                                NOT FOR PUBLICATION WITHOUT THE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-3719-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LAMAR ALFORD, a/k/a
LANCE L. ALFORD, and
LAMAR RODGERS,

     Defendant-Appellant.
_____________________________

                   Submitted November 4, 2019 – Decided January 28, 2020

                   Before Judges Ostrer and Susswein.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 06-06-2269.

                   Lamar Alford, appellant pro se.

                   Jill S. Mayers, Camden County Prosecutor, attorney for
                   respondent (Linda Anne Shashoua, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Lamar Alford appeals from the trial court's March 12, 2018,

order denying, without an evidentiary hearing, his "motion for a new trial."

Having reviewed Alford's arguments in light of the record and applicable

principles of law, we affirm. But, we remand for the court to consider his claim

that he was denied his right to counsel under Rule 3:22-6(d) in connection with

his previous petition for post-conviction relief (PCR).

      A jury found Alford guilty of first-degree felony murder and other

offenses, arising out of a 2005 drug-related homicide. We presume the reader's

familiarity with the trial evidence, which we reviewed in our opinions affirming

Alford's conviction on direct appeal, see State v. Alford, No. A-0804-07 (App.

Div. Sept. 8, 2010) (Alford I), and affirming denial of his PCR petition, State v.

Alford, No. A-2532-11 (App. Div. June 6, 2014) (Alford II). In brief, the State's

case relied on several eyewitnesses, including one who positively identified

Alford, and another who overheard Alford discuss getting his gun to resolve a

dispute over money. Neither Alford nor his co-defendant testified or presented

witnesses.




                                                                          A-3719-17T4
                                        2
      Alford sought relief based on what he called newly discovered evidence.1

It included two almost identical affidavits from his mother and former girlfriend.

They asserted Alford was home with them at 9:00 p.m. the night of the homicide.

According to the trial evidence, the homicide occurred about a half hour later.

Alford also included an affidavit from a person who alleged that Alford was not

among the three men she saw approach and then flee the crime scene. All three

affidavits were executed in early 2017. Lastly, Alford presented an unsworn

and undated letter from a person who asserted that "one night," a man named

Elijah admitted to killing a person "across the tracks."

      The trial court deemed the motion a second PCR petition and summarily

denied it, concluding it simply repeated arguments that Alford raised in his first,

unsuccessful, petition.

      On appeal, Alford presents the following points for our consideration:

            POINT I

            THE LOWER COURT ERRED IN DENYING
            DEFENDANT'S MOTION FOR A NEW TRIAL
            BASED UPON NEWLY DISCOVERED EVIDENCE
            AS THE AFFIDAVITS PRESENTED RAISE A
            REASONABLE PROBABILITY OF A DIFFERENT
            OUTCOME. (Raised below).


1
  The notice of motion is undated, but it obviously was filed no earlier than
April 2017, the date of one of the supporting affidavits.
                                                                           A-3719-17T4
                                        3
            POINT II

            DEFENDANT SHOULD NOT HAVE TO PAY THE
            EXACTING PRICE FOR COUNSELS' FAILURES.
            (Not raised below).

            POINT III

            DEFENDANT'S AFFIDAVITS CONSTITUTE "NEW
            EVIDENCE" NOT PREVIOUSLY PRESENTED DUE
            TO INEFFECTIVE ASSISTANCE OF COUNSEL. AS
            SUCH, ANY PROCEDURAL BAR SHOULD BE
            RELAXED. (Not raised below).

            POINT IV

            THIS MATTER SHOULD BE REMANDED FOR A
            FULL EVIDENTIARY HEARING SINCE THERE
            ARE CLEARLY MATERIAL ISSUES OF DISPUTED
            FACT THAT CANNOT BE RESOLVED BY
            REFERENCE TO THE EXISTING RECORD AND
            THERE IS A REASONABLE LIKELIHOOD THAT
            ON THE CLAIMS PRESENTED – VIEWED IN THE
            LIGHT MOST FAVORABLE TO THE DEFENDANT
            – HE WILL ULTIMATELY SUCCEED ON THE
            MERITS. (Not raised below).

      We begin our analysis by addressing the standard of review we apply. As

a general rule, the decision to grant a new trial based on newly discovered

evidence is vested in a trial court's sound discretion. See State v. Smith, 29 N.J.

561, 573 (1959). In this instance, however, the trial court treated defendant's

motion as a second petition for PCR, and therefore never applied the standard

governing a motion for a new trial based on newly discovered evidence set forth

                                                                           A-3719-17T4
                                        4
in State v. Carter, 85 N.J. 300, 314 (1981). Under that standard a defendant is

entitled to a new trial if he or she shows "the evidence is 1) material, and not

'merely' cumulative, impeaching, or contradictory; 2) . . . the evidence was

discovered after completion of the trial and was 'not discoverable by reasonable

diligence beforehand'; and 3) . . . the evidence 'would probably change the jury's

verdict if a new trial were granted.'" State v. Ways, 180 N.J. 171, 187 (2004)

(quoting Carter, 85 N.J. at 314). Because the trial court in this case did not apply

the Carter three-prong test, we owe no deference to the court's findings and

instead apply a de novo standard of review. Cf. State v. Darby, 174 N.J. 509,

518 (2002) (applying de novo review of trial court's decision to admit other

crimes and wrongs evidence where court did not apply the governing four -part

test for its admission). Furthermore, even if we deem Alford's application to be

a second PCR petition, as did the trial court, we would review the court's order

de novo. See State v. Harris, 181 N.J. 391, 421 (2004) (stating that an appellate

court reviews de novo a PCR court's factual findings without an evidentiary

hearing). We also owe no deference to the trial court's conclusions of law. Ibid.

