                        NOT FOR PUBLICATION WITHOUT THE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-3220-14T3


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

LOUIS WATLEY,

     Defendant-Appellant.
_________________________


              Argued May 23, 2017 — Decided July 26, 2017

              Before Judges Reisner and Koblitz.

              On appeal from the Superior Court of New
              Jersey, Law Division, Union County, Indictment
              No. 98-01-0099.

              Louis Watley, appellant, argued the cause pro
              se.

              Milton S. Leibowitz, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for respondent (Grace H. Park,
              Acting Union County Prosecutor, attorney for
              respondent; Mr. Liebowitz, of counsel and on
              the brief).


PER CURIAM
       Defendant Louis Watley appeals from the January 30, 2015

order denying his second petition for post-conviction relief (PCR)

without    an    evidentiary     hearing.      Defendant    argues       that   his

privately       retained   PCR   appellate     attorney    was    prejudicially

ineffective because he did not argue the appeal before us, although

retained to do so.         The PCR judge, Judge Robert J. Mega, found

counsel    was    ineffective,     but   the   failure    to     argue    was   not

prejudicial.       We affirm.

       Defendant was convicted in 2000 of the 1997 kidnapping and

aggravated sexual assault of an eighteen-year-old woman who was

an employee at his accounting office.            The assault occurred on a

bed in defendant's home while the victim was menstruating.                   Blood

and DNA evidence were found on the bed sheets.                 He was sentenced

to an aggregate term of eighteen years imprisonment.1

       On direct appeal, we affirmed defendant's conviction.                 State

v. Watley, No. A-4295-00 (App. Div. April 23, 2004) (Watley I),

certif. denied, 180 N.J. 458 (2004). On April 5, 2007, we reversed

the denial of defendant's first petition for PCR "with respect to

his trial counsel's treatment of blood evidence produced at trial."

State v. Watley, No. A-5970-04 (App. Div. April 5, 2007) (slip op.

at 19) (Watley II).         We remanded for an evidentiary hearing on

that issue.       After holding the evidentiary hearing, defendant's


1
    Defendant was released from custody in 2011.
                                   2                                       A-3220-14T3
petition was denied in 2007 by Judge Ross R. Anzaldi, who had also

been the trial judge.

     Defendant   appealed   the      denial    of    PCR   and   hired   private

appellate counsel to argue on his behalf.             However, oral argument

was not held because counsel failed to make a timely request.                   We

affirmed the trial court's denial of defendant's PCR petition.

State v. Watley, No. A-1132-07 (App. Div. December 17, 2008) (slip

op. at 12) (Watley III).     He now appeals from the denial of his

second petition for PCR without an evidentiary hearing, claiming

ineffective assistance of appellate PCR counsel.

     On appeal defendant raised the following points:2

          POINT I: PCR COURT ERRED IN DENYING DEFENDANT
          RELIEF WHERE IT WAS CLEAR PROSECUTOR PRESENTED
          FALSE SEROLOGIC (ABO BLOOD TYPE) EVIDENCE TO
          THE JURY. THAT EVIDENCE WAS THE PRINCIPLE
          PIECE OF FORENSIC EVIDENCE LINKING THE
          DEFENDANT TO THE CRIME. IN ADDITION BRADY
          EVIDENCE ALSO WITHHELD RELATED TO THE SAME.

          Laboratory Report Produced by Prosecutor Was
          Improper and Deceptive

          1. Material Evidence Withheld
          2. Evidence Altered and Withheld From Defense
          3. Blood Type Data Missing From Evidence
          Report
          4. Material Evidence Altered and Brady
          Evidence Withheld

          POINT II:      PCR COURT ERRED IN DENYING
          DEFENDANT RELIEF WHERE IT WAS CLEAR PROSECUTOR
          PRESENTED FALSE AND MISLEADING DNA BLOOD

2
  We reproduce    the   point       headings    as    written,    without     any
corrections.
                                3                                        A-3220-14T3
EVIDENCE.     THE BLOOD EVIDENCE WAS THE
PRINCIPLE PIECE OF FORENSIC EVIDENCE LINKING
THE DEFENDANT TO THE CRIME.

