                                NOT FOR PUBLICATION WITHOUT THE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-3580-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ROSARIO MIRAGLIA, JR.,

     Defendant-Appellant.
_________________________

                   Argued telephonically May 19, 2020 –
                   Decided July 10, 2020

                   Before Judges Fisher and Gilson.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No. 05-02-
                   0383.

                   Rosario Miraglia, Jr., appellant, argued the cause pro
                   se.

                   Mary Rebecca Juliano, Assistant Prosecutor, argued the
                   cause for respondent (Christopher J. Gramiccioni,
                   Monmouth County Prosecutor, attorney; Mary Rebecca
                   Juliano, of counsel and on the brief).

PER CURIAM
      Defendant Rosario Miraglia, Jr. appeals from a March 11, 2019 order

denying his second petition for post-conviction relief (PCR) because it was time-

barred under Rule 3:22-12(a)(2). We affirm.

                                       I.

      In 2008, a jury convicted defendant of the double murder of his former

girlfriend and his grandmother. Accordingly, he was found guilty of two counts

of first-degree murder, N.J.S.A. 2C:11-3. The jury also found aggravating

factors, concluding that both murders were "outrageously or wantonly vile,

horrible or inhumane." The evidence at trial supported those findings because

defendant told the jury that he stabbed both victims with a knife and

dismembered their bodies with a meat cleaver.

      At trial, defendant asserted that he should be found not guilty because he

was Jesus Christ and was on a mission from God when he killed the victims.

Alternatively, defendant relied on an insanity defense.       The jury rejected

defendant's claim of innocence and his affirmative defense of insanity. He was

sentenced to two consecutive terms of life in prison without parole.

      Defendant filed a direct appeal arguing that the trial court erred in (1)

finding him competent to stand trial; (2) denying his attorney's request for a

bench trial, which defendant opposed when the application was made; and (3)


                                                                         A-3580-18T2
                                       2
instructing the jury on his insanity defense. We found no error and affirmed.

State v. Miraglia, No. A-0407-09 (App. Div. Mar. 18, 2013). The Supreme

Court denied defendant's petition for certification. State v. Miraglia, 216 N.J. 8

(2013).

        In January 2014, defendant filed his first petition for PCR. The PCR court

denied that petition finding it was both time-barred and lacked merit. We

affirmed. State v. Miraglia, No. A-0433-15 (App. Div. Oct. 18, 2017). The

Supreme Court denied certification. State v. Miraglia, 232 N.J. 414 (2018).

        In April 2018, defendant filed a petition for a writ of habeas corpus in the

United States District Court for the District of New Jersey. In February 2019,

defendant moved to stay that federal proceeding. 1

        On February 11, 2019, defendant filed his second PCR petition. 2 On

March 11, 2019, the second PCR court denied the petition stating, in the order,

that it was filed out of time under Rule 3:22-12(a)(2). The court did not hold

oral argument or a hearing on the second petition and it gave no reasons for its

rulings beyond the statement in the order of dismissal.



1
    In September 2019, the federal court denied defendant's motion for a stay.
2
  The petition is dated February 11, 2019, but it is not clear when it was filed.
The specific filing date is not relevant for this appeal.
                                                                            A-3580-18T2
                                          3
                                      II.

      On this appeal from the order denying the second petition for PCR,

defendant, who is representing himself, makes six arguments. He articulates his

arguments as follows:

            POINT 1 – [THE] JUDGE['S] . . . SUMMARY
            DISMISSAL DOES NOT COMPLY WITH THE
            STANDARD OF A PERPONDERANCE AS STATED
            IN (STATE V. PRECIOSE). PETITIONER SUBMITS
            THAT THE UNEXHAUSTED ISSUES PRESENTED
            TO THE LOWER COURT HAD/HAVE MERIT AND
            THE DENIAL VIOLATED PETITIONER'S STATE
            AND FEDERAL RIGHTS.

