                                NOT FOR PUBLICATION WITHOUT THE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-5053-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SHEM WALKER,

     Defendant-Appellant.
________________________

                    Submitted May 6, 2019 – Decided June 10, 2019

                    Before Judges Gooden Brown and Rose.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 03-09-3069.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Steven M. Gilson, Designated Counsel, on
                    the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Caroline C. Galda,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
       Defendant appeals from the February 9, 2018 Law Division order denying

his second petition for post-conviction relief (PCR) without oral argument or an

evidentiary hearing. For the reasons that follow, we affirm.

       Following a jury trial, defendant was convicted of second-degree

conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; first-degree

robbery, N.J.S.A. 2C:15-1; first-degree felony murder, N.J.S.A. 2C:11-3(a)(3);

second-degree manslaughter as a lesser included offense of murder, N.J.S.A.

2C:11-4(b)(1); and fourth-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(d).    The convictions stemmed from defendant and a co-defendant

brutally stabbing the victim to death in the course of a robbery at the victim's

home. A blood stain, fingerprint, and palm print found at the crime scene

matched defendant's, and, in a Mirandized1 statement, defendant admitted being

at the scene, but attributed the plan to rob the victim as well as the actual

stabbing to his co-defendant.2 At trial, contrary to his statement, defendant

denied witnessing his co-defendant stab the victim, denied observing a weapon,

denied ransacking the victim's home looking for money, and claimed he left the



1
    Miranda v. Arizona, 384 U.S. 436 (1966).
2
  Following a Rule 104 hearing, the statement was ruled admissible at trial.
N.J.R.E. 104(a).
                                                                        A-5053-17T4
                                       2
scene while his co-defendant was still fighting with the victim. His co-defendant

entered a negotiated guilty plea to first-degree aggravated manslaughter, but did

not testify at defendant's trial.

      On February 23, 2006, defendant was sentenced to an aggregate term of

thirty years' imprisonment, with a thirty-year period of parole ineligibility.

Defendant filed a direct appeal, "rais[ing] two instructional errors, namely the

judge's failure to sua sponte charge the jury on the statutory affirmative defense

to felony murder and his omission of a charge on 'afterthought robbery' as a

lesser included offense of robbery." State v. Walker, No. A-4542-05 (App. Div.

Apr. 8, 2009) (slip op. at 2). After we affirmed the convictions and sentence,

id. at 27, the Supreme Court granted defendant's petition for certification,

"limited to the issue of whether the trial court's failure to instruct the jury

regarding the statutory affirmative defense to felony murder constituted plain

error." State v. Walker, 201 N.J. 146 (2009). However, the Court later affirmed

our decision. State v. Walker, 203 N.J. 73 (2010).

      On September 20, 2010, defendant moved for a new trial pursuant to Rule

3:20-1, based on newly discovered evidence. In a supporting certification,

despite the fact that his co-defendant's plea transcript had been available to him

for at least one year before his trial, defendant claimed the co-defendant's plea


                                                                          A-5053-17T4
                                        3
allocution, purportedly indicating defendant had nothing to do with the victim's

death, was exculpatory.       Defendant also claimed that his co-defendant's

handwritten "notarized affidavit" submitted with the motion, indicating that

defendant had no knowledge of the victim's death because he left the house

before the victim was killed, constituted a recantation, notwithstanding the fact

that his co-defendant never testified at defendant's trial.

      On April 21, 2011, the motion judge denied defendant's motion,

explaining that because his co-defendant "was not a witness at [defendant's]

trial[,]" the jury's guilty verdict "was not based on [his] statements."

Additionally, according to the judge, "the plea allocution [was] incriminatory

and not exculpatory[,]" "was readily available to . . . defendant before trial," and

"would not 'change the jury's verdict if a new trial was granted.'" See State v.

Ways, 180 N.J. 171, 187 (2004) (reciting the standard for a new trial based on

newly discovered evidence). The judge also determined that after "comparing

the plea allocution" with "the [co-defendant's] affidavit," the "only logical

conclusion" was that "the affidavit [was] 'the product of fabrication' and

undoubtedly rehearsed." In an unpublished opinion, we affirmed the decision,

substantially for the reasons expressed by the motion judge, State v. Walker, No.

A-4480-10 (App. Div. June 7, 2012) (slip op. at 6), and the Supreme Court


                                                                            A-5053-17T4
                                         4
dismissed the notice of petition for certification as deficient. State v. Walker,

No. M-0532 (Dec. 5, 2012).