      Applying this standard of review, we affirm the denial of relief on this

record. As a motion for a new trial, Alford's application lacks merit because the

evidence is not "newly discovered." Deeming it a second petition for PCR,


                                                                            A-3719-17T4
                                         5
Alford's application is time-barred. However, we remand to provide Alford with

an opportunity to establish a violation of his right under Rule 3:22-6(d), which

would entitle him to a new PCR hearing.

      We reject the trial court's view that Alford simply regurgitated his first

PCR petition. In that petition, Alford contended, among other things, that his

trial attorney was ineffective for failing to marshal evidence to support an alibi

defense. As PCR counsel presented no supporting affidavits, the point failed.

See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (stating that,

to establish a prima facie ineffective-assistance-of-counsel claim, a defendant

must present competent evidence in the form of affidavits or certifications based

upon personal knowledge). In the new trial motion, Alford presented such

affidavits.

      Nonetheless, the motion for a new trial must fail, because Alford concedes

that he was aware before trial that his mother and girlfriend could establish an

alibi. He does not explain when he discovered that the other two witnesses could

support a theory of third-party guilt. However, he bore the burden to show

evidence was newly discovered, that is, that it could not have been discovered

"earlier through the exercise of reasonable diligence." Ways, 180 N.J. at 192.




                                                                          A-3719-17T4
                                        6
      Alford blames his trial counsel for failing to utilize his alibi witnesses .

Indulgently reading his pro se papers, we presume he includes the two third-

party-guilt witnesses to be "alibi witnesses" although they at most, only imply

that Alford "was not physically present at the precise time and place of the

alleged offense." State v. Nunn, 113 N.J. Super. 161, 168 (App. Div. 1971).

      The Court in Ways acknowledged, "We would not require a person who

is probably innocent to languish in prison because the exculpatory evidence was

discoverable and overlooked by a less than reasonably diligent attorney." Ways,

180 N.J. at 192 (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)).

However, as the Court indicated in citing Strickland, to excuse the late

presentation of exculpatory evidence, Alford must establish his trial attorney

failed to meet the constitutional threshold of effective assistance. Alford made

that argument in his initial PCR petition, but PCR counsel provided no

competent proof that there was alibi evidence to be had. For that oversight,

Alford blames his PCR counsel. Although he did not file a second petition for

PCR – he filed a motion for a new trial – he argues on appeal that his PCR

counsel was ineffective.

      However, a second petition for PCR – grounded on first PCR counsel's

alleged oversight – would be time-barred. A defendant is entitled to counsel,


                                                                          A-3719-17T4
                                        7
and therefore, effective assistance of counsel, when raising ineffective

assistance of trial counsel for the first time in a PCR petition. State v. Quixal,

431 N.J. Super. 502, 513 (App. Div. 2013).           However, a second petition,

asserting ineffective assistance of PCR counsel, must be filed within one year

of "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." R. 3:22-12(a)(2)(C); see also R. 3:22-4(b) (stating that a second

PCR petition is barred unless, among other things, "the petition alleges a prima

facie case of ineffective assistance of counsel that represented the defendant on

the first or subsequent application for post-conviction relief"). The one-year

period began on September 23, 2011, when the first PCR petition was denied.

See Alford II, slip op. at 1. Alford did not file his current application until April

2017 at the earliest. Alford does not justify the lengthy delay.

      Alternatively, a second or subsequent petition may be filed 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." R. 3:22-12(a)(2)(B). However,

the factual predicate for a second PCR petition is the first PCR attorney's


                                                                             A-3719-17T4
                                         8
omission of alibi evidence. Alford presumably discovered that omission when

he received the PCR judge's decision, years before he filed his new trial motion.

      The one-year deadline is not relaxable. R. 3:22-12(c). Unlike the five-

year deadline for first petitions, it is not subject to extension due to a defendant's

excusable neglect, where "there is a reasonable probability that if the defendant's

factual assertions were found to be true enforcement of the time ba r would result

in a fundamental injustice." R. 3:22-12(a)(1)(A). 2

      Alford nonetheless urges us to relax the one-year deadline, based on his

claim of actual innocence. He relies on United States Supreme Court doctrine,

which allows federal habeas corpus petitioners, upon "a convincing showing of

actual innocence . . . to overcome a procedural bar to consideration of the merits

of their constitutional claims." McQuiggin v. Perkins, 569 U.S. 383, 386 (2013)

(applying the doctrine to the one-year statute of limitations governing first

habeas petitions). To meet the "actual-innocence gateway," a petitioner must

persuade the district court that "in light of the new evidence, no juror, acting



2
  The one-year time period is also not tolled during an appeal from the order
denying the PCR petition. Such an appeal is not a "direct appeal." Cf. R. 3:22-
6A(2) (stating that a petition shall be dismissed without prejudice pending a
"direct appeal" and providing for the refiling of a petition within ninety days of
decision on direct appeal, even if it occurs after the five-year-period for filing
the initial petition).
                                                                              A-3719-17T4
                                          9
reasonably, would have voted to find him guilty beyond a reas onable doubt."

