                               NOT FOR PUBLICATION WITHOUT THE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-4631-16T1

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

JAMIE CENTENO,

       Defendant-Appellant.


                  Submitted September 5, 2018 – Decided September 13, 2018

                  Before Judges Alvarez and Gooden Brown.

                  On appeal from Superior Court of New Jersey, Law
                  Division, Camden County, Indictment No. 09-06-2092.

                  Joseph E. Krakora, Public Defender, attorney for
                  appellant (Richard Sparaco, Designated Counsel, on the
                  brief).

                  Mary Eva Colalillo, Camden County Prosecutor,
                  attorney for respondent (Linda A. Shashoua, Assistant
                  Prosecutor, of counsel and on the brief).

                  Appellant filed a pro se supplemental brief.

PER CURIAM
      Defendant Jamie Centeno appeals from an April 27, 2017 Law Division

order denying his second petition for post-conviction relief (PCR) without an

evidentiary hearing. For the reasons stated by Judge Gwendolyn Blue, we

affirm.

      Defendant unsuccessfully appealed his conviction for first-degree murder,

N.J.S.A. 2C:11-3(a)(1)-(2), and related offenses. State v. Centeno, No. A-1523-

10 (App. Div. May 2, 2012) (slip op). Defendant was sentenced to life on the

murder charge, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2(a). The

Supreme Court denied certification on defendant's further appeal of his

conviction and sentence. State v. Centeno, 212 N.J. 456 (2012). Thereafter, on

October 1, 2015, we denied defendant's first PCR petition, also by way of

unpublished decision. State v. Centeno, No. A-1989-13 (App. Div. Oct. 1, 2015)

(slip op. at 1). The Supreme Court denied certification on defendant's appeal.

State v. Centeno, 224 N.J. 527 (2016). Now on appeal, defendant raises the

following points in his counseled brief:

            POINT I – DEFENDANT'S CLAIMS WERE NOT
            PROCEDURALLY BARRED FROM BEING RAISED
            IN HIS SECOND PETITION FOR POST
            CONVICTION RELIEF.

                  A. DEFENDANT'S CLAIMS WERE NOT
                  BARRED BY R. 3:22-5.



                                           2                            A-4631-16T1
    B.  DEFENDANT'S CLAIMS WERE NOT
    BARRED BY R. 3:22-12(a)(2).

POINT II – DEFENDANT WAS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS SECOND PCR
PETITION AND CLAIM OF INEFFECTIVE
ASSISTANCE OF COUNSEL BECAUSE THE
FACTS LAY OUTSIDE THE RECORD AND
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF INEFFECTIVENESS OF FIRST PCR
COUNSEL.

    A.   DEFENDANT       WAS      DENIED
    EFFECTIVE    ASSISTANCE     OF   PCR
    COUNSEL DUE TO FIRST PCR COUNSEL'S
    FAILURE    TO    RAISE   INEFFECTIVE
    ASSISTANCE OF TRIAL COUNSEL FOR NOT
    EXPLAINING TO DEFENDANT HIS RIGHT
    TO TESTIFY AT TRIAL.

    B.  INEFFECTIVE ASSISTANCE OF FIRST
    PCR COUNSEL FOR FAILING TO RAISE
    INEFFECTIVE ASSISTANCE OF TRIAL
    COUNSEL'S   FAILURE   TO   REQUEST
    CURATIVE   INSTRUCTION    DUE    TO
    PROSECUTOR'S PREJUDICIAL COMMENTS
    DURING CLOSING ARGUMENT.

    C.  FIRST    PCR   COUNSEL    WAS
    INEFFECTIVE FOR FAILING TO PROVIDE
    MORE THAN BARE ALLEGATIONS TO
    SUPPORT   DEFENDANT'S    ARGUMENT
    THAT TRIAL COUNSEL FAILED TO
    CONDUCT PRETRIAL INVESTIGATION
    AND PREPARATION.

