                                NOT FOR PUBLICATION WITHOUT THE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-5594-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ERIC LUNSFORD,

     Defendant-Appellant.
________________________

                    Submitted October 29, 2019 – Decided February 18, 2020

                    Before Judges Ostrer and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 09-04-1146.

                    Eric Lunsford, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Valeria Dominguez, Deputy Attorney
                    General, of counsel and on the brief).

PER CURIAM

          Defendant, Eric Lunsford, appeals from the denial of his second petition

for post-conviction relief (PCR). We affirm substantially for the reasons set
forth by the second PCR court, Judge Richard Sules, in his thorough and well -

reasoned written opinion.     We agree that defendant's second petition was

untimely filed and procedurally barred. Further, it lacks sufficient merit to

warrant an evidentiary hearing much less reversal of defendant's trial

convictions.

                                         I.

      Defendant has twice been convicted of homicide. The two shootings were

completely distinct events; they were committed at different times and places

and were prosecuted separately. Defendant pleaded guilty to the 2008 homicide

of Lawrence Parks, who was gunned down inside his car. That homicide

conviction is not before us in this appeal, although the victim's name resurfaces

in defendant's current legal argument.

      The case before us arises from a separate violent incident involving an

attempted home invasion that turned deadly. One victim, Jeffrey King, was

killed, and another, Everett Stephenson, seriously wounded. Defendant was

convicted at trial of the aggravated manslaughter of King, the aggravated assault

of Stephenson, and related weapons offenses. He was sentenced to an aggregate

term of thirty-five years imprisonment with an approximate thirty-year period

of parole ineligibility.


                                                                         A-5594-17T2
                                         2
       Defendant appealed claiming that his trial counsel, Richard Roberts, was

ineffective for, among other things, not moving to suppress in-court and out-of-

court witness identifications and related testimony. We affirmed defendant's

convictions and sentence in an unreported decision. State v. Lunsford, No. A-

4509-10 (App. Div. Sept. 27, 2013). The Supreme Court denied his petition for

certification. State v. Lunsford, 217 N.J. 304 (2014).

       Defendant thereafter filed his first petition for PCR, repeating his

contention that Roberts provided constitutionally deficient assistance with

respect to the witness-identification evidence. Defendant further claimed that

Roberts was ineffective for failing to (1) move for a mistrial, (2) investigate

defendant's alleged alibi, and (3) seek additional jail credits on his sentence.

The first PCR judge denied that petition without a hearing.

       We affirmed the PCR denial. State v. Lunsford, No. A-3991-14 (App.

Div. Feb. 16, 2017).     We concluded that defendant's claim of ineffective

assistance, with respect to the Wade1 issue, was procedurally barred because that

claim had already been raised and rejected on direct appeal. We also held that

defendant's trial counsel had not been ineffective and that nothing in the record



1
    United States v. Wade, 388 U.S. 218 (1967)


                                                                         A-5594-17T2
                                       3
established that the identification procedures were impermissibly suggestive or

that a Wade2 hearing was warranted or would have been convened had defendant

requested one. The Supreme Court denied certification. State v. Lunsford, 231

N.J. 402 (2017).

      Defendant in his current PCR petition claims once again that he received

ineffective assistance of counsel.    Defendant repeats contentions that were

considered in the first PCR, namely, that Roberts rendered ineffective assistance

by failing to challenge the witness identifications and by failing to investigate

defendant's alleged alibi defense. This time, defendant also argues that Roberts

had a conflict of interest because he had once represented Lawrence Parks, the

person defendant pleaded guilty to killing in an unrelated shooting. Defendant

also contends that his first PCR counsel was ineffective for failing to argue that

Roberts had a conflict of interest.

                                       II.

