                                NOT FOR PUBLICATION WITHOUT THE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-1003-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RAHEEM VENABLE, a/k/a
RAHKIL SHAKYER, RAHIM
JOHNSON, RAJON KIRKLAND,
RAHEEM VENEAVLE, and
RAHJOHN WIGGINS,

     Defendant-Appellant.
_____________________________

                    Submitted September 25, 2019 – Decided October 17, 2019

                    Before Judges Haas and Enright.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 05-05-1284.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michele A. Adubato, Designated Counsel,
                    on the brief).

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

PER CURIAM

      Defendant     Raheem     Venable       appeals   from   an   order   denying

reconsideration of a denial of his second petition for post-conviction relief

(PCR). We affirm.

      Our standard of review of a denial of a PCR is whether the judge's findings

of fact were supported by sufficient credible evidence. State v. Nunez-Valdez,

200 N.J. 129, 141 (2009). Here, we are convinced the trial judge's findings are

overwhelmingly supported by the record, including his finding that each of

defendant's appellate arguments are time barred under Rule 3:22-12(a)(2).

      We incorporate by reference the facts and procedural history outlined in

both our unpublished opinion, which summarily affirmed the denial of

defendant's first PCR petition, State v. Simmons,1 Nos. A-5565-11, A-1321-12

(App. Div. Nov. 26, 2014) and our published decision, which affirmed

defendant's conviction and sentence in a consolidated direct appeal, State v.

Venable, 411 N.J. Super. 458 (App. Div. 2010). We highlight certain pertinent

facts to lend context to the present appeal.


1
  Defendant's codefendant at trial, Malik Simmons, is not involved in the instant
appeal.
                                                                           A-1003-17T4
                                         2
      Defendant was found guilty of purposeful or knowing murder, in violation

of N.J.S.A. 2C:11-3(a)(1) and (2); possession of a handgun without a permit, in

violation of N.J.S.A. 2C:39-5(b); and possession of a weapon for an unlawful

purpose, in violation of N.J.S.A. 2C:39-4(a). He was sentenced to life in prison,

subject to a sixty-three-year and nine-month period of parole ineligibility

mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2, on the murder

conviction. He also was sentenced to a concurrent ten-year prison term

      As we stated in our prior published opinion:

            Defendant's convictions were based on the death of
            Fahiym Phelps as a result of a shooting outside a bar in
            Irvington on the night of November 27, 2004. Before
            the shooting, Phelps was inside the bar with his brother,
            Sharif, and a cousin, Tashon Young. During that time,
            Phelps had a verbal altercation with Venable, which
            was witnessed by Sharif, Young, and the manager of
            the bar, Sean Dubose. The altercation was interrupted
            by Dubose, who had a security guard . . . escort Venable
            outside the bar, while Dubose stayed inside with
            Phelps.

            The bar closed approximately ten minutes later, at
            which time Phelps, Sharif, and Young walked outside,
            where they encountered Venable and [his co-defendant,
            Malik Simmons], both of whom were armed with
            handguns. Defendants began shooting in Phelps's
            direction, discharging between six and ten bullets. Six
            of the bullets struck Phelps, causing fatal injuries.

            After the crime, Sharif and Young identified both
            Venable and Simmons as the shooters from

                                                                         A-1003-17T4
                                       3
           photographic arrays shown to them by the police.
           Sharif and Young also identified Venable and Simmons
           as the shooters at trial. In addition, although he did not
           witness the shooting, [the security guard from the bar]
           identified Venable as the person who had the
           altercation with Phelps and was escorted out of the bar.

           Neither Venable nor Simmons testified or presented
           any other witnesses in their defense.

           [Venable, 411 N.J. Super. at 461.]

     On appeal, defendant raises the following arguments:

     POINT I

           THE PCR COURT ERRED IN DENYING
           DEFENDANT'S     REQUEST    FOR      AN
           EVIDENTIARY HEARING TO ESTABLISH HIS
           CLAIM OF INEFFECTIVE ASSISTANCE OF
           COUNSEL OF HIS APPELLATE AND FIRST PCR
           ATTORNEY[S].

           A.    DENIAL OF RIGHT TO PUBLIC TRIAL.

           B.    FAILURE TO          INTERVIEW        LAQUAN
                 "Q" JORDAN.

     POINT II

           THE DENIAL OF THE NOTICE OF MOTION
           FOR RECONSIDERATION WAS ERROR.

These arguments are without merit.

     In Point I of his brief, defendant asserts he was entitled to an evidentiary

hearing because his first PCR counsel, as well as appellate counsel, were

                                                                         A-1003-17T4
                                       4
ineffective. His claim of ineffective assistance of counsel stems from the fact

counsel neglected to cite the case of Presley v. Georgia, 558 U.S. 209 (2010) to

advance the claim that the trial judge erred when he asked members of the

defendants' and victim's families to leave the courtroom during jury selection.

