                                NOT FOR PUBLICATION WITHOUT THE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-3018-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANTWAN SHANNON,

     Defendant-Appellant.
_________________________

                    Submitted December 19, 2019 – Decided January 22, 2020

                    Before Judges Suter and DeAlmeida.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 07-06-1043.

                    Antwan Shannon, appellant pro se.

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Stephanie Davis Elson, Assistant
                    Prosecutor, on the brief).

PER CURIAM
      Defendant Antwan Shannon appeals from the June 2, 2015 order of the

Law Division denying his third petition for post-conviction relief (PCR) without

an evidentiary hearing. We affirm.

                                         I.

      In 2008, a jury convicted defendant of the following crimes arising from

the armed robbery and murder of a Jersey City convenience store owner and the

assault of a witness who happened upon the murder scene: first-degree murder,

N.J.S.A. 2C:11-3(a); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-

degree armed robbery, N.J.S.A. 2C:15-1; two counts of third-degree possession

of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); two counts of third-

degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); two counts of

second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b); and

second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2). The court sentenced

defendant to an aggregate term of life imprisonment with a thirty-year period of

parole ineligibility.

      We affirmed defendant's convictions and sentence. State v. Shannon, No.

A-2082-08 (App. Div. Dec. 3, 2010). The Supreme Court denied certification.

State v. Shannon, 205 N.J. 519 (2011).




                                                                        A-3018-17T3
                                         2
      In 2012, defendant filed his first PCR petition. The trial court assigned

counsel, who filed an amended petition. The amended petition argued defendant

was denied effective assistance of trial counsel who: (1) failed to call alibi

witnesses; (2) failed to cross-examine a witness, M.W., regarding medications

she was prescribed for a psychiatric disorder; and (3) induced defendant not to

testify by misinforming him polygraph examination results would be used

during his cross-examination.

      Defendant's first PCR petition was denied by the trial court. We affirmed.

State v. Shannon, No. A-3126-12 (App. Div. May 21, 2014). The Supreme

Court denied certification. State v. Shannon, 220 N.J. 98 (2014).

      While the appeal of the denial of the first PCR petition was pending,

defendant filed a second PCR petition. The trial court denied defendant's second

petition. Defendant did not file an appeal of that decision.

      On January 13, 2015, defendant filed a third PCR petition alleging: (1)

"[t]rial counsel submitted defense motion pre-trial for 3rd party guilt of

Benjiman [sic] Wilson III[;]" (2) "[n]o investigation in association of 'defense'

was performed by counsel[;]" (3) "[n]o investigation was done on State's witness

[M.W.] who has a psychiatric ailment that is 'delusional' in nature[;]" and (4)

"State[']s witness Richard Salcedo was also not investigated." The third petition


                                                                         A-3018-17T3
                                        3
contains the notation "[c]ontinued [a]ttached." Neither party included a copy of

the third petition in their appendix. A copy of the third petition obtained by the

court has no attachment.

      On June 2, 2015, the court denied defendant's third PCR petition without

an evidentiary hearing. The court concluded the claims made in defendant's

third PCR petition, "specifically, ineffective assistance of counsel[,]" were

previously addressed and adjudicated in his first petition. Thus, the court

concluded defendant's third PCR petition was barred by Rule 3:22-4.

      This appeal follows. Defendant makes the following arguments for our

consideration:

            POINT I

            APPELLANT SHOULD NOT BE PROCEDURALLY
            BARRED FROM PRESENTING HIS CLAIMS DUE
            TO HIS MISUNDERSTANDING OF THE LAW, AND
            FOR FAILING TO EXPLAIN CLEARLY TO THE
            COURT THAT HIS SUBSEQUENT ATTEMPTS TO
            FILE    A   PCR   PETITION   CONTAINED
            ALLEGATIONS AGAINST PCR COUNSEL: [SIC]
            NOT AGAINST TRIAL COUNSEL.

            POINT II

            PETITIONER     RECEIVED     INEFFECTIVE
            ASSISTANCE OF PCR COUNSEL DUE TO
            COUNSEL'S FAILURE/REFUSAL TO PRESENT TO
            THE PCR COURT ALL ISSUES PETITIONER
            WANTED RAISED.