      Defendant raises the following contentions for our consideration:

            POINT I

            THE PCR COURT'S DECISION TO DENY
            [DEFENDANT'S] SECOND PCR FAILED TO
            PROVIDE [DEFENDANT] WITH A MEANINGFUL

2
  Ibid. See also generally State v. Henderson, 208 N.J. 208 (2011) (explaining
and applying Wade).
                                                                          A-5594-17T2
                                        4
            OPPORTUNITY TO ROOT OUT A MISCARRIAGE
            OF JUSTICE, WHEN HIS TRIAL ATTORNEY
            REPRESENTED A VICTIM IN ONE OF THE
            INDICTMENTS, HE WAS RETAINED TO
            REPRESENT [DEFENDANT] ON, AND PCR
            COUNSEL WAS INEFFECTIVE FOR FAILING TO
            ADVANCE THIS CLAIM AFTER INSISTED TO BY
            [DEFENDANT].

            POINT II

            THE PCR COURT ERRONEOUSLY DETERMINED
            THAT [DEFENDANT'S] SECOND PCR PETITION
            DID   NOT   SATISFY   THE   TIMELINESS
            REQUIREMENT UNDER RULE 3:22-12(a)(2)(C),
            WITHOUT      CONSIDERING      WHETHER
            APPELLANT QUALIFIED FOR "EXCEPTIONAL
            CIRCUMSTANCES" UNDER RULE 3:22-4(a) & (b).

                                      III.

      We begin our analysis by acknowledging the legal principles and

procedural rules that govern this appeal. Post-conviction relief serves the same

function as a federal writ of habeas corpus. State v. Preciose, 129 N.J. 451, 459

(1992).   When petitioning for PCR, a defendant must "establish, by a

preponderance of the credible evidence, that he [or she] is entitled to the

requested relief." State v. Mitchell, 126 N.J. 565, 579 (1992) (quoting State v.

Marshall, 244 N.J. Super. 60, 69 (Law Div. 1990)).

      Defendant's PCR petition raises claims of constitutionally deficient

assistance of counsel.    Both the Sixth Amendment of the United States

                                                                         A-5594-17T2
                                       5
Constitution and Article 1, paragraph 10 of the State Constitution guara ntee the

right to effective assistance of counsel at all stages of criminal proceedings.

Strickland v. Washington, 466 U.S. 668, 686 (1984) (citing McMann v.

Richardson, 397 U.S. 759, 771 n.14 (1970)); State v. Fritz, 105 N.J. 42, 58

(1987). To establish a violation of the right to the effective assistance of

counsel, a defendant must meet the two-part test articulated in Strickland. Fritz,

105 N.J. at 58. "First, the defendant must show that counsel's performance was

deficient. . . . Second, the defendant must show that the deficient performance

prejudiced the defense." Strickland, 466 U.S. at 687.

      To meet the first prong of the Strickland test, a defendant must show "that

counsel made errors so serious that counsel was not functioning as the 'couns el'

guaranteed by the Sixth Amendment." Ibid. Reviewing courts indulge in a

"strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance." Id. at 689. The fact that a trial strategy

fails to obtain for a defendant the optimal outcome is insufficient to show that

counsel was ineffective. State v. DiFrisco, 174 N.J. 195, 220 (2002) (citing

State v. Bey, 161 N.J. 233, 251 (1999)).

      The second prong of the Strickland test requires the defendant to show

"that counsel's errors were so serious as to deprive the defendant of a fair trial,


                                                                           A-5594-17T2
                                        6
a trial whose result is reliable." Strickland, 466 U.S. at 687. Put differently,

counsel's errors must create a "reasonable probability" that the outcome of the

proceedings would have been different than if counsel had not made the errors.

Id. at 694. This assessment is necessarily fact-specific to the context in which

the alleged errors occurred—errors before trial, for example, may result in a

defendant failing to enjoy a favorable plea agreement, while errors during trial

may lead to an unfair conviction. See id. at 695 (noting the different questions

posed when a defendant challenges a conviction rather than a sentence). When

a defendant challenges a conviction, the second Strickland prong is particularly

demanding: "[t]he error committed must be so serious as to undermine the

court's confidence in the jury's verdict or the result reached." State v. Allegro,

193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).

