                        NOT FOR PUBLICATION WITHOUT THE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-0045-15T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KEITH BLACK,

        Defendant-Appellant.

______________________________________________________________


              Submitted November 9, 2016 – Decided August 9, 2017

              Before Judges Fasciale and Sapp-Peterson.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              05-06-0790.

              Keith Black, appellant pro se.

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Erica M. Bertuzzi,
              Assistant Prosecutor, on the brief).


PER CURIAM
       Defendant Keith Black appeals from the denial of his second

petition for post-conviction relief (PCR). For the reasons that

follow, we affirm.

       On November 21, 2004, defendant became embroiled in a dispute

with Tyrone Fuller over their respective territories for selling

drugs.    Defendant fatally shot Fuller, who died within seconds of

the shooting. Fuller's brother, Marquis, was present and witnessed

the fatal shooting.     He attempted to run away, but was chased by

defendant, who shot him in the back and neck.           Marquis survived

and identified defendant.        Defendant fled New Jersey, but was

eventually apprehended in Arizona.      He waived extradition and was

returned to New Jersey for prosecution.

       Following a trial, the jury convicted defendant of first-

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

murder, N.J.S.A. 2C:5-1 and 2C:11-3; second-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(2); and second-degree possession of a weapon

for an unlawful purpose, N.J.S.A. 2C:39-4(a).         At sentencing, the

court imposed an aggregate forty-five year custodial sentence,

with     an   eighty-five-percent   period   of    parole   ineligibility

pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.

       Defendant filed a direct appeal in which he challenged the

trial court's instructions to the jury regarding his flight, the

                                    2                              A-0045-15T2
court's failure to conduct a hearing after a juror started crying,

and the excessiveness of the sentence imposed.       In an unpublished

opinion, we affirmed the convictions and sentence imposed.            State

v. Black, No. A-2060-06 (App. Div. July 1, 2009).             The Supreme

Court denied defendant's petition for certification.            State v.

Black, 200 N.J. 371 (2009).

     In 2010, defendant filed his first PCR petition.             In the

petition,   he   alleged:   (1)   the   indictment   should    have   been

dismissed; (2) evidence of prior bad acts was improperly admitted;

(3) the court's jury instructions were improper; (4) he was denied

his constitutional right to testify; (5) the sentence imposed was

excessive; (6) he was denied effective assistance of trial and

appellate counsel; and (7) the cumulative effect of the errors

about which he complained resulted in an unfair trial.          Defendant

sought an evidentiary hearing to address his PCR claims.

     By order dated January 28, 2011, the PCR judge denied the

petition and also denied defendant's request for an evidentiary

hearing.    The PCR judge found that defendant's claim relating to

his sentence was procedurally barred pursuant to Rule 3:22-5

because it had been raised and resolved on direct appeal.              The

judge next addressed the other claimed errors and determined that

these claims were procedurally barred pursuant to Rule 3:22-4



                                    3                             A-0045-15T2
because they could have been raised on direct appeal and none of

the claims fell within any exception.

     Defendant       appealed,   raising     the   same   arguments   advanced

before   the   PCR    judge   and   adding    the   following    claims:    (1)

ineffective assistance of appellate counsel; (2) his claims were

not procedurally barred; and (3) error in the denial of his request

for an evidentiary hearing. In an unpublished opinion, we affirmed

the denial of his petition.         State v. Black, No. A-0398-11 (App.

Div. July 18, 2013).      We agreed with the PCR judge's determination

that defendant's claims were procedurally barred under Rule 3:22-

4 and -5 and determined that the remaining arguments were without

sufficient merit to warrant discussion in a written opinion.                Id.

at op. 1, 8.

     Defendant subsequently filed a petition for certification.

On March 13, 2014, the Supreme Court entered an order denying

defendant's motion for a limited remand to the Law Division, but

did so without prejudice to defendant filing a new PCR petition

based upon his claim of newly discovered evidence.                On June 2,

2014,    the   Supreme     Court    denied     defendant's      petition    for

certification.       State v. Black, 217 N.J. 589 (2014).

     On July 1, 2014, defendant filed his second PCR petition.

