                                NOT FOR PUBLICATION WITHOUT THE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-3480-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RASHID WALKER,

     Defendant-Appellant.
___________________________

                    Submitted March 28, 2019 – Decided April 11, 2019

                    Before Judges Simonelli and Whipple.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 02-06-0824.

                    Rashid Walker, appellant pro se.

                    Camelia M. Valdes, Passaic County Prosecutor,
                    attorney for respondent (Christopher W. Hsieh, Chief
                    Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Rashid Walker appeals from the January 23, 2018 Law

Division order, which denied his second petition for post-conviction relief

(PCR) without an evidentiary hearing. We affirm.

      The facts established in defendant's two trials were set out at length in our

opinion on direct appeal, State v. Walker, Nos. A-5769-03 and A-5952-04 (App.

Div. May 9, 2008). We also incorporate the facts established in our opinion

affirming the denial of defendant's first PCR petition, State v. Walker, No. A-

2563-12 (App. Div. June 23, 2015). The following facts inform our review.

      In June 2002, a grand jury indicted defendant and his co-defendant, James

Walker (James), for murder, N.J.S.A. 2C:11-3(a)(1) and (2) and N.J.S.A. 2C:2-

6 (count one); possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-

4(a) (count two); armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (count

three); felony murder, N.J.S.A. 2C:11-3(a)(3) and N.J.S.A. 2C:2-6 (count four);

certain persons not permitted to have weapons, N.J.S.A. 2C:39-7 (count six);

unlawful possession of a .22 caliber handgun, N.J.S.A. 2C:39-5(b) (count

seven); receiving stolen property, a Colt .380 firearm and a Colt .45 handgun

respectively, N.J.S.A. 2C:20-7 and N.J.S.A. 2C:20-2(a) (counts eight and nine);

unlawful possession of a Colt .45 firearm, a Colt .380 handgun, and a .45 caliber


                                                                           A-3480-17T4
                                        2
automatic handgun, N.J.S.A. 2C:39-5(b) (counts ten, eleven and twelve);

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

thirteen); possession of a controlled dangerous substance with intent to

distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count fourteen); and possession of

a controlled dangerous substance with intent to distribute within 1,000 feet of

school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (count fifteen). The

first four counts allege crimes related to a shooting on February 18, 2002. The

balance, resulting from subsequent searches of two apartments, were alleged to

have occurred on February 28, 2002.

      The indictment was severed so that James could testify on defendant's

behalf. However, James subsequently pled guilty and did not testify. Rather,

the prosecutor read into evidence James' statement to the police, wherein James

stated that he and Dayron Johnson shot the victim in an attempt to rob him, and

James fled alone to an apartment. James also stated he saw defendant for the

first time that night when defendant arrived twenty minutes later. Although

James exculpated defendant of the shooting in his statement, the statement also

indicated that James discussed the shooting, in general terms, with defendant,

and may have been deemed to implicate defendant with respect to the weapons




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                                       3
the police found after the shooting. Defendant testified that he was not involved

in the shooting.

      The jury found defendant guilty of possession of a handgun for an

unlawful purpose (count two), unlawful possession of a CDM .22 caliber and a

Colt .380 caliber handgun (counts seven and eleven), and receiving stolen

property (the Colt .380 handgun) (count eight). However, the jury was unable

to reach a verdict on the other counts and a hung jury was declared on those

counts. The jury was thereupon instructed on count six (certain persons not

permitted to have weapons), and found defendant guilty of that charge.

      In 2004, defendant was retried on the remaining counts. The trial court

barred the State from introducing James' statement under Crawford v.

Washington, 541 U.S. 36 (2004), because James was unavailable, as he refused

to testify despite a grant of immunity and the trial court holding him in contempt

and imprisoning him for six months, and there was no prior opportunity for

cross-examination. In addition, the court sustained defendant's objection to the

introduction of James' statement in the State's case but did not bar defendant

from introducing the statement in his case. Defendant did not seek to introduce

James' statement even though the trial court would have permitted it. Defendant




                                                                          A-3480-17T4
                                        4
agreed on the record with trial counsel's strategic decisions not to call James or

admit his statement.

       The State also attempted to call Dwight Jackson as a witness. Jackson had

given a videotaped statement to the police, inculpating defendant. Upon receipt

of Jackson's statement prior to the re-trial, trial counsel requested the State

disclose any cooperation agreement with Jackson and argued the State

committed a Brady1 violation with respect to its late production of the statement.