A. Applicable Law
B. Prosecutor misrepresented DNA Evidence
Connected to non-sperm fraction of Specimen
and failed to disclose lack of Genetic
material finding in blood sample To the jury
C. Document Evidence establish prosecutor
acted In bad faith by planning to use false
DNA To corroborate the tainted serologic
report

POINT III:     PCR COURT ERRED IN DENYING
DEFENDANT RELIEF ON INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIM WHERE IT WAS CLEAR COUNSEL
KNOWING ALLOW PROSECUTOR TO PRESENT FALSE
SEROLOGIC (ABO BLOOD TYPE) EVIDENCE TO THE
JURY. THAT EVIDENCE WAS THE PRINCIPLE PIECE
OF FORENSIC EVIDENCE LINKING THE DEFENDANT TO
THE CRIME.

STRICKLAND TEST 1: Deficient Performance
QUESTION 1: Opening Statement
QUESTION 2: Evans blood testimony
QUESTION 3: N.R. Blood Testimony
QUESTION 4: Prosecutor's Closing
STRICKLAND TEST 2: Prejudice to defendant
STIPULATED FACT

POINT IV: WITNESS DURING THE FIRST POST-
CONFICTION EVIDENTIARY HEARING PROVIDED FALSE
TESTIMONY WHICH WARRANTS NEW HEARING.

POINT V: ABUSE OF DISCRESION BY PCR COURT
JUDGE     SUBSTANTIALLY     PREJUDICED     THE
DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL
REMAND EVIDENTIARY HEARING THEREBY DENYING THE
DEFENDANT THE CONSTITUTIONAL RIGHT TO DUE
PROCESS.

A. CLAIM 1: PCR court made collateral review
of Appellate Division order, altering it's
contents to favor the State


                  4                              A-3220-14T3
          B. CLAIM 2: PCR court vouched for the
          credibility of defense expert whose statements
          were false, inconsistent and perjurious.
          C. CLAIM 3: PCR court denied material evidence
          connected to tainted blood report to pro-se
          counsel on appeal
          D. CLAIM 4: PCR court prohibited the testimony
          of a the material witness Donna Hansen,
          chemist who manufacture the tainted report
          used by the State at trial

          POINT VI: ABUSE OF DISCRETION BY PCR COURT
          JUDGE AS ARTICULATED IN THE PCR COURTS JANUARY
          30, 2015 OPINION SUBSTANTIALLY PREJUDICE THE
          DEFENDANT'S RIGHT TO A FAIR AND PCR PROCEEDING
          THEREBY    DENYING    THE    PETITIONER    HIS
          CONSTITUTIONAL RIGHT TO DUE PROCESS.

          I. Whether Petitioner Is Entitled to an
          Evidentiary Hearing
          II. Whether Petitioner's Appellate Counsel
          Provided    Petitioner     with    Ineffective
          Representation   and   Prejudiced    Defendant
          Thereby    denying    the     defendant    his
          constitutional right to due process
          III. Whether Alteration of Appellate Documents
          by the Appellate Division Warrants a New Trial
          IV. Whether Witness during the First Post-
          Conviction    Relief    Evidentiary    Hearing
          Provided False Testimony, Requiring a New
          Hearing
          V. Whether Petitioner is Entitled to New
          Counsel

     Defendant argues in Points I, II and III of his brief that

Judge Mega, the PCR judge for defendant's second PCR petition,

erred by denying his petition without an evidentiary hearing.     He

argues that the prosecutor intentionally perpetrated a fraud on

the trial court by presenting "false and fabricated" DNA blood and

serologic evidence and that his trial attorney was deficient for


                            5                              A-3220-14T3
failing to challenge the prosecutor's actions.    This is the issue

that was resolved in defendant's first PCR.       Watley II, supra,

slip op. at 19.

