Opinion
DOCKET NO. A-5507-11T3
03-03-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES BADGER, Defendant-Appellant.
James Badger, appellant pro se. Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 91-05-528.
James Badger, appellant pro se.
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant James Badger appeals from the Law Division's May 31, 2012 order (1) denying his application for the assignment of counsel, and (2) denying his second petition for post-conviction relief (PCR). We affirm.
I.
This appeal touches and concerns the murder of Benjamin Tobaygo on July 14, 1986. It is the fifth time this court has considered the circumstances of Badger's October 23, 1992 conviction for first-degree murder, N.J.S.A. 2C:11-3(a)(1); first-degree robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon with a purpose to use it unlawfully, N.J.S.A. 2C:39-4(d); and felony murder, N.J.S.A. 2C:11-3(a)(3). See State v. Badger (Badger I), No. A-1572-92 (App. Div. June 29, 1994) (provisionally affirming conviction and sentence, but remanding for a hearing regarding co-defendant Frank Johnson's testimony, his asserted recantation, and his resentencing); State v. Badger (Badger II), No. A-2252-94 (App. Div. June 11, 1996) (affirming the remand judge's finding that Frank Johnson's recantation was incredible and that a new trial was unwarranted), certif. denied, 146 N.J. 564 (1996); State v. Badger (Badger III), No. A-6030-97 (App. Div. June 12, 2000) (affirming denial of first PCR petition), certif. denied, 167 N.J. 86 (2001); State v. Badger (Badger IV), No. A-1476-09 (App. Div. June 21, 2011) (affirming denial of application for DNA testing of certain crime-scene evidence in the possession of the State), certif. denied, 208 N.J. 600 (2011). In addition, Badger unsuccessfully sought habeas relief in federal court. Badger v. Hendricks (Badger V), 287 Fed. Appx. 178 (3d Cir. 2008), cert. den. 555 U.S. 1105; 129 S. Ct. 902; 173 L. Ed. 2d 119 (2009). Familiarity with those decisions is assumed.
After merger, an aggregate sentence of fifty years in prison, with a forty-year parole disqualifier, was imposed.
After the remand hearing, Frank Johnson pled guilty to two counts of perjury for testifying falsely at the remand hearing. Badger III, supra, slip op. at 5.
On May 12, 2010, Badger filed a pro se PCR petition, which was dismissed without prejudice due to the pendency of Badger IV in this court. On December 19, 2011, after all proceedings in Badger IV had been exhausted, the present pro se PCR petition — nearly identical to the 2010 pro se PCR petition — was filed. The gravamen of the petition was a reprise of the claim that Badger suffered ineffective assistance of counsel due to "an actual conflict of interest that adversely affected [counsel's] representation of James Badger at [the 1994] remand hearing." Badger's contention was that the conflict of interest explained his attorney's failure to introduce testimony from Patricia Johnson at the remand hearing that would have bolstered her husband's testimony that a clandestine agreement existed between Frank Johnson and the State to drop the charges against Patricia Johnson in exchange for Frank Johnson's testimony against Badger. The conflict of interest arose because Badger's attorney represented Patricia Johnson in an earlier phase of the same litigation. Badger claims that this misstep would have altered the remand court's finding that his brother-in-law's testimony was not credible.
Part of Badger's pro se DNA application pursuant to N.J.S.A. 2A:84A-32(a), which was filed in June 2008, as well assigned counsel's Law Division brief filed in February 2009, sought an evidentiary hearing on a separate, moribund ineffective assistance of counsel claim. Badger attempted to resuscitate the claim with an affidavit signed by Patricia Johnson, Badger's sister and Johnson's former wife. The ineffective assistance of counsel component of the application was never ruled upon, but was revived, without objection, in Badger's pro se PCR petition of May 2010.
