                                NOT FOR PUBLICATION WITHOUT THE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-4460-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

PETER PAPASAVVAS,

     Defendant-Appellant.
________________________

                    Submitted October 3, 2019 – Decided October 16, 2019

                    Before Judges Alvarez and DeAlmeida.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 96-06-
                    0823.

                    Peter Papasavvas, appellant pro se.

                    Christopher L.C. Kuberiet, Acting Middlesex County
                    Prosecutor, attorney for respondent (David Michael
                    Liston, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Peter Papasavvas appeals from the May 4, 2018 order of the

Law Division denying his second petition for post-conviction relief (PCR)

without an evidentiary hearing. We affirm.

                                       I.

      At about 10:00 p.m. on April 25, 1996, a sixty-four-year-old woman

returned home to find defendant, clad only in a pair of boxer shorts, hiding in

her basement. Defendant was attempting to escape apprehension by police

officers investigating an unrelated matter.      To prevent the woman from

screaming, defendant tied a knotted belt or ligature around her face and neck,

distorting her mouth and interfering with her breathing.       After a struggle,

defendant threw the woman down the basement stairs, breaking her neck.

Defendant admitted he put his hands around the victim's neck, but claimed he

intended only to render her unconscious with a "sleeper hold" and she

accidentally fell down the stairs after losing consciousness. Defendant sexually

assaulted the victim while she was motionless on the basement floor,

purportedly to determine if she was feigning unconsciousness. Before doing so,

he used a pair of scissors to cut the victim's clothing in very straight lines to

expose her private parts.




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      After killing the victim, defendant left a trail of incriminating evidence.

He called his home from the victim's telephone. The call was recorded on her

telephone bill. Defendant stole the victim's car and went to New York City,

where he used the victim's credit cards to entertain a girlfriend. It is undisputed

defendant left the victim's home shortly after 11:00 p.m. on April 25, 1996. At

12:07 a.m. on April 26, 1996, defendant made a phone call using the victim's

calling card from near the Holland Tunnel.

      At trial, defendant's counsel did not deny defendant caused the victim's

death, but sought to prove he lacked the mental state required to commit murder.

Defendant presented an expert who opined that because of a brain injury

suffered in a motorcycle accident, defendant did not act in a purposeful and

knowing manner when causing the victim's death. His counsel argued defendant

placed the belt around the victim's mouth to silence her, not to kill her, and the

fall down the basement stairs was accidental. The medical examiner testified

the cause of death was assault "compounded by strangulation both manual and

ligature."

      A jury convicted defendant of first-degree murder, N.J.S.A. 2C:11-3(a)(1)

and (2); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); second-degree

burglary, N.J.S.A. 2C:18-2; second-degree robbery, N.J.S.A. 2C:15-1, third-


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                                        3
degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3, third-degree theft,

N.J.S.A. 2C:20-3, and fourth-degree unlawful theft or receipt of a credit card,

N.J.S.A. 2C:21-6(c).      Defendant was sentenced to death on the murder

conviction and received a term of incarceration on the noncapital counts.

      In 2000, the Supreme Court affirmed defendant's conviction and death

sentence. State v. Papasavvas, 163 N.J. 565 (2000). The Court, however,

remanded for resentencing on the noncapital counts. Defendant was resentenced

on the noncapital counts and, following a second appeal, was resentenced on

those counts a second time. At the second resentencing, the court: (1) merged

the felony murder conviction into the murder conviction; (2) imposed an

extended twenty-year sentence with a ten-year period of parole ineligibility on

the burglary conviction to run consecutive to the sentence on the murder

conviction; (3) merged the theft and credit card convictions into the robbery

conviction, on which the court imposed a concurrent ten-year sentence with a

five-year period of parole ineligibility; and (4) imposed a concurrent five-year

sentence with a two-and-a-half-year period of parole ineligibility on the criminal

sexual contact conviction.

      In 2002, the Supreme Court vacated defendant's death sentence on

proportionality review.    State v. Papasavvas, 170 N.J. 462, 495-96 (2002).


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                                        4
Defendant was resentenced to life imprisonment with a thirty-year period of

parole ineligibility on the murder conviction to run consecutively with the

extended twenty-year sentence with a ten-year period of parole ineligibility on

the burglary conviction. The concurrent sentences for robbery and criminal

sexual contact were unchanged.

