                                NOT FOR PUBLICATION WITHOUT THE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-4311-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

AHMAD J. JOHNSON,

     Defendant-Appellant.
____________________________

                    Argued January 29, 2020 – Decided February 10, 2020

                    Before Judges Haas and Mayer.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 06-10-1770.

                    John Vincent Molitor argued the cause for appellant.

                     Jennifer E. Kmieciak, Deputy Attorney General,
                    argued the cause for respondent (Gurbir S. Grewal,
                    Attorney General, attorney; Jennifer E. Kmieciak, of
                    counsel and on the brief).

PER CURIAM
        This post-conviction relief (PCR) case returns to us after remand

proceedings directed by our previous opinion. See State v. Johnson ("Johnson

II"), No. A-0032-16 (App. Div. Jan. 16, 2018). 1 As noted in that decision, we

ordered the trial court to conduct "an evidentiary hearing on all of the assertions

raised by defendant in his PCR petition" in order "to ferret out the facts and

possible strategies underlying the actions of defendant's trial and appellate

attorneys in connection with defendant's claims of ineffective assistance." Id.

at 6.

        On remand, the matter was assigned to Judge Mark J. Nelson, who held

the hearing to address the issues identified in our decision in Johnson II.

Defendant's trial and appellate attorneys testified at the hearing, as did defendant

and three other witnesses. At the conclusion of the hearing, Judge Nelson denied

defendant's petition for PCR, and fully explained the basis for his rulings in a

comprehensive twenty-seven page written opinion containing his detailed

findings of fact and conclusions of law.

        Defendant appeals from the May 6, 2019 order memorializing the judge's

decision. We affirm.


1
  We also incorporate herein the procedural history and facts set forth in our
opinion on defendant's direct appeal. State v. Johnson, ("Johnson I"), No. A-
6238-09 (App. Div. March 27, 2013), certif. denied, 216 N.J. 13 (2013).
                                                                            A-4311-18T3
                                         2
      Defendant raised seven arguments on remand in support of his petition for

PCR. The parties are fully familiar with Judge Nelson's thorough analysis of

each of those issues and, therefore, we need only provide the highlights here.

      First, defendant asserted that his trial attorney was ineffective because he

failed to ensure that the trial judge abided by directives promulgated b y the

Administrative Office of the Courts for the conduct of jury selection, and his

appellate attorney failed to raise this as an issue on direct appeal. However,

Judge Nelson found that although not all of the procedures set forth in these

directives were applied by the trial judge, 2 there was no evidence that a biased

jury resulted from these inconsistencies. Thus, Judge Nelson concluded that

defendant failed to satisfy the second prong of the two-prong test of Strickland

v. Washington, 466 U.S. 668, 687 (1984), which requires a showing that defense

counsel's performance was deficient and that, but for the deficient performance,

the result would have been different.

      Defendant next argued that his attorneys were ineffective because they did

not assert that the jury was "tainted" by the inclusion of a juror who told the trial

judge he was familiar with one of the witnesses for the State. However, when


2
  For example, the judge read the list of potential witnesses to the jurors, but
did not give them a written list of these individuals, and asked the jurors to "tell
us something about yourself," instead of reading them the biographical question.
                                                                             A-4311-18T3
                                         3
the judge questioned this juror, he admitted he did not know the State's witness

by name and stated he could be fair and impartial and follow the court's

instructions.    Under these circumstances, Judge Nelson concluded that

defendant failed to meet either of the Strickland prongs.

       In his third argument, defendant asserted that his attorneys provided poor

representation because his trial counsel did not object when a detective testified

he received information indicating that the car defendant hijacked from the

victim he later murdered might have been used in a shooting, and his appellate

attorney did not raise a Confrontation Clause claim on appeal based on the

admission of this evidence. However, because other witnesses provided this

same information to the jury based on their first-hand accounts, and defendant

had the full opportunity to cross-examine these witnesses, Judge Nelson found

there was no viable Confrontation Clause issue that could have been raised at

trial or on appeal.

       Fourth, defendant argues that his attorneys were ineffective because they

failed to argue that a cross-racial identification charge should have been given

to the jury. However, we held in Johnson I that the trial judge's instructions to

the jury were proper under the pre-Henderson3 out-of-court identification rules.


