                                NOT FOR PUBLICATION WITHOUT THE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-5206-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ABDUL J. WEBSTER,

     Defendant-Appellant.
________________________

                    Submitted August 28, 2019 – Decided September 25, 2019

                    Before Judges Alvarez and Gooden Brown.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 11-08-1342.

                    Abdul J. Webster, appellant pro se.

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Stephanie Davis Elson, Assistant
                    Prosecutor, on the brief).

PER CURIAM
      Defendant appeals from the June 22, 2018 Law Division order, denying

his second petition for post-conviction relief (PCR) without an evidentiary

hearing, raising the following single point for our consideration:

             DEFENDANT[']S RIGHT TO DUE PROCESS OF
             LAW AS GUARANTEED BY THE FOURTEENTH
             AMENDMENT TO THE UNITED STATES
             CONSTITUTION AND ART. [I], [PARAGRAPH
             TEN] OF THE NEW JERSEY CONSTITUTION WAS
             VIOLATED BY THE PCR COURT[']S REFUSAL TO
             HOLD A SECOND [PCR] EVIDENTIARY HEARING
             TO ADJUDICATE . . . DEFENDANT[']S CLAIM
             THAT HE WAS DENIED EFFECTIVE ASSISTANCE
             OF COUNSEL.

We affirm.

      We incorporate by reference the facts and procedural history set forth at

length in our order summarily affirming the denial of defendant's first PCR

petition, State v. Webster, No. A-4744-15 (App. Div. Feb. 15, 2018), and in our

unpublished decision affirming his drug related convictions and sentence

following his direct appeal. State v. Webster, No. A-3890-12 (App. Div. Feb.

23, 2015), certif. denied, 222 N.J. 17 (2015). We briefly summarize those facts

to lend context to the present appeal.

      On April 22, 2011, Jersey City police officers arrested defendant

following a narcotics investigation, during which the officers observed

defendant interact with several people, make some type of exchange with some

                                                                       A-5206-17T4
                                         2
of them, and approach a tree in the area a total of five times. A search incident

to defendant's arrest uncovered seven bags of heroin stamped "Elvis" and

approximately $185 in small denominations on defendant's person. The officers

also recovered additional bags of heroin stamped "Elvis" in the tree, as well as

empty bags stamped "Elvis" in a nearby alley defendant had entered and exited

with some of the individuals with whom he had interacted while under

surveillance.

      Following a jury trial, defendant was convicted of third-degree possession

of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-

degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and

(b)(3); and third-degree possession of CDS with intent to distribute within 1000

feet of school property, N.J.S.A. 2C:35-7.1        After appropriate mergers,

defendant was sentenced to a mandatory extended term of ten years'

imprisonment with a five-year period of parole ineligibility.




1
   On the State's motion, the trial court dismissed the charge of second-degree
possession of CDS with intent to distribute within 500 feet of public housing,
N.J.S.A. 2C:35-7.1., and the jury acquitted defendant of the additional charges
of fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a), fourth-degree obstructing
the administration of law, N.J.S.A. 2C:29-1, and third-degree aggravated assault
of a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a).
                                                                         A-5206-17T4
                                       3
      After we affirmed the convictions and sentence, and the Supreme Court

denied defendant's petition for certification, defendant filed his first PCR

petition on August 10, 2015, asserting trial counsel was ineffective by failing to

thoroughly investigate two purported witnesses, J.C. and J.R., thereby depriving

him of the opportunity to present their testimony at trial. In support, defendant

obtained notarized statements from the witnesses, who certified that the officers

did not remove any narcotics from defendant's pockets during his arrest.

However, on May 12, 2016, the PCR court denied defendant's petition without

an evidentiary hearing, and we affirmed the denial.

      In an oral decision, the PCR court concluded that 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). 2

Specifically, the court found that defense counsel's representation was not

deficient because, in addition to personally attempting to locate the two

witnesses, defense counsel had submitted a comprehensive investigation request



2
   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-5206-17T4
                                        4
to his investigator in an effort to locate and interview them. The court also

determined that even if J.C. and J.R. had testified at trial, the result would not

have been different since their purported testimony was not clearly exculpatory

and the proofs against defendant, which included police observations and video

surveillance, were overwhelming.

      On May 29, 2018, defendant filed his second PCR petition, which is the

subject of this appeal. In his petition, defendant asserted that his trial counsel

was ineffective by failing to investigate or subpoena two additional witnesses,

Ja.C. and C.R., to ascertain the nature of their interactions with defendant at the

time in question.    According to defendant, these purported witnesses were

identified in police reports provided in discovery as individuals with whom

defendant had interacted in the nearby alley. However, searches conducted by

police immediately after these individuals exited the alley uncovered no drugs,

and Ja.C. allegedly advised police he had simply asked defendant for directions.

Despite acknowledging that Ja.C. and C.R. were "characterized" in "[p]olice

reports and trial testimony" as "lacking candor[,]" defendant asserted that their

testimony could have supported his defense that he was not selling heroin and

rebutted the State's contrary version.       Defendant also asserted in his PCR




                                                                           A-5206-17T4
                                         5
petition that his appellate and PCR counsel were ineffective for failing to raise

trial counsel's failure to investigate Ja.C. and C.R.

