                                NOT FOR PUBLICATION WITHOUT THE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-1835-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EUGENE SEABROOKS,
a/k/a HABEEB,

     Defendant-Appellant.
________________________

                    Argued January 24, 2019 – Decided February 6, 2019

                    Before Judges Fuentes and Vernoia.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 97-11-4358.

                    Michael R. Schulman argued the cause for appellant
                    (Michael R. Schulman, attorney; Eugene Seabrooks, on
                    the pro se brief).

                    Lucille M. Rosano, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for respondent (Theodore N. Stephens II, Acting Essex
                    County Prosecutor, attorney; Lucille M. Rosano, of
                    counsel and on the brief).
PER CURIAM

      Defendant Eugene Seabrooks appeals from a November 15, 2017 order

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

hearing. We affirm.

                                        I.

      In 2002, a jury convicted defendant of first-degree murder, N.J.S.A.

2C:11-3(a)(1) and (2), first-degree murder as an accomplice, N.J.S.A. 2C:11-

3(a)(1) and (2), and thirteen other offenses. The court imposed an aggregate

sentence of two consecutive life terms. We affirmed defendant's convictions

and sentence on direct appeal, State v. Seabrooks, No. A-0506-02 (App. Div.

Oct. 19, 2007), and the Supreme Court denied his petition for certification, State

v. Seabrooks, 195 N.J. 519 (2008).

      In June 2008, defendant filed his first PCR petition, which was denied

without an evidentiary hearing. We affirmed, State v. Seabrookes,1 No. A-4071-

09 (App. Div. April 21, 2011), and the Supreme Court denied defendant's

petition for certification, State v. Seabrookes, 212 N.J. 104 (2012).



1
  During the prior criminal proceedings and post-conviction relief proceedings
defendant's surname has been variously referenced as "Seabrooks" and
"Seabrookes." In our citation to prior opinions concerning defendant, we use
the surname employed in the opinions.
                                                                          A-1835-17T4
                                        2
      The record shows defendant filed a Petition for Writ of Habeas Corpus in

the United States District Court for the District of New Jersey for relief from his

convictions under 28 U.S.C. § 2254. Defendant moved for discovery of a police

report, arguing it would support an alibi defense for one of the murders for which

he was convicted. In October 2014, prior to the disposition of the motion, the

State provided defendant with the requested report. In a January 8, 2016 order,

the District Court stayed the habeas proceeding finding defendant failed to

exhaust his state court remedies because he had not asserted a claim in state

court that the report constituted newly discovered evidence supporting PCR.

      On July 8, 2016, defendant filed his second PCR petition alleging his trial

and appellate counsel were ineffective by failing to assert certain alleged

defenses on his behalf. In an affidavit submitted to the PCR court, defendant

claimed that "[o]n or [a]bout" October 10, 2014, he received a report from the

Essex County Prosecutor's Office that he "had been attempting to retrieve . . .

for well over a decade" which he alleges "unequivocally demonstrates that he

was at the [East Orange Police Department]" at a time which would have made

it impossible or improbable that he was present when one of the murders for




                                                                           A-1835-17T4
                                        3
which he was convicted occurred. 2 Defendant argued the report supported an

alibi and his trial counsel was ineffective by failing to obtain the report prior to

trial and using the report to establish an alibi at trial.

      The court denied defendant's second PCR petition. In a detailed written

decision, the court found the petition is time-barred under Rule 3:22-12(a)(2)

because it was filed more than one year after defendant received the report he

claims provides the new factual predicate for his PCR claim. The court further

found the report does not support an alibi defense or defendant's PCR claim

because it does not include any information showing defendant was actually

present at the East Orange Police Department or was otherwise involved in

making the alleged robbery report.             The court entered an order denying

defendant's petition. This appeal followed.