      It is uncontroverted that the judge who presided over defendant's trial did

make this request. Specifically, the trial judge stated:

            Are there individuals here from either the defendants'
            famil[ies] or the victim's family because if so I don't
            want anybody from either family in the courtroom
            during jury selection because we're going to have
            [eighty-five] jurors, and the courtroom is just going to
            be too crowded . . . . [F]or security reasons, I don't want
            members of the defendants' famil[ies] or the victim's
            family in the courtroom during jury selection.

      In response to this request, defendant's counsel stated, "Oh, okay. No

problem." Although counsel did not object to the exclusion of defendant's

family from the courtroom during voir dire, the record is devoid of any

indication that defendant's family actually was present in the courtroom when

the judge made his request.

      Merely raising a claim for PCR does not entitle a defendant to an

evidentiary hearing, as a defendant "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). Evidentiary hearings

                                                                          A-1003-17T4
                                        5
should be granted only if a defendant has presented a prima facie claim of

ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992).

      In order to establish a prima facie case of ineffective assistance of counsel,

a defendant is obliged to show not only the particular manner in which counsel's

performance was deficient, but also that the deficiency prejudiced the

proceeding. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz,

105 N.J. 42, 52 (1987). Under the first prong, the defendant must demonstrate

that "counsel made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466

U.S. at 687. Under the second prong, the defendant must show "there is a

reasonable probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different." Id. at 694.          There is a strong

presumption that counsel "rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment." Id. at 690.

      There is sufficient evidence in the record to support the denial of a PCR

hearing on defendant's Presley claim.        Indeed, defendant's case is entirely

distinguishable from Presley, as there is no indication that any member of

defendant's family was present in the courtroom when the trial judge asked




                                                                            A-1003-17T4
                                         6
members of the defendants' and victim's families to leave prior to jury selection.

Moreover, defendant's trial attorney lodged no objection to this request.

      Likewise, the record before us supports the denial of an evidentiary

hearing on defendant's claim he secured newly discovered evidence from

Laquan Jordan (Q). The record confirms that at trial, Sharif and Young testified

at length on direct and cross-examination about the events surrounding the

shooting. According to Sharif, on the night of the murder, he rode with his

friend, Q, to the Steps bar. There, they planned to meet Phelps and Young. Once

Sharif and Q entered the bar, they separated.         Sharif did not know Q's

whereabouts when Phelps and Venable argued inside the bar. At trial, Sharif

testified Phelps and Young followed him out of the bar. Once outside, Sharif

stood by a fire hydrant trying to reconnect with Q, but he did not see him until

after the shooting.

      As we have indicated, in January 2010, we affirmed defendant's

conviction on his direct appeal. Within a few months of this decision, defendant

claimed he received two letters from Q, a man he stated he did not know. In his

communications, Q indicated to defendant that on the night of the murder, Sharif

and Young told Q they had not seen the shooter. Based on this information,




                                                                            A-1003-17T4
                                        7
defendant drafted a certification for Q which was submitted to the court with his

first PCR petition on August 4, 2010. Q's certification stated in relevant part:

            3. At the time of the shooting of Fahiym Phelps, me
            and Sharif were standing next to my car, which was
            parked on Brookside and Woodlawn away from the
            area of the shooting.

            4. After the shooting, me and Sharif ran down to the
            front of Steps. There we saw Fahiym Phelps lying on
            the ground. Tash[on] Young was with Fahiym.

            5. Sharif asked Tash[on] what happened. Tash[on]
            responded that he didn't know. He was talking to some
            girl. When he heard shots, he jogged off until the
            shooting stopped. He managed only to get a glance of
            a tall dark skin guy who ran from the scene with a gun.

            6. I later learned that Sharif and Tash[on] had told the
            police that they saw the shooters. I knew this was
            untrue but I did not get involved because Sharif was my
            boy and he had just lost his brother and I didn't know
            the guys who were identified as the shooters.

      Defendant stated in his first PCR petition that he was denied effective

assistance of counsel because his attorney failed to investigate Q as a potential

defense witness and that he was entitled to a new trial based on such newly

discovered evidence.     The first PCR judge determined Q's certification

constituted impeachment evidence and that there was no evidence to suggest Q's

testimony would change the verdict. Accordingly, the judge denied defendant's

first PCR petition on August 1, 2012.

                                                                          A-1003-17T4
                                        8
      Defendant appealed this ruling and renewed his arguments pertaining to

Q, as well as the Presley issue. As these issues were without merit, we affirmed

the denial of the first PCR petition on November 26, 2014.