The trial court found no Brady violation had occurred. At trial, defendant

successfully objected, and the court excluded Jackson's testimony on hearsay

grounds. Defendant did not testify.

       The jury found defendant guilty of murder (count one), armed robbery

(count three), felony murder (count four), receiving stolen property (the Colt .45

handgun) (count nine), and unlawful possession of a weapon (the Colt .45)

(count ten). The jury found defendant not guilty of unlawful possession of

another .45 caliber handgun (count twelve).

       Defendant appealed his conviction and sentence.         We affirmed the

conviction, but remanded for resentencing, which resulted in an aggregate sixty-



1
    Brady v. Maryland, 373 U.S. 83 (1963).


                                                                          A-3480-17T4
                                        5
year term of imprisonment with an eighty-five percent period of parole

ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. State v.

Walker, Nos. A-5769-03 and A-5952-04 (slip op. at 46-47). The Supreme Court

denied certification. State v. Walker, 196 N.J. 466 (2008). We later upheld the

resentencing. State v. Walker, No. A-0788-08 (App. Div. Mar. 11, 2010).

      Defendant filed a PCR petition arguing, in part, that trial counsel was

ineffective for failing to call James as an exculpatory witness or use his

exculpatory statement to the police. Defendant also filed a motion for a new

trial based on newly discovered evidence, namely the availability of James to

provide exculpatory testimony.

      The PCR judge held an evidentiary hearing, at which trial counsel and

James testified. Trial counsel explained that she chose not to call James to

testify or use his statement because it would defeat her trial strategy. Trial

counsel testified she had interviewed James and found he was not likeable, and

that his statement to the police "was ridiculous on so many things that were

easily disprovable by the [S]tate." State v. Walker, No. A-2563-12 (slip op. at

10) (alteration in original).

      James testified that "under no circumstances [would he have] answer[ed]

any questions" at trial. Id. at 11. He confirmed that he refused to testify even


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                                       6
when granted immunity and held in contempt. Ibid. The PCR court observed

James under questioning and found he likely would not have fared well under

cross-examination and would have harmed defendant's case. Id. at 10.

      On December 17, 2012, the PCR judge denied the petition. Defendant

appealed, and we affirmed. Id. at 17. We found that defendant agreed on the

second trial record with trial counsel's strategic decision not to call James or

admit his statement, and James testified at the PCR hearing that he would not

have testified under any circumstances. Id. at 10-11. We concluded trial counsel

was not ineffective in her strategic decision. Id. at 11.

      We also concluded that defendant was not entitled to a new trial based on

newly discovered evidence. Id. at 12. We found that James' proposed testimony

essentially repeated his statement to police, and thus his exculpatory information

was not discovered after trial or undiscoverable beforehand. Id. at 11. We noted

that "defendant's trial had been severed to allow James to testify, and James had

been immunized to remove any risk of self-incrimination and to make James

available to testify."   Ibid.   "[W]e questioned whether James' testimony is

properly regarded as newly-discovered, particularly as the trial court found that,

in refusing to testify, James was acting in concert with defendant." Id. at 11-12.

We also found that defendant failed to show James' testimony probably would


                                                                          A-3480-17T4
                                        7
have changed the jury's verdict.      Id. at 12.    The Supreme Court denied

certification. State v. Walker, 224 N.J. 246 (2016).

      On March 9, 2017, defendant filed a second PCR petition, seeking a new

trial based on a Brady violation. Defendant argued the State failed to disclose

that it had entered into a cooperation agreement with Jackson in 2002, and the

prosecutor improperly induced Jackson to provide inculpatory information

against defendant and withheld Jackson's exculpatory information. Defendant

relied on Jackson's January 17, 2017 certification, wherein Jackson stated he had

a cooperation agreement with the prosecutor with respect to a drug offense. The

transcript of Jackson's plea hearing on May 24, 2002, indicates he pled guilty to

a drug offense that occurred on April 23, 2001, and agreed to cooperate in

prosecuting narcotic offenses. Jackson also stated he told the prosecutor in

November 2003 and July 2004 that Johnson told him James and Johnson shot

the victim, but he nonetheless agreed to give a videotaped statement inculpating

defendant and testify at trial in exchange for a sentence of probation on his drug

charge.

      Defendant also sought a new trial based on newly discovered evidence ,

namely Johnson's August 1, 2006 plea of guilty to the robbery of the victim;

Jackson's January 17, 2017 certification; and James' availability to testify.