3
    State v. Henderson, 208 N.J. 208 (2011).
                                                                          A-4311-18T3
                                        4
(slip op. at 28-29). Therefore, defendant's present claim was barred by Rule

3:22-5, which prevents a defendant from raising an argument on a petition for

PCR where there has been "[a] prior adjudication on the merits[.]"

      In any event, the eyewitness's cross-racial identification of defendant in

this case was corroborated by other evidence presented at the trial, including

defendant's own admissions to another witness concerning his involvement in

the shooting. See State v. Cromedy, 158 N.J. 112, 198-99 (1999) (holding, prior

to Henderson, that cross-racial identification charges should be given only when

the identification is not corroborated by other evidence giving it independent

reliability). Thus, Judge Nelson found that a cross-identification instruction was

not necessary and, accordingly, defendant's attorneys were not ineffective for

failing to raise this issue.

      Defendant next argued his trial attorney was "disloyal" to him because he

was overheard talking to two assistant prosecutors about a rumor that defendant

allegedly threatened to harm him and, based on this conversation, the attorney

might not have worked diligently on his behalf. After hearing the testimony of

the attorney and defendant, Judge Nelson found that defense counsel "brushed

off" the rumor as soon as he heard it, saying "it was just some s[c]uttlebutt from

the jail that people say and it had no bearing on him or the trial." The judge


                                                                          A-4311-18T3
                                        5
found that the attorney's statement that the incident had no impact on his

relationship with defendant was credible and, therefore, the judge rejected

defendant's claim on this point.

         In his sixth argument on remand, defendant asserted that his attorney

should have called three witnesses who stated they saw a man running away

after the murder. Prior to the hearing, defendant alleged that if the witnesses

had been called to testify, they would have aided him in his claim of third-party

guilt.    Judge Nelson heard the testimony of each of these witnesses and

concurred with defense counsel's credible assertion that the witnesses had

limited knowledge of the events they allegedly perceived, contradicted

themselves during their testimony, and were unable to adequately describe what

they saw due to how dark it was on the street that night.               Under these

circumstances, the judge concluded that defendant's attorney made a proper

tactical decision to refrain from calling these witnesses, whose hazy accounts

would have been further damaged on cross-examination. Therefore, Judge

Nelson found that defendant did not meet either prong of the Strickland test.

         Finally, defendant argued that his trial attorney failed to keep him apprised

of what transpired during sidebar conferences after his listening device failed.

However, Judge Nelson found that defense counsel's testimony that he "used the


                                                                              A-4311-18T3
                                           6
lawyer-shuttle system to speak with his client" was credible. Therefore, the

judge rejected defendant's claim that he received ineffective assistance on this

score.

         On appeal, defendant raises the same seven arguments he unsuccessfully

pressed before Judge Nelson. Thus, defendant asserts:

              POINT I

              THIS COURT SHOULD REVERSE THE PCR
              JUDGE'S DECISION TO FIND DEFENDANT'S
              TRIAL   AND    APPELLATE   ATTORNEYS'
              FAILURES TO CHALLENGE THE NUMEROUS
              INTENTIONAL VIOLATIONS OF THE LAW
              GOVERNING JURY SELECTION DID NOT
              CONSTITUTE INEFFECTIVE ASSISTANCE OF
              COUNSEL.

              POINT II

              THIS COURT SHOULD REVERSE THE PCR
              JUDGE'S DECISION TO FIND THERE WAS NO
              BASIS   FOR DEFENDANT'S TRIAL AND
              APPELLATE    COUNSEL    TO   CHALLENGE
              POTENTIAL JURY TAINT BECAUSE THE TRIAL
              COURT ADMITTED A JUROR'S FAMILIARITY
              WITH ONE OF THE STATE'S WITNESSES RAISED
              THE SPECTER OF JURY TAINT AND THE TRIAL
              COURT DID NOT COMPLY WITH THE SUPREME
              COURT'S   AND     APPELLATE    DIVISION'S
              DECISIONS MANDATING HOW A JUDGE MUST
              ADDRESS POTENTIAL JURY TAINT.

              POINT III


                                                                        A-4311-18T3
                                        7
THIS COURT SHOULD REVERSE THE PCR
JUDGE'S DECISION TO FIND DEFENDANT'S
TRIAL AND APPELLATE COUNSEL WERE NOT
INEFFECTIVE WHEN THEY DID NOT RAISE THE
INTENTIONAL VIOLATIONS OF DEFENDANT'S
SIXTH AMENDMENT RIGHT TO CONFRONT THE
WITNESSES AGAINST HIM.

