT BE PROCEDURALLY BARRED FROM PRESENTING HIS CLAIMS DUE TO HIS MISUNDERSTANDING OF THE LAW, AND FOR FAILING TO EXPLAIN CLEARLY TO THE COURT THAT HIS SUBSEQUENT ATTEMPTS TO FILE A PCR PETITION CONTAINED ALLEGATIONS AGAINST PCR COUNSEL: [SIC] NOT AGAINST TRIAL COUNSEL.
POINT II
PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF PCR COUNSEL DUE TO COUNSEL'S FAILURE/REFUSAL TO PRESENT TO THE PCR COURT ALL ISSUES PETITIONER WANTED RAISED.
A-3018-17T3 4 POINT III
PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF PCR COUNSEL WHEN COUNSEL FAILED TO INTERVIEW ALIBI WITNESS GERRY WILLIAMS, AND ENSURE MR. WILLIAMS'[S] PROPOSED STATEMENT MET THE LEGAL STANDARD OF ADMISSIBILITY.
II.
"Post-conviction relief is New Jersey's analogue to the federal writ of
habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-
2(a), a defendant is entitled to post-conviction relief if there was a "[s]ubstantial
denial in the conviction proceedings of defendant's rights under the Constitution
of the United States or the Constitution or laws of the State of New Jersey . . .
." "A petitioner must establish the right to such relief by a preponderance of the
credible evidence." Preciose, 129 N.J. at 459. "To sustain that burden, specific
facts" that "provide the court with an adequate basis on which to rest its
decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
A hearing on a PCR petition is required only when: (1) a defendant
establishes a prima facie case in support of PCR; (2) the court determines that
there are disputed issues of material fact that cannot be resolved by review of
the existing record; and (3) the court determines that an evidentiary hearing is
A-3018-17T3 5 required to resolve the claims asserted. State v. Porter, 216 N.J. 343, 354 (2013)
(citing R. 3:22-10(b)). "A prima facie case is established when a defendant
demonstrates 'a reasonable likelihood that his or her claim, viewing the facts
alleged in the light most favorable to the defendant, will ultimately succeed on
the merits.'" Id. at 355 (quoting R. 3:22-10(b)).
We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004). Where an evidentiary hearing has not been held, it is
within our authority "to conduct a de novo review of both the factual findings
and legal conclusions of the PCR court . . . ." Id. at 421. We review a judge's
decision to deny a PCR petition without an evidentiary hearing for abuse of
discretion. Preciose, 129 N.J. at 462.
We agree with the trial court's conclusion that defendant's third PCR
petition was barred. Rule 3:22-5 provides:
[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 in any appeal taken from such proceedings.
Defendant's third PCR petition alleges the same claims of ineffective
assistance of trial counsel he asserted in his first petition. Those claims were
A-3018-17T3 6 adjudicated by the trial court, which dismissed the first PCR petition as
meritless. We affirmed that decision.
Defendant attempts to circumvent Rule 3:22-5 by arguing that his third
petition actually alleges his PCR counsel was ineffective. Thus, defendant
argues, his third petition should have been considered by the trial court pursuant
to Rule 3:22-4. That rule provides:
A second or subsequent petition for post-conviction relief shall be dismissed unless:
(1) it is timely filed under R. 3:22-12(a)(2); and
(2) it alleges on its face . . .
....
(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).]
While there is no dispute the third petition was filed within the time
permitted by Rule 3:22-12(a)(2), it is equally clear the third petition does not,
on its face, allege ineffective assistance of PCR counsel on defendant's first
petition. Defendant argues he misunderstood the law and intended to allege in
his third PCR petition he was denied the effective assistance of PCR counsel on
A-3018-17T3 7 his first petition. According to defendant, his PCR counsel failed to raise all of
the issues defendant wanted him to raise in the first petition, and failed to
effectively investigate and argue those claims he did raise.
Defendant's third PCR petition, however, does not mention his PCR
counsel. He does not allege in the third PCR petition any claims of ineffective
assistance related to the representation he received with respect to his first
petition. Instead, defendant's third PCR petition is a reiteration of the ineffective
assistance claims he alleged in his first petition about his trial counsel.
Dismissal of the third PCR petition was, therefore, warranted.
Affirmed.
A-3018-17T3 8