                                NOT FOR PUBLICATION WITHOUT THE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-3948-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ENOCK TELLUS, a/k/a ENOCH
TELLUS, ENOCH JELLUS,
KANNYE JOHNSON, MELVIN,
MARIO TELLUS, EMOCK
TELLUS, VLADMIR TELLUS,
and VLADYMIR TELLUS,

     Defendant-Appellant.
_______________________________

                    Submitted November 18, 2019 – Decided January 9, 2020

                    Before Judges Messano and Vernoia.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 05-05-0590.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Monique D. Moyse, Designated Counsel, on
                    the brief).

                    Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                    attorney for respondent (Michele C. Buckley, Special
            Deputy Attorney General/Acting Assistant Prosecutor,
            of counsel and on the brief).

            Appellant filed a pro se supplemental brief.

PER CURIAM

      A jury convicted defendant Enock Tellus of first-degree murder and

related weapons offenses in the 2004 shooting death of Clark "Biggie" Simon in

the Oasis Bar in Elizabeth. The judge sentenced defendant to an aggregate forty-

five-year term of imprisonment, subject to the No Early Release Act, N.J.S.A.

2C:43-7.2. State v. Tellus, No. A-6652-06 (App. Div. March 2, 2010) (Tellus

I) (slip op. at 1–2). Defendant appealed, arguing the trial judge's failure to

provide a passion/provocation manslaughter charge was reversible error and the

sentence was excessive. Id. at 7. We affirmed defendant's conviction and

sentence, id. at 26, and the Supreme Court denied certification. State v. Tellus,

202 N.J. 45 (2010).

      Defendant filed a post-conviction relief (PCR) petition alleging trial

counsel provided ineffective assistance (IAC) by failing to, among other things,

properly investigate the case and produce alibi witnesses at trial. State v. Tellus,

No. A-1897-12 (App. Div. Dec. 3, 2014) (Tellus II) (slip op. at 3–4). The PCR

judge denied the petition without an evidentiary hearing, concluding, in part,

that "[[d]efendant] has not provided a sufficient factual basis to determine that

                                                                            A-3948-17T4
                                         2
more investigation by trial counsel was warranted. No affidavits or certificates

were submitted which in any way indicate that the enumerated witnesses had

any evidence helpful to [defendant]." Id. at 5 (first alteration in original). We

affirmed the PCR judge's order. Id. at 11. The Court denied defendant's petition

for certification. State v. Tellus, 221 N.J. 287 (2015). 1

      In 2015, defendant filed a pro se second PCR petition, and the Law

Division judge appointed counsel to represent him. Among the issues raised in

the petition and brief were two specific IAC claims:          1) counsel failed to

properly investigate and call potential alibi witnesses; and 2) counsel failed to

object to trial testimony that referenced defendant's pre-trial incarceration in the

county jail. Judge Regina Caulfield, who was not the trial judge or first PCR

judge, considered oral argument and denied the petition without an evidentiary

hearing. This appeal followed.

      Before us, defendant raises the following points for our consideration:




1
   Additionally, defendant's pro se habeas corpus petition was denied by the
federal district court. Tellus v. New Jersey, No. 14-3121, 2018 U.S. Dist.
LEXIS 76297 (D.N.J. May 7, 2018).



                                                                            A-3948-17T4
                                         3
              POINT ONE

              [DEFENDANT]     IS   ENTITLED    TO    AN
              EVIDENTIARY HEARING ON HIS CLAIM THAT
              HIS ATTORNEY RENDERED INEFFECTIVE
              ASSISTANCE . . . BY FAILING TO OBJECT TO
              PREJUDICIAL TESTIMONY THAT HE WAS
              INCARCERATED, OR ASK FOR A LIMITING
              INSTRUCTION ON THIS ISSUE, AND FAILING TO
              INVESTIGATE AND PRESENT WITNESSES. [2]

              POINT TWO

              THIS MATTER MUST BE REMANDED FOR
              FINDINGS OF FACT AND CONCLUSIONS OF
              LAW ON [DEFENDANT'S] PRO SE CLAIMS.

