                        NOT FOR PUBLICATION WITHOUT THE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-0820-14T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

AL'QUAADIR GREEN,

        Defendant-Appellant.

________________________________________________________________

              Submitted February 28, 2017 – Decided June 9, 2017

              Before Judges Messano and Espinosa.

              On appeal from the Superior Court of New
              Jersey, Law Division, Essex County, Indictment
              No. 01-10-4345.

              Al'Quaadir Green, appellant pro se.

              Carolyn A. Murray, Acting Essex County
              Prosecutor, attorney for respondent (LeeAnn
              Cunningham,    Special     Deputy    Attorney
              General/Acting   Assistant   Prosecutor,   of
              counsel and on the brief).

PER CURIAM

        Defendant     appeals    from    the   denial     of   his   motion        for

reconsideration of his second petition for post-conviction relief
(PCR) based upon newly discovered evidence.   For the reasons that

follow, we affirm.

     Following a jury trial, defendant was convicted for the murder

of two victims during the course of a robbery and related offenses

and sentenced to an aggregate sentence of two consecutive life

terms, each with a thirty-year period of parole ineligibility.

Among the issues raised on direct appeal, defendant argued, "the

admission of testimony regarding a letter purportedly written by

defendant, wherein the writer requested that a witness to the

incident be killed, constitute[d] reversible error."      State v.

Green, No. A-4154-05 (App. Div. Aug. 7, 2008) (Green I).           We

affirmed his convictions and sentence and the Supreme Court denied

his petition for certification.     State v. Green, 196 N.J. 601

(2008).

     In his first PCR petition, defendant argued he was denied the

effective assistance of counsel, in part, because his attorney

failed to secure a handwriting expert to refute evidence that he

had written the letter introduced at trial.    State v. Green, No.

A-3437-09 (App. Div. Jan. 11, 2012) (Green II), certif. denied,

211 N.J. 607 (2012).   He also argued that the PCR judge erred in

denying his request for an adjournment while the Public Defender's

Office considered retaining a handwriting expert.



                                2                           A-0820-14T3
      As we noted in our opinion affirming the denial of defendant's

PCR     petition,   "[t]here   was   nothing   before   the   PCR     judge

demonstrating a likelihood that a handwriting expert would be

retained, or, more importantly, that he would render a favorable

report."     Id. at 9.   Further, the PCR judge had advised that if

defendant obtained a report, he could file a subsequent petition

on "newly discovered evidence" grounds.        Id. at 9-10 (quoting R.

3:22-12(a)(2)(B)).

      Defendant filed a second PCR petition and a request for

appointed counsel, both of which were denied by order dated May

29, 2013.    Defendant did not appeal from that denial.

      Instead, he filed a "letter-motion for reconsideration" on

March 10, 2014, and an amended letter motion, dated January 9,

2014.    In support of his motion, defendant submitted an affidavit

from a forensic document examiner, Robert Baier.          Baier refuted

the proposition, apparently advanced by the prosecutors at trial,

that when a block print format is used, "an analysis of handwriting

cannot be done by comparing known writings of the suspect to the

questioned writings." Notably, Baier did not: conduct any analysis

of the letter submitted in evidence, compare the handwriting on

the letter to any samples of defendant's handwriting or offer any

opinion as to whether defendant was the author of the letter.



                                     3                              A-0820-14T3
    The    trial        judge      denied    defendant's        motion      for

reconsideration, setting forth her reasons in a written opinion.

We limited defendant's appeal to the order denying his motion for

reconsideration.     Defendant presents the following arguments for

our consideration:

              POINT I

              TRIAL COUNSEL FAILED TO CONSULT A
              HANDWRITING EXPERT TO EXAMINE THE
              "NARIK WILSON" LETTER.        TRIAL
              COUNSELS BELIEF THAT BLOCKPRINT
              HANDWRITING CANNOT BE TRACED IS A
              DIRECT CONTRADICTION TO HANDWRITING
              EXPERT MR. ROBERT BAIER SWORN
              AFFIDAVIT   ATTESTING  THAT   BLOCK
              PRINT HANDWRITING CAN INDEED BE
              TRACED AND BRING BACK A CONCLUSION.