      On August 5, 2011, defendant filed his first PCR petition, asserting

ineffective assistance of trial and appellate counsel and violation of his

constitutional rights. Defendant asserted trial counsel was ineffective for failing

to: 1) request jury instructions on the affirmative defense to felony murder; 2)

present the co-defendant's plea allocution as exculpatory evidence; 3) explore

the circumstances of defendant's statement; 4) use the autopsy report to

challenge the medical examiner; 5) object to several instances of prosecutorial

misconduct and the admission of unrelated and prejudicial evidence during jury

deliberation; and 6) investigate defendant's special education background.

Defendant also asserted that appellate counsel was ineffective for failing to

challenge the admissibility of his statement on appeal.

      On June 4, 2013, the PCR court denied his application on procedural and

substantive grounds.3 The court noted the petition was filed more than five years

after the judgment of conviction and defendant failed to establish excusable

neglect for the delay. See R. 3:22-12(a)(1). Additionally, the court concluded



3
  In his application, defendant had also sought additional jail credits, which the
court granted.
                                                                           A-5053-17T4
                                        5
defendant failed to establish a prima facie case of ineffective assistance of

counsel [IAC] under the standard formulated in Strickland v. Washington, 466

U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, l05

N.J. 42, 49 (l987).4 In an unpublished decision, we affirmed the denial of

defendant's PCR application. State v. Walker, No. A-1852-13 (App. Div. May

5, 2015).

      On February 16, 2017, defendant filed a second PCR petition, arguing

ineffective assistance of trial counsel, PCR counsel, and appellate counsel.

Defendant asserted trial counsel was ineffective for failing to: 1) object to the

admission of evidence that defendant was in custody on an unrelated charge; 2)

request an adverse inference charge for the non-production of police notes taken

during defendant's interrogation; 3) call as witnesses other detectives who were

present during the interrogation; and 4) inform defendant of a favorable plea

offer. Defendant asserted PCR counsel and appellate counsel were ineffective

for failing to raise all the grounds insisted upon by defendant, including failing




4
   To prevail on a claim of IAC, a defendant must satisfy a two-part test.
Specifically, the defendant must show that his attorney's performance was
deficient and that the "deficient performance prejudiced the defense."
Strickland, 466 U.S. at 687.
                                                                          A-5053-17T4
                                        6
to perfect a petition for certification to the Supreme Court after we affirmed the

denial of his first PCR petition.

      On February 9, 2018, in a written decision, the PCR court denied

defendant's petition on the papers. Applying Rule 3:22-5, the court explained

that defendant's claim of ineffective assistance of trial counsel was already

adjudicated by this court, affirmed on appeal, and cannot be revisited. See R.

3:22-5 ("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 . . . or in any appeal taken from such proceedings.");

see also R. 3:22-4(a) (precluding raising any ground for relief in a PCR

proceeding that was not raised in prior proceedings unless "the ground . . . could

not reasonably have been raised" previously, "enforcement of the bar . . . would

result in fundamental injustice[,]" or the "denial of relief would be contrary to a

new rule of constitutional law").

      Next, applying Rule 3:22-12(a)(2), which, according to the court,

"requir[es] a second or subsequent PCR to be filed within one year of the date

on which the claim becomes cognizable," the court determined that defendant's

February 16, 2017 "claims of ineffective assistance of appellate counsel . . .

[were] procedurally barred" because the "denial of [defendant's] first PCR


                                                                           A-5053-17T4
                                        7
[petition] was affirmed on May 5, 2015." Additionally, the court found "there

[was] no fundamental injustice present . . . to justify relaxing this time bar."

      Citing State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), the

court also rejected defendant's IAC claims on substantive grounds, stating:

            [E]ven viewing the facts in the light most favorable to
            [defendant], [the] petition does not set forth a prima
            facie case of ineffective assistance of appellate [and]
            PCR counsel because you have not demonstrated actual
            prejudice – that your attorney[s'] performance affected
            the outcome. . . . You merely assert that your appellate
            counsel and post-conviction relief attorney did not raise
            the arguments that you allege your trial counsel should
            have raised. However, [a]ppellate and PCR counsel did
            not have an obligation to raise such meritless
            arguments.

The court entered a memorializing order and this appeal followed.

      On appeal, defendant presents the following arguments for our

consideration:

            POINT I – THIS MATTER MUST BE REMANDED
            BECAUSE . . . DEFENDANT WAS NOT AFFORDED
            ORAL ARGUMENT. (NOT RAISED BELOW).

            POINT II – . . . DEFENDANT'S PCR PETITION
            SHOULD NOT HAVE BEEN PROCEDURALLY
            BARRED; THEREFORE THIS MATTER MUST BE
            REMANDED FOR FINDINGS OF FACT AND
            CONCLUSIONS OF LAW REGARDING . . .
            DEFENDANT'S CLAIMS.

We are unpersuaded by any of these arguments.

