                                NOT FOR PUBLICATION WITHOUT THE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-0147-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CLINT WALKER,

     Defendant-Appellant.
____________________________

                   Submitted April 27, 2020 – Decided July 23, 2020

                   Before Judges Ostrer and Vernoia.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment Nos. 03-04-1194
                   and 03-04-1196.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Michele A. Adubato, Designated Counsel,
                   on the brief).

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

PER CURIAM
      Clint Walker appeals from the denial, without an evidentiary hearing, of

his second petition for post-conviction relief. Walker collaterally challenges his

2004 conviction of first-degree robbery, N.J.S.A. 2C:15-1, and multiple second-

and third-degree weapons offenses, N.J.S.A. 2C:39-3(b), -4(a), -5(c)(1), and -

7(b). The court imposed an extended term of fifty years, subject to the No Early

Release Act, N.J.S.A. 2C:43-7(c). Walker had six prior robbery convictions,

four in the first degree.

      As the petition is untimely, we affirm.

      We assume the reader's familiarity with the facts underlying the charges,

which we reviewed in Walker's direct appeal, State v. Walker, No. A-1052-04

(App. Div. May 25, 2006) (Walker I), and in our opinion affirming the denial of

his first PCR petition, State v. Walker, No. A-0079-08 (App. Div. July 12, 2010)

(Walker II). Suffice it to say that the charges arose out of the morning robbery

of a sixty-nine-year-old man at a supermarket parking lot. The key issue at trial

was identification. The victim identified defendant from a photo array, but

confused Walker and his co-defendant when he identified them in court. In

summation, Walker's trial counsel highlighted differences between the victim's

description of his attackers and Walker's appearance.




                                                                          A-0147-18T2
                                        2
      Walker's pro se second petition presented fourteen grounds for relief,

which counsel supplemented in an amended petition that presented six grounds

for relief.1 In a written decision, the trial court found that the petition was

untimely under Rule 3:22-12; raised issues that were barred by Rule 3:22-4; and

his claim that he was uninformed of a plea offer was based on bald, conclusory

allegations.

      On appeal, Walker has narrowed his arguments to the following points:

               POINT I

               THE CLAIMS IN DEFENDANT'S PETITION FOR
               POST-CONVICTION   RELIEF   WERE    NOT
               PROCEDURALLY BARRED.

               POINT II

               THE POST CONVICTION RELIEF COURT ERRED
               IN DENYING THE DEFENDANT'S PETITION FOR
               POST-CONVICTION      RELIEF    WITHOUT
               AFFORDING HIM AN EVIDENTIARY HEARING
               TO FULLY ADDRESS HIS CONTENTION THAT HE
               FAILED TO RECEIVE EFFECTIVE ASSISTANCE
               OF COUNSEL.

               A. FAILURE TO INFORM DEFENDANT OF PLEA
               OFFER.



1
  For the sake of the record, we present these points in an appendix at the end
of this opinion. However, "[a]n issue not briefed on appeal is deemed waived."
Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011).
                                                                       A-0147-18T2
                                      3
               B. OTHER CLAIMS OF INEFFECTIVENESS OF
               COUNSEL.

               C. FAILURE OF PCR COURT TO CONDUCT AN
               EVIDENTIARY HEARING.

      Walker contends, as a procedural matter, the petition was not untimely

and the court should have held an evidentiary hearing.          Substantively, he

contends his trial counsel was ineffective by: not informing inform Walker of a

plea offer of a forty-year term with a twenty-year parole bar that he would have

accepted; failing to object to the State's identification procedure; failing to

request that the jury view defendant up close during trial; and failing to request

that his prior robbery convictions be sanitized in the bifurcated trial of the

certain persons offense.

      We review de novo the PCR court's legal conclusions, and its factual

inferences from the record, as the trial court did not hold an evidentiary hearing.

State v. Harris, 181 N.J. 391, 415 (2004). We focus on the PCR Rule's time

limitations.

