                                NOT FOR PUBLICATION WITHOUT THE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-0148-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KHALID I. KHAN,

     Defendant-Appellant.
_____________________________

                    Submitted January 14, 2020 – Decided February 4, 2020

                    Before Judges Hoffman and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 12-03-0868.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Amira Rahman Scurato, Designated
                    Counsel, on the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Stephen Anton
                    Pogany, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, on the brief).

PER CURIAM
        Defendant Khalid Khan appeals from the denial of his petition for post-

conviction relief (PCR), contending trial counsel was ineffective, and the PCR

court improperly denied his petition without an evidentiary hearing. After a

review of the contentions in light of the record, we affirm.

                                           I.

        In March 2012, an Essex County grand jury returned an indictment

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

estranged wife (count one); fourth-degree unlawful possession of a sharp cutting

object, N.J.S.A. 2C:39-5(b) (count two); third-degree possession of a weapon

for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); and second-degree

endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count four).

        Defendant's then eight-year-old daughter, S.K.,1 lived with the estranged

wife, who is her mother. One night S.K. could not find her mother and called a

neighbor. The neighbor pried open a locked bathroom door, and found the

victim dead in the bathtub, with a cut to her neck. Defendant denied killing her.

        On February 4, 2013, the trial judge, who is also the PCR court, granted

defendant's motion to suppress two statements given prior to Miranda2 warnings,


1
    We use initials to protect the confidentiality of the parties.
2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                         A-0148-18T1
                                           2
and found admissible defendant's statement made after Miranda warnings were

given. Defendant also moved to preclude the introduction of prior bad acts

under Rule 404(b), which the judge granted in part.            The judge denied

defendant's motion to preclude a December 9, 2009 incident of domestic

violence, in which the victim stated defendant hit her.

      On October 4, 2013, a jury found defendant guilty on all charges. The

judge sentenced defendant to an aggregate term of fifty years imprisonment,

subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and five years

of parole supervision. We affirmed defendant's conviction and sentence. State

v. Khan, No. A-3856-13 (App. Div. Jan. 23, 2017) (slip op. at 3).               We

incorporate, by reference, the facts and conclusions stated in our prior opinion.

      Defendant filed a PCR petition pro se, and thereafter, assigned counsel

filed a twenty-five-page brief, an amended petition, and an affidavit of

defendant's daughter, S.K., alleging she did not recall telling the police that her

father killed her mother and she was told by law enforcement as well as her

mother's family that her father was the one who committed the murder. Through

counsel, defendant asserted his PCR counsel was constitutionally ineffective

because he "failed to specify any actual claims, failed to offer support for the




                                                                           A-0148-18T1
                                        3
claims and made only vague, generalized statements," in violation of his court -

imposed obligations under Rule 3:22-6(d).

      On June 11, 2018, the PCR court heard argument and issued an oral

decision. The PCR court analyzed the six claims asserted by defendant in his

petition seeking to vacate his conviction:

            (1)   trial counsel failed to investigate potential
                  favorable witnesses who could have exonerated
                  him;

            (2)   trial counsel coerced defendant not to testify;

            (3)   trial counsel failed to object to highly prejudicial
                  evidence during the trial;

            (4)   appellate counsel was ineffective for failing to
                  raise the above claims;

            (5)   the cumulative effect of trial and appellate
                  counsel's errors deprived defendant of his right to
                  counsel; and

            (6)   defendant is entitled to an evidentiary hearing.

      In its detailed decision, the PCR court found claims one and three were

procedurally barred because they were previously adjudicated on the merits.

Claim two was found to be expressly refuted by defendant's own statement

before the court at the close of the State's case. Defendant failed to show

ineffective assistance of counsel at the appellate level, and the PCR court


                                                                         A-0148-18T1
                                        4
emphasized appellate counsel had broader discretion than PCR counsel in

representing defendant, in rejecting claim four.

      The PCR court also found cumulative error, claim five, was not proven by

defendant. The PCR court noted the enduring hostile relationship between

defendant and his estranged wife, their prior domestic violence, including

assaults, and defendant's belief that she was attempting to keep S.K. from him.

In addition, the PCR court stated that defendant was an expert in knives, judo,

and served in the Army.

      As a result, the PCR court found no cause existed to warrant an evidentiary

hearing and, therefore, denied defendant's PCR petition because it failed to meet

the standard under Strickland v. Washington, 466 U.S. 668, 687 (1984).

      On appeal, defendant presents the following arguments:

            POINT ONE

            A NEW PCR PROCEEDING IS NECESSARY AS
            PCR COUNSEL FAILED TO RAISE SUPPORTED
            ARGUMENTS FOR DEFENDANT'S PETITION IN
            VIOLATION OF RULE 3:22-6(d). (Not Raised
            Below).

            POINT TWO

            THE PCR COURT ERRED IN DENYING THE
            DEFENDANT'S PETITION FOR PCR WITHOUT
            AFFORDING HIM AN EVIDENTIARY HEARING
            TO FULLY ADDRESS HIS CONTENTION THAT HE

                                                                         A-0148-18T1
                                       5
             FAILED TO RECEIVE                 ADEQUATE LEGAL
             REPRESENTATION AT                 THE TRIAL AND
             APPELLATE LEVELS.

                                         II.