POINT IV

THIS COURT SHOULD REVERSE THE PCR
JUDGE'S DECISION TO FIND THERE WAS NO
BASIS   TO REQUEST A       CROSS-RACIAL
IDENTIFICATION CHARGE BECAUSE THE PCR
JUDGE DID NOT CONSIDER THE PIVOTAL CASE
UPON WHICH DEFENDANT'S ARGUMENTS
RESTS.

POINT V

THIS COURT SHOULD REVERSE THE PCR
JUDGE'S DECISION TO DISREGARD AND
IGNORE NEWLY DISCOVERED EVIDENCE OF
DEFENDANT'S TRIAL COUNSEL'S DISLOYALTY.

POINT VI

THE PCR JUDGE'S DECISION TO DISCOUNT
DEFENDANT'S WITNESSES' TESTIMONY WAS
UNFAIR BECAUSE THE WITNESSES WERE
UNBIASED   AND    HONEST  AND   THEIR
TESTIMONY IMPLICATED A PRIME SUSPECT
WHOM THE POLICE INTERVIEWED.

POINT VII

THIS COURT SHOULD REVERSE THE PCR
JUDGE'S DECISION TO HOLD DEFENDANT WAS

                                          A-4311-18T3
                   8
            NOT    EXCLUDED      FROM    SIDEBAR
            CONFERENCES BECAUSE THE RECORD DOES
            NOT SUPPORT THE DEFENDANT'S TRIAL
            COUNSEL'S TESTIMONY THAT HE USED THE
            LAWYER-SHUTTLE SYSTEM.

      When petitioning for PCR, the defendant must establish, by a

preponderance of the credible evidence, that he or she is entitled to the requested

relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,

459 (1992). To sustain that burden, the defendant must allege and articulate

specific facts that "provide the court with an adequate basis on which to rest its

decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

      To establish a prima facie claim of ineffective assistance of counsel, the

defendant is obligated to show not only the particular manner in which counsel's

performance was deficient, but also that the deficiency prejudiced his right to a

fair trial. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong of this test, the defendant must demonstrate that "counsel

made errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at

687. Under the second prong, the defendant must show "that counsel's errors

were so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable." Ibid. That is, "there is a reasonable probability that, but for counsel's


                                                                            A-4311-18T3
                                         9
unprofessional errors, the result of the proceeding would have been different."

Id. at 694.

      There is a strong presumption that counsel "rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment." Id. at 690. Because prejudice is not presumed, Fritz, 105 N.J. at 52,

a defendant must demonstrate with "reasonable probability" that the result

would have been different had he received proper advice from his trial attorney.

Strickland, 466 U.S. at 694.

      Moreover, the acts or omissions of counsel of which a defendant

complains must amount to more than mere tactical strategy. Id. at 689. As the

Supreme Court observed in Strickland,

              [a] fair assessment of attorney performance requires
              that every effort be made to eliminate the distorting
              effects of hindsight, to reconstruct the circumstances of
              counsel's challenged conduct, and to evaluate the
              conduct from counsel's perspective at the time.
              Because of the difficulties inherent in making the
              evaluation, a court must indulge a strong presumption
              that counsel's conduct falls within the wide range of
              reasonable professional assistance; that is, the
              defendant must overcome the presumption that, under
              the circumstances, the challenged action "might be
              considered sound trial strategy."
              [Ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 101
              (1955)).]



                                                                          A-4311-18T3
                                        10
      Where, as here, the judge conducts an evidentiary hearing, we must

uphold the judge's factual findings, "so long as those findings are supported by

sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440

(2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). Additionally, we

defer to a trial judge's findings that are "substantially influenced by [the trial

judge's] opportunity to hear and see the witnesses and to have the 'feel' of the

case, which a reviewing court cannot enjoy." Ibid. (alteration in original)

(quoting Robinson, 200 N.J. at 15).

      Having considered defendant's present contentions in light of the record

and these well-established principles, we discern no basis for disturbing Judge

Nelson's reasoned determination that defendant failed to satisfy the Strickland

test with regard to any of his seven contentions. Accordingly, we affirm the

judge's denial of defendant's PCR petition substantially for the reasons detailed

at length in his comprehensive written opinion.

      Affirmed.




                                                                          A-4311-18T3
                                       11