            POINT 2 – THE TRIAL COURT IN THE COUNTY
            OF MONMOUTH IS IN VIOLATION OF UNITED
            STATES CASE LAW, THAT THE LAW BEING:
            MCCOY V. LOUISIANA WHICH IS CENTRAL TO
            MR. MIRAGLIA'S LEGAL [R]IGHT. THE ISSUE
            BEING RAISED IS NOT SUBJECT TO BAR VIA R.
            3:22-4(A) BECAUSE IT COULD NOT HAVE BEEN
            RAISED AT ANY PRIOR PROCEEDING AND IS
            BEING RAISED WITHIN THE ONE YEAR
            WINDOW AS TO THE DECISION OF "MCOY" AND
            THE DENIAL OF FIRST PCR. MR. MIRAGLIA
            IMPLORES THE COURT TO TAKE INTO
            CONSIDERATION THAT DIRECT APPEAL
            ATTORNEY WOULD NOT RAISE THIS ISSUE IN
            THIS CONTEXT IN ANY FORM OR FASHION,
            BECAUSE HIS POSITION WAS THAT MR.
            MIRAGLIA     WAS    INCOMPETENT.     MR.
            MIRAGLIA'S CLAIM WAS IN THE PIPELINE
            THAT LEGAL CLAIM HIS AUTONOMY, FOR THIS
            REASON MCCOY SHOULD BE APPLIED TO MR.
            MIRAGLIA'S CASE AND THE RETROACTIVITY A

                                                                       A-3580-18T2
                                      4
NON-ISSUE.   (6TH AND 14TH AMENDMENT
VIOLATION(S)) AND A VIOLATION OF NEW
JERSEY CASE LAW VIA JUNE GORTHY AND THE
AUTONOMY OF A CRIMINAL DEFENDANT.

POINT 3 – UNEXHAUSTED ISSUE(S) ONE, TWO,
AND    THREE    ARE     IN  A   SYMBIOTIC
RELATIONSHIP WITH EACH OTHER.         THIS
TROIKA     OF    ACTOR(S)    IS   CLEARLY
INEFFECTIVE FOR NOT RAISING THE (JUNE
GORTHY) DECISION WHICH SOLIDFIES THE
AUTONOMY OF A CRIMINAL DEFENDANT
DURING     TRIAL   PROCEEDINGS.        MR.
MIRAGLIA'S LEGAL ARGUMENT IS ROC[K]
SOLID AND AN EVID. R. 104 HEARING NEEDS TO
BE SCHEDULED TO ADDRESS THE PLAIN TO
SEE DEFICIENCY AND ADDRESS THE ACTUAL
PREJUDICE; IS THIS PREJUDICE FUNCTIONAL
AND SYSTEMIC IN NATURE AS PERTAINS TO
MR. MIRAGLIA'S CASE FOR THE FOLLOWING
REASON:    [TRIAL   COUNSEL]    WAS    MR.
MIRAGLIA'S TRIAL ATTORNEY AND THE
APPELLATE COUNSEL WHO LEFT HIM
LAWYERLESS. THESE QUESTION(S) AND MORE
NEED TO BE ADDRESSED AT A R. 104 HEARING
FOR THE FACT THAT THE APPELLATE
COURT(S) DECISION WOULD HAVE BEEN
DIFFERENT AS BY BEING BOUND BY NEW
JERSEY CASE LAW (JUNE GORTHY), AND THIS
DIFFERENCE TRANSLATES INTO SATISFYING
THE TWO PRONGS OF "STRICKLAND". (6TH
AMENDMENT VIOLATION)

POINT 4 – [THE] CHIEF JUSTICE . . . DENIED MR.
MIRAGLIA'S CERTIFICATION IN A CAPRICIOUS
MANNER. MR. MIRAGLIA ARGUED CLIENT
AUTONOMY IN HIS PRO SE CERTIFICATION
BRIEF AND [THE CHIEF] JUSTICE . . . JOINED IN

                                                 A-3580-18T2
                      5
[ANOTHER] JUSTICE['S] OPINION WHICH
READS: (1) WHEN A CRIMINAL DEFENDANT IS
FOUND COMPETENT TO STAND TRIAL UNDER
N.J.S.A. 2C:4-4, HE OR SHE HAS THE AUTONOMY
TO MAKE STRATEGIC DECISIONS AT TRIAL,
WITH THE ADVICE OF COUNSEL, INCLUDING
WHETHER TO ASSERT THE INSANITY DEFENSE.
(STATE OF NEW JERSEY V. JUNE GORTHY 226 NJ
516)[.] MR. MIRAGLIA DID NOT CITE THE JUNE
GORTHY CASE, HOWEVER; THE 3RD CIRCUIT
RULED "APPLY THE APPLICABLE LAW[,"]
"IRRESPECTIVE OF WHETHER THE PRO SE
LITIGANT HAS MENTIONED IT BY NAME[."]
MOREOVER, [THE CHIEF] JUSTICE . . . IS
DIRECTLY INVOLVED IN THE JUNE GORTHY
DECISION. THIS TRANSLATES INTO 6TH AND
14TH AMENDMENT VIOLATION(S) AND IS IN
VIOLATION OF BINDING NEW JERSEY CASE
LAW (JUNE GORTHY).