      In 2004, defendant's first PCR petition was denied without an evidentiary

hearing. We affirmed. State v. Papasavvas, No. A-6302-03 (App. Div. Mar. 21,

2006). The Supreme Court denied defendant's petition for certification. State

v. Papasavvas, 186 N.J. 608 (2006).

      In 2013, defendant filed a second PCR petition. He withdrew the second

petition in 2014 and filed a motion for post-conviction DNA testing pursuant to

N.J.S.A. 2A:84A-32a. He sought to test the belt placed around the victim's

mouth and neck, which he denied having placed there. He argued the DNA test

would prove the ligature was put on the victim either by police to make the

murder scene more gruesome or by a perpetrator who killed the victim after

defendant left her house. The motion was denied. We affirmed. State v.

Papasavvas, No. A-5146-13 (App. Div. Oct. 27, 2016). The Supreme Court

denied defendant's petition for certification. State v. Papasavvas, 230 N.J. 408

(2017).


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                                       5
      In 2017, defendant filed the PCR petition presently before the court.

Defendant argues he was denied effective assistance of trial, appellate, and PCR

counsel when each failed to acquire the victim's death certificate, which he

argues creates reasonable doubt about his responsibility for the murder. In

support of his argument, defendant relies on an uncertified copy of the death

certificate, which indicates it should not be used for legal purposes, and lists the

date of the victim's death as April 26, 1996. Defendant notes the medical

examiner testified at trial he arrived at the victim's home at approximately 7:05

p.m. on April 26, 1996, declared the victim dead, and estimated her time of death

as approximately twelve hours earlier, 7:05 a.m. on April 26, 1996.              It is

undisputed defendant was in New York City by 7:05 a.m. on April 26, 1996.

      Defendant argues it is common knowledge death by strangulation occurs

immediately and, therefore, the death certificate, if it had been presented at trial,

would have raised reasonable doubt in the minds of the jurors with respect to

whether defendant killed the victim. Defendant notes he consistently denied

tying a belt around the victim's mouth and neck. He points out a police report

states residents a few miles from the crime scene reported to police on the

morning of April 26, 1996, after defendant left the victim's home, and prior to

the discovery of her body, a man was going door to door saying he was looking


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                                         6
for a serial killer. Police dropped their investigation of this person, who they

identified as having a criminal record.

      Finally, defendant argues his second petition is not time barred because

under Rule 3:22-12(a)(2)(B), the factual predicate for the petition could not have

been discovered in a timely fashion through reasonable diligence before the

filing deadline for his direct appeal, first petition, or second petition because

defendant suffers from a mental defect and should not be held to the same

standard as an average defendant.         Defendant sought appointed counsel to

represent him on the second petition. The State argues the petition is time barred

under Rule 3:22-4(b) and Rule 3:22-12(a)(2).1

      On May 4, 2018, Judge Diane Pincus issued a comprehensive written

opinion dismissing defendant's second PCR petition and denying his request for

the appointment of counsel. Judge Pincus concluded the petition, to the extent

it alleges ineffective assistance by trial and appellate counsel, was untimely

because the claims in the petition could have been raised in defendant's direct

appeal or first petition. See Rule 3:22-4(a). The court rejected defendant's

argument the second petition was timely under Rule 3:22-4(a), concluding he



1
  The parties agree the petition should be considered defendant's second PCR
petition because he withdrew his 2013 petition.
                                                                          A-4460-17T2
                                          7
offered no evidence to support his claim he was unable to uncover the victim's

death certificate prior to filing his direct appeal or first PCR petition.        In

addition, the court noted even if defendant could establish a mental incapacity,

he was represented by competent counsel at trial and for his first PCR petition.

      The court also concluded to the extent defendant's second petition alleges

ineffective assistance of counsel for his first PCR petition, his second PCR

petition was untimely under Rule 3:22-4(b) and Rule 3:22-12(a)(2). Those

provisions require a second PCR petition alleging ineffective assistance of

counsel in a first PCR petition be filed no later than one year after the denial of

the first petition. Here, defendant's first PCR petition was denied on May 21,

2004, a decision we affirmed in March 2006. His second PCR petition was filed

on June 13, 2017, more than eleven years later. In addition, the court concluded

defendant did not establish entitlement to an extension of the filing deadline

under Rule 3:22-12(a)(2)(B) because of an inability to uncover the death

certificate in a timely fashion.

