NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5659-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MIKE NEWMAN, a/k/a MICHAEL NEWMAN,
Defendant-Appellant. ________________________
Submitted September 13, 2021 – Decided September 21, 2021
Before Judges Rothstadt and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-02- 0140.
Mike Newman, appellant pro se.
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Danielle R. Pennino, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant appeals from an order denying his second petition for post-
conviction relief (PCR). We affirm.
I.
In 2010, defendant was convicted of first-degree attempted murder, first
degree-robbery, second-degree aggravated assault, and various weapons-related
offenses. After merger, the court sentenced defendant to an aggregate forty-year
mandatory term as a persistent offender.
The heavy sentence was the consequence of defendant's extensive
criminal record and the violent nature of the crimes he committed when he
assaulted and shot the victim in the leg. Defendant was implicated in the
shooting by his father, cousin, and the victim's former girlfriend, who told police
that weeks before the shooting, she observed defendant on his bicycle with
bullets attached to his vest and in possession of what she believed to be a
shotgun. When she confronted defendant, he told her "[n]obody's going to hurt
me again." The victim also identified defendant by name, and later affirmed his
identification after an investigating officer showed him defendant's photograph.
We affirmed defendant's convictions and sentence on direct appeal, see
State v. Newman, No. A-2947-10 (App. Div. Oct. 10, 2012), and the Supreme
Court denied defendant's petition for certification. State v. Newman, 213 N.J.
2 A-5659-18 535 (2013). Defendant filed a timely pro se petition for PCR in which his court-
appointed counsel alleged that defendant's trial counsel was constitutionally
ineffective under Strickland v. Washington 1 because his attorney failed to confer
with him adequately prior to trial and ignored his advice to challenge a juror
during jury selection.
In a supplemental pro se submission, defendant additionally claimed his
counsel erred in failing to: hire an expert witness to investigate the crime scene
and evaluate the victim's injuries; elicit testimony from the victim about his
"inconsistent" descriptions; argue that he could not be convicted of robbery
because the victim said he did not take anything from him; request a cross-racial
identification; and move to suppress all of the victim's statements because the
detective who questioned him did not retain his handwritten notes.
On May 20, 2014, the first PCR court heard oral argument and later issued
an order and comprehensive written opinion in which it concluded that the
majority of defendant's claims were barred by Rule 3:22-4(a) as they could have
1 To establish ineffective assistance of counsel, a convicted defendant must satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984), by demonstrating that: 1) counsel's performance was deficient, and 2) the deficient performance actually prejudiced the accused's defense. The Strickland test has been adopted in New Jersey. See State v. Fritz, 105 N.J. 42, 58 (1987) (Strickland/Fritz).
3 A-5659-18 been presented on direct appeal. The court also determined that an evidentiary
hearing was not required because defendant failed to establish a prima facie case
of ineffective assistance of counsel. We affirmed the denial of defendant's PCR
petition in an unpublished opinion, see State v. Newman, No. A-5222-13 (App.
Div. Nov. 4, 2015), and on February 5, 2016, the Supreme Court denied
defendant's petition for certification. State v. Newman, 224 N.J. 125 (2016).
Nearly two and a half years later, on July 24, 2018, defendant filed a
second PCR petition in which he alleged his trial counsel was ineffective for
failing to: challenge a juror who knew the victim, voir dire the jury and
investigate their backgrounds, and request a competency hearing. Defendant
also sought the appointment of counsel to assist in the prosecution of his second
petition, a request that the public defender's office denied in a February 5, 2019
letter.
In a form June 12, 2019 order, the PCR court denied defendant's petition
on the papers and without further proceedings. It also concluded good cause did
not exist entitling defendant to assignment of counsel.
On appeal, defendant raises two arguments for our consideration. First,
he contends the PCR court erred in denying his petition without an evidentiary
hearing because his counsel's failure to request a competency hearing satisfied
4 A-5659-18 both the performance and prejudice prongs of the Strickland/Fritz test as there
was a "reasonable probability that [he] would not have been found guilty of
attempted murder, where the intent to kill would have been mitigated by the
testimony of a medical professional discussing his state of mind . . . ." He also
contends his counsel's failure to remove a juror at his instruction, adequately
voir dire the jury, and conduct any investigation into the jurors' backgrounds
established a prime facie case of ineffective assistance warranting an evidentiary
hearing.
Second, he argues the court incorrectly failed to find good cause under
Rule 3:22-6(b) warranting the appointment of counsel to assist in the
prosecution of his second PCR petition. Although it would have been preferable
to have a more complete record of the PCR court's reasons for denial of this
subsequent PCR petition, we have found nothing in defendant's brief on appeal,
or in the PCR petition itself, that requires further review.