POINT 5 – THE COURT(S) ARE MISAPPLYING
THE TIME [BAR] TO MR. MIRAGLIA'S CASE IN
VIOLATION OF THEIR OWN RULE(S) IN HOW A
CRIMINAL DEFENDANT IS TO PROCEED
DURING     THE    APPELLATE     PROCESS.
(EXPLAINED IN DETAIL IN LEGAL ARGUMENT)
MOREOVER, MR. MIRAGLIA HAS SHOWN DUE
DILIGENCE.

POINT 6 – THE STATE'S DOUBLE STANDARD
VIOLATED PETITIONER'S STATE AND FEDERAL
CONSTITUTION RIGHTS AND THE RULING(S)
AGAINST MR. MIRAGLIA BREACH THE
STANDARD     OF   BEING    "OBJECTIVELY
UNREASONABLE" AS PERTAINS TO THE
RULING OF THE TRIAL COURT JUDGE . . . AND
THE FORCING OF AN INSANITY DEFENSE FOR
THIS IN VIOLATION BINDING NEW JERSEY

                                              A-3580-18T2
                     6
            CASE LAW (JUNE GORTHY). THIS TRANSLATES
            INTO   6TH    AND    14TH    AMENDMENT
            VIOLATION(S) AND WILL BE ARGUED IN A
            COMPREHENSIVE, METHODICAL, COGNET,
            AND SIMPLISTIC FASHION FOR THE PURPOSE
            OF COGNITION. UNEXHAUSTED ISSUE(S) 4
            AND 6 ARE SYMBIOTIC IN NATURE.

      The majority of defendant's arguments lack sufficient merit to warrant

discussion in a written opinion. See R. 2:11-3(e)(2). Indeed, most of those

arguments are clearly time-barred by Rule 3:22-12(a)(2). See also R. 3:22-4(b).

      We briefly analyze and reject defendant's arguments that he is entitled to

relief under State v. Gorthy, 226 N.J. 516 (2016) or McCoy v. Louisiana, ___

U.S. ___, 138 S. Ct. 1500 (2018). Defendant contends that Gorthy and McCoy

created new constitutional rights that should be applied retroactively to his

murder convictions. We disagree.

      The second or subsequent petition for PCR must be filed within one year

of a newly recognized constitutional right. In that regard, Rule 3:22-12(a)(2)

states:

            Second or subsequent Petition for Post-Conviction
            Relief. Notwithstanding any other provision in this
            rule, no second or subsequent petition shall be filed
            more than one year after the latest of:

            (A) the date on which the constitutional right asserted
            was initially recognized by the United States Supreme
            Court or the Supreme Court of New Jersey, if that right

                                                                        A-3580-18T2
                                       7
             has been newly recognized by either of those Courts
             and made retroactive by either of those Courts to cases
             on collateral review; . . . .

The rule goes on to state that the time limitation "shall not be relaxed" except as

provided in the rule. R. 3:22-12(b).

      In Gorthy, our Supreme Court held that a competent defendant has the

constitutional right to decide whether to assert an insanity defense. In that

regard, the Court recognized that a competent criminal defendant "has the

autonomy to make strategic decisions at trial, with the advice of counsel."

Gorthy, 226 N.J. at 520. One of the strategic decisions a defendant has the

autonomy to decide is whether to assert an insanity defense. Ibid. Accordingly,

the Court held that if a trial court gives an insanity instruction to the jury over a

defendant's clear objection, then the defendant is entitled to a new trial. Id. at

536-38.

      Defendant is not entitled to post-conviction relief under Gorthy for two

reasons. First, the decision in Gorthy was issued on September 28, 2016. Id. at

516. Defendant filed his second PCR petition in February 2018, well beyond

the one-year limitation period. This one-year time limitation cannot be relaxed.

Rule 3:22-12 provides no exception that would extend defendant's time beyond

the one-year limitation.    See R. 3:22-12(b) (stating that "[the Rule's] time


                                                                             A-3580-18T2
                                         8
limitations shall not be relaxed, except as provided herein"); see also R. 1:3-4(c)

(stating that a court may not enlarge the time for PCR petitions); State v.

