                                NOT FOR PUBLICATION WITHOUT THE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-3932-17T4

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

DUAN SHAHEED,

     Defendant-Appellant.
_____________________________

                    Submitted April 3, 2019 – Decided April 16, 2019

                    Before Judges Alvarez and Nugent.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 00-04-1155.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Louis H. Miron, Designated Counsel, on the
                    brief).

                    Theodore N. Stevens, II, Acting Essex County
                    Prosecutor, attorney for respondent (Lucille M.
                    Rosano, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Serving consecutive twenty-year sentences for first-degree carjacking and

first-degree robbery, and concurrent sentences for seven other crimes, including

first-degree aggravated manslaughter, defendant, Duan Shaheed, appeals from

an April 3, 2018 amended order that denied his petition for post-conviction relief

(PCR) after an evidentiary hearing. Judge Nancy Sivilli issued the order after

the alleged eyewitness, who defendant said would provide exculpatory

testimony, testified at the remand hearing he was incarcerated on the night the

crimes were committed. We affirm.

      The procedural history of this case and the facts resulting in defendant's

convictions are detailed in our opinions that affirmed defendant's convictions on

direct appeal, State v. Shaheed, No. A-2654-02 (App. Div. May 5, 2006), and

reversed and remanded the denial without a hearing of his PCR petition, State

v. Shaheed, No. A-2110-14 (App. Div. Oct. 6, 2016). We summarized the facts

in our 2006 opinion:

            At approximately 8:45 p.m. on December 19, 1998,
            Henderson and Francois were in Francois's car stopped
            at a traffic light at the intersection of Park Avenue and
            Washington Street, East Orange. The car was a blue
            four-door 1998 Mazda Millenia with factory-tinted
            windows, star-shaped chrome rims, and New Jersey
            License Plate No. WH774E. While stopped at the light,
            another vehicle pulled up along the driver's side of
            Francois's car. Francois and Henderson saw two men
            exit from the vehicle, each possessing a gun, and

                                                                          A-3932-17T4
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approach Francois's car, one on each side. The men told
Henderson and Francois to exit the vehicle and give
them their jackets. As Francois exited the vehicle, he
heard two or three gunshots. The assailants took
Francois's and Henderson's jackets, together with $40
to $50 from Henderson, and then drove off in Francois's
car, after which Francois telephoned the police.

       At approximately 9:30 p.m., the same evening,
J.B. and T.W.[, two juveniles,] were walking on a
sidewalk in Irvington. J.B. observed a "blue Mazda,"
fitting the description of Francois's automobile down to
the license plate number, stop about forty-five feet in
front of them. An individual exited the Mazda, walked
back past J.B. and T.W., and then turned around and
followed them. As they were walking, J.B. heard the
individual behind them say "Take it off," which J.B.
understood to mean his jacket. J.B. took off his jacket,
and gave it to the individual. The assailant demanded
money, but J.B. and T.W. did not have any. The
perpetrator returned to the Blue Mazda and drove away.

       At about 10:30 p.m. the same night, Velez and
Santiago were walking on Wright Street towards
Frelinghuysen Avenue, Newark. As they approached
the intersection, Velez observed "a dark color Mazda
Millenia" with "five-point star" chrome rims driving
south on Frelinghuysen Avenue towards the
intersection with two people in the front and either two
or three people in the back. As the vehicle pulled to the
curb at the intersection, Velez saw the right front
passenger door open, and someone say "Yo, holdup,"
and the front passenger started shooting. When Velez
heard the shots, he ran from the intersection and did not
look back. Santiago ran about five or six feet in the
opposite direction, and was shot, falling to the ground.
After hiding for about ten or fifteen minutes, Velez
returned to the intersection, and saw Santiago lying

                                                            A-3932-17T4
                           3
            face down in a pool of blood. Santiago was pronounced
            dead on the morning of December 20, 1998. According
            to the Medical Examiner, his "cause of death was a
            gunshot wound of neck and head."

            [Shaheed, No. A-2654-02, slip op. at 5-7.]

At trial, two of the victims identified defendant as one of the robbers and the

shooter. Id. slip op. at 9-10.

      We previously reversed the order that denied defendant's PCR petition

without a hearing. We remanded for a hearing to determine whether defendant's

trial counsel was ineffective for failing to interview and present the testimony

of an alleged eyewitness, Mark Caldwell. Shaheed, No. A-2110-14, slip op. at

16.   In support of his PCR petition, defendant had presented Caldwell's

certification, in which Caldwell averred he witnessed a co-defendant, Kyle

Herrill1, and another man — not defendant — steal the car involved in the

crimes.

      During the remand hearing, defendant's counsel called Caldwell as a

witness. When defense counsel asked Caldwell where he was when the crimes

were committed, he replied, "locked up." Caldwell testified that he was locked

up at a "youth house." He also testified that he is currently serving a life


1
   The co-defendant, Herril, pled guilty to conspiracy to commit aggravated
arson and aggravated arson for setting fire to the stolen car.
                                                                        A-3932-17T4
                                       4
sentence for murder in New Jersey State Prison. He said he met defendant in

prison, he knew about defendant's "situation," and offered to prepare the

certification, which he typed himself. He claimed he had heard the information

he put in the certification, and that Herrill told him the "guy that burnt the car

. . . is named Pootah Shaheed," not defendant.

      Defendant also testified at the remand hearing. He claimed he was driving

a car in which co-defendant Herrill and a friend of Herrill were passengers.

They asked him to pull over so they could relieve themselves and he saw them

steal a car parked with the engine running. He followed them for a while, but

lost them, so he drove off without them.

      Based on Caldwell's testimony, Judge Sivilli denied defendant's PCR

petition.   In a written decision, she concluded that in view of Caldwell's

testimony that he was locked up when the crimes were committed, his statements

were inadmissible hearsay. Defendant thus failed to carry his burden of proving

the two-pronged test of ineffective assistance of counsel as required by

Strickland v. Washington, 466 U.S. 668 (1984), and State v. Fritz, 105 N.J. 42

(1987).

      Defendant presents a single argument on appeal:




                                                                          A-3932-17T4
                                        5
            I.    THE PCR COURT ERRED IN RULING THAT
                  SHAHEED RECEIVED THE EFFECTIVE
                  ASSISTANCE OF COMPETENT COUNSEL IN
                  CONNECTION     WITH    THE    TRIAL
                  COUNSEL'S FAILURE TO INTERVIEW A
                  CRITICAL WITNESS.

      We affirm, substantially for the reasons expressed by Judge Sivilli in her

written decision. Defendant's argument is without sufficient merit to warrant

further discussion. R. 2:11-3(e)(2).

      Affirmed.




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