POINT III – POST-CONVICTION RELIEF IS
REQUIRED BECAUSE OF THE CUMULATIVE


                   3                       A-4631-16T1
            EFFECT   OF  THE    ERRORS   AND                    THE
            INEFFECTIVENESS SET FORTH ABOVE.

      In his pro se brief, defendant raises the following points:

            POINT I: DEFENDANT HAS SUBMITTED PRIMA
            FACIE EVIDENCE REQUIRING HE BE GRANTED
            AN   EVIDENTIARY   HEARING    ON  POST
            CONVICTION RELIEF.

            POINT II:   THE POST-CONVICTION RELIEF
            JUDGE ERRED BY FAILING TO GRANT
            APPELLANT AN EVIDENT[IA]RY HEARING ON
            THE ISSUE OF INEFFECTIVE ASSISTANCE OF
            TRIAL, APPELLATE AND PCR COUNSEL.

                  A. Appellant was Denied Effective Assistance of
                  PCR Counsel Due to First PCR Counsel's Failure
                  to Raise Ineffective Assistance of Trial Counsel
                  for Not Explaining to Defendant His Right to
                  Testify at Trial.

                  B. Ineffective Assistance of First PCR Counsel
                  for Failing to Raise Ineffective Assistance of
                  Trial Counsel's Failure to Request Curative
                  Instruction Due to Prosecutor's Prejudicial
                  Comments during Closing Argument.

                  C. First PCR Counsel was Ineffective for Failing
                  to Provide More Th[a]n Bare Allegations to
                  Support Defendant's Argument that Trial
                  Counsel Failed to Investigate Alibi Witnesses
                  and Failed to Properly Prepare to Cross-Examine
                  the State's Key Witness, Rose Nelson.

      Rule 3:22-12(a)(2) states that second or subsequent petitions for PCR

asserting ineffective assistance of counsel must be filed within a year of the


                                        4                              A-4631-16T1
denial of the first or subsequent application for PCR. In this case, the first PCR

petition was decided on October 3, 2013. The second pro se petition was filed

August 17, 2016, considerably more than a year after the first was denied.

Presumably to avoid the impact of the rule, defendant now claims that the

ineffective assistance of counsel occurred on the part of first PCR counsel. The

argument does not nullify the limits found in Rule 3:22-12(a)(2), which "cannot

be relaxed by invoking Rule 1:1-2 or Rule 3:22-12(a)(1) . . ." State v. Jackson,

454 N.J. Super. 284 (App. Div. 2018). In this case, counsel did not even attempt

to explain the reason for the delay.

      Furthermore, the issues defendant raises had been previously addressed

by the PCR court with the exception of a purported alibi witness. As Judge Blue

observed, on the direct appeal defendant contended the court's failure to sua

sponte instruct the jury as to passion/provocation was reversible error. This

instruction and the claim of error regarding the instruction would logically be

premised on defendant's presence at the scene. This undercuts any credibility

on the part of a purported alibi witness.

      Defendant again raises the issue of his trial attorney's failure to object to

alleged prosecutorial misconduct and asserts PCR counsel was ineffective for

failing to raise it. The issue could have been adjudicated on the direct appeal.

See R. 3:22-5.

                                        5                                   A-4631-16T1
       In this second PCR petition, defendant reargues the ineffectiveness of his

trial counsel and makes points that are out of time, under the guise of placing

them at the feet of first PCR counsel. Defendant does not explain the reason the

identity of his purported alibi witness would not have been previously known to

him.

       Therefore, Judge Blue's denial was appropriate not only because of the

untimeliness of the second PCR petition, but its lack of substantive merit.

Defendant's contentions of error are so lacking in merit as to not warrant further

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

       Defendant's pro se submission is also lacking in merit. The points are

attempts to raise issues out of time by claiming they should have been addressed

by the first PCR counsel, and to at least some extent, mirror those raised in the

counseled brief. No further discussion is necessary. R. 2:11-3(e)(2).

       Affirmed.




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