      Short of obtaining immediate relief, a defendant may prove that an

evidentiary hearing is warranted to develop the factual record in connection with

a claim of ineffective assistance. Preciose, 129 N.J. at 462–63. The PCR court

should grant an evidentiary hearing when a defendant is able to prove a prima

facie case of ineffective assistance of counsel, there are material issues of

disputed fact that must be resolved with evidence outside of the record, and the

hearing is necessary to resolve the claims for relief. R. 3:22-10(b); Preciose,


                                                                          A-5594-17T2
                                        7
129 N.J. at 462. To meet the burden of proving a prima facie case, a defendant

must show a reasonable likelihood of success under the Strickland test.

Preciose, 129 N.J. at 463. "[C]ourts should view the facts in the light most

favorable to a defendant to determine whether a defendant has established a

prima facie claim." Id. at 462–63.

      "[I]n order to establish a prima facie claim, a petitioner must do more than

make bald assertions that he [or she] was denied the effective assistance of

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

(emphasis omitted).     The petitioner must allege specific facts sufficient to

support a prima facie claim. Ibid. The petitioner must present these facts in the

form of admissible evidence. In other words, the relevant facts must be shown

through "affidavits or certifications based upon the personal knowledge of the

affiant or the person making the certification." Ibid.

      Aside from the substantive constitutional principles that govern PCR

claims, our Supreme Court has promulgated court rules that prescribe the

practices and procedures for filing and reviewing PCR petitions. R. 3:22-1 to -

12. Three of these procedural rules are especially important to the resolution of

the appeal before us.




                                                                          A-5594-17T2
                                        8
     First, Rule 3:22-4(b) governs when a defendant may file a second or

subsequent petition for PCR. That rule provides:

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

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

                 (2) it alleges on its face either:

                       (A) that the petition relies on a new rule of
                       constitutional law, made retroactive to
                       defendant's petition by the United States
                       Supreme Court or the Supreme Court of
                       New Jersey, that was unavailable during
                       the pendency of any prior proceedings; or

                       (B) that the factual predicate for the relief
                       sought could not have been discovered
                       earlier through the exercise of reasonable
                       diligence, and the facts underlying the
                       ground for relief, if proven and viewed in
                       light of the evidence as a whole, would
                       raise a reasonable probability that the relief
                       sought would be granted; or

                       (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
                       postconviction relief.

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




                                                                        A-5594-17T2
                                        9
      Even when appropriate grounds exist for filing a second or subsequent

petition for PCR, Rule 3:22-12(a)(2) establishes strict time limitations on

successive petitions. That rule provides:

            (2) 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 postconviction relief
                  where ineffective assistance of counsel that
                  represented the defendant on the first or
                  subsequent application for post-conviction relief
                  is being alleged.

            [R. 3:22-12(a)(2).]

      Finally, Rule 3:22-5 bars re-consideration of arguments that already have

been expressly adjudicated. That rule provides, "[a] prior adjudication upon the

merits of any ground for relief is conclusive whether made in the proceedings


                                                                        A-5594-17T2
                                      10
resulting in the conviction or in any post-conviction proceeding brought

pursuant to this rule or prior to the adoption thereof, or in any appeal taken from

such proceedings." R. 3:22-5.

      Before applying these provisions to the facts presented in this case, we

note that although the above-quoted rules provide important guideposts, they do

not impose "an inflexible command." State v. Franklin, 184 N.J. 516, 528

(2005). Nor do the rules require that courts "acquiescence to a miscarriage of

justice." State v. Nash, 212 N.J. 518, 546 (2013).

                                         IV.

      In this instance, Judge Sules ruled that defendant's claims of ineffective

assistance relating to the witness identification issues were procedurally barred

under Rule 3:22-5. He also ruled that defendant's conflict-of-interest claim was

untimely under Rule 3:22-12. For reasons that follow, we agree with the PCR

court on both counts but also consider defendant's conflict-of-interest argument

on its merits, as did the PCR court, to assure that a miscarriage of justice has not

occurred. See infra note 4 (concluding the trial court was correct that defendant

has not shown a basis for PCR relief).

