                                NOT FOR PUBLICATION WITHOUT THE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-4093-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KAREEM COLEMAN, a/k/a
FARAD GREEN,

     Defendant-Appellant.
________________________

                   Submitted March 30, 2020 – Decided May 1, 2020

                   Before Judges Sumners and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment Nos. 98-07-3074,
                   97-06-2715, and 96-12-4031.

                   Kareem Coleman, appellant pro se.

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

PER CURIAM
      Defendant Kareem Coleman appeals from the Law Division's March 8,

2019 order dismissing his third petition for post-conviction relief (PCR) without

an evidentiary hearing. We affirm.

                                     I.

      Tried by a jury in 1999, Coleman was convicted of first-degree aggravated

manslaughter, N.J.S.A. 2C:11-4(a), and second-degree possession of a weapon

for an unlawful purpose, N.J.S.A. 2C:39-4(a), in connection with the April 15,

1998 shooting death of Terrance Barnes in Newark. On November 1, 1999, after

merger, the Law Division sentenced Coleman to a thirty-year custodial term,

subject to the No Early Release Act, N.J.S.A. 2C:43–7.2.           In affirming

defendant's conviction and sentence, we described the trial proofs as follows:

            The facts are somewhat complex as there were no actual
            eyewitnesses to the murder that led to the charges. But
            there were various witnesses who placed defendant, or
            someone resembling him, in the area and with a weapon
            at the time gunshots were heard in the area where the
            victim's body was found.         There was, as well,
            defendant's rather detailed confession.

            [State v. Coleman, No. A-2143-99 (App. Div. January
            25, 2002).]

      After the Supreme Court denied certification, see State v. Coleman, 172

N.J. 358 (2002), defendant filed his first PCR petition on August 23, 2002,

which the court denied without an evidentiary hearing in a January 24, 2011

                                                                         A-4093-18T3
                                          2
written opinion and order. 1 The PCR judge was the same judge who oversaw

defendant's Miranda,2 Wade,3 and Franks4 motions, and jury trial more than

twelve years earlier. In his seven-page written decision, the judge noted that

defendant, and his appointed PCR counsel, contended that his appellate counsel

was constitutionally ineffective for failing to raise arguments that touched

defendant's confession, the witness identifications, and issues relating to the

arrest warrant.

       The judge also indicated that defendant, at the time of oral argument on

the petition, "presented his own [120-page] brief in support of the PCR

application." In that pro se supplemental brief, defendant raised fifty-eight

points that primarily related to the alleged ineffective assistance of his trial

counsel who he claims failed to call witnesses, was deficient in impeaching



1
  We could not determine any explanation in the record for the delay between
the filing of defendant's initial petition and the PCR court's January 4, 2011
decision. As we noted in our unpublished opinion affirming denial of
defendant's first PCR petition, "we [could not] account for the undue delay in
the Law Division's disposition of this matter." State v. Coleman, No. A-3918-
10 (App. Div. Nov. 19, 2013) (slip op. at 2).
2
    Miranda v. Arizona, 384 U.S. 436 (1966).
3
    United States v. Wade, 388 U.S. 218 (1967).
4
    Franks v. Delaware, 438 U.S. 154 (1978).
                                                                        A-4093-18T3
                                       3
witnesses, failed to suppress several identifications, and did not object or move

for a mistrial when unduly prejudicial hearsay testimony was elicited.

Moreover, defendant claimed that the trial court erred when it gave deficient

jury instructions, failed to suppress his statement, and wrongfully excused a

juror. Finally, defendant argued that the State's opening and closing arguments

were prejudicial, its comments in summation diluted its burden of proof, it

introduced perjured evidence, failed to introduce exculpatory evidence, and

wrongfully introduced prior witness testimony and prior consistent statements. 5

      In his written opinion, the judge rejected defendant's claims that his

appellate counsel was ineffective and concluded defendant failed to satisfy both

the performance and prejudice prongs of the Strickland/Fritz6 paradigm. As to

the claims raised in defendant's pro se supplemental brief, the judge stated:



5
   The PCR court accepted defendant's pro se supplemental brief, which it
reviewed "prior to its decision." The court also noted that it permitted defendant
to read excerpts of the brief into the record, and acknowledged that although
such a procedure was "clearly violative of the Court [Rules], and prejudicial to
the State, which did not have a complete opportunity to supplement its papers,"
it considered defendant's brief "for the purposes of a complete record."
6
  To prevail on a claim of ineffective assistance of counsel, a defendant must
satisfy the two-part test established in Strickland v. Washington, 466 U.S. 668,
(1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987).
Specifically, the defendant must show that his attorney's performance was


                                                                          A-4093-18T3
                                        4
            Many of defendant's pro se arguments are repetitive of
            his counsel's arguments. In addition, some of these
            arguments are ludicrous . . . . The other arguments are
            without merit and concern trial strategy of defense
            counsel, and arguments as to the [c]ourt's charge and
            the [v]erdict [s]heet which were rejected by the
            Appellate Division. These arguments do not present a
            prima facie case of ineffective assistance of counsel.
            The court finds [defendant's trial counsel] was
            extremely effective in his representation at trial.

      We affirmed the court's January 24, 2011 order in an unpublished opinion,

see Coleman, slip op. at 3,7 and the Supreme Court denied certification. State

v. Coleman, 217 N.J. 623 (2014).

      Defendant filed a second PCR petition, which the court denied in a

December 17, 2014 written opinion and order. The second PCR judge concluded

that defendant's petition was timely as "it was filed within a year of both the

Appellate Division's denial of [defendant's] PCR appeal and the New Jersey




deficient and that the "deficient performance prejudiced the defense."
Strickland, 466 U.S. at 687.
7
   In his appeal of that order, defendant initially challenged only the alleged
errors of his appellate counsel. See Coleman, No. A-3918-10, slip op. at 1. On
November 25, 2013, after our opinion was submitted, defendant filed a motion
to file a supplemental brief and appendix. We granted that application in a
December 2, 2013 order and noted that "[w]e have reviewed [defendant's] pro
se supplemental brief and appendix (dated April 3, 2013) and its forty-three
points (and associated arguments) and conclude that they are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2)."
                                                                       A-4093-18T3
                                      5
Supreme Court's denial of [his] petition for certification." The PCR judge,

nevertheless, noted that defendant's petition failed to make a prima facie

showing of ineffective assistance of counsel because he "[had] not shown or

alleged that [he] informed [his PCR counsel] that [he] wanted her to raise

arguments on appeal" and his counsel "was not obligated to raise issues that

[defendant] wanted argued unless [he] informed her that [he] wanted those

issues raised." It does not appear defendant perfected an appeal of the second

PCR court's December 17, 2014 decision.

      Defendant subsequently filed a habeas corpus petition in the United States

District Court for the District of New Jersey. In its June 22, 2018 order, the

district court stated that defendant "frames his claims for relief in terms of the

ineffectiveness of his trial counsel and errors by the trial court" and that "[t]hese

claims are cognizable on habeas, but nearly all of the claims are unexhausted."

It further noted that it was "not clear . . . that all of the unexhausted claims raised

in his habeas petition are patently meritless or procedurally defaulted, i.e. that

the state courts would necessarily bar Petitioner from bringing one or more of

these claims in a subsequent PCR petition." The court granted defendant's

request for a stay to "allow [defendant] to attempt to exhaust his habeas claims

to all three levels of the state court."


                                                                               A-4093-18T3
                                           6
      Defendant then filed his third PCR petition on August 8, 2018. In Judge

Arthur J. Batista's March 8, 2019 written opinion denying defendant's petition,

he relied on Rule 3:22-12(a)(2), which requires that a second or subsequent PCR

petition be filed no later than one year after a defendant's discovery of a new

rule of constitutional law, the discovery of a factual predicate that could not

have been discovered earlier, or the denial of a previous PCR petition and

defendant now alleges ineffective assistance of that PCR counsel. Judge Batista

determined that "[t]he instant petition [was] untimely considering that

[defendant's] second PCR was denied on December 17, 2014" and defendant

"neglect[ed] to address this issue . . . thereby giving the court no basis to permit

relaxation of the time-bar."      More specifically, Judge Batista could not

determine whether defendant's claims satisfied the exceptions set forth in Rule

3:22-12(a)(2) as his petition was "simply a photocopy of [defendant's] initial

January 14, 2011 PCR, attached to [defendant's] June 22, 2018 United States

District Court of New Jersey [o]rder."

      Judge Batista also stated that defendant "failed to provide this court with

basic documentation including, but not limited to, his habeas petition and [the

decision] in [defendant's] initial PCR despite being instructed to do so."