     Prior adjudication of any issue on the merits bars PCR.      See

R. 3:22-4(b); R. 3:22-5.     An issue raised on PCR is procedurally

barred if it is "'identical or substantially equivalent' to the

issue already adjudicated on the merits."    State v. Afanador, 151

N.J. 41, 51 (1997) (quoting State v. McQuaid, 147 N.J. 464, 484

(1997)).    PCR is not "an opportunity to relitigate matters already

decided on the merits."     Id. at 50.

     Defendant's claims about the blood and serologic evidence are

procedurally barred because defendant raised identical issues on

appeal of the denial of his first PCR petition.   Watley II, supra,

slip op. at 8.    We denied these claims, finding that they lacked

merit.     Id. at 11-12.   We remanded only on the issue of defense

counsel's handling of the blood evidence.    Id. at 19.

     Defendant argues in Point IV of his brief that he is entitled

to an evidentiary hearing because defendant's forensic expert, Dr.

Robert Shaler, testified falsely during the evidentiary hearing

after our remand stemming from his first PCR appeal.      Defendant

alleges that we determined in an affirmance of the dismissal of

his civil suit against Dr. Shaler that Dr. Shaler gave false

testimony to further conceal the State's plot to frame defendant.


                              6                              A-3220-14T3
      In his January 30, 2015 written opinion denying defendant's

second PCR petition, Judge Mega discussed defendant's civil suit

against Dr. Shaler.        In that suit, defendant claimed he was

fraudulently induced to retain Dr. Shaler, who then testified at

the   PCR   hearing   contrary    to    previous   statements   he   made   in

preparation for testimony.        Watley v. Shaler, No. A-0893-12 (App.

Div. September 23, 2013) (slip op. at 1-2).               The trial court

granted Dr. Shaler's motion to dismiss on the basis that Dr. Shaler

was protected by the litigation privilege. Id. at 3. We affirmed.

Id. at 6.

      In defendant's current appellate brief, he alleges that we

"made it clear that Dr. Shaler had in fact perpetrated a fraud on

the court" because in our decision we stated "we accept as true

plaintiff's allegations, Printing Mart-Morristown v. Sharp Elecs.

Corp., 116 N.J. 739, 746 (1989)."           Watley v. Shaler, supra, slip

op. at 5.     Judge Mega correctly discredited this assertion.              At

the summary judgment posture, we must make all inferences in favor

of the non-moving party.     Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 540 (1995).             We thus determined in our decision

that, even assuming defendant's assertions were true, his civil

case should be dismissed.        We did not find that defendant's claims

were in any way demonstrated to be valid.




                                  7                                  A-3220-14T3
      Judge Mega further correctly determined that defendant's

argument was procedurally barred by Rule 3:22-5 because Judge

Anzaldi, during defendant's first PCR hearing, determined Dr.

Shaler to be a credible witness, a finding we affirmed in Watley

III, supra, slip op. at 12.

      Defendant argues in Point V of his brief that Judge Anzaldi,

"turned   a   blind   eye"   to       the   State's   fraud   and     "actively

participated in its concealment."           Defendant raised this issue of

Judge Anzaldi's purported improprieties on appeal of his first PCR

denial and we determined the claim lacked merit.              We stated that

"defendant's complaints about the manner in which the evidentiary

hearing was conducted are wholly unsupported by the record.                    To

the   contrary,   the   record        demonstrates    that    Judge     Anzaldi

diligently and patiently received and thoroughly considered and

analyzed the evidence presented."             Id. at 11-12.     We will not

reconsider this meritless issue.

      Defendant argues in Point VI of his brief that the PCR court

erred by denying his second PCR petition without an evidentiary

hearing because his appellate counsel was ineffective.                A hearing

was not necessary because there was no disputed factual issue.

The second PCR judge, Judge Mega, found appellate counsel committed

an error in not seeking oral argument when retained to do so.




