                                NOT FOR PUBLICATION WITHOUT THE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-2743-18T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

STANLEY L. HOLMES,

     Defendant-Appellant.
_______________________

                   Argued telephonically May 6, 2020 –
                   Decided June 3, 2020

                   Before Judges Koblitz, Whipple and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 03-01-0032.

                   Laura A. Cohen argued the case for appellant
                   (Rutgers Criminal and Youth Justice Clinic, attorneys;
                   Laura A. Cohen, on the briefs).

                   Edward F. Ray argued the cause for respondent
                   (Mark Musella, Bergen County Prosecutor, attorney;
                   Edward F. Ray, Assistant Prosecutor, of counsel and on
                   the brief).
PER CURIAM

      Defendant Stanley L. Holmes appeals from the January 14, 2019 order

denying his second petition for post-conviction relief (PCR) because he filed the

application many years after the time allowed under Rule 3:22-12(a)(2). After

reviewing the merits of defendant's claim as well as the time restrictions for

filing a second PCR petition, we affirm.

      Defendant was indicted in 2003 as the getaway driver for a home invasion

that resulted in the shooting death of one of the homeowners, Nathan Johnson.

Defendant went to trial twice. The first jury found defendant not guilty of

murder, conspiracy to commit armed robbery, felony murder, and two gun

charges. The jury was unable to reach a verdict on the charges of first-degree

armed robbery, second-degree burglary and first-degree kidnapping. Defendant

filed an unsuccessful motion to dismiss the indictment on double jeopardy

grounds.

      A second trial resulted in a guilty verdict on all remaining charges.

Defendant was sentenced in 2005 to an aggregate term of thirty-five years in

prison, subject to an eighty-five percent parole ineligibility under the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2.         We affirmed on direct appeal,

concluding that defendant's second trial did not violate the prohibition against

                                                                        A-2743-18T4
                                       2
double jeopardy nor, we said in passing, collateral estoppel. State v. Holmes,

No. A-3429-04 (App. Div. Aug. 1, 2007) (slip op. at 11-13), certif. denied, 194

N.J. 268 (2008). Without analysis, we cited to State v. Triano, 147 N.J. Super.

474, 475-76 (App. Div. 1974), where we held that that a retrial on the third count

of an indictment after an acquittal on the first two counts was not precluded by

collateral estoppel because the second trial was a continuation of the first trial

with regard to the third count. Ibid. Three years later we affirmed the denial of

defendant's first PCR petition. State v. Holmes, No. A-0483-09 (App. Div. Nov.

3, 2010) (slip op. at 1), certif. denied, 205 N.J. 273 (2011).

      Defendant sought habeas corpus relief in the federal courts, which was

denied, as was his appeal on January 18, 2017. Holmes v. Holmes,1 675 F. App'x

157, 158 (3d Cir. 2017).       Because the Court of Appeals determined that

defendant failed to raise the claim that his convictions violated the Fifth

Amendment's Double Jeopardy Clause collateral estoppel rule in the New Jersey

State court, it found a failure to exhaust state remedies. Id. at 161.

      Defendant raises the following issues on appeal:

            POINT I: APPELLANT'S SECOND PETITION FOR
            [PCR] WAS TIMELY FILED PURSUANT TO
            R[ULE] 3:22-12(a)(2).

1
  The defendant was Christopher Holmes, Attorney General of the State of New
Jersey.
                                                                         A-2743-18T4
                                         3
             A.  THE APPLICABLE TIME LIMITATION IS
             THAT OF R[ULE] 3:22(a)(2)(B).

             1.  THE   DOCTRINE  OF   COLLATERAL
             ESTOPPEL BARRED THE RE-TRIAL OF MR.
             HOLMES.

             2.   BECAUSE    MR.   HOLMES'    TRIAL,
             APPELLATE, AND [PCR] ATTORNEYS FAILED
             TO ASSERT THAT THE DOCTRINE OF
             COLLATERAL ESTOPPEL BARRED HIS RE-
             TRIAL,   HE   WAS   DENIED    EFFECTVE
             ASSISTANCE OF COUNSEL AT EVERY STAGE OF
             THE PROCEEDINGS AGAINST HIM.

             3.   THE REPETITIVE INEFFECTIVENESS OF
             MR. HOLMES' COUNSEL RENDERS HIS SECOND
             PCR PETITION TIMELY FILED PURSUANT TO
             R[ULE] 3:22-12(a)(2)(B).

             4.  THIS PETITION ALSO WAS TIMELY FILED
             PURSUANT TO R[ULE] 3:22-12 (a)(2)(C).

             POINT II: DISMISSAL OF THE PCR PETITION
             VIOLATED THE DOCTRINE OF FUNDAMENTAL
             FAIRNESS.

      Rule 3:22-12(a)(2)(C) states that unless otherwise provided, "no second

. . . petition shall be filed more than one year after the latest of . . . the date of

the denial of the first . . . application for [PCR] where ineffective assistance of

counsel that represented defendant on the first . . . application for [PCR] is being

alleged." Rule 3:22-12(b) prohibits relaxation of this timeframe except under


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                                          4
circumstances delineated in the Rule. State v. Jackson, 454 N.J. Super. 284, 293

(App. Div. 2018).