In a supplemental pro se brief, defendant argues:

              POINT I

              TRIAL COUNSEL AND APPELLA[TE] COUNSEL
              W[ERE] INEFFECTIVE FOR NOT INVESTIGATING
              THE INCONSIST[E]NT STATEMENTS FROM
              [THREE TRIAL WITNESSES], FOR EACH ONE OF
              THESE WITNESSES . . . LIED AND FABRICATED
              THEIR STORIES TO THE UNION COUNTY
              PROSECUTORS AS TO THE TRUE EVENTS THAT
              [O]CCURRED ON NOVEMBER 5, 2005[,] AT THE
              OASIS BAR.

              POINT II

              STATE PROSECUTOR . . . MADE INCRIMINATING
              REMARKS DURING HIS OPENING FOR THE

2
    We have eliminated the subpoints in defendant's brief.


                                                             A-3948-17T4
                                        4
            STATE AS WELL AS DURING CLOSING
            SUMMATION WHICH . . . CLEARLY PREJUDICED
            [DEFENDANT] BEFORE THE JURORS. (Not Raised
            Below).[3]

      The State urges us to affirm substantially for the reasons expressed in

Judge Caulfield's comprehensive written opinion, including the judge's

conclusion that defendant' second PCR petition was procedurally barred.

Having considered these arguments in light of the record and applicable legal

standards, we conclude the petition was procedurally barred and affirm.

      "A second or subsequent petition for post-conviction relief shall be

dismissed unless . . . it is timely under Rule 3:22-12(a)(2)[.]" R. 3:22-4(b)(1).

Pursuant to Rule 3:22-12(a)(2):

            Notwithstanding any other provision in this rule, no
            second or subsequent 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



3
  In a third point, defendant generally asserts trial counsel provided ineffective
assistance in violation of defendant's state and federal constitutional rights.
                                                                          A-3948-17T4
                                        5
                    (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 or
                    subsequent application for post-conviction
                    relief where ineffective assistance of
                    counsel that represented the defendant on
                    the first or subsequent application for
                    post[-]conviction relief is being alleged.

The time limit cannot be relaxed or extended, even if a defendant alleges

excusable neglect caused the delay, or that enforcement of the time bar would

result in a fundamental injustice. State v. Jackson, 454 N.J. Super. 284, 291–94

(App. Div. 2018).

      Judge Caulfield correctly noted that the first PCR judge denied

defendant's PCR petition on August 27, 2012. The second petition was not filed

until May 21, 2015, nearly three years later. As a result, the petition was

untimely under Rule 3:22-12(a)(2)(C). Judge Caulfield also considered whether

the petition was cognizable under subsection (B), i.e., that it was, in the exercise

of reasonable diligence, filed within one year of the discovery of factual

predicates that occurred after August 27, 2012.

      The first aspect of defendant's IAC claim raised in Point I alleges trial

counsel provided ineffective assistance because he failed to object to certain

                                                                            A-3948-17T4
                                         6
testimony that defendant was incarcerated, and he also failed to seek a limiting

jury charge.4 Judge Caulfield thoroughly addressed the argument on its merits

under the two-prong test formulated in Strickland v. Washington, 466 U.S. 668,

687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58

(1987). She correctly concluded that it was obvious from the trial transcripts

counsel made a strategic decision regarding the testimony, and his performance

was therefore not deficient. See, e.g., State v. Savage, 120 N.J. 594, 617 (1990)

(noting strategic decisions made by trial counsel after proper investigation are

"virtually unchalleng[e]able" (quoting Strickland, 466 U.S. at 690–91)).

        While we agree with Judge Caulfield's analysis, we affirm this aspect of

the challenge to the order under review for different reasons. See State v.