                                  8                                     A-3220-14T3
       To establish ineffective assistance of counsel, a defendant

must prove that: (1) "counsel made errors so serious that counsel

was not functioning as the 'counsel' guaranteed the defendant by

the     Sixth       Amendment,"     and   (2)   "the   deficient   performance

prejudiced the defense."            Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).                      To

satisfy the prejudice requirement, "[t]he defendant must show that

there    is     a    reasonable     probability   that,   but   for   counsel's

unprofessional errors, the result of the proceeding would have

been different."         Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at

698.     The standard for ineffectiveness is applied to both trial

and appellate counsel.            State v. Harris, 181 N.J. 391, 518 (2002),

cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898

(2005).

       Judge Mega found that defendant satisfied the first prong of

the Strickland test because appellate counsel failed to request

oral argument "and as a result never argued on [p]etitioner's

behalf before the Appellate Division."            Judge Mega found, however,

that defendant did not satisfy the second prong of the Strickland

test because defendant did not establish that he was prejudiced

by appellate counsel's deficient performance.              Judge Mega wrote:

              The Court now examines the facts to consider
              whether oral arguments on appeal would have
              caused a different result. Petitioner has not
              indicated that Appellate Counsel's oral

                                      9                                 A-3220-14T3
          argument would have created a different
          result. Petitioner had filed a detailed pro
          se brief in support of his claim. Petitioner
          also indicated that he provided Appellate
          Counsel   with   visual    aids,  "serologic
          laboratory reports which were blown up and
          modified for simplicity."

               . . . .

          In the present matter, the use of visual aids
          would not have changed the outcome of
          Petitioner's First PCR appeal because the
          scope of appellate review is based upon the
          factual record below. The Appellate Division
          indicated it relied upon the record in
          rendering its decision. The record before the
          Appellate   Division   was   such  that   oral
          arguments would not have caused a different
          outcome. . . . Any oral argument provided on
          appeal would have had to rely upon the facts
          that the Appellate Division found did not
          support any of Petitioner's claims. Moreover,
          Petitioner   has   not   indicated  what   new
          arguments counsel could have raised at oral
          argument.     Therefore, as the Appellate
          Division had already determined Petitioner's
          claim to be without merit, this Court finds
          and relies on the findings by the Appellate
          Division such that Petitioner failed to
          demonstrate     prejudice    from    Appellate
          Counsel's deficient conduct. Thus Petitioner
          fails the second prong of the Strickland Test
          and his request for an evidentiary hearing is
          denied.

    Unlike in PCR applications before the trial court, oral

argument of PCR appeals is seldom sought. See R. 2:11-1(b). After

detailing the history and testimony at the hearing, we expressed

our reasons for affirming defendant's appeal after the first PCR

evidentiary hearing, stating:


                            10                             A-3220-14T3
          The denial of defendant's application for
          post-conviction     relief     is    affirmed
          substantially for the reasons stated by Judge
          Anzaldi. Although the defendant established
          a prima facie case on his prior appeal, on
          remand the substantial credible evidence on
          the record as a whole did not overcome the
          "strong presumption that counsel's conduct
          falls within the wide range of reasonable
          professional assistance."   For that reason,
          there is no basis for concluding that
          counsel's allegedly deficient performance
          "materially   contributed    to   defendant's
          conviction."

          Watley III, supra, slip op. at 11-12 (internal
          citations omitted).

Oral argument would not have influenced our decision because

counsel is not permitted to present new arguments not set forth

in the appellate brief, nor introduce facts not contained in the

trial court record.   R. 2:5-4.

     Defendant also argues in Point VI that we tampered with

documents during the appeal of his first PCR petition.     Judge Mega

found that this argument lacked merit as defendant provided no

evidence to support his allegation.   This claim, as well as any

others we have neglected to mention, is without sufficient merit

to require discussion in a written opinion.   R. 2:11-3(e)(2).

     Affirmed.




                            11                                A-3220-14T3