      Defendant argues that Rule 3:22-12(a)(2)(B) allows his delayed second

PCR. That section of the Rule allows the filing of a second PCR petition within

one year of "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." R. 3:22-12(a)(2)(B). Defendant

argues that because he argued the ineffective assistance of all prior counsel, not

just counsel on his first PCR petition, he had one year from discovering his

collateral estoppel argument to file a second PCR petition. All prior counsel

had argued his second trial was barred by principles of double jeopardy, not

collateral estoppel.

      The State argues we should affirm because defendant's second PCR

petition was time-barred. Defendant seeks a remand with direction to the trial

court to consider his collateral estoppel argument. Defendant argues that the

jury's not guilty decision on felony murder required the dismissal of the

underlying felonies because the jury could only have formed a reasonable doubt

with regard to the felony murder charge if it had a reasonable doubt as to the




                                                                         A-2743-18T4
                                        5
underlying felonies.    He argues his second trial was therefore collaterally

estopped.

      The collateral estoppel rule "means simply that when an issue of ultimate

fact has once been determined by a valid and final judgment, that issue cannot

again be litigated between the same parties in any future lawsuit." Ashe v.

Swenson, 397 U.S. 436, 443 (1970). An acquittal does not resolve the issue.

            Where a previous judgment of acquittal was based upon
            a general verdict, as is usually the case, this approach
            requires a court to "examine the record of a prior
            proceeding, taking into account the pleadings,
            evidence, charge, and other relevant matter, and
            conclude whether a rational jury could have grounded
            its verdict upon an issue other than that which the
            defendant seeks to foreclose from consideration."

            [Id. at 444 (quoting Daniel K. Mayers & Fletcher L.
            Yarbrough, Bis Vexari: New Trials and Successive
            Prosecutions, 74 Harv. L. Rev. 1, 38-39 (1960)).]

      At our direction, defense counsel supplied us with the transcript of the

first trial, which resulted in an acquittal on the felony murder charge. The Court

of Appeals decision noted that defendant sought to introduce that transcript in

his federal action. Holmes, 675 F. App'x at 159.

      In the first trial, the court charged the jury:

                  In order for you to find the defendant Mr. Holmes
            guilty of felony murder in this case, the State [must]
            prove [beyond a] reasonable doubt that . . .

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                                          6
      the victim's death was a probable consequence of the
      commission of a robbery or flight after committing the
      robbery, burglary, and/or kidnapping.

            In order for the death to be a probable
      consequence of the robbery, burglary, and/or
      kidnapping, the death must not . . . have been too
      remote or too accidental in its occurrence, or too
      dependent on another's volitional acts to have a just
      bearing on the defendant's liability or the gravity of his
      offense.

      [See Model Jury Charges (Criminal), "Felony Murder –
      Non-Slayer Participant (N.J.S.A. 2C:11-3(a)(3))" (rev.
      Mar. 22, 2004).]

The trial court repeated that charge before continuing:

            In other words, you must decide if the State has
      proven beyond a reasonable doubt that, under all the
      circumstances, the death did not occur in such an
      unexpected or unusual manner that it would be unjust
      to find Mr. Holmes responsible for the death of the
      victim Mr. Johnson.

            Now, under [N.J.S.A. 2C:11-3(a)(3),] which
      applies here, it is an affirmative defense to the charge
      of felony murder if there is proof in the case that the
      defendant:

            (a) Did not commit the homicidal act or in any
      way solicit, request, command, importune, cause, or aid
      the commission thereof; and,

            (b) Was not armed with a deadly weapon or any
      instrument, article, or substance readily capable of
      causing death or serious physical injury, and of a sort

                                                                   A-2743-18T4
                                  7
            not ordinarily carried in public places, or by law-
            abiding persons; and,

                  (c) Had no reasonable ground to believe that any
            other participant was armed with such a weapon,
            instrument, article, or substance; and,

                  (d) Had no reasonable ground to believe that any
            other participant intended to engage . . . in the death or
            serious injury to Mr. Johnson.

                  This means that the affirmative defense is not
            available to Mr. Holmes unless there is evidence in the
            case supporting all those four requirements that we just
            went over; not one or two or three of them, but all four.

                   If there is supporting evidence, either in the
            State's proofs or as presented on behalf of the
            defendant, then it is incumbent upon the State to negate
            this evidence by proof beyond a reasonable doubt.

            [Ibid.]

      Thus, at defendant's first trial the jury was told that defendant must be

found not guilty of felony murder if either defendant had demonstrated the

affirmative defense of attenuation, which was not then disproved by the State,

or if the State could not prove that the death was a probable consequence of one

of the felonies charged. See State v. Martin, 119 N.J. 2, 16-18 (1990). When

the jury found defendant not guilty of felony murder, therefore, it did not

necessarily find that defendant did not commit the underlying felonies.



                                                                          A-2743-18T4
                                        8
      Defendant's argument that collateral estoppel dictates that a verdict of not

guilty on the felony murder charge precludes a retrial on the underlying felonies

is not consistent with the controlling law.         Defendant's argument that

fundamental fairness, or any other due process principle requires the expansion

of the time restrictions of Rule 3:22-12 is therefore unavailing.

      Affirmed.




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