      Finally, Judge Pincus concluded defendant did not make a prima facie

showing of ineffective assistance of trial, appellate, or PCR counsel warranting

an evidentiary hearing. The court found that, at trial, defendant's expert testified

manual strangulation and the fall down the basement stairs killed the victim.


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                                         8
This is consistent with defendant's admission that during a burglary he put his

hands around the victim's neck to put her in a "sleeper hold" and ac cidentally

allowed her to fall down the basement stairs once she was unconscious. The

court concluded regardless of the victim's time of death, defendant's admitted

violent acts against the victim made him criminally liable for her death. Thus,

the court found trial counsel's decision not to pursue an alibi defense based on

the time of death was not outside the range of professionally competent

assistance. The judge described defendant's arguments as "wholly frivolous."

      This appeal followed. Defendant makes the following argument for our

consideration:

             THE PCR COURT ERRED IN DENYING
             DEFENDANT'S SECOND PETITION FOR POST-
             CONVICTION RELIEF (PCR) WITHOUT A
             HEARING, AS HE ALLEGED A PRIMA FACIE
             CLAIM OF INEFFECTIVE ASSISTANCE OF FIRST
             PCR COUNSEL PURSUANT TO R. 3:22-[4](b)(2)(C).

                                         II.

      "Post-conviction relief is New Jersey's analogue to the federal writ of

habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-

2(a), a defendant is entitled to post-conviction relief if there was a "[s]ubstantial

denial in the conviction proceedings of defendant's rights under the Constitution

of the United States or the Constitution or laws of the State of New Jersey. . . ."

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                                         9
"A petitioner must establish the right to such relief by a preponderance of the

credible evidence." Preciose, 129 N.J. at 459. "To sustain that burden, specific

facts" that "provide the court with an adequate basis on which to rest its

decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

      The Sixth Amendment to the United States Constitution and Article I,

Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the

right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610

(2014) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984); State v.

Fritz, 105 N.J. 42, 58 (1987)). To succeed on a claim of ineffective assistance

of counsel, the defendant must meet the two-part test established by Strickland,

and adopted by our Supreme Court in Fritz. 466 U.S. at 687; 105 N.J. at 58.

      Under Strickland, a defendant first must show his or her attorney made

errors "so serious that counsel was not functioning as the 'counsel' guaranteed

the defendant by the Sixth Amendment."          466 U.S. at 687.      Counsel's

performance is deficient if it "[falls] below an objective standard of

reasonableness." Id. at 688.

      A defendant also must show counsel's "deficient performance prejudiced

the defense." Id. at 687. A defendant must establish "there is a reasonable

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


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                                      10
proceeding would have been different." Id. at 694. "A reasonable probability

is a probability sufficient to undermine confidence in the outcome" of the trial.

Ibid.     "[A] court need not determine whether counsel's performance was

deficient before examining the prejudice suffered by the defendant as a result of

the alleged deficiencies."      Id. at 697.    "If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be followed." Strickland, 466 U.S.

at 697.

        In addition, "[o]ur Supreme Court has reaffirmed and 'emphasized the

important policy' underpinning the requirement that PCR petitions be timely

filed . . . ." State v. Brown, 455 N.J. Super. 460, 470 (App. Div. 2018) (quoting

State v. McQuaid, 147 N.J. 464, 485 (1997)). As we explained,

              we hold that a PCR judge has an independent, non-
              delegable duty to question the timeliness of the petition,
              and to require that defendant submit competent
              evidence to satisfy the standards for relaxing the rule's
              time restrictions pursuant to Rule 3:22-12. Absent
              sufficient competent evidence to satisfy this standard,
              the court does not have the authority to review the
              merits of the claim.

              [Ibid.]

        Having carefully reviewed the record in light of the applicable legal

principles, we conclude defendant's arguments are without sufficient merit to

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                                         11
warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm the May 4,

2018 order of the Law Division for the reasons stated by Judge Pincus in her

thorough and well-reasoned written opinion.

      Affirmed.




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                                     12