Id.; Schlup v. Delo, 513 U.S. 298, 329 (1995). However, the doctrine is not

constitutionally required; it "'is grounded in the "equitable discretion" of habeas

courts to see that federal constitutional errors do not result in the incarceration

of innocent persons.'" McQuiggin, 569 U.S. at 392 (quoting Herrera v. Collins,

506 U.S. 390, 404 (1993)).       It permits a federal court to consider claims

notwithstanding that a state court has procedurally barred them. Id. at 394. We

are aware of no authority – and Alford points to none – for us to apply this

federal equitable doctrine to override the clear mandate of our Rules.

      Alford also, for the first time on appeal, asserts that his PCR counsel failed

to fulfill his obligations under Rule 3:22-6(d), which requires appointed counsel

to consult with his or her client, and to independently investigate a defendant's

claims. See State v. Hicks, 411 N.J. Super. 370, 375-77 (App. Div. 2010). As

an alternative to reversing the trial court's denial of his new trial motion, Alford

seeks a new PCR proceeding.

      We held in Hicks, "PCR trial counsel must communicate with his client

and investigate the claims and then must fashion the most effective arguments

possible." Id. at 375 (internal quotations and citations omitted). We determined

that the defendant failed to receive the benefits of the attorney's expertise,


                                                                            A-3719-17T4
                                        10
because the PCR counsel limited his performance to re-presenting arguments

the defendant included in his own pro se petition; there was no evidence the

attorney conducted an independent evaluation of the defendant's case to

determine whether there were other grounds to attack the defendant's conviction;

and there were indications the attorney had not even reviewed the file, based on

comments to the court in oral argument that betrayed ignorance of the essential

facts of the underlying case.       Id. at 374.   We remanded for a new PCR

proceeding:

              The remedy for counsel's failure to meet the
              requirements imposed by Rule 3:22-6(d) is a new PCR
              proceeding. This relief is not predicated upon a finding
              of ineffective assistance of counsel under the relevant
              constitutional standard. Rule 3:22-6(d) imposes an
              independent standard of professional conduct upon an
              attorney representing a defendant in a PCR proceeding.

              [Id. at 376 (citations omitted).]

      Alford argues his PCR counsel likewise failed to meet Rule 3:22-6(d)'s

requirements, by failing to present affidavits from Alford's alibi witnesses,

which led the PCR court to deny his petition for lack of evidential support.

However, unlike in Hicks, where it was apparent that PCR counsel had failed to

meet his obligations, we cannot conclude on the record before us that PCR

counsel failed to discharge his responsibilities under Rule 3:22-6(d), and that a


                                                                         A-3719-17T4
                                         11
remand for a new PCR hearing is required. We cannot determine from this

record that the lack of proof before the first PCR court resulted from PCR

counsel's failure to investigate and confer, as opposed to Alford's failure to

provide his PCR counsel with the facts upon which to base an investigation.

Defendant has not provided a certification describing the nature of his

interactions with PCR counsel, whether counsel met with him to discuss the case

and the information and suggestions Alford gave him.

      Any claim that PCR counsel failed to satisfy his obligations under Rule

3:22-6(d), entitling Alford to new counsel and a new proceeding, should in this

case initially be presented to the trial court. We remand the case to the trial

court, to provide Alford with the opportunity, within a reasonable time set by

the trial court, to file a supplemental certification and any other materials in

support of his Rule 3:22-6(d) claim. 3 We express no opinion on the merits of

such an application. As we stated in Hicks, however, the issue whether PCR



3
  Simultaneously with the release of this opinion, we enter an order denying as
moot Alford's motion for a remand, to permit him to provide the trial court with
proof that he informed his trial attorney of his alibi witnesses. Alford may
include such materials, if he sees fit, in his supplemental certification in support
of his Rule 3:22-6(d) claim. However, we note that such evidence pertains to
the alleged ineffectiveness of his trial counsel. Alford must first make the
necessary showing under Rule 3:22-6(d) and Hicks, to secure the new PCR
proceeding at which the trial counsel's performance would be scrutinized.
                                                                            A-3719-17T4
                                        12
counsel has met the obligations under Rule 3:22-6(d) is distinct from a claim of

ineffective assistance of counsel under Strickland. Hicks, 411 N.J. Super. at

376.

       Affirmed in part, and remanded in part. We do not retain jurisdiction.




                                                                         A-3719-17T4
                                      13