Once again, he alleged ineffective assistance of trial counsel,

who defendant claimed failed to do a pre-trial investigation.                 In

                                      4                                A-0045-15T2
addition he claimed he was denied his constitutional right to a

fair trial because the prosecutor knowingly permitted a witness

to testify falsely.        He also provided an affidavit from Tyrone

Kersey, who purportedly witnessed the shooting and stated that

defendant was not the shooter.              Defendant further claimed his

petition   should    not      be   procedurally       barred.      Defendant

subsequently filed an amended second PCR petition claim, adding

claims of newly discovered evidence and ineffective assistance of

appellate PCR counsel.

     In a letter opinion dated June 26, 2015, the second PCR judge

denied defendant's second petition.          The judge determined that the

affidavit submitted by Tyrone Kersey, who purportedly was present

at the time of the shooting, "could have been discovered earlier

through the exercise of reasonable diligence."            Additionally, the

judge found that aside from Kersey's assertion that the wrong

person   was   prosecuted    for   Fuller's    death,   Kersey    offered     no

specific   details   to     support   his    claim,   noting    that   in   his

affidavit, Kersey "never squarely claims that he saw the shooting."

Thus, the judge characterized the newly discovered evidence as

nothing more than a "bald assertion."            Further, the judge found

that Kersey offered no reasonable explanation "as to why he did

not come forward with this information other than not knowing how

to approach the situation."        As for defendant's remaining claims,

                                      5                                A-0045-15T2
the judge found those claims were previously addressed and were

procedurally barred.    The present appeal followed.

    Defendant presents the following issues for our consideration

in his appeal:

         POINT I. THE LOWER COURT ORDER MUST BE
         REVERSED SINCE APPELLANT RECEIVED INEFFECTIVE
         ASSISTANCE OF TRIAL COUNSEL.

                 A.   Trial counsel failed to investigate
                 and use medical records of Marquis Fuller
                 to show material facts of truth.

                 B.   Trial counsel failed to investigate
                 and bring forth statement of witness
                 Tyrone Kersey.

         POINT II. THE LOWER COURT ORDER MUST BE
         REVERSED SINCE APPELLANT RECEIVED INEFFECTIVE
         ASSISTANCE OF PCR COUNSEL.

                 A.   PCR   counsel   failed   to   raise
                 ineffective assistance of trial counsel
                 for failure to use medical records of
                 Marquis Fuller to show material facts of
                 truth.

                 B.   PCR counsel failed to investigate
                 and bring forth statement of witness
                 Tyrone Kersey.

         POINT III. THE LOWER COURT ORDER DENYING
         PETITION   MUST   BE  REVERSED BECAUSE OF
         PROSECUTORIAL MISCONDUCT.

         POINT IV. THE LOWER COURT ORDER DENYING
         PETITION MUST BE REVERSED SINCE DEFENDANT['S]
         CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R.
         3:22-5 AND R. 3:22-4.

         POINT V.  THE CUMULATIVE EFFECT OF THE ERRORS
         COMPLAINED OF RENDERED THE TRIAL UNFAIR.

                                  6                          A-0045-15T2
         POINT VI. THE LOWER COURT ERRED IN NOT
         GRANTING   DEFENDANT['S] REQUEST   FOR  AN
         EVIDENTIARY HEARING AND SO THE LOWER COURT
         ORDER MUST BE REVERSED.

    We are not persuaded by any of these arguments.   Our analysis

of the issues raised on appeal is guided by a review of the two

court rules that apply to a second or subsequent petition for

post-conviction relief.   A defendant's second PCR petition, shall

be dismissed unless:

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

         (2) it alleges on its face . . . :

         (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[.]

              . . . .

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

To be timely under Rule 3:22-12(a)(2),

         [N]o 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




                                 7                         A-0045-15T2
           (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.


     The second PCR judge did not err in concluding defendant's

second PCR petition was untimely under Rule 3:22-12(a)(2) because

it was filed more than three years after the January 28, 2011

denial of defendant's first PCR petition.          Moreover, defendant's

allegations do not rely upon any new rule of constitutional law.

     Further, defendant provides no reasonable explanation why the

purported newly discovered evidence was not discovered earlier.

Finally, as the second PCR judge observed, Kersey's affidavit does

not state that he actually witnessed the shooting.        Rather, he was

walking with another individual and saw the two victims pass by

him when "he heard shots [ring] out."       At that point, he was not

with defendant and did not see defendant until later.

     The   remaining   arguments   are   without   sufficient   merit    to

warrant discussion in a written opinion.       R. 2:11-3(e)(2).

     Affirmed.




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