Referencing a letter that defendant received from the public defender before


                                                                            A-4093-18T3
                                         7
filing his third PCR petition, the judge also emphasized that defendant "was well

informed regarding the specificities required for filing a third PCR, namely that

the petition must include a statement of claims that remain unexhausted (and

those claims only)." Judge Batista concluded defendant's submission prevented

the court from making a determination of good cause as defendant merely

provided "the entirety of [his] 2011 PCR" arguments. This appeal followed.

      On appeal, defendant identifies the same fifty-eight points he raised in his

pro se supplemental brief in support of his initial PCR petition and which were

rejected by the first PCR court. 8     As Judge Batista correctly concluded,

defendant's third PCR petition was untimely and we affirm substantially for the

reasons he expressed in his well-reasoned March 8, 2019 written opinion. We

offer the following brief comments to amplify the court's factual findings and

legal conclusions.

      We review the legal conclusions of a PCR court de novo. State v. Harris,

181 N.J. 391, 420 (2004). This standard of review applies to mixed questions



8
  In this regard, we have conscientiously reviewed and compared the arguments
defendant asserted in his pro se supplemental brief with those contained in his
merits brief submitted in support of this appeal. Absent the scrambling of the
legal points, many of which contain no attendant legal argument, we discern no
substantive difference from the arguments raised before us to those contained in
his 2011 submission.
                                                                          A-4093-18T3
                                        8
of fact and law. Ibid. Where an evidentiary hearing has not been held, it is

within our authority "to conduct a de novo review of both the factual findings

and legal conclusions of the PCR court." Id. at 421.

      "[S]econd or subsequent petition[s] for post-conviction relief shall be

dismissed unless: (1) [they are] timely under Rule 3:22-12(a)(2)." State v.

Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018) (quoting R. 3:22-4(b)). 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:

            (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
            has been newly recognized by either of those Courts
            and made retroactive by either of those Courts to cases
            on collateral review; or

            (B) 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; or

            (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 subsequent application for post-conviction
            relief is being alleged.




                                                                         A-4093-18T3
                                        9
      Defendant failed to establish any of the exceptions listed in Rule 3:22-

12(a)(2)(A), (B), or (C). From the record before us, defendant's present PCR

petition is untimely under Rule 3:22-12(a)(2)(A) because he claims no newly

recognized constitutional right. The petition is also untimely under Rule 3:22-

12(a)(2)(C) as it was not filed within one year of the order denying any

preceding petition and defendant does not allege ineffectiveness of his previous

PCR counsel in any event. Defendant's petition is also untimely under Rule

3:22-12(a)(2)(B) because it was not filed within one year of discovery of the

factual predicate for the relief sought nor has defendant established that the

"factual predicate could not have been discovered earlier through the exercise

of reasonable diligence." In fact, and as noted, defendant's current claims mirror

those asserted in 2011 in support of his first PCR petition and are based on

alleged errors that took place during his 1999 trial. Further, we have concluded

that the strict time bar imposed under Rule 3:22-12(a)(2) may not be ignored or

relaxed. Jackson, 454 N.J. Super. at 292-94; see also R. 1:3-4(c) (providing that

"[n]either the parties nor the court may . . . enlarge the time specified by . . .

[Rule] 3:22-12").

      Finally, any claims that a fundamental injustice would occur were we to

affirm Judge Batista's order are without merit. Unlike Rule 3:22-12(a)(1)(A),


                                                                          A-4093-18T3
                                       10
which applies to the filing of a first PCR petition, Rule 3:22-12(a)(2) does not

allow relief from the mandatory time bar based on fundamental injustice. See

Jackson, 454 N.J. Super. at 293-94 (explaining that Rule 3:22-12(a)(1)(A),

which allows for the late filing of a first PCR petition where excusable neglect

and a fundamental injustice are shown, "has no application to second or

subsequent petitions"). Thus, because "enlargement of Rule 3:22-12's time

limits 'is absolutely prohibited[,]'" id. at 292 (citations omitted), defendant's

present PCR petition was properly dismissed as mandated by Rule 3:22-4(b)(1).

      To the extent we have not specifically addressed any of defendant's

arguments, it is because we find insufficient merit in those contentions to

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

      Affirmed.




                                                                         A-4093-18T3
                                      11