      On June 22, 2018, in a written decision, the PCR court denied defendant's

petition on the papers. Applying Rule 3:22-6(b), the PCR court explained that

"a second petition for [PCR] is reviewed differently than . . . the first

application" and that "'[u]pon any second or subsequent petition . . . attacking

the same conviction, the matter shall be assigned to the Office of the Public

Defender only upon . . . [a] showing of good cause.'" Noting that "'good cause

exists only when the court finds that a substantial issue of fact or law requires

assignment of counsel and when a second . . . petition alleges on its face a basis

to preclude dismissal under [Rule] 3:22-4[,]'" the PCR court concluded that

defendant failed to demonstrate "good cause," and his petition was procedurally

barred. The court entered a memorializing order and this appeal followed.

      "Procedural bars exist in order to promote finality in judicial

proceedings."   State v. McQuaid, 147 N.J. 464, 483 (1997).         To that end,

pursuant to Rule 3:22-4,

            [a] second or subsequent petition for post-conviction
            relief shall be dismissed unless:

            (1) it is timely under [Rule] 3:22-12(a)(2); and

            (2) it alleges on its face either:

                                                                          A-5206-17T4
                                         6
                  (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
                  . . . application for [PCR].

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

      Rule 3:22-12(a)(2) delineates the requirements for filing a timely second

petition for PCR as follows:

            Notwithstanding any other provision in this rule, no
            second . . . 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


                                                                       A-5206-17T4
                                        7
            (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 . . . application for
            post-conviction relief where ineffective assistance of
            counsel that represented the defendant on the first . . .
            application for post-conviction relief is being alleged.

      Here, defendant correctly points out that in analyzing his IAC claim, the

PCR court mistakenly referred to J.C. and J.R., the two purported witnesses

identified in his first PCR petition, instead of Ja.C. and C.R., the potential

witnesses involved in this appeal. Nonetheless, defendant's second PCR petition

is untimely under Rule 3:22-12(a)(2)(C) because although defendant alleged

ineffective assistance of counsel who represented him in his first PCR petition,

defendant failed to file his second PCR petition within one year of the order

denying his first. Indeed, notwithstanding any appeal, defendant's first petition

was denied in May, 2016, and his second petition was filed on May 29, 2018.

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). Moreover, defendant claims no newly recognized constitutional

right, R. 3:22-12(a)(2)(A), and asserts no recently discovered previously

unknown factual predicate for the relief sought. R. 3:22-12(a)(2)(B). In fact,


                                                                            A-5206-17T4
                                         8
as defendant concedes, Ja.C. and C.R. were identified "at the time of the

arraignment" through police reports.

      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). State v. Jackson, 454 N.J. Super. 284, 292

(App. Div.), certif. denied, 236 N.J. 35 (2018) (citations omitted). 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, "[b]y mandating in Rule 3:22-

12(a)(2) that the one-year time limit applied '[n]otwithstanding any other

provision of this rule,' the Supreme Court made clear that the late filing of a

second . . . PCR petition could not be excused in the same manner as the late

filing of a first PCR petition." Jackson, 454 N.J. Super. at 293 (quoting R. 3:22-

12(a)(2)).   Thus, contrary to defendant's argument, neither a showing of

"'excusable neglect'" nor any resulting "'fundamental injustice'" excuses a late

filing of a second PCR petition under Rule 3:22-12(a)(2). Id. at 293-94 (quoting

R. 3:22-12(a)(1)(A)).

      We also reject defendant's contention that the PCR court erred by not

conducting an evidentiary hearing. While a claim of IAC is subject to "a de

novo review of both the factual findings and legal conclusions of the PCR


                                                                           A-5206-17T4
                                        9
court[,]" State v. Harris, 181 N.J. 391, 419 (2004), (alteration in original)

(citation omitted), "we review under the abuse of discretion standard the PCR

court's determination to proceed without an evidentiary hearing."            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.'" Ibid. (quoting State v. Marshall, 148 N.J. 89, 158 (1997)

(alteration in original)).

      Here, the PCR court correctly concluded that an evidentiary hearing was

not warranted and we discern no abuse of discretion, particularly since defendant

provided no supporting certifications to establish a prima facie claim of IAC,

and to support his contention that Ja.C. and C.R. would have "counter[ed] or

neutraliz[ed]" the testimony of the police witnesses. See State v. Cummings,

321 N.J. Super. 154, 170 (App. Div. 1999) ("[I]n order to establish a prima facie

claim [of IAC], a petitioner must do more than make bald assertions that he was

denied the effective assistance of counsel. He must allege facts sufficient to

demonstrate counsel's alleged substandard performance"); State v. Porter, 216

N.J. 343, 353 (2013) ("[W]hen a petitioner claims his trial attorney inadequately

investigated his case, he must assert the facts that an investigation would have


                                                                              A-5206-17T4
                                         10
revealed, supported by affidavits or certifications based upon the personal

knowledge of the affiant or the person making the certification") (quoting

Cummings, 321 N.J. Super. at 170) (alteration in original).

      Affirmed.




                                                                    A-5206-17T4
                                      11