The form order used by the PCR court was in accordance with Directive
#7-07. Administrative Directive #7-07, "Post-Conviction Applications on
Indictable Offenses New Form Order" (Sept. 20, 2007). The form contains
preprinted sections permitting PCR judges to address by means of checkoffs and
5 A-5659-18 brief additional text the various issues pertinent to a second or subsequent PCR
petition, including the court's ultimate decision.
In addition to completing the order, courts are asked to provide written
reasons when a pro se litigant files a second or subsequent petition for post-
conviction relief and the relief sought is denied. Here, the PCR judge did not
complete the supplemental section or otherwise explain the bases for his
reasoning to deny the petition and the appointment of counsel. It is clear on the
face of the petition, however, that defendant's petition was time-barred and
substantively without merit. Defendant further failed to establish good cause
warranting the appointment of counsel.
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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-5659-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MIKE NEWMAN, a/k/a MICHAEL NEWMAN,
Defendant-Appellant. ________________________
Submitted September 13, 2021 – Decided September 21, 2021
Before Judges Rothstadt and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-02- 0140.
Mike Newman, appellant pro se.
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Danielle R. Pennino, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant appeals from an order denying his second petition for post-
conviction relief (PCR). We affirm.
I.
In 2010, defendant was convicted of first-degree attempted murder, first
degree-robbery, second-degree aggravated assault, and various weapons-related
offenses. After merger, the court sentenced defendant to an aggregate forty-year
mandatory term as a persistent offender.
The heavy sentence was the consequence of defendant's extensive
criminal record and the violent nature of the crimes he committed when he
assaulted and shot the victim in the leg. Defendant was implicated in the
shooting by his father, cousin, and the victim's former girlfriend, who told police
that weeks before the shooting, she observed defendant on his bicycle with
bullets attached to his vest and in possession of what she believed to be a
shotgun. When she confronted defendant, he told her "[n]obody's going to hurt
me again." The victim also identified defendant by name, and later affirmed his
identification after an investigating officer showed him defendant's photograph.
We affirmed defendant's convictions and sentence on direct appeal, see
State v. Newman, No. A-2947-10 (App. Div. Oct. 10, 2012), and the Supreme
Court denied defendant's petition for certification. State v. Newman, 213 N.J.
2 A-5659-18 535 (2013). Defendant filed a timely pro se petition for PCR in which his court-
appointed counsel alleged that defendant's trial counsel was constitutionally
ineffective under Strickland v. Washington 1 because his attorney failed to confer
with him adequately prior to trial and ignored his advice to challenge a juror
during jury selection.
In a supplemental pro se submission, defendant additionally claimed his
counsel erred in failing to: hire an expert witness to investigate the crime scene
and evaluate the victim's injuries; elicit testimony from the victim about his
"inconsistent" descriptions; argue that he could not be convicted of robbery
because the victim said he did not take anything from him; request a cross-racial
identification; and move to suppress all of the victim's statements because the
detective who questioned him did not retain his handwritten notes.
On May 20, 2014, the first PCR court heard oral argument and later issued
an order and comprehensive written opinion in which it concluded that the
majority of defendant's claims were barred by Rule 3:22-4(a) as they could have
1 To establish ineffective assistance of counsel, a convicted defendant must satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984), by demonstrating that: 1) counsel's performance was deficient, and 2) the deficient performance actually prejudiced the accused's defense. The Strickland test has been adopted in New Jersey. See State v. Fritz, 105 N.J. 42, 58 (1987) (Strickland/Fritz).
3 A-5659-18 been presented on direct appeal. The court also determined that an evidentiary
hearing was not required because defendant failed to establish a prima facie case
of ineffective assistance of counsel. We affirmed the denial of defendant's PCR
petition in an unpublished opinion, see State v. Newman, No. A-5222-13 (App.
Div. Nov. 4, 2015), and on February 5, 2016, the Supreme Court denied
defendant's petition for certification. State v. Newman, 224 N.J. 125 (2016).
Nearly two and a half years later, on July 24, 2018, defendant filed a
second PCR petition in which he alleged his trial counsel was ineffective for
failing to: challenge a juror who knew the victim, voir dire the jury and
investigate their backgrounds, and request a competency hearing. Defendant
also sought the appointment of counsel to assist in the prosecution of his second
petition, a request that the public defender's office denied in a February 5, 2019
letter.
In a form June 12, 2019 order, the PCR court denied defendant's petition
on the papers and without further proceedings. It also concluded good cause did
not exist entitling defendant to assignment of counsel.
