State v. Jackson

• Decision Date: 30 April 2018
• Docket Number: DOCKET NO. A–1884–16T2
• Citation: 454 N.J.Super. 284,185 A.3d 262
• Parties: STATE of New Jersey, Plaintiff–Respondent, v. Allaquan JACKSON, a/k/a Khalif Jackson, Kailif Jackson, Defendant–Appellant.
• Court: New Jersey Superior Court — Appellate Division

454 N.J.Super. 284

185 A.3d 262

STATE of New Jersey, Plaintiff–Respondent,

v.Allaquan JACKSON, a/k/a Khalif Jackson, Kailif Jackson, Defendant–Appellant.

DOCKET NO. A–1884–16T2

Superior Court of New Jersey, Appellate Division.

Submitted February 6, 2018

Decided April 30, 2018

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

Before Judges Carroll, Leone, and Mawla.

The opinion of the court was delivered by

LEONE, J.A.D.

Defendant Allaquan Jackson appeals the August 16, 2016 order denying his second petition for post-conviction relief (PCR). Defendant asserted his first PCR counsel was ineffective for not claiming trial counsel was ineffective regarding a potential witness.

We hold that defendant's second petition was untimely under Rule 3:22–12(a)(2)'s time limits. Those limits cannot be relaxed by invoking Rule 1:1–2 or Rule 3:22–12(a)(1), because the Supreme Court in 2009 and 2010 amended Rule 1:3–4, Rule 3:22–4(b), and Rule 3:22–12 to preclude enlargement or relaxation. Those amendments apply to defendant, who had no vested right to file a petition fourteen years out of time. Accordingly, we affirm.

I.

On October 20, 1999, Shavonne Young, defendant's sixteen-year-old girlfriend and the mother of their two children, died after being shot six times. Three days earlier, Young had reported to police that "[defendant] raped me." Defendant confessed that "he shot Miss Shavonne Young," identified the firearm he used, and signed a written confession.

Defendant's second PCR petition is based on facts set forth fourteen years earlier in a May 15, 2001 pretrial hearing. About a month before trial, defendant's trial attorneys Donna Scocozza and Anita Treasurer obtained a written statement from Malika Williams, the girlfriend of defendant's brother. In her statement, Williams claimed that she, defendant, and his brother drove to Young's apartment, that the brother showed them the gun, and that she and defendant waited in the car while his brother went into Young's apartment and shot her. Defendant's trial attorneys provided Williams's statement to the prosecutor in discovery. About a week later, Scocozza told the prosecutor that, in a phone call between Scocozza and Williams, Williams said her written statement was untrue.

Defendant's trial attorneys subpoenaed Williams to testify, and moved to enforce the subpoena. The State moved to disqualify Scocozza because she might have to testify about Williams's oral recantation. The trial judge denied the motions on May 15, 2001. During trial, Williams appeared, acknowledged she had been subpoenaed, and was instructed to return on the day the defense case began. However, she failed to do so.

Defendant testified at trial, and retracted his confession. He testified he, his brother, and Williams drove to Young's apartment, and he and Williams waited in the car while his brother took a gun, went into the apartment and shot Young.

The jury convicted defendant of: first-degree purposeful and knowing murder, N.J.S.A. 2C:11–3(a)(1) and (2) ; first-degree felony murder, N.J.S.A. 2C:11–3(a)(3) ; second-degree burglary, N.J.S.A. 2C:18–2 ; third-degree terroristic threats, N.J.S.A. 2C:12–3 ; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39–5(b) ; and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39–4(a). The trial court imposed a term of life imprisonment with a thirty-year period of parole ineligibility. At sentencing, defendant said: "I did commit this crime and I'm sorry for what happened and ... Williams was available and requested to come, but my lawyer refused to call her[.]" On direct appeal, defendant claimed trial counsel was ineffective. We affirmed defendant's July 20, 2001 judgment of conviction. State v. Jackson, No. A–1978–01 (App. Div. July 7, 2003), certif.denied, 178 N.J. 34, 834 A.2d 407 (2003).¹

On September 21, 2005, defendant pro se filed his first PCR petition. In his pro se brief, he again claimed his trial counsel was ineffective. First PCR counsel was appointed, and filed a brief alleging eleven ways trial counsel was ineffective, including by failing to call Williams as a trial witness. The PCR judge, who also presided over the trial, denied defendant's petition on April 27, 2007.

On May 7, 2007, defendant filed a pro se motion for reconsideration, arguing first PCR counsel was ineffective in handling the claim regarding Williams. The PCR judge denied reconsideration on November 13, 2007.

Defendant appealed, claiming trial counsel was ineffective in eleven ways, including failing to call Williams. We affirmed the denial of his first PCR petition. State v. Jackson, No. A–0863–07 (App. Div. Feb. 17, 2009), certif.denied, 200 N.J. 549, 985 A.2d 647 (2009).