Jackson, 454 N.J. Super. 284, 292-94 (App. Div. 2018).

      Second, the holding in Gorthy is not applicable to the circumstances of

defendant's trial and his assertion of an insanity defense. Defendant was found

to be competent to stand trial. As detailed in our opinion on defendant's direct

appeal, the trial court considered defendant's competency on four occasions:

three times before trial and once at trial. On direct appeal, we affirmed the ruling

that defendant was competent to stand trial.

      At trial, defendant was voir dired on his decision to testify. He stated that

he wanted to convince the jury that he should be found not guilty because he

was Jesus Christ and was on a mission from God when he killed his former

girlfriend and his grandmother. Defendant’s counsel did not want him to testify.

The court held a hearing on defendant's competency and found him competent.

During those proceedings, his counsel pointed out that if defendant did testify ,

counsel would ask the jury to find defendant not guilty because he was insane

when he killed the victims. Defendant accepted that dual defense strategy.

Thereafter, defendant testified and told the jury that he killed both his girlfriend

and his grandmother.


                                                                            A-3580-18T2
                                         9
      At the charge conference, defense counsel asked the trial court to give the

jury an instruction on the affirmative defense of insanity. Defendant did not

object to that charge. Indeed, defense counsel told the trial court that he had

discussed the insanity defense with defendant and defendant did not object.

      In his second PCR petition, defendant now argues that counsel asked for

the insanity charge over his objection. The record does not support that b ald

assertion. In short, by contrast to the defendant in Gorthy, defendant here did

not object to the presentation of an insanity defense.

      Defendant is also not entitled to post-conviction relief under McCoy.

There, the defendant was charged with a triple murder and he faced the death

penalty. His trial counsel believed that the evidence against the defendant was

"overwhelming" and the best strategy would be to concede guilt during the guilt

phase of the trial, so as to try to persuade the jury not to impose a death sentence

in the penalty phase of the trial. McCoy, 138 S. Ct. at 1503. Defendant

"vociferously" objected, insisted he was innocent, and objected to any admission

of guilt. Id. at 1505. Over defendant's objections, the trial court allowed defense

counsel to tell the jury that the defendant committed the three murders. Ibid.

      The United States Supreme Court reversed and ordered a new trial. Id. at

1512. The Court held that the Sixth Amendment to the federal Constitution


                                                                            A-3580-18T2
                                        10
guaranteed the right of a competent defendant to assert that he or she was

innocent: "We hold that a defendant has the right to insist that counsel refrain

from admitting guilt, even when counsel's [experience-based] view is that

confessing guilt offers the defendant the best chance to avoid the death penalty."

Id. at 1505. "[I]t is the defendant's prerogative, not counsel's, to decide on the

objective of his defense: to admit guilt in the hope of gaining mercy at the

sentencing stage, or to maintain his innocence, leaving it to the State to prove

his guilt beyond a reasonable doubt." Ibid.

      In stark contrast to McCoy, defendant was the one who insisted on telling

the jury that he killed the victims. As already pointed out, defendant's trial

counsel advised against defendant testifying and admitting his guilt.

Consequently, there was no Sixth Amendment violation because defendant

exercised his prerogative and decided to testify as he chose.

      Given our holding that neither of the rules announced in Gorthy nor

McCoy are applicable to defendant, we need not decide if either or both those

cases should be applied retroactively to defendant's case. Nevertheless, we point

out that defendant's case became final in 2013, when the Supreme Court denied

certification to review our affirmance of his convictions on his direct appeal.

See R. 3:22-12; State v. Covil, 240 N.J. 448, 468 (2020); State v. G.E.P., 458


                                                                          A-3580-18T2
                                       11
N.J. Super. 436, 445 (App. Div. 2019). Accordingly, defendant would only be

entitled to relief if McCoy or Gorthy were given complete retroactive effect.

See Teague v. Lane, 489 U.S. 288, 301 (1989); Covil, 240 N.J. at 468. Complete

retroactive effect is rarely given. State v. Hodge, 426 N.J. Super. 321, 333 (App.

Div. 2012) (citing State v. Burstein, 85 N.J. 394, 406 (1981)). Moreover, neither

the Court in McCoy nor the Court in Gorthy suggested in those decisions that

their rulings should be given complete retroactive effect.

      Affirmed.




                                                                          A-3580-18T2
                                       12
