                            NOT FOR PUBLICATION WITHOUT THE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-2824-15T4

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

JOHN LOYAL,

     Defendant-Appellant.
____________________________

                Submitted September 18, 2018 – Decided September 26, 2018

                Before Judges Hoffman and Firko.

                On appeal from Superior Court of New Jersey, Law
                Division, Essex County, Indictment No. 96-06-2036.

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

                Theodore Stephens II, Acting Essex County Prosecutor,
                attorney for respondent (Barbara A. Rosenkrans,
                Special Deputy Attorney General/Acting Assistant
                Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant John Loyal appeals from the December 4, 2015 Law Division

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

evidentiary hearing. We affirm.

                                            I

      In connection with the February 7, 1996 shooting death of Carl Watson,

an Essex County grand jury indicted defendant for purposeful or knowing

murder, N.J.S.A. 2C:11-3(a)(1) and (2); aggravated assault by pointing a

firearm, N.J.S.A. 2C:12-1(b)(4); possession of a handgun without a permit,

N.J.S.A. 2C:39-5(b); and possession of a handgun with the intent to use it

unlawfully against the person or property of another, N.J.S.A. 2C:39-4(a). After

defendant's first trial resulted in a mistrial, he moved to dismiss the indictment,

arguing a new trial would result in double jeopardy. The trial court denied the

motion.

      A second jury found defendant guilty on all four counts. The trial court

sentenced defendant to life in prison with a thirty-year parole disqualifier on the

murder charge and concurrent sentences on the remaining charges. State v.

Loyal, 164 N.J. 418, 428 (2000).

      We affirmed defendant's convictions and sentence on direct appeal. State

v. Loyal, No. A-1404-97 (App. Div. July 9, 1999) (slip op. at 22). Our Supreme


                                                                           A-2824-15T4
                                        2
Court granted certification, and also affirmed.      Loyal, 164 N.J. at 443.

Subsequently, the United States District Court for the District of New Jersey

denied defendant's petition for a writ of habeas corpus. In 2003, the Third

Circuit Court of Appeals denied defendant's application for a certificate of

appealability. In 2004, the United States Supreme Court denied defendant's

application for a petition for writ of certiorari.

      On July 8, 2014, defendant filed a pro se petition for PCR, and designated

PCR counsel subsequently filed a supporting brief. On December 4, 2015, the

PCR judge delivered an oral opinion denying defendant's petition without an

evidentiary hearing. This appeal followed.

      On appeal, defendant argues:

             POINT I — DEFENDANT WAS ENTITLED TO AN
             EVIDENTIARY HEARING[.]

                A. DEFENDANT ESTABLISHED A PRIMA
                   FACIE    CASE     OF    INEFFECTIVE
                   ASSISTANCE OF COUNSEL IN TRIAL
                   COUNSEL'S FAILURE TO CALL A CRITICAL
                   WITNESS (SHARONDA POSEY) AT THE
                   RETRIAL.

                B. TRIAL COUNSEL WAS INEFFECTIVE IN
                   FAILING    TO   PROPERLY    AND
                   EFFECTIVELY    IMPEACH       THE
                   CREDIBILITY OF STATE'S WITNESS
                   WANDA COLON.


                                                                        A-2824-15T4
                                          3
              C. APPELLATE COUNSEL WAS INEFFECTIVE
                 IN FAILING TO RAISE ON APPEAL THAT
                 DEFENDANT WAS ENTITLED TO A JURY
                 INSTRUCTION     ON    CROSS-RACIAL
                 IDENTIFICATION.

              D. TRIAL COUNSEL FAILED TO CONDUCT
                 ADEQUATE PRETRIAL INVESTIGATION OF
                 THE CASE RESULTING IN THE FAILURE TO
                 CALL THREE ESSENTIAL WITNESSES AT
                 TRIAL, THEREBY DENYING DEFENDANT
                 THE RIGHT TO EFFECTIVE ASSISTANCE
                 OF COUNSEL.

                   i. TRIAL COUNSEL WAS INEFFECTIVE IN
                      FAILING TO CALL JEFFREY WISE AS A
                      WITNESS FOR THE DEFENSE.

                  ii. TRIAL COUNSEL WAS INEFFECTIVE IN
                      FAILING TO CALL VALERIE FIELDS AS
                      A WITNESS FOR THE DEFENSE.

                 iii. TRIAL COUNSEL WAS INEFFECTIVE IN
                      FAILING TO CALL ALJIVA A[.] POSEY
                      AS A WITNESS FOR THE DEFENSE.

           POINT II — DEFENDANT'S PETITION WAS NOT
           TIME BARRED UNDER R[ULE] 3:22-12.

                                     II

     We first consider defendant's argument that the PCR court erred in

determining his PCR petition was time-barred. We reject his argument.

     Under Rule 3:22-12(a)(1), a petition for PCR, for reasons other than to

correct an illegal sentence, must be filed within five years of entry of the

                                                                        A-2824-15T4
                                     4
judgment of conviction, unless there is a showing of excusable neglect. State v.

Afanador, 151 N.J. 41, 52 (1997). "In the context of [PCR], a court should only

relax the bar of Rule 3:22-12 under exceptional circumstances." Ibid.