                                                                          A-3018-17T3
                                        4
             POINT III

             PETITIONER      RECEIVED    INEFFECTIVE
             ASSISTANCE OF PCR COUNSEL WHEN
             COUNSEL FAILED TO INTERVIEW ALIBI
             WITNESS GERRY WILLIAMS, AND ENSURE MR.
             WILLIAMS'[S] PROPOSED STATEMENT MET THE
             LEGAL STANDARD OF ADMISSIBILITY.

                                         II.

      "Post-conviction relief is New Jersey's analogue to the federal writ of

habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-

2(a), a defendant is entitled to post-conviction relief if there was a "[s]ubstantial

denial in the conviction proceedings of defendant's rights under the Constitution

of the United States or the Constitution or laws of the State of New Jersey . . .

." "A petitioner must establish the right to such relief by a preponderance of the

credible evidence." Preciose, 129 N.J. at 459. "To sustain that burden, specific

facts" that "provide the court with an adequate basis on which to rest its

decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

      A hearing on a PCR petition is required only when: (1) a defendant

establishes a prima facie case in support of PCR; (2) the court determines that

there are disputed issues of material fact that cannot be resolved by review of

the existing record; and (3) the court determines that an evidentiary hearing is


                                                                             A-3018-17T3
                                         5
required to resolve the claims asserted. State v. Porter, 216 N.J. 343, 354 (2013)

(citing R. 3:22-10(b)). "A prima facie case is established when a defendant

demonstrates 'a reasonable likelihood that his or her claim, viewing the facts

alleged in the light most favorable to the defendant, will ultimately succeed on

the merits.'" Id. at 355 (quoting R. 3:22-10(b)).

      We review the legal conclusions of a PCR court de novo. State v. Harris,

181 N.J. 391, 419 (2004). Where an evidentiary hearing has not been held, it is

within our authority "to conduct a de novo review of both the factual findings

and legal conclusions of the PCR court . . . ." Id. at 421. We review a judge's

decision to deny a PCR petition without an evidentiary hearing for abuse of

discretion. Preciose, 129 N.J. at 462.

      We agree with the trial court's conclusion that defendant's third PCR

petition was barred. Rule 3:22-5 provides:

            [a] prior adjudication upon the merits of any ground for
            relief is conclusive whether made in the proceedings
            resulting in the conviction or in any post-conviction
            proceeding brought pursuant to this rule . . . or in any
            appeal taken from such proceedings.

      Defendant's third PCR petition alleges the same claims of ineffective

assistance of trial counsel he asserted in his first petition. Those claims were




                                                                          A-3018-17T3
                                         6
adjudicated by the trial court, which dismissed the first PCR petition as

meritless. We affirmed that decision.

      Defendant attempts to circumvent Rule 3:22-5 by arguing that his third

petition actually alleges his PCR counsel was ineffective.         Thus, defendant

argues, his third petition should have been considered by the trial court pursuant

to Rule 3:22-4. That rule provides:

            A second or subsequent petition for post-conviction
            relief shall be dismissed unless:

            (1)   it is timely filed under R. 3:22-12(a)(2); and

            (2)   it alleges on its face . . .

                  ....

            (C) that the petition alleges a prima facie case of
            ineffective assistance of counsel that represented the
            defendant on the first or subsequent application for
            post-conviction relief.

            [R. 3:22-4(b).]

      While there is no dispute the third petition was filed within the time

permitted by Rule 3:22-12(a)(2), it is equally clear the third petition does not,

on its face, allege ineffective assistance of PCR counsel on defendant's first

petition. Defendant argues he misunderstood the law and intended to allege in

his third PCR petition he was denied the effective assistance of PCR counsel on


                                                                           A-3018-17T3
                                          7
his first petition. According to defendant, his PCR counsel failed to raise all of

the issues defendant wanted him to raise in the first petition, and failed to

effectively investigate and argue those claims he did raise.

      Defendant's third PCR petition, however, does not mention his PCR

counsel. He does not allege in the third PCR petition any claims of ineffective

assistance related to the representation he received with respect to his first

petition. Instead, defendant's third PCR petition is a reiteration of the ineffective

assistance claims he alleged in his first petition about his trial counsel.

Dismissal of the third PCR petition was, therefore, warranted.

      Affirmed.




                                                                             A-3018-17T3
                                         8