                                                                          A-3480-17T4
                                        8
Defendant relied on James' April 29, 2010 certification, wherein James

confirmed he was unavailable to testify at trial, and stated that if called to testify

he would attest to facts similar to those in his statement to the police, including

that he and Johnson were responsible for committing the crime.

      The PCR judge found the petition was time barred under Rule 3:22-

12(a)(2), and defendant did not assert any claim which would come under

subsections (A), (B) or (C). The judge also found the petition was procedurally

barred under Rule 3:22-4(b), as it was untimely under Rule 3:22-12(a)(2) and

defendant did not allege any claim which would come under Rule 3:22-

4(b)(2)(A), (B) or (C). This appeal followed.

      On appeal, defendant raises the following contentions:

      POINT-I

             THE     PCR  COURT    ERRED   IN   ITS
             DETERMINATION THAT THE DEFENDANT DID
             NOT SATISFY THE REQUIREMENTS OF [RULE]
             3:22-12(B).

      POINT-II

             PCR COURT ERRED WHEN IT SUMMARILY
             DENIED [DEFENDANT'S] MOTION FOR NEW
             TRIAL BASED ON VIOLATION OF BRADY V.
             MARYLAND, [373 U.S. 83 (1963)]; THE
             PROSECUTOR'S TACTIC ROSE TO THE LEVEL OF
             MISCONDUCT IN SUCH A WAY THAT IT
             VIOLATED   PETITIONER'S   FUNDAMENTAL

                                                                              A-3480-17T4
                                          9
     RIGHT TO DUE PROCESS AND A FAIR TRIAL.
     [U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST.,
     ART. I, ¶ 10].

     1.) Prosecutor Keith Hoffman failed to disclose the
     Passaic County Prosecutor's Office entered into a
     unilateral cooperation agreement with Dwight Jackson,
     and failed to disclose that Jackson provided exculpatory
     information that corroborated [defendant's] defense
     during his first trial.

     2.) Prosecutor Keith Hoffman withheld information
     concerning inducements offered to Dwight Jackson
     prior to taking the statement wherein he changed the
     exculpatory information he initially provided to
     inculpatory information in order to obtain the benefit of
     the inducements and the unilateral cooperation
     agreement.

     3.) Prosecutor Keith Hoffman [f]ailed to disclose
     material that was favorable to [defendant's] Motion for
     New Trial Based on Newly Discovered Evidence.

POINT III

     MOTION FOR NEW TRIAL BASED ON NEWLY
     DISCOVERED EVIDENCE PURSUANT TO [RULE]
     3:20-2.

POINT IV

     THE [DEFENDANT] IS ENTITLED TO AN
     EVIDENTIARY HEARING, PURSUANT TO [RULE]
     3:22-10 BECAUSE HE HAS PRESENTED A PRIMA
     FACIE CLAIM OF A VIOLATION OF BRADY V.
     MARYLAND, AS WELL AS MOTION FOR NEW
     TRIAL BASED ON NEWLY DISCOVERED
     EVIDENCE.

                                                                 A-3480-17T4
                               10
      The mere raising of a claim for PCR does not entitle the defendant to an

evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.

1999).   Rather, trial courts should grant evidentiary hearings and make a

determination on the merits only if the defendant has presented a prima facie

claim of ineffective assistance, material issues of disputed fact lie outside the

record, and resolution of the issues necessitates a hearing. R. 3:22-10(b); State

v. Porter, 216 N.J. 343, 354-55 (2013). We review a judge's decision to deny a

PCR petition without an evidentiary hearing for abuse of discretion. State v.

Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013). We discern no abuse of

discretion here.

      A defendant must file a first PCR petition within five years after the entry

of the judgment of conviction.        R. 3:22-12(a)(1).     Rule 3:22-12(a)(2)(B)

provides, in pertinent part, that a defendant must file 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." Rule 3:22-4(b) provides, in

pertinent part, that a second PCR petition is procedurally barred unless:

            (1) it is timely under [Rule] 3:22-12(a)(2); and (2) it
            alleges on its face . . . that the factual predicate for the
            relief sought could not have been discovered earlier
            through the exercise of reasonable diligence, and the

                                                                            A-3480-17T4
                                       11
            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[.]

These time and procedural rules must be viewed in light of their dual purpose:

"to ensure that the passage of time does not prejudice the State's retrial of a

defendant" and to respect the need for finality. State v. DiFrisco, 187 N.J. 156,

166-67 (2006).