On appeal, defendant raises two arguments for our consideration. First,
he contends the PCR court erred in denying his petition without an evidentiary
hearing because his counsel's failure to request a competency hearing satisfied
4 A-5659-18 both the performance and prejudice prongs of the Strickland/Fritz test as there
was a "reasonable probability that [he] would not have been found guilty of
attempted murder, where the intent to kill would have been mitigated by the
testimony of a medical professional discussing his state of mind . . . ." He also
contends his counsel's failure to remove a juror at his instruction, adequately
voir dire the jury, and conduct any investigation into the jurors' backgrounds
established a prime facie case of ineffective assistance warranting an evidentiary
hearing.
Second, he argues the court incorrectly failed to find good cause under
Rule 3:22-6(b) warranting the appointment of counsel to assist in the
prosecution of his second PCR petition. Although it would have been preferable
to have a more complete record of the PCR court's reasons for denial of this
subsequent PCR petition, we have found nothing in defendant's brief on appeal,
or in the PCR petition itself, that requires further review.
The form order used by the PCR court was in accordance with Directive
#7-07. Administrative Directive #7-07, "Post-Conviction Applications on
Indictable Offenses New Form Order" (Sept. 20, 2007). The form contains
preprinted sections permitting PCR judges to address by means of checkoffs and
5 A-5659-18 brief additional text the various issues pertinent to a second or subsequent PCR
petition, including the court's ultimate decision.
In addition to completing the order, courts are asked to provide written
reasons when a pro se litigant files a second or subsequent petition for post-
conviction relief and the relief sought is denied. Here, the PCR judge did not
complete the supplemental section or otherwise explain the bases for his
reasoning to deny the petition and the appointment of counsel. It is clear on the
face of the petition, however, that defendant's petition was time-barred and
substantively without merit. Defendant further failed to establish good cause
warranting the appointment of counsel.
In this regard, defendant's petition was clearly untimely, having been filed
far beyond the ordinary five-year time limitation for a PCR petition stated in
Rule 3:22-12(a)(1). Subsection (a)(2) of the same rule provides alternative and
potentially additional time periods for the filing of a second or subsequent
petition. Because that part of the rule contains specificities that should be
addressed in more detail, the PCR court would have been better advised to attach
a statement of its findings and reasoning in denying defendant's petition.
Nevertheless, our independent review of the petition discloses no basis
covered by subsection (a)(2) to relax the time limitations of the Rule and to
6 A-5659-18 permit the filing of this petition almost eight years after defendant's conviction,
and over two years after his first petition was denied by the Supreme Court.
Defendant's contentions are stated almost entirely through general statements of
law, without specific application to the circumstances of his case. In addition,
defendant's arguments are either substantively without merit under
Strickland/Fritz, were, or could have been, addressed in his first PCR petition,
or on direct appeal.
II.
Rule 3:22-4 sets forth specific requirements for second or subsequent PCR
petitions. Rule 3:22-4(b) states that "[a] second or subsequent petition for post-
conviction relief shall be dismissed unless: (1) it is timely under Rule 3:22-
12(a)(2)" and alleges on its face either "a new rule of constitutional law," an
undiscovered factual predicate, or ineffective assistance of counsel.
Further, the time limits for a second or subsequent PCR petition under
Rule 3:22-12(a)-(b) provide:
(a)(2) Notwithstanding any other provision in this rule, no 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
7 A-5659-18 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 . . . .
(b) These time limitations shall not be relaxed, except as provided herein.
Subparagraph (b) was added to Rule 3:22-12 in 2009 "to make clear that
the general time limits to file a petition for post-conviction relief as set forth in
[Rule] 3:22-12 cannot be enlarged or relaxed except as specifically set forth in
[Rule] 3:22-12(a)." State v. Jackson, 454 N.J. Super. 284, 293 (App. Div. 2018)
(citing Report of the Supreme Court Criminal Practice Committee 2007–2009
Term at 4–5 (Feb. 17, 2009)). Under amended Rule 3:22-12(a)(1)(A), the filing
of a "First Petition For Post–Conviction Relief" more than five years after the
date of the judgment of conviction can be excused only if the defendant shows
both "that the delay beyond said time was due to defendant's excusable neglect
8 A-5659-18 and that there is a reasonable probability that if the defendant's factual assertions
were found to be true enforcement of the time bar would result in a fundamental
injustice." That exception to the five-year time limit, however, does not apply
to second or subsequent petitions under Rule 3:22-12(a)(2). Jackson, 454 N.J.
Super. at 293–94.
Here, defendant's second PCR petition was clearly untimely. Indeed, he
does not assert a newly recognized constitutional right, Rule 3:22-12(a)(2)(A),
or that his ineffectiveness claim is based on information or evidence that could
not have been discovered earlier through the exercise of reasonable diligence.