                                         A.




                                                                            A-5594-17T2
                                        11
      With respect to defendant's arguments relating to trial counsel's failure to

challenge in-court and out-of-court identification evidence, the basis for

application of Rule 3:22-5 as a procedural bar is evident and does not warrant

extensive discussion in this written opinion. R. 2:11-3(e)(2). We have already

addressed the witness identification issues on both direct appeal and defendant's

first PCR petition and see no reason to do so again. We recognize defendant

now presents those previously rejected arguments under a new banner, reflecting

his new claim that his trial counsel had a conflict of interest that infected all

aspects of his representation.     We consider that overarching ineffective -

assistance argument next.

                                       B.

      Judge Sules ruled that defendant's conflict-of-interest claim was untimely

under Rule 3:22-12(a)(2)(B) because more than a year elapsed since his first

petition was denied, and defendant has not shown why the information in his

certification and brief could not have been discovered earlier. 3 In support of

that fact-sensitive determination, the PCR court relied on a letter from defendant

to his first PCR counsel that reveals that he knew that Roberts had once


3
  We note that defendant does not allege that either the United States or New
Jersey Supreme Courts recognized a new right within the meaning of Rule 3:22-
12(a)(2)(A).
                                                                          A-5594-17T2
                                       12
represented Lawrence Parks. This shows that defendant was aware of the factual

basis for the divided-loyalty claim more than a year before he filed the current

PCR. We see no reason to disturb the PCR court's well-supported conclusion

that defendant has failed to show that he could not have discovered that Roberts

represented Parks through the exercise of reasonable diligence, as required by

Rule 3:22-12(a)(2)(b). We also note that Rule 3:22-12(b) expressly provides

that, "these time limitations shall not be relaxed, except as provided herein." 4

      Defendant's second petition was also properly denied pursuant to Rule

3:22-4(b)(2) because, as the PCR court correctly noted, the second petition does

not rely on a new rule of constitutional law, defendant has not set forth facts that

raise a reasonable probability that the relief sought would have been granted,

and defendant has not presented a prima facie case of ineffective assistance of

counsel.

      We next examine the substantive merits of defendant's conflict-of-interest

claim. Once again, we embrace Judge Sule's factual findings and cogent legal



4
  We recognize that defendant in his reply brief argues that this case presents
exceptional circumstances and that his divided-loyalty claim should be
considered on its merits to prevent a miscarriage of justice. As we have already
noted, although we agree with the PCR court that this successive petition is
procedurally barred, we also agree with the court's substantive conclusion that
defendant has not shown a basis for PCR relief.
                                                                            A-5594-17T2
                                        13
analysis. Defendant's trial counsel, Roberts, did not represent defendant in the

prosecution of Parks' death. By the same token, Parks had nothing to do with

the violent home invasion which is at the heart of the current appeal. Indeed, he

was already dead when the complaint on the home invasion was issued. Parks,

in other words, was not a victim in the case in which Roberts represented

defendant, and Roberts did not represent defendant in the Parks shooting case.

Furthermore, the record does not indicate how and in what matter Roberts had

once represented Parks, as reflected in the PCR court's finding that Roberts

represented Parks in "an undisclosed capacity in an undisclosed matter."

       In these circumstances, we do not believe that defendant has established

that Roberts was foreclosed from representing defendant due to a concurrent

conflict of interest as defined in RPC 1.7. We agree with the PCR court that the

former representation of Parks was not directly adverse to defendant's interests

within the meaning of RPC 1.7(a)(1).5



5
    Rule of Professional Conduct 1.7(a) provides:

             (a) Except as provided in paragraph (b), a lawyer shall
             not represent a client if the representation involves a
             concurrent conflict of interest. A concurrent conflict of
             interest exists if:



                                                                         A-5594-17T2
                                       14
      This situation is markedly different from the one presented in State ex rel.