      In affirming the denial of the first PCR petition, we observed:

            counsels' performance at the time of trial was
            reasonable. Neither defendant knew Q . . . . Neither
            defendant has asserted any facts he may have known
            pre-trial that could have prompted his attorney to
            investigate Q as a possible witness for the defense.
            Defense counsel simply had no reason to believe that Q
            had information favorable to defendants under the
            factual circumstances. . . . Moreover, although Q was
            discussed throughout the lengthy cross-examination of
            [Sharif], counsel argued the State's failure to produce Q
            equated to a failure of proof creating reasonable doubt.
            Importantly, defendants clearly used Q's absence from
            trial strategically for their benefits. There was no
            reason to surmise that calling Q as a defense witness
            would have been beneficial. We, therefore, conclude
            defendants have failed to demonstrate their counsels
            rendered substandard performance, as such they have
            not satisfied the Strickland/Fritz test.

            [Simmons, Nos. A-5565-11, A-1321-12 (slip op. at 14-
            15). ]

      Notably, defendant filed a habeas corpus petition in federal court, raising

similar claims, and that petition, too, was denied.

      On June 26, 2015, defendant filed a second PCR petition in which

defendant contended his first PCR counsel was ineffective due to his failure to


                                                                         A-1003-17T4
                                        9
interview Q. The court denied the second PCR petition on the grounds it was

time barred. Defendant subsequently moved for reconsideration, attaching an

updated certification from Q, dated November 8, 2016. He argued this updated

certification constituted newly discovered evidence and, therefore, he was

entitled to an evidentiary hearing. Q's 2016 certification stated, in relevant part:

            4. I have previously provided a [c]ertification in this
            case that did not fully explain what I saw the night
            Fahiym Phelps was killed.

            5. I was present when Phelps was shot. I had my back
            to him when I heard the shots.

            6. When the shots were fired, [defendant] was near me
            and we both ran behind my vehicle to hide.

            7. As I looked from my vehicle, [defendant] was
            behind me away from the shooting.

            8. We both saw people continue shooting as we hid.

            9. One of the shooters was dark skinned of average
            build and taller than me.

            10. The second shooter wore a grey hoodie. He was
            brown skinned and average build.

             11. I saw Sharif[] after the shooting. He came from
            around the side of the building and went to Fahiym.

            12. Based on my observations, I do not believe Sharif[]
            saw the individual who shot Fahiym.



                                                                            A-1003-17T4
                                        10
             13. I know that [defendant] did not shoot Fahiym
             because he was near me during the entire incident.

      Unquestionably, defendant's second PCR petition, which alleged

ineffectiveness of counsel, was time barred under Rule 3:22-12(a)(2), because

it was not filed within one year from the denial of defendant's first PCR petition

on August 1, 2012. Defendant's motion for reconsideration suffered from this

same lack of timeliness. Notably, the time bar set forth in Rule 3:22-12(a) may

not be relaxed or enlarged. R. 1:3-4(c); R. 3:22-12(b); see State v. Dillard, 208

N.J. Super 722, 727 (App. Div. 1986) (holding that the appeal of the defendant's

first PCR petition did not toll the time limitation of Rule 3:22-12); see also Rule

3:22-4(b)(confirming a second or subsequent petition for PCR shall be

dismissed unless . . . it is timely under R. 3:22-12(a)(2)).

      Even if defendant's second PCR petition and motion for reconsideration

were not subject to a time bar, we discern no error in the trial court's finding that

defendant failed to establish his claim of ineffective assistance of counsel.

Although defendant theorizes Q's information from 2016 would have come to

light if his first PCR counsel had interviewed Q, the record before us is devoid

of any evidence that such an interview would have benefitted defendant, for

reasons we have expressed in our earlier opinions. It is apparent that Q's 2016

certification, much like his earlier certification, was in the nature of

                                                                             A-1003-17T4
                                        11
impeachment evidence, in that it contradicted the trial testimony of other

eyewitnesses. However, such evidence is insufficient to demonstrate the verdict

at defendant's trial would have been different if Q had been interviewed by

defendant's first PCR counsel. Additionally, trial counsel used Q's absence from

trial tactically for the benefit of the defendants. Accordingly, the trial judge

reviewing defendant's second PCR petition committed no error in finding

defendant was unable to satisfy the Strickland/Fritz test.

      Lastly, we find no abuse of discretion in the denial of defendant's motion

for reconsideration. Reconsideration should be granted only in those rare

instances when a court's decision is based upon a profoundly incorrect or

irrational basis, or the court "either did not consider, or failed to appreciate the

significance of probative, competent evidence." Fusco v. Bd. of Educ. of City

of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002) (quoting D'Atria v.

D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). As defendant's second PCR

claims were time barred, the denial of defendant's motion for reconsideration

was appropriate.

      Defendant's remaining arguments lack sufficient merit to warrant

discussion in this opinion. R. 2:11-3(e)(2).

      Affirmed.


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                                        12