      Under Rule 3:22-12(a)(2), a second or subsequent PCR petition must be

filed within one year of the date on which a new constitutional right is

recognized by the courts, "the date on which the factual predicate for the relief

sought was discovered," or "the date of the denial of the first or subsequent


                                                                           A-0147-18T2
                                        4
application for [PCR] where ineffective assistance of counsel that represented

the defendant on the first or subsequent application for [PCR] is being alleged."

Failure to comply requires dismissal. Rule 3:22-4(b) states that a "second or

subsequent petition for post-conviction relief shall be dismissed unless . . . it is

timely under R. 3:22-12(a)(2); and" "it alleges on its face" one of the three

criteria under Rule 3:12-12(a)(2) – that is, the petition "relies on a new rule of

constitutional law . . . that was unavailable during the pendency of any p rior

proceedings[,]" "the factual predicate for the relief sought could not have been

discovered earlier through the exercise of reasonable diligence," or the "petition

alleges a prima facie case of ineffective assistance of counsel" of prior PCR

counsel.

      Defendant does not rely on a new constitutional right, nor does he

expressly assert ineffective assistance of prior PCR counsel. Rather he focuses

on the alleged ineffectiveness of trial counsel. A second petition grounded in

such a claim must rely on facts that could not have been discovered more than a

year prior to the second petition's filing.

      However, Walker relies on facts known to him for many years before he

filed his second petition. He admits in his certification that he first learned of




                                                                            A-0147-18T2
                                          5
the alleged forty-year plea offer before Walker I was decided in 2006. 2 He

contends he brought this to the attention of his first PCR attorney and first PCR

appellate attorney, and they both informed him – really, misinformed him – that

the issue was not cognizable in a PCR proceeding, because it pertained to

sentencing. However, even if the failure to disclose the plea offer is viewed as

a claim of ineffectiveness of PCR or PCR appellate counsel, Walker was obliged

to raise that claim within one year after his first PCR was denied in 2008, in the

case of PCR counsel's ineffectiveness, or one year after his PCR appeal was

denied in 2010.

      Walker was also aware, during trial, that his trial counsel failed to request

that the jury view him up close, to highlight differences between his current

physical appearance and the victim's description of his assailants. Likewise,

Walker was aware, before the trial of the certain persons charge, that his prior

robbery convictions would not be sanitized.           Walker has presented no

compelling explanation as to why these alleged oversights of trial counsel could




2
   His trial counsel mentioned the plea offer in a 2004 letter to the Ethics
Committee, in response to a complaint Walker filed. Walker certified he
"obtained a copy of this letter . . . shortly after my original appellate attorney
(direct appeal) sent me a letter that I should call him regarding the brief that he
was about to submit on my behalf."
                                                                           A-0147-18T2
                                        6
not have been discovered, with the exercise of reasonable diligence, sooner than

a year before he filed his second petition in 2017.

      Walker contends that his tardiness resulted from excusable neglect. First,

the contention is unsupported by competent evidence. Second, under the plain

language of Rule 3:22-12, the "excusable neglect" standard applies only to first

petitions for PCR filed beyond the five-year deadline. A petitioner may file an

otherwise untimely first petition by showing "excusable neglect" and a

reasonable probability that a "fundamental injustice" would result from

enforcing the time bar "if the defendant's factual assertions were found to be

true." R. 3:22-12(a)(1)(A). The Rule does not similarly relax the one-year

deadline for filing a second or subsequent petition. See R. 3:22-12(b) (stating

"[t]hese time limitations shall not be relaxed, except as provided herein").

      The remainder of Walker's arguments lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




                                                                          A-0147-18T2
                                        7
                            APPENDIX

Walker presented the following points in his pro se second petition:

             (1) PCR counsel was ineffective by failing to
      notify the defendant and the court of his affiliated with
      trial counsel. (sic)

             (2) PCR counsel was ineffective by failing to
      investigate and obtain evidence (As requested by
      petitioner) which were material to the defendant's PCR
      argument.