On January 25, 2012, the Law Division entered an order denying Badger's application for the assignment of counsel because he "failed to establish good cause . . . as required by Rule 3:22-6(b)." On May 21, 2012, a different Law Division judge conducted a hearing on Badger's motion for reconsideration with respect to the assignment of counsel, and on Badger's underlying PCR petition.
In denying both forms of relief, the judge reasoned that the underlying conflict of interest issue was already addressed by us in Badger III, as part of our review of the first PCR petition's claim of ineffective assistance of counsel. The judge noted that we had previously found Badger's assertion that "this alleged conflict somehow prevented [his] attorney from calling [Patricia Johnson] as a witness at [Badger's] remand hearing" to be "clearly without merit and not warranting further discussion, much less a remand for an evidentiary hearing." Badger III, supra, slip op. at 8. Furthermore, the judge stated that we had declared:
[Badger's] contentions are a series of unsupported claims and suppositions one piled on top of the other in the apparent hope that enough of them will create the illusion of a meritorious claim. They do not.Accordingly, because "[the Appellate Division] made a factual determination that Mr. Badger's claims have no merit, [a]nd I don't believe that I am permitted to overrule their factual determination in that regard," the Law Division judge refused to grant PCR or conduct an evidentiary hearing. The judge never explicitly ruled on the reconsideration motion.
[Ibid.]
Additionally, the PCR judge concluded that because the PCR petition "certainly [was] filed outside of the five years that the PCR rule provides," he found the petition barred by Rule 3:22-12. An order memorializing the judge's decision was entered on May 31, 2012. This appeal followed.
II.
On appeal, Badger presents the following issues for our consideration:
POINT I: THE COURT BELOW ERRED BY DENYING THE APPELLANT HIS STATE AND FEDERAL DUE PROCESS RIGHT TO A FAIR HEARING ON HIS CLAIM OF DENIAL OF THE RIGHT TO AN APPEAL, OF PREJUDICIALLY INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, AND OF WITHHOLDING OF MATERIAL EVIDENCE DURING A BRADY [v.] MARYLAND, 373 U.S. 83, 83 S. CT. 1194[, 10 L. ED. 2D 215] (1963) HEARING ORDERED DURING DIRECT APPEAL. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, PAR. 1; ART. I, PAR. 10.We have reviewed these contentions in light of the complete record presented to us, and conclude that they are unpersuasive.
A. ACTUAL CONFLICT.
B. ADVERSE AFFECT FROM ACTUAL CONFLICT.
C. ADVERSE AFFECT BEFORE AND DURING REMAND HEARING.
D. FURTHER DIVIDED LOYALTY.
E. THE COURT BELOW ERRED.
F. INDEPENDENT SIXTH AMENDMENT INEFFECTIVE ASSISTANCE OF COUNSEL VIOLATION BY JAMES BADGER'S COUNSEL CAUSING PREJUDICE TO RIGHT TO PRESENT FEDERAL CLAIM IN A HABEAS PROCEEDINGS FROM FAILURE TO RAISE A CLAIM OF ACTUAL CONFLICT CAUSING ADVERSE AFFECT DUE TO SUCCESSIVE REPRESENTATIONS BY COUNSEL LINDA LAWHUN.
G. STATE INTERFERENCE WITH BADGER'S SIXTH AMENDMENT RIGHTS.
Generally, PCR is a "'safeguard that ensures that a defendant was not unjustly convicted.'" State v. Nash, 212 N.J. 518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)). A petition for PCR essentially acts as a defendant's final opportunity to contest the "fairness and reliability of a criminal verdict in our state system." Ibid. (quoting State v. Feaster, 184 N.J. 235, 249 (2005) (citing State v. Rue, 175 N.J. 1, 18 (2002)). Ultimately, if a mistake created a miscarriage of justice in the preceding trial or sentencing, a post-conviction relief hearing provides a final opportunity to redress such an error. State v. Hess, 207 N.J. 123, 144-45 (2011).