Defendant also filed a federal habeas corpus petition that was denied because it was untimely. Jackson v. Bartkowski, No. 105452, 2012 U.S. Dist. LEXIS 97126 (D.N.J. July 11, 2012). Defendant filed a motion to reopen the habeas corpus petition, which was denied. Jackson v. Bartkowski, No. 105452, 2013 U.S. Dist. LEXIS 89427 (D.N.J. June 26, 2013).

On May 22, 2015, defendant filed a second PCR petition. In his pro se brief, defendant alleged trial, appellate, and first PCR counsel were ineffective regarding the failure to call Williams, and in disclosing Williams's recantation to the prosecutor. The same PCR judge denied defendant's second petition in a written opinion and order. Defendant appeals, arguing:

POINT ONE—THE TIME BAR SHOULD BE RELAXED WHERE THE ISSUE RAISED IN THE DEFENDANT'S SECOND PCR PETITION WAS THE RESULT OF THE PATENTLY DEFICIENT CONDUCT OF HIS FIRST PCR COUNSEL.

POINT TWO—THE DEFENDANT'S FIRST PCR COUNSEL ERRED WHERE HE DID NOT RAISE THE ISSUE OF WHETHER THE DEFENDANT'S TRIAL ATTORNEY BREACHED THE ATTORNEY–CLIENT RELATIONSHIP BY DISCLOSING

TO THE ASSISTANT PROSECUTOR A WITNESS'S VERBAL RECANTATION OF A PRIOR SWORN STATEMENT.

POINT THREE—PREJUDICE IS PRESUMED WHERE THE CONFLICT OF INTEREST COMPROMISED DEFENSE COUNSEL'S STRATEGIC TRIAL DECISIONS.

POINT FOUR—THE PCR COURT ERRED WHERE IT FOUND THAT THE DEFENDANT DID NOT ESTABLISH A PRIMAFACIE CASE WHICH WARRANTED AN EVIDENTIARY HEARING.

POINT FIVE—THE DEFENDANT INCORPORATES IN SUMMARY FASHION THE ARGUMENTS BELOW.

Additionally, defendant filed a pro se supplemental brief in which he argues:

THE PROCEDURAL BARS THE COURT APPLIED TO THE DEFENDANT'S SECOND PCR PETITION SHOULD HAVE BEEN RELAXED BECAUSE DEFENDANT'S FIRST PCR ATTORNEY'S REPRESENTATION WAS SO

GROSSLY DEFICIENT THAT IT AMOUNTED TO NO PCR AT ALL THEREBY DEPRIVING DEFENDANT OF A FIRST PCR AS OF RIGHT.

II.

As the PCR court did not hold an evidentiary hearing on the claim defendant now raises on appeal, we "conduct a de novo review." State v. Harris, 181 N.J. 391, 421, 859 A.2d 364 (2004). We must hew to this standard of review.

In his second PCR petition filed on May 22, 2015, defendant argues his first PCR counsel was ineffective for failing to claim trial counsel was ineffective in disclosing Williams's oral recantation to the prosecutor. The PCR judge found defendant's second PCR petition was severely out of time because defendant waited "more than eight years after the denial of [his] first PCR" to file his second PCR. We agree defendant's claim is time-barred.

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)[.]" Rule 3:22–12(a)(2) provides:

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 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.

[Ibid. (emphasis added); seeR. 3:22–4(b)(2).]

Defendant's second PCR petition was not timely under Rule 3:22–12(a)(2)(A) because he claims no newly recognized constitutional right.

Defendant's second petition was not timely under Rule 3:22–12(a)(2)(B) because defendant knew Scocozza had told the prosecutor about Williams's oral recantation at least by the May 15, 2001 pre-trial hearing, at which defendant was present. Defendant knew no later than the April 27, 2007 first PCR hearing, which he attended, that PCR counsel had not based his arguments on Scocozza's disclosure of Williams's recantation. Defendant does not assert his ineffectiveness claim is based on evidence or information that could not have been discovered earlier through the exercise of reasonable diligence. See State v. Brewster, 429 N.J. Super. 387, 399–400, 58 A.3d 1234 (App. Div. 2013).

Defendant's second petition is also untimely under Rule 3:22–12(a)(2)(C). Although it alleged ineffective assistance of counsel that represented defendant on his first PCR petition, defendant's second petition was not filed within one year of the date of the denial of his first PCR on April 27, 2007. Accordingly, the PCR court properly dismissed his second PCR petition under Rule 3:22–4(b)(1).

Defendant claims the time bar should be relaxed under Rule 1:1–2(a), which generally provides that "any rule may be relaxed or dispensed with by ...