Benjamin, 442 N.J. Super. 258, 262 (App. Div. 2015) ("[I]t is well-settled that

appeals are taken from orders and judgments and not from opinions, oral

decisions, informal written decisions, or reasons given for the ultimate

conclusion." (alteration in original) (quoting Do-Wop Corp. v. City of Rahway,

168 N.J. 191, 199 (2001))). The factual predicate for this claim about trial

counsel's performance was known at the latest by 2007, and therefore, it fails to

satisfy the time constraints of Rule 3:22-12(a)(2)(B). See State v. Brown, 455


4
    We detailed the nature of this testimony in Tellus I, slip op. at 5 n.1.
                                                                               A-3948-17T4
                                          7
N.J. Super. 460, 471 (App. Div. 2018) (affirming denial of PCR petition on

different grounds, specifically, the time limitations of Rule 3:22-12(a)(1)(A)).

      The second aspect of defendant's IAC claim raised in Point I centers on

three potential witnesses not produced at trial. Defendant's girlfriend at the time

of the murder, Sandy Joseph, spoke to a defense investigator in 2016. Joseph

said she was "very confident that [defendant] was not in New Jersey at the time"

of the murder because he was working in Massachusetts, and she spoke with him

"every day" by phone. She also asserted that "nobody had ever contacted her

about th[e] case before."      However, Joseph acknowledged "she was not

physically with [defendant] at the time" in question.

      Judge Caulfield correctly noted that Joseph was known to defendant as a

possible alibi witness "many years ago. She was defendant's girlfriend at the

time of the shooting and, according to defendant, knew his whereabouts. Thus,

the factual predicate for this defense was known to defendant as early as 2004[,]"

when the murder occurred. We agree the factual predicate for the claim that

trial counsel was ineffective for failing to interview Joseph and call her as an

alibi witness, if true, was known to defendant at the time of the murder in 2004

or shortly thereafter.




                                                                           A-3948-17T4
                                        8
        The second alibi witness was Phillippe Barthelus, who in 2015 supplied a

handwritten "affidavit" stating that defendant was not in the bar on the night of

the murder.     However, Judge Caulfield correctly found that Barthelus was

interviewed by police within days of the shooting and told them that while he

saw the victim in the bar that evening, he never saw defendant. The judge

concluded, "Clearly then, defendant knew about Barthelus and what his

anticipated testimony would be before the start of his trial." We agree with

Judge Caulfield that the factual predicate in support of an IAC claim was known

well before the one-year time limit contained in Rule 3:22-12(a)(1)(B).

        The final alibi witness was Phillip Thomas. The exhibits to the second

PCR petition included an "affidavit" dated October 4, 2005, purportedly signed

by Thomas, acknowledging that "the foregoing statement(s) in the attached letter

made by me are true." 5 The undated attached handwritten "letter" was on jail

stationary, with Thomas' name written at the top.        It said in its entirety:

"Someone payed [sic] me to say he did it." Judge Caulfield cited another exhibit

in defendant's petition that reflected a January 2007 interview of Thomas by the

assistant prosecutor and a detective at the jail.6 The judge wrote that at that


5
    The affidavit includes no jurat.
6
    The exhibit is not in the appellate record.
                                                                          A-3948-17T4
                                          9
time, "Thomas told them that he did not recall anything and refused to

testify. . . . [W]hile uncooperative, [Thomas] did acknowledge giving the 'paper'

to defendant." The report also reflected that defense counsel "had provided the

State with the 'paper[.]'" Under these circumstances, Judge Caulfield correctly

decided "defendant must have know about the 'affidavit' authored by Thomas,

and what it said . . . before [his] trial in . . . 2007."

      In short, the factual predicates for both aspects of defendant's IAC claim

were known to defendant well before the time limits within which he was

permitted to file a second PCR petition.              Defendant's brief and pro se

supplemental brief fail to rebut or even address the petition's procedural

infirmities under Rule 3:22-12(a)(2)(B) and (C). On these grounds, the second

petition was untimely and properly dismissed. Jackson, 454 N.J. Super. at 297.

      We also reject defendant's claim that Judge Caulfield failed to address the

issues he raised in his pro se submissions. The judge's written decision belies

the claim.

      Finally, the arguments defendant raises before us in his pro se

supplemental brief lack sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2); see R. 3:22-12(a)(2)(B).

      Affirmed.


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                                          10