S.G., 175 N.J. 132 (2003). In that case, the Supreme Court held an actual

conflict of interest existed where a law firm simultaneously represented both the

defendant accused of a shooting and the victim of that shooting. The Court

concluded that, "during the period of dual representation that occurred here, the

interests of the two clients were adverse, resulting in a prohibited actual conflict.

Accordingly, the firm may not proceed with the defense, notwithstanding the

defendant's desire to consent to the representation." Id. at 135. In contrast, here,

defendant has failed to show that there was any period of overlapping

representation. Nor did Roberts represent defendant in the case involving the

shooting of Parks.

      Furthermore, as the PCR court found, defendant in the present case has

failed to show that there is a significant risk that Robert's representation of

defendant was materially limited by his former representation of Parks within




             (1) the representation of one client will be directly
             adverse to another client; or

             (2) there is a significant risk that the representation of
             one or more clients will be materially limited by the
             lawyer's responsibilities to another client, a former
             client, or a third person or by a personal interest of the
             lawyer.
                                                                             A-5594-17T2
                                        15
the meaning of RPC 1.7(a)(2). Indeed, defendant has not explained how Roberts

was limited at all, much less materially limited, in zealously representing

defendant's interests by reason of his prior representation of Parks. The two

cases are simply unrelated. Accordingly, defendant has failed to establish a

violation of RPC 1.7.

      In sum, we agree with the PCR court that defendant has failed to establish

that counsel by reason of his prior representation of Parks had a divided loyalty

that rendered his professional service to defendant constitutionally deficient.

Accordingly, defendant has failed to establish the first Strickland 6 prong.

Relatedly, defendant has failed to establish a ground for granting a seco nd or

subsequent petition for PCR pursuant to Rule 3:22-4(b)(2)(B).

                                       C.

      Finally, we note that defendant also claims in this appeal that his PCR

counsel was ineffective in not arguing defendant's contention that trial counsel

had a conflict of interest. "This relief is not predicated upon a finding of


6
  Having concluded that defendant failed to establish the first Strickland prong,
the PCR court reasoned that it need not address the second prong. We add only
that we do not believe that defendant suffered any prejudice from Robert's prior
representation of Parks in view of our conclusion that there was no actual
conflict of interest, divided loyalty, or limitation upon Robert's ability to
represent defendant zealously and in accordance with the professional standards
recognized in Strickland and Fritz.
                                                                         A-5594-17T2
                                      16
ineffective assistance of counsel under the relevant constitutional standard.

Rule 3:22-6(d) imposes an independent standard of professional conduct upon

an attorney representing a defendant in a PCR proceeding." State v. Hicks, 411

N.J. Super. 370, 376 (App. Div. 2010). The Court has stated:

             PCR counsel must communicate with the client,
             investigate the claims urged by the client, and
             determine whether there are additional claims that
             should be brought forward. Thereafter, counsel should
             advance all of the legitimate arguments that the record
             will support. If after investigation counsel can
             formulate no fair legal argument in support of a
             particular claim raised by defendant, no argument need
             be made on that point. Stated differently, the brief must
             advance the arguments that can be made in support of
             the petition and include defendant's remaining claims,
             either by listing them or incorporating them by
             reference so that the judge may consider them.

             [State v. Webster, 187 N.J. 254, 257 (2006).]

"The remedy for counsel's failure to meet the[se] requirements . . . is a new PCR

proceeding." Hicks, 411 N.J. Super. at 376 (citing State v. Rue, 175 N.J . 1, 4

(2002)).

      As discussed in Part B, the record in this case does not support a legitimate

argument that defendant's trial counsel had a conflict of interest or divided loyalty.

Further, the PCR court considered defendant's assertion that his trial counsel had a

conflict and found it meritless. Accordingly, applying the standard set forth in


                                                                               A-5594-17T2
                                         17
Rule 3:22-6(d), we reject defendant's contention that his PCR counsel rendered

ineffective assistance.

      Any remaining arguments posed by defendant that we have not addressed

lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

      Affirmed.




                                                                          A-5594-17T2
                                       18