              POINT II

              DEFENDANT SHOULD HAVE BEEN ASSIGNED
              A PUBLIC DEFENDER TO REPRESENT HIM
              ON HIS SECOND OR SUBSEQUENT PETITION
              FOR POST CONVICTION RELIEF PURSUANT
              TO R. 3:22-6(b).

    After reviewing these arguments in light of the record and

applicable legal principles, we conclude they lack merit.

    Although defendant cast his letter brief as a motion for

reconsideration,   it    is     more   properly   viewed   as   a   third   PCR

petition, responding to the first PCR judge's invitation to file

a new petition based on newly discovered evidence.                  To survive

dismissal pursuant to Rule 3:22-4(b), the new petition had to be


                                       4                               A-0820-14T3
timely under Rule 3:22-12(a)(2), a condition satisfied here, and

also had to allege on its face

           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.

           [R. 3:22-4(b)(2)(B).]

      Because     the    Public   Defender's      Office   was   unwilling       to

authorize the expense of a handwriting expert, we will accept that

defendant could not have obtained the factual predicate for the

relief sought earlier.          But Baier's affidavit merely offers the

opinion that a comparison is possible; it does not present any

opinion based upon such a comparison.                  Therefore, it has no

probative value as evidence tending to exculpate defendant.

      To prevail on a claim of ineffective assistance of counsel,

defendant must meet the two-prong test of establishing both that:

(l) counsel's performance was deficient and he or she made errors

that were so egregious that counsel was not functioning effectively

as   guaranteed    by    the    Sixth    Amendment    to   the   United    States

Constitution;      and    (2)   the     defect   in   performance   prejudiced

defendant's rights to a fair trial such that there exists a

"reasonable probability that, but for counsel's unprofessional


                                          5                               A-0820-14T3
errors, the result of the proceeding would have been different."

Strickland v. Washington, 466 U.S. 668, 687, 694, l04 S. Ct. 2052,

2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord State v.

Fritz, l05 N.J. 42, 52 (l987).   Even assuming that the failure to

obtain a report such as Baier's could satisfy the first of these

prongs, the substance of Baier's report reveals no likelihood that

it would have had any effect on the outcome here.      Giving full

credence to the report, it fails to "raise a reasonable probability

that the relief sought would be granted," particularly when "viewed

in light of the evidence as a whole."     R. 3:22-4(b)(2)(B).      We

discern no abuse of discretion in the denial of defendant's motion

for reconsideration of his PCR petition based on this affidavit.

     Defendant also argues the trial judge erred in denying his

request for appointed counsel pursuant to Rule 3:22-6(b), which

states:

          Upon any second or subsequent petition filed
          pursuant to this Rule attacking the same
          conviction, the matter shall be assigned to
          the Office of the Public Defender only upon
          application therefor and showing of good
          cause.   For purposes of this section, good
          cause exists only when the court finds that a
          substantial issue of fact or law requires
          assignment of counsel and when a second or
          subsequent petition alleges on its face a
          basis to preclude dismissal under R. 3:22-4.

     This paragraph limits "good cause" to circumstances where the

court finds "a substantial issue of fact or law" that signals some

                                 6                          A-0820-14T3
merit in the petition.    See Pressler & Verniero, Current N.J.

Court Rules, comment on R. 3:22-6(b) (2017) ("Presumably, a good

cause finding in this context means the court's satisfaction that

there is some merit in the subsequent petition and that it is not

wholly frivolous.")    Baier's report fell short of creating a

"substantial issue of fact" that would imbue the petition with any

merit.   The motion for appointed counsel was properly denied.

     Affirmed.




                                7                          A-0820-14T3