Rule 3:22-12(a)(1) implements time limitations for filing initial PCR petitions. The Rule states, in pertinent part, that
[e]xcept as provided in paragraphs (a)(2), (a)(3), and (a)(4) of this rule, no petition shall be filed pursuant to this rule more than 5 years after the date of entry pursuant to [Rule] 3:21-5 of the judgment of conviction that is being challenged unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice.
[R. 3:22-12(a)(1).]
Rule 3:22-12(a)(2), in pertinent part, prohibits subsequent PCR petitions that are filed more than one year after the latest of:
(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.
[R. 3:22-12(a)(2)(B) and -12(a)(2)(C).]
The New Jersey Supreme Court has counseled that only "compelling, extenuating circumstances" or, alternatively, "exceptional circumstance[s]," comprise sufficient grounds to relax the PCR time limitations. State v. Milne, 178 N.J. 486 492, 494 (2004). That is because
[a]s time passes after conviction, the difficulties associated with a fair and accurate reassessment of the critical events multiply. Achieving "justice" years after the fact may be an illusory temptation than a plausibly attainable goal when memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable. . . . Moreover, the [Rule] serves to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation. The [Rule] therefore strongly encourages those believing they have grounds for [PCR] to bring their claims swiftly, and discourages them from sitting on their rights until it is too late for a court to render justice.
[State v. Mitchell, 126 N.J. 565, 575-76 (1992) (internal citations omitted).]
We agree with the Law Division that Badger's present PCR petition is time-barred under Rule 3:22-12. A brief timeline of this case's relevant post-conviction litigation amply demonstrates that the PCR court was correct in denying Badger's petition on this ground. Following his conviction on October 23, 1992, Badger filed an initial PCR petition that was denied by the Law Division on January 29, 1998. We affirmed that denial, and completely addressed Badger's ineffective assistance of counsel and conflict of interest claims on June 12, 2000. Badger III, supra, slip op. at 1. The current PCR petition was actually filed on May 12, 2010. If we were to treat Badger's DNA application as a masquerading PCR petition, the present PCR petition may be considered to have been filed in June 2008.
Thus, Badger's second PCR petition falls outside of Rule 3:22-12(a)(2)(C)'s one-year deadline for filing subsequent petitions. Indeed, more than eight years had elapsed between our treatment of Badger's claims in Badger III, and the filing of the present PCR petition. Such a significant interval procedurally bars Badger from litigating the claims in the petition.
Even if we were to apply the 2008 version of Rule 3:22-12's time constraints, the result is the same. Prior to two amendments in 2009 and 2010, Rule 3:22-12(a) simply read as follows:
A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after the rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.Under this version, there was no distinction between time limitations for initial PCR petitions and subsequent ones, which were all subject to the five-year bar. See State v. Goodwin, 173 N.J. 583, 594-95 (2002) (applying a five-year limitation under Rule 3:22-12 to a defendant's second petition for PCR). Thus, under the former regime, Badger's 2008 filing was more than fifteen years after the 1992 judgment of conviction, and more than thirteen years after the 1994 remand hearing, rendering the present petition woefully out of time.
[Pressler, Current N.J. Court Rules, R. 3:22-12(a) (2008).]
Notwithstanding the overdue filing, Badger argues that the specific factual predicate for his claim could not have been discovered until his sister's July 2008 affidavit was presented, and such circumstance satisfies the current Rule's one-year limitation and the former Rule's exception for excusable neglect. Indeed, Badger argued before the Law Division the following: "The merit of my PCR is based on the fact that some new information has come to light four years ago in the form of a[n] affidavit from Patricia . . . Johnson, formerly Patricia . . . Johnson, now known as Patricia Morris. And her affidavit . . . goes to the heart of the arguments that I make before your Honor today . . . ."