2
   The "report" is a computer screen printout which defendant argues shows he
made a report of a robbery at the East Orange Police Department at "02:33" on
October 20, 1994. The report does not: refer to defendant; state if the alleged
report was made at the police station, another location or called in over the
telephone; identify the person making the alleged report; or provide any details
concerning the alleged robbery. Moreover, the report is untethered to an
affidavit or certification explaining the report's entries. See State v. Jones, 219
N.J. 298, 312 (2014) (finding PCR petitions must be "accompanied by an
affidavit or certification by defendant, or by others, setting forth" the facts relied
upon to establish the claim for relief); see also R. 1:6-6; N.J.R.E. 901; Wells
Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 600 (App. Div. 2011) (finding
that a document annexed to a brief is not authenticated without "an affidavit or
certification based on personal knowledge").
                                                                              A-1835-17T4
                                           4
      Defendant offers the following arguments in his pro se brief:

             POINT A

             THE PCR MOTION WAS NOT TIME-BARRED
             PURSUANT TO [R.] 3:22-12 BECAUSE ANY
             DELAY TO EXCUSABLE NEGLECT, AND THE
             STATE'S CONTRARY ARGUMENTS SIMPLY
             IGNORES   THE   UNIQUE    FACTS  AND
             CIRCUMSTANCES OF THIS CASE[.]

             POINT B

             THE PCR COURT [ERRED] WHEN IT FAILED TO
             RULE ON THE MERITS OF DEFENDANT'S
             SUBMITTED CLAIM OF AN ILLEGAL ARREST
             WARRANT THAT LED TO THE CONVICTION OF
             AN INNOCENT MAN.

             POINT C

             THE PCR COURT [ERRED] WHEN IT FAILED TO
             RULE ON THE MERITS OF DEFENDANT'S
             ACTUAL INNOCENCE CLAIM AND REMAINDER
             OF HIS PCR CLAIMS SUBMITTED[.]

                                         II.

      We review the legal conclusions of a PCR court de novo. State v. Harris, 181

N.J. 391, 419 (2004). The de novo standard of review applies to mixed questions of

fact and law. Id. at 420. 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.


                                                                              A-1835-17T4
                                          5
      We have carefully considered defendant's arguments and find they are without

sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and

affirm substantially for the reasons in the PCR court's written opinion. We add only

the following brief comments.

      "[S]econd or subsequent petition[s] for post-conviction relief shall be

dismissed unless: (1) [they are] timely under Rule 3:22-12(a)(2)[.]" State v. Jackson,

454 N.J. Super. 284, 291 (App. Div.) (fourth alteration in original) (quoting R. 3:22-

4(b)), certif. denied, 236 N.J. 35 (2018). 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.


                                                                              A-1835-17T4
                                          6
             [R. 3:22-12(a)(2).]

      Defendant's second PCR petition is untimely under Rule 3:22-12(a)(2)(A)

because his claim is not founded on a "newly recognized" constitutional right. In

addition, to the extent defendant's petition might be broadly read to suggest he seeks

PCR based on the alleged ineffective assistance of counsel on his first PCR petition,

his petition is untimely because it was not filed within one year of the 2010 order

denying his first petition. See R. 3:22-12(a)(2)(C).

      Defendant's PCR petition is also untimely under Rule 3:22-12(a)(2)(B). He

claims his receipt of the report in October 2014 provided a new factual predicate for

PCR, but he failed to file his second PCR petition within one year of his "discovery"

of the report. See R. 3:22-12(a)(2)(B). Instead, he filed his second petition in July

2016, twenty-one months after his discovery of the purported new factual predicate

and nine months after the deadline imposed by Rule 3:22-12(a)(2)(B) for the filing

of a second PCR petition based on such a discovery.

      The time bar imposed under Rule 3:22-12(a)(2) may not be ignored or relaxed.

Jackson, 454 N.J. Super. at 292-94; see also R. 1:3-4 (providing that "[n]either the

parties nor the court may . . . enlarge the time specified by . . . R. 3:22-12").

Defendant's claim of excusable neglect for his failure to timely file his second PCR

petition provides no refuge from the denial of his petition because unlike Rule 3:22-


                                                                              A-1835-17T4
                                          7
12(a)(1)(A), which applies to the filing of a first PCR petition, Rule 3:22-12(a)(2)

does not allow relief from the mandatory time bar based on excusable neglect. See

Jackson, 454 N.J. Super. at 293-94 (explaining that Rule 3:22-12(a)(1)(A), which

allows for the late filing of a first PCR petition where excusable neglect and a

fundamental injustice are shown, "has no application to second or subsequent

petitions"). Thus, defendant's second PCR petition was properly dismissed as

mandated by Rule 3:22-4(b)(1).

      Affirmed.




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