R. 3:22-12(a)(2)(B). Further, defendant's second PCR petition was not timely
under Rule 3:22-12(a)(2)(C) because it was not filed within one year of February
5, 2016, the date the Supreme Court denied his first PCR petition. As noted,
defendant did not file his second petition until July 24, 2018, well beyond the
time period required by the Rule.
In addition, we are satisfied from our review of the record that defendant's
ineffective assistance of counsel claims are substantively without merit. We
previously rejected defendant's Strickland/Fritz claims related to his trial
counsel's decision with respect to the selection of the jury. In affirming the
court's denial of defendant's first PCR petition, we stated:
9 A-5659-18 Defendant has not shown that his counsel's decision not to excuse the juror was a strategic miscalculation or mistake, particularly in view of the juror's statements that he could be fair and impartial. Moreover, even if counsel's strategic decision was erroneous, defendant has not established that he was prejudiced by the decision. Defendant has not shown a reasonable probability that the result here would have been different if the juror had been excused and another juror selected.
[State v. Newman, No A-5222-13T2 (App. Div. Nov. 4, 2015) (slip op. at 9).]
We also find no support in the record for defendant's remaining claims,
including his allegation that counsel's failure to request a competency hearing
satisfies both prongs of the Strickland/Fritz test. Where evidence "raises a bona
fide doubt" as to a defendant's competence, a defendant is entitled to such a
hearing. State v. Purnell, 394 N.J. Super. 28, 47 (App. Div. 2007) (quoting Pate
v. Robinson, 383 U.S. 375, 378 (1966)). Once the issue of competence is raised,
the State then bears the burden of establishing competence by a preponderance
of the evidence. State v. Lambert, 275 N.J. Super. 125, 129 (App. Div. 1994).
In Dusky v. United States, the United States Supreme Court defined the
minimum requirements to determine a defendant's competence to stand trial.
362 U.S. 402, 402 (1960). The test is "whether [the defendant] has sufficient
present ability to consult with his lawyer with a reasonable degree of rational
10 A-5659-18 understanding and whether he has a rational as well as a factual understanding
of the proceedings against him." Purnell, 394 N.J. Super. at 47 (quoting Dusky,
362 U.S. at 402); see also State v. Auld, 2 N.J. 426, 435, (1949) ("One unable
to comprehend his position, to consult intelligently with counsel and plan his
defense cannot be put to trial."). New Jersey has codified this standard at
N.J.S.A. 2C:4-4, which provides that "[n]o person who lacks capacity to
understand the proceedings against him or to assist in his own defense shall be
tried, convicted or sentenced for the commission of an offense so long as such
incapacity endures."
Defendant argues that his actions prior to the shooting, and particularly
his interaction with the victim's former girlfriend, suggest he was in a
"potentially delusional state" during the commission of the crime and that such
evidence required a competency exam prior to trial and assignment of counsel
on his second PCR petition. The record, however, is devoid of affidavits,
certifications, or other competent proofs necessary to support his claim that he
was incompetent to stand trial. See State v. Porter, 216 N.J. 343, 355 (2013)
(Court Rules require "[a]ny factual assertion that provides the predicate for a
claim of relief" to be supported an "affidavit or certification pursuant to Rule
1:4-4.").
11 A-5659-18 Absent such evidence, we are satisfied that defendant's trial counsel's
decision to forego a competency hearing does not fall below an objective
standard of reasonableness, as an attorney's failure to raise a losing argument
does not amount to deficient performance. State v. Worlock, 117 N.J. 596, 625
(1990) ("The failure to raise unsuccessful legal arguments does not constitute
ineffective assistance of counsel."). Simply put, the record before us does not
raise a bona fide doubt as to defendant's competence, nor does it suggest he had
an impaired ability to understand the nature of the proceedings against him.
III.
For similar reasons, we are also satisfied from our review of the record
that defendant failed to establish "good cause" sufficient to require appointment
of counsel under Rule 3:22-6(b). Indigent defendants who file second or
subsequent PCR petitions are not entitled to appointment of counsel unless a
judge determines that "good cause" exists. R. 3:22-6(b); State v. McIlhenny,
333 N.J. Super. 85, 90 (App. Div. 2000). Under Rule 3:22-6(b), "[g]ood cause
exists only when the court finds that a substantial issue of fact or law requires
assignment of counsel and when a second or subsequent petition alleges on its
face a basis to preclude dismissal under R. 3:22-4." This section of the Rule
limits "good cause" to circumstances where the court finds "a substantial issue
12 A-5659-18 of fact or law" that signals some merit in the petition. See Pressler & Verniero,
Current N.J. Court Rules, cmt. on R. 3:22-6(b) (2020). Here, for the reasons we
previously detailed, defendant failed to establish the existence of a substantial
factual or legal question as to the merits of his petition.
Affirmed.
13 A-5659-18