            (3) Trial counsel was ineffective by failing to
      have the defendant's photo submitted into evidence, as
      co-defendant's counsel did which created an unfair
      decision by the jury.

            (4) Trial counsel was ineffective by failing to
      challenge the trial court jury instruction, which directed
      the jury to find the defendant guilty of being the actor
      instead of a participant as the record reflects. PCR
      counsel was ineffective for failing to raise the same.

            (5) Trial counsel was ineffective by failing to
      subpoena the victim to be voir dired at the pre-trial
      Wade hearing to determine the reliability of the
      identification procedure.         Appellate counsel was
      ineffective for failing to raise the same on direct appeal.

            (6) Trial counsel was ineffective by failing to
      request a lesser included offense instruction.

            (7) Trial counsel was ineffective by failing to
      request a model jury instruction, due to the inconsistent
      testimony of the victim's identification of the
      defendant.


                                                                    A-0147-18T2
                                  8
       (8) Appellant counsel was ineffective by
failing to raise that the trial court erred by denying the
trial counsel's request to be relieved (Pre-trial), due to
trial counsel recognizing that a conflict of interest had
developed which caused counsel from performing his
sixth amendment duties.

      (9) Trial counsel was ineffective by failing to
investigate and present material evidence as requested.
PCR counsel was ineffective by failing to raise the
same on PCR.

      (10) Trial counsel was ineffective by failing to
challenge the first degree robbery conviction at
sentencing. Appellate counsel and PCR counsel was
ineffective for failing to raise the same.

      (11) Trial counsel was ineffective by failing to
challenge the state's application for a mandatory
extended term be imposed. Appellate counsel was
ineffective for failing to raise the same.

       (12) Appellate counsel was ineffective by
failing to raise that the trial court erred in its
determination that the imposition of the extended term
sentence was mandatory.

      (13) Trial counsel was ineffective by failing to
request a judgment of acquittal at the end of the trial,
due to the evidence notwithstanding the verdict.
Appellate counsel was ineffective by failing to raise the
same.

      (14) Trial counsel was ineffective by failing to
challenge the state's request that the Graves Act be
imposed, when the record reflected that the defendant
was the alleged participant.


                                                             A-0147-18T2
                            9
      Through appointed counsel, the following additional points were

presented to the trial court:

             I.      Petitioner was denied the effective assistance of
             counsel constitutionally guaranteed to him pretrial, at
             trial, and on appeal, necessitating granting his petition
             for post-conviction relief. U.S. Const. Amends. VI,
             XIX; N.J. Const. Art. I, Par. 10.

                   i.     Post-Conviction Relief Law Applies to
                          trial and appellate counsel.

             A.    Trial counsel's failure to advise the petitioner of
                   the State's Plea Offer of 40 years with a 20-year
                   minimum resulted in ineffective assistance of
                   counsel.

             B.    Trial counsel's failure to request that the
                   Petitioner's prior convictions be sanitized at the
                   second trial (certain persons) resulted in
                   ineffective assistance of counsel.

             C.    The instant in-court recounting of the initial
                   alleged photo identifications by first showing the
                   identifier his signature on the photos resulted in
                   an impermissible directed in-court identification
                   that should have been objected to by to by (sic)
                   trial counsel and also raised on appeal and
                   constituted ineffective assistance of counsel.

             D.    Trial counsel's failure to have the jury view the
                   petitioner close-up resulted in ineffective
                   assistance of counsel.

             E.    Post-conviction relief "general time limitations"
                   rules should be extended in this matter.


                                                                         A-0147-18T2
                                       10
F.   The petitioner incorporates and relies on all
     favorable issues and arguments raised in his pro
     se Post-Conviction Relief Petitioner and related
     documents.




                                                        A-0147-18T2
                        11