      The standard for determining whether trial counsel's performance was

ineffective for purposes of the Sixth Amendment was formulated in Strickland

and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In

order to prevail on a claim of ineffective assistance of counsel, defendant must

meet the two-pronged test establishing both that: (1) 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 errors, the result of the proceeding would have been

different." Strickland, 466 U.S. at 687, 694.

      Rule 3:22-6(d) imposes an independent standard of professional conduct

upon an attorney representing a defendant in a PCR proceeding. State v. Hicks,

411 N.J. Super. 370, 376 (App. Div. 2010). In Hicks, it was determined that the

defendant failed to receive the benefit of his attorney's expertise, because the

attorney limited his performance to representing the arguments the defendant


                                                                             A-0148-18T1
                                         6
included in his own pro se petition. There was no evidence that the attorney

conducted a further evaluation to find other grounds to argue defendant's

conviction, and there were indications that PCR counsel had not reviewed his

file. Id. at 374. Under those circumstances, a remand was justified. Ibid.

      In turning to defendant's assertions that his PCR counsel was ineffective

because he "failed to specify any actual claims, failed to offer support for the

claims and made only vague, generalized statements," we conclude the

contention lacks merit. Our review of the record shows that PCR counsel

submitted a comprehensive twenty-five-page brief in support of PCR. Although

the PCR court rejected S.K.'s affidavit and found it did not constitute newly

discovered evidence, it evidences PCR counsel's diligent efforts under Rule

3:22-6(d). The PCR court also found defendant's counsel conducted a thorough

investigation. As is well-established, "a petitioner must do more than make bald

assertions that he was denied the effective assistance of counsel." State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

      The PCR court also addressed defendant's argument that his trial counsel

coerced him not to testify. During the trial, the judge elicited the following

testimony from defendant:




                                                                        A-0148-18T1
                                       7
COURT: Have you had the opportunity to speak to
your client regarding his right to testify on his own
behalf?

[COUNSEL]: I have, Your Honor.

COURT: He's made a decision not to testify?

[COUNSEL]: He has, Your Honor.

COURT: May I make inquiry of him?

[COUNSEL]: Please.

COURT: Good morning, Mr. Khan.

DEFENDANT: Good morning, sir.

COURT: Now, Mr. Khan, you do understand that as
the accused in this case you have a constitutional right
to testify in your own defense. Do you understand that?

DEFENDANT: Yes, sir.

COURT: Do you understand there's only one person in
this whole world who can make the decision as to
whether you should testify and that person is you?

DEFENDANT: Yes, sir.

COURT: Do you understand that?

DEFENDANT: Yes, sir.

COURT: Do you also understand - - I also take it and
I don't want to get into the specifics of the conversation,
but I take it that you've had the opportunity preceding
the trial during the course of the trial, to speak with

                                                              A-0148-18T1
                            8
            [counsel] about the possible advantages of testifying
            and the possible disadvantages, correct?

            DEFENDANT: Yes, sir.

            COURT: And after having those discussions it is you
            who has come to a decision not to testify?

            DEFENDANT: Yes, sir.

            COURT: That is a decision that you have come - -
            arrived at from - - that's a decision you made, correct?

            DEFENDANT: Yes, sir.

            COURT: From your own free will?

            DEFENDANT: Yes, sir.

            COURT: No one is forcing you?

            DEFENDANT: Yes, sir.

            COURT: Right now, are you under the influence of any
            drugs, alcohol or medication?

            DEFENDANT: No, sir.

            COURT: Thinking straight and clear?

            DEFENDANT: Yes, sir.

      We conclude the PCR court appropriately found no merit to defendant's

contention that he was coerced not to testify at trial. Moreover, defendant has

not stated what meritorious issue should have been raised by PCR counsel. We


                                                                       A-0148-18T1
                                       9
are satisfied that defendant has not asserted a cognizable claim of inadequate

performance by PCR counsel under the Hicks test. See R. 3:22-4(b)(2)(C). We

are also satisfied from our review of the record that defendant failed to

demonstrate PCR counsel was ineffective under the Strickland/Fritz test.

      The PCR court also rejected defendant's claim that his appellate counsel

was ineffective for failing to argue his trial counsel was ineffective.         In

reviewing defendant's petition, the PCR court aptly found that it was "entirely

understandable" appellate counsel would deem claims one (trial counsel failed

to investigate potential favorable witnesses who could have exonerated him),

and two (trial counsel coerced defendant not to testify), lack substantive merit.

We agree. The PCR court discussed the alleged errors in light of the State's

evidence and found that defendant's trial counsel utilized the strategies now

advanced in hindsight by defendant. Post-trial and post-appeal disagreement

with strategy do not constitute ineffective assistance of counsel.      State v.

Castagna, 187 N.J. 293, 314-15 (2006).

      We find no error in denying defendant an evidentiary hearing as the PCR

court correctly found that there was no showing of a prima facie case of

ineffective assistance of counsel because it was clear from the record that

defendant's individual claims lacked merit, and there was no cumulative error.


                                                                         A-0148-18T1
                                      10
See State v. Preciose, 129 N.J. 451, 462 (1992); State v. Wakefield, 190 N.J.

397, 538 (2007). The PCR court delineated its sound reasons in a careful and

thorough decision. Because defendant has not demonstrated a prima facie case

of ineffective assistance of counsel, he was not entitled to an evidentiary

hearing.

      Affirmed.




                                                                     A-0148-18T1
                                    11
