                                NOT FOR PUBLICATION WITHOUT THE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-5414-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TIEHEEN FLETCHER,

     Defendant-Appellant.
_________________________

                    Submitted May 1, 2019 — Decided May 16, 2019

                    Before Judges Nugent and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 97-10-4248.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Steven M. Gilson, Designated Counsel, on
                    the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Matthew E.
                    Hanley, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Tieheen Fletcher appeals from a June 30, 2017 order, which

denied his second post-conviction relief (PCR) petition. We affirm for the

reasons expressed in the thorough and well-reasoned written decision of Judge

Mark S. Ali.

      We take the following facts from the record. The underlying incident

occurred on August 8, 1997.        The victim, Gregory Brantley, was standing

outside of a building he intended to purchase in Newark, discussing its

rehabilitation. An eyewitness observed defendant, a known drug dealer, argue

with the victim. The witness saw the victim get into his car, heard several

gunshots, and saw defendant walking away with a gun in his hand. The witness

heard defendant state he "got his fat ass" and then saw him tuck the gun into his

pants. Another eyewitness identified defendant as the man who shot at the

victim's car from behind a tree.

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

and (2); third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-

5(b); and second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a). Defendant received a life sentence with a thirty-year

parole disqualifier on the murder conviction. The sentencing judge merged the

weapons possession convictions and sentenced defendant to a five-year


                                                                         A-5414-16T4
                                        2
concurrent term. We affirmed defendant's conviction and sentences. State v.

Fletcher, No. A-4398-98 (App. Div. Jan. 9, 2001), slip op. at 28.

      Defendant filed his first PCR petition, which the PCR court denied.

Defendant appealed and we affirmed in part and remanded in part for the PCR

court to consider claims defendant had raised for the first time on appeal. State

v. Fletcher, No. A-4155-07 (App. Div. May 21, 2010), slip op. at 32-33. On

remand, the PCR court denied defendant's petition. On defendant's second

appeal, we affirmed and summarized his claims as follows:

                   In this appeal, defendant has not challenged the
            remand court's decision denying his claims that his
            PCR counsel was ineffective. Rather, he argues that his
            trial counsel ineffectively represented him in four
            ways: by successfully moving to suppress a statement
            defendant gave to police, abandoning a theory of self-
            defense, inadequately advising him about his right to
            testify, and failing to "seek appropriate relief" when
            hearsay testimony was introduced at trial.             In
            defendant's previous appeal from the denial of his PCR
            petition, we rejected his arguments that trial counsel
            was ineffective for moving to suppress his statement
            and inadequately advising him about his right to testify.
            As to his new claims, counsel's decision not to pursue a
            claim of self-defense was a matter of trial strategy that
            we will not second-guess. . . . Thus, having exercised
            our discretion to consider this appeal, and having
            considered defendant's arguments in light of the record
            and controlling law, we affirm the denial of defendant's
            PCR petition.



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                                       3
            [State v. Fletcher, No. A-5720-11 (App. Div. Oct. 21,
            2014), slip op. at 2-3.]

      On October 23, 2015, defendant filed a second PCR petition, re-asserting

the ineffective assistance of counsel claims he had raised in the first PCR

petition, and asserting a claim of ineffective assistance of PCR and appellate

counsel for failing to argue his trial counsel was ineffective for failing to notify

defendant she would not argue self-defense at trial. Judge Ali denied the petition

without an evidentiary hearing.

      The judge concluded the second petition, as it related to the claims against

both trial and PCR counsel, was time-barred pursuant to Rule 3:22-12(a)(2)(c)

because it was not made within one year of the denial of the first PCR petition.

Likewise, the judge concluded the claims against appellate PCR counsel were

time-barred because they were not made within one year of our decision

affirming the denial of the first PCR petition.

      Judge Ali also found the petition failed to present a prima facie case for

relief on the merits. Specifically, the judge noted the claim of self-defense

contradicted defendant's own testimony that he knew nothing about the

shooting, and the fact his trial counsel advised him accordingly on five occasions

and also in a letter before defendant rejected a plea and proceeded to trial. The



                                                                            A-5414-16T4
                                         4
judge also noted the first PCR petition had already adjudicated this claim on its

merits. This appeal followed.

      Defendant raises the following points:

            POINT I – THE DEFENDANT'S SECOND PCR
            PETITION SHOULD NOT HAVE BEEN TIME-
            BARRED.

            POINT II – THIS MATTER MUST BE REMANDED
            FOR AN EVIDENTIARY HEARING BECAUSE THE
            DEFENDANT ESTABLISHED A PRIMA FACIE
            CASE OF PCR APPELLATE COUNSEL'S
            INEFFECTIVENESS FOR NOT PURSUING TRIAL
            COUNSEL'S     FAILURE   TO  ADVISE  THE
            DEFENDANT AS TO ABANDONING SELF-
            DEFENSE PRIOR TO THE PLEA CUT-OFF DATE.

      When the PCR court does not hold an evidentiary hearing, we "conduct a

de novo review[.]"     State v. Harris, 181 N.J. 391, 421 (2004).       To show

ineffective assistance of counsel, a defendant must satisfy the two-pronged test

of Strickland v. Washington, 466 U.S. 668 (1984), adopted in State v. Fritz, 105

N.J. 42 (1987).      "The defendant must demonstrate first that counsel's

performance was deficient, i.e., that 'counsel made errors so serious that counsel

was not functioning as the "counsel" guaranteed the defendant by the Sixth

Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland,

466 U.S. at 687). The defendant must overcome a "strong presumption that

counsel rendered reasonable professional assistance."         Ibid.   Second, "a

                                                                          A-5414-16T4
                                        5
defendant must also establish that the ineffectiveness of his attorney prejudiced

his defense. 'The defendant must show that there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would

have been different.'" Id. at 279-80 (quoting Strickland, 466 U.S. at 694).

      A PCR court need not grant an evidentiary hearing unless "a defendant

has presented a prima facie [case] in support of post-conviction relief." State v.

Marshall, 148 N.J. 89, 158 (1997) (alteration in original) (quoting State v.

Precoise, 129 N.J. 451, 462 (1992)). "To establish such a prima facie case, the

defendant must demonstrate a reasonable likelihood that his or her claim will

ultimately succeed on the merits." Ibid. The court must view the facts "in the

light most favorable to defendant." Ibid. (quoting R. 3:22-10(b)).

      Rule 3:22-4(b)(1) provides that "[a] second or subsequent petition for

post-conviction relief shall be dismissed unless: (1) it is timely under [Rule]

3:22-12(a)(2)[.]" In pertinent part, Rule 3:22-12(a)(2) provides:

            Notwithstanding any other provision in this rule, no
            second or subsequent petition shall be filed more than
            one year after the latest of:

                  ....

                        (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

                                                                          A-5414-16T4
                                        6
                  subsequent application for post-conviction relief
                  is being alleged.

"Neither the parties nor the court may . . . enlarge the time specified by . . .

[Rule] 3:22-12[.]"    R. 1:3-4(c); see R. 3:22-12(c) (2009); see also In re

Rosenthal, 118 N.J. 454, 458 (1990).

      Having considered defendant's claims under the aforementioned

standards, we affirm for the reasons set forth in Judge Ali's decision. Defendant

simply presented no evidence of a prima facie case of ineffective assistance of

appellate PCR counsel, where such a claim was neither sustainable against trial

counsel or PCR counsel nor meritorious in its own right. Moreover, because

defendant's claims were untimely under Rule 3:22-12(a)(2), they must be

dismissed pursuant to Rule 3:22-4(b)(1).

      Affirmed.




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