                                NOT FOR PUBLICATION WITHOUT THE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-1568-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LUIS S. MANSO,

     Defendant-Appellant.
________________________

                    Submitted January 21, 2020 – Decided April 9, 2020

                    Before Judges Fasciale and Rothstadt.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 98-11-4417.

                    Luis S. Manso, appellant pro se.

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Matthew E.
                    Hanley, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Luis Manso appeals from the November 7, 2018 denial of his

second petition for post-conviction relief (PCR) without an evidentiary hearing.

For the reasons that follow, we affirm.

      The details of defendant's conviction for murder and other charges, as well

as the sentencing court's imposition of an aggregate term of sixty years, were

detailed in our earlier unpublished opinion affirming the denial of defendant's

first petition for PCR. See State v. Manso, No. A-2646-12 (App. Div. Aug. 26,

2015) (slip op. at 3). As we noted in our prior opinion, we previously affirmed

defendant's conviction and the Supreme Court denied certification.

      On July 23, 2018, defendant filed his second PCR petition. On November

7, 2018, Judge Siobhan A. Teare entered an order denying "[p]etitioner's request

for an attorney to be assigned and for [PCR] motion." The judge's order was

supported by a ten-page written decision.

      In her decision, the judge reviewed the history of defendant's conviction,

his appeal, and the denial of his first PCR petition. The judge noted that the

present petition was before her as a result of the United States District Court 's

decision to stay defendant's petition for habeas corpus in that court so he could

"return to [S]tate court and address the allegations" of "prosecutorial

misconduct" and other allegations "not raised in [S]tate court." The judge


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                                          2
described those other allegations as the prosecutor's "fail[ure] to disclose a

potentially favorable witness, and that [defendant's] codefendant was prevented

from testifying on his behalf due to an explicit condition of the codefendant [']s

plea agreement."

      The judge then turned to the issue of whether defendant had established

good cause warranting the assignment of counsel for his second PCR petition.

As the judge described, defendant contended that "the deliberate withholding of

witnesses who were interviewed and whose statements would have allegedly

been used to impeach the State's witness, [D.M.'s] version of events."

      The judge then engaged in a detailed explanation of the law governing

PCR petitions and specifically "second or subsequent petitions." Citing to Rule

3:22-12(a)(2), the judge described the circumstances under which a second

petition could be pursued. In addition, the judge pointed out that under Rule

3:22-5 "'a prior adjudication upon the merits of any grounds for relief is

conclusive whether made in the proceedings resulting in the conviction or in any

post-conviction proceeding brought pursuant to this [Rule],' unless the

constitutional problems are of substantial import."




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                                        3
      Applying those rules, Judge Teare addressed defendant's contentions and

concluded that under Rule 3:22-12(a)(2), his second petition was time-barred.

Despite the time-bar, the judge proceeded to address defendant's arguments.

      First, the judge discussed defendant's contention about D.M.'s testimony,

finding that defendant's contention was considered on his first PCR petition and

denied based upon testimony adduced at an evidentiary hearing held at that time.

She identified defendant's contention as being that the State "deliberately

withheld the interview and statements of a witness," specifically, [M.S.], the

girlfriend of [D.M.], who was the State's "chief confidential informant."

Defendant supported his contention by stating M.S. "was on the run with [D.M.]

for approx[imately] one (1) year while he was hiding from authorities and would

have been privy to conversations about the incident" that gave rise to defendant's

conviction.     The judge concluded that this argument was "replete with

speculation" because the record did not confirm that M.S. "was in fact

interviewed."

      The judge reviewed in detail portions of the record that established there

was no confirmation of any interview and in fact no support from D.M. that M.S.

"had any conversations with [D.M.] about the events or was ever interviewed by

the [S]tate regarding this matter." The judge concluded that defendant's version


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                                        4
of the events was based upon pure speculation and he failed to establish a

substantial denial of justice.

      Turning to defendant's allegation that his codefendant was "told not to

testify," the judge found that "this same issue was examined by the PCR court

as to [another] codefendant." The judge considered the issue, even though it

was not raised by defendant in his supporting brief, because it was raised by the

federal court as an issue to be addressed. The judge found that defendant's

contention about his codefendant being told not to testify was based upon his

incorrect reading of the codefendant's plea agreement. The judge noted that the

first PCR court already resolved the issue by finding that the statement in the

codefendant's plea agreement was simply that "the [S]tate would not compel the

codefendant to testify or use their statement against the codefendant at trial."

That argument, which was addressed by the first PCR court, applied to the

defendant's present contention as well.

      Based on the judge's findings, she denied defendant's second petition for

PCR. This appeal followed.

      On appeal defendant presents to us the following two arguments:




                                                                         A-1568-18T1
                                          5
            POINT I

            THE DEFENDANT WAS DENIED DUE PROCESS
            BASED UPON PROSECUTORIAL MISCONDUCT
            WHERE THE STATE FAILED TO DISCLOSE
            EXCULPATORY EVIDENCE.

            POINT II

            THIS COURT SHOULD EXERCISE ITS ORIGINAL
            JURISDICTION PURSUANT TO R. 2:10-5 IN AN
            EFFORT TO BRING THIS MATTER TO A CLOSE
            DUE TO ITS PROTRACTED HISTORY. (NOT
            RAISED BELOW).

      We are not persuaded by these arguments and affirm substantially for the

reasons expressed by Judge Teare in her written decision. We only add that we

conclude from our de novo review of the record, see State v. Harris, 181 N.J.

391, 421 (2004), his contentions do not fall under any of the exceptions

permitting the filing of a second PCR petition under Rule 3:22-4(b), and that

defendant has failed to establish a viable claim that the prosecution in his case

failed to disclose to defendants any exculpatory evidence or evidence that was

material to his conviction. State v. Brown, 236 N.J. 497, 518 (2019) (citing

Brady v. Maryland, 373 U.S. 83, 87 (1963)).

      Affirmed.




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