      "[A] PCR judge has an independent, non-delegable duty to question the

timeliness of [a PCR] 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." State v. Brown, 455 N.J. Super. 460, 470 (App. Div. 2018).

"Absent sufficient competent evidence to satisfy [the standards for relaxing the

time restrictions], the court does not have the authority to review the merits of

the claim." Ibid.

      The record before us does not show that defendant challenged the

timeliness issue before the PCR judge. More importantly, the record contains

no competent evidence as to the date defendant discovered the newly discovered

evidence to satisfy the standards for relaxing the time restrictions under Rule

3:22-12(a)(2). Defendant provides nothing more than bald assertions in his

merits brief as to when he allegedly discovered the newly discovered evidence.

                                                                            A-3480-17T4
                                        12
      In any event, the purported exculpatory evidence was not newly

discovered evidence. Our Supreme Court has held:

            Evidence is newly discovered and sufficient to warrant
            the grant of a new trial when it is "(1) material to the
            issue and not merely cumulative or impeaching or
            contradictory; (2) discovered since the trial and not
            discoverable by reasonable diligence beforehand; and
            (3) of the sort that would probably change the jury's
            verdict if a new trial were granted."

            [State v. Nash, 212 N.J. 518, 549 (2013) (quoting State
            v. Carter, 85 N.J. 300, 314 (1981)).]

      When evaluating a defendant's proffer of newly discovered evidence, the

court must bear in mind that "[a] jury verdict rendered after a fair trial should

not be disturbed except for the clearest of reasons." State v. Ways, 180 N.J. 171,

187 (2004); see also State v. Conway, 193 N.J. Super. 133, 171 (App. Div. 1984)

(holding that "[a] motion for a new trial upon the ground of newly discovered

evidence is not favored and should be granted with caution by a trial court since

it disrupts the judicial process"). Thus, "[n]ewly discovered evidence must be

reviewed with a certain degree of circumspection to ensure that . . . if credible

and material, [it] is of sufficient weight that it would probably alter the outcome

of the verdict in a new trial." Ways, 180 N.J. at 187-88.

      Defendant has not satisfied the test for granting a new trial based on newly

discovered evidence.     Defendant knew about Jackson and his videotaped

                                                                           A-3480-17T4
                                       13
statement in 2004, before the second trial. Upon receiving the statement, trial

counsel requested disclosure of any cooperation agreement with Jackson and

asserted a Brady violation.    In addition, during the second trial, defendant

successfully objected, and the court excluded Jackson's testimony on hearsay

grounds. Thus, the factual predicate for the relief sought relating to Jackson

could have been discovered earlier through the exercise of reasonable diligence,

and defendant's inclusion of this claim in a second PCR petition was untimely

under Rule 3:22-12(a)(2), and procedurally barred under Rule 3:22-4(b).

      In any event, defendant cannot show this evidence would probably alter

the outcome of the verdict in a new trial. Jackson did not certify that he

witnessed the shooting, or saw or spoke to the shooter. Rather, his exculpatory

information was based on what Johnson allegedly told him about the shooting

and who shot the victim. Thus, Jackson's testimony would have been excluded

at a new trial on hearsay grounds.

      Defendant also knew about Johnson since the first trial. At the first trial,

the prosecutor read into evidence James' statement to the police, wherein James

stated that he and Johnson shot the victim in an attempt to rob him. On August

1, 2006, Johnson pled guilty to robbing the victim, and defendant could have

discovered his guilty plea at that time with reasonable diligence. Thus, the


                                                                          A-3480-17T4
                                      14
factual predicate for the relief sought relating to Johnson could have been

discovered earlier through the exercise of reasonable diligence, and defendant's

inclusion of this claim in a second PCR petition is untimely under Rule 3:22-

12(a)(2), and procedurally barred under Rule 3:22-4(b). In addition, defendant

does not explain how Johnson's guilty plea would have probably changed the

jury's verdict if a new trial were granted.

      Lastly, the record does not support defendant's argument that James'

availability to testify was newly discovered evidence. To the contrary, the

record confirms that James was unavailable to testify, as he refused to testify

even with the grant of immunity. Further, we found that James' exculpatory

information was not discovered after trial and was not undiscoverable

beforehand, and defendant failed to show James' testimony probably would have

changed the jury's verdict. State v. Walker, No. A-2563-12 (slip op. at 12).

Thus, defendant's inclusion of this claim in a second PCR petition is untimely

under Rule 3:22-12(a)(2), and procedurally barred under Rule 3:22-4(b).

      Affirmed.




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                                        15