                                                                            A-5053-17T4
                                         8
      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 also applies to mixed

questions of fact and law. Id. at 420. Moreover, 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.

      "Procedural bars exist in order to promote finality in judicial

proceedings." State v. McQuaid, 147 N.J. 464, 483 (1997). Subject to limited

exceptions, "Rule 3:22-4 imposes a procedural bar to prevent claims from being

raised on PCR that reasonably could have been raised on direct appeal." Ibid.

"Additionally, a defendant may not use a petition for post-conviction relief as

an opportunity to relitigate a claim already decided on the merits[,]" and, thus,

under Rule 3:22-5, a prior adjudication on the merits bars a defendant from

reasserting an identical or substantially equivalent issue in a proceeding for

PCR. Ibid.

      Another procedural bar to PCR review is set forth in Rule 3:22-12. Under

that rule, "second 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.) (third alteration in original)




                                                                            A-5053-17T4
                                        9
(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 [IAC] that
            represented the defendant on the first or subsequent
            application for post-conviction relief is being alleged.

      Here, defendant's present PCR petition is untimely under Rule 3:22-

12(a)(2). Defendant claims no newly recognized constitutional right, Rule 3:22-

12(a)(2)(A), no recently discovered previously unknown factual predicate for

the relief sought, Rule 3:22-12(a)(2)(B), and failed to file within one year of the

order denying the preceding petition. R. 3:22-12(a)(2)(C). The strict time bar

imposed under Rule 3:22-12(a)(2) may not be ignored or relaxed. Jackson, 454



                                                                           A-5053-17T4
                                       10
N.J. Super. at 292-94; see also R. 1:3-4(c) (providing that "[n]either the parties

nor the court may . . . enlarge the time specified by . . . [Rule] 3:22-12").

      Further, defendant's claims of fundamental injustice provide no refuge

from the denial of the petition because, unlike Rule 3:22-12(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 fundamental injustice. 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"). Because "enlargement of Rule 3:22-12's time limits 'is absolutely

prohibited[,]'" defendant's present PCR petition was properly dismissed as

mandated by Rule 3:22-4(b)(1), id. at 292 (citations omitted), and the PCR court

correctly concluded that an evidentiary hearing was not warranted. See State v.

Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013) ("'If the court perceives

that holding an evidentiary hearing will not aid the court's analysis of whether

the defendant is entitled to post-conviction relief, . . . then an evidentiary hearing

need not be granted.'" (alteration in original) (quoting State v. Marshall, 148

N.J. 89, 158 (1997))).




                                                                              A-5053-17T4
                                        11
      We are also satisfied that, while there is "a significant presumption in

favor of [allowing] oral argument" on a PCR petition, State v. Mayron, 344 N.J.

Super. 382, 387 (App. Div. 2001), some petitions may be so facially without

merit as to not warrant oral argument.

            The question of whether oral argument is granted on a
            petition for post-conviction relief remains within the
            sound discretion of the post-conviction relief court.
            That discretion is guided by such considerations as the
            apparent merits and complexity of the issues raised,
            whether the petition is an initial application, whether
            argument of counsel will add to the written positions
            that have been submitted, and in general, whether the
            goals and purposes of the post-conviction procedure are
            furthered by oral argument.

            [Ibid.]

      Although our Supreme Court has determined that trial judges should

approach consideration of those factors "with the view that oral argument should

be granted[,]" it "recognize[d] the residuum of discretion that rests within our

trial judges in weighing those factors[.]" State v. Parker, 212 N.J. 269, 282

(2012). "Further, when the trial judge does reach the determination that the

arguments presented in the papers do not warrant oral argument, the judge

should provide a statement of reasons that is tailored to the particular

application, stating why the judge considers oral argument unnecessary. " Ibid.

"A general reference to the issues not being particularly complex is not helpful

                                                                        A-5053-17T4
                                         12
to a reviewing court when a defendant later appeals on the basis that the denial

of oral argument was an abuse of the trial judge's discretion." Id. at 282-83.

      Here, we discern no abuse of discretion and are convinced that the present

petition falls into that limited category of cases wherein oral argument was not

warranted. See State v. Flores, 228 N.J. Super. 586, 589-90 (App. Div. 1988)

(finding "no abuse of the trial court's discretion in disposing of defendant's

petition on the papers submitted" where the sole issue raised was uncomplicated

and lent itself to disposition without oral argument). While not explicit, the PCR

court's written decision detailing its reasons for denying the application

provided a sufficiently tailored explanation why the court considered oral

argument unnecessary. Based on our decision, we need not reach the merits of

defendant's remaining arguments. See Jackson, 454 N.J. Super. at 297.

      Affirmed.




                                                                          A-5053-17T4
                                       13