      Here, defendant claims the delay in filing his PCR petition resulted from

excusable neglect. He alleges he filed the petition within seven months after the

Supreme Court denied his application for a petition for writ of certiorari;

however, when he contacted the court after the federal appeals process ended,

he learned a record of his filing did not exist. He further contends he relied upon

his counsel to file for PCR, and therefore, was unaware of the five-year

limitation.

      We find defendant's allegations insufficient to warrant relaxing the time-

bar. Defendant's judgment of conviction was entered on September 8, 1997,

therefore, he had until September 2002 to timely file his PCR petition. The

Supreme Court denied certiorari in 2004. Accordingly, even had defendant filed

his PCR petition within seven months of the Supreme Court's denial, he still

would have filed his petition beyond the five-year time-bar. See also State v.

Milne, 178 N.J. 486, 494 (2004) (holding federal habeas corpus proceedings

"ordinarily" do not toll the Rule 3:22-12 time-bar). Moreover, defendant's

assertion that he was unaware of the time-bar fails to constitute excusable


                                                                           A-2824-15T4
                                        5
neglect. See State v. Murray, 162 N.J. 240, 246 (2000) (holding a lack of

"sophistication in the law does not satisfy the exceptional circumstances

required" to overcome the time-bar).

                                        III

      We analyze ineffective assistance of counsel claims by using the two -

prong test established by the Supreme Court in Strickland v. Washington, 466

U.S. 668, 694 (1984). See State v. Preciose, 129 N.J. 451, 463(1992); see also

State v. Fritz, 105 N.J. 42, 58 (1987). The first prong of the Strickland test

requires a defendant to establish counsel's performance was deficient. Preciose,

129 N.J. at 463. "The second, and far more difficult, prong . . . is whether there

exists 'a reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different.'" Id. at 463-64 (quoting

Strickland, 466 U.S. at 694).

      There exists a strong presumption that counsel rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment. Strickland, 466 U.S. at 689. Further, because prejudice

is not presumed, defendant must demonstrate how specific errors of counsel

undermined the reliability of the proceeding. Fritz, 105 N.J. at 61.




                                                                           A-2824-15T4
                                        6
      Defendant's substantive arguments lack persuasion. His first argument,

that trial counsel was ineffective in failing to call Sharonda Posey1 as a witness

at the second trial, fails to satisfy the first Strickland prong. At the first trial,

Sharonda's credibility was undermined after she recanted her original statement

that defendant shot the victim, instead identifying another individual, and

admitted her boyfriend at the time was the individual who ordered the victim's

murder. Accordingly, the PCR judge did not err in finding her testimony could

be "more of a liability than an asset to the defense," and that trial counsel's

failure to call her as a witness was a reasonable, strategic decision.

      Defendant next contends his trial counsel provided ineffective assistance

in failing to impeach Wanda Colon, the State's eyewitness. He argues Colon's

testimony about her heroin use was inconsistent between the first and second

trials, and counsel should have impeached her on those statements.

      The record reflects trial counsel effectively impeached Colon at the

second trial. As the PCR judge noted,

             [T]he record clearly indicates that defense counsel
             vigorously attempted to undermine Colon's credibility
             on cross examination. . . . [C]ounsel pointed out how
             Colon had lied [about] material facts when she gave her
             sworn statement to [the detective], as well as how
             Colon misidentified [an individual] . . . . Counsel also
1
 To avoid confusion, but intending no disrespect, we refer to Sharonda Posey
and Aljiva A. Posey by their first names.
                                                                             A-2824-15T4
                                         7
            examined both Colon and [the detective] on their prior,
            personal relationship[,] suggesting . . . perhaps some
            bias on the part of both witnesses.

      Accordingly, the record reflects trial counsel provided effective

assistance. As such, defendant's argument fails.

      Defendant next argues trial counsel failed to adequately investigate

Jeffery Wise, Valerie Fields, and Aljiva as potential witnesses. In support,

defendant submitted the certifications of Wise and Aljiva, who stated they were

witnesses to the shooting and someone other than defendant committed the

murder.    Defendant also submitted Field's certification, which states she

witnessed the victim arguing with two men — neither of whom were defendant

— shortly before the victim's murder.

      We decline to address defendant's argument. The record reflects the

witnesses' certifications lack signatures, as required under Rule 1:4-4(c);

accordingly, defendant failed to present competent evidence supporting his

claim. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)

("[W]hen a petitioner claims his [or her] . . . attorney inadequately investigated

[the] case, he [or she] must assert the facts that the investigation would have

revealed, supported by affidavits or certifications based upon the personal

knowledge of the affiant or the person making the certification.").


                                                                          A-2824-15T4
                                        8
       Finally, defendant argues appellate counsel provided ineffective

assistance in failing to argue defendant was entitled to a cross-racial

identification jury instruction. See State v. Cromedy, 158 N.J. 112, 132 (1999)

(instructing courts to provide cross-racial jury instructions under specific

circumstances). We disagree.

      As the PCR judge noted, our Supreme Court did not decide Cromedy until

two years after defendant's trial.    Accordingly, trial counsel was under no

obligation to argue for a cross-racial identification instruction, and his appellate

counsel did not provide ineffective assistance in failing to raise that issue on

appeal. Moreover, defendant fails to present any evidence demonstrating his

appellate counsel's allegedly deficient performance prejudiced the outcome of

his appeal, particularly in light of appellate counsel's zealous advocacy

pertaining to the viable double jeopardy defense.

      Affirmed.




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