According to Badger, this affidavit confirms that Badger's attorney could not have called his sister to testify at the 1994 remand hearing to support Frank Johnson's testimony due to a conflict of interest arising from the attorney's successive representation of Patricia Johnson. Yet, all of this was known long ago, at least as early as Badger III in 2000. Nevertheless, Badger speculates that had his sister testified at the remand hearing it would have corroborated Frank Johnson's testimony and refuted the remand judge's determination that
We criticized the remand judge for his intemperate tone, Badger II, supra, slip op. at 8, but otherwise confirmed the validity of his findings.
I [the remand judge] wouldn't believe anything that Frank Johnson said ever. He was probably one of the most consummate liars that I have seen in 21 years on the bench. And he did it with such dash and such flair that it was nauseating to me. I found it difficult to contain myself and to retain my judicial composure in the face of this blatant, outrageous, insulting, contemptible, flagrant lying. It was frightening to think that there is such
contempt for the process and that the culture in the prison is such that it can drive people to that. It's frankly, frightening to me.
Badger's arguments are unconvincing. We fail to see how the 2008 discovery of Patricia Johnson's version of events from 1991 either was the product of excusable neglect or would have been capable of having a material impact upon the earlier proceedings. The substance of the remand hearing addressed the rationale underpinning the State's decisions to drop the charges against Patricia Johnson and acquiesce in the re-sentencing of Frank Johnson, which Badger claimed were the result of a secret, undisclosed deal between the State and Frank Johnson. Furthermore, it was intended to explore how that arrangement impacted Frank Johnson's agreement to cooperate with the State and testify against Badger at the trial.
We addressed those very subjects in Badger III, where we explicated Badger's contention "that his attorney on direct appeal had a conflict of interest arising out of [the attorney's] alleged representation of one of the co-defendants whose charges had been dismissed before [Badger's] trial, and that this alleged conflict somehow prevented that attorney from calling the co-defendant as a witness at [Badger's] remand hearing." Badger III, supra, slip op. at 7-8. Since the State's treatment of Patricia Johnson was an issue at the core of the remand proceedings, any information that Patricia Johnson might have possessed was reasonably discoverable long before 2008. No superhuman or exhaustive effort was necessary to unearth the contents of the affidavit. In the succeeding fourteen years following the unsuccessful new trial motion, anything relevant that Badger's sister knew, or had to say, was capable of discovery. Its timing speaks volumes.
Patricia Johnson's information came to light in May 2008, just a scant few weeks following the Third Circuit's affirmance of the denial of habeas relief. Badger V, supra, 297 Fed. Appx. at 178.
Badger also raised the ineffective assistance of counsel and conflict of interest issues in the habeas proceeding in federal court. The appellate panel's majority concluded that Badger had failed to demonstrate an actual conflict of interest, and further noted that the only evidence to support Badger's claim that his attorney failed or refused to call Patricia Johnson to testify was a letter penned by the attorney, which "does not indicate that [the attorney's] decision, assuming a decision was made, not to call [Patricia Johnson] was motivated by an interest to protect her former client." Badger V, supra, 287 Fed. Appx. at 184. The addition of an affidavit now, from Patricia Johnson, containing information about what she knew in 1991 about Frank Johnson's supposed surreptitious deal with the State is irrelevant to the conflict of interest issue. What was brought forth in 2008 changes nothing with respect to the successive representation and conflict of interest theory.
Beyond the procedural blockade to relief, Badger's substantive claim of ineffective assistance of counsel also fails. In order to obtain relief for suffering the ineffective assistance of counsel, a defendant must allege facts sufficient to establish a prima facie case for relief under the "familiar two-prong test outlined in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by [the New Jersey Supreme] Court in State v. Fritz, 105 N.J. 42, 58 (1987)." State v. Pierre-Louis, ___ N.J. ___, ___ (2014) (slip op. at 5). A defendant "must show both (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced the outcome." Ibid. Badger has failed to satisfy the performance and prejudice factors of this paradigm.
To satisfy the first factor, Badger is required to show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Generally, a reviewing court proceeds from the "strong presumption that counsel's performance falls within the 'the wide range of professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S. Ct. 2574, 2586, 91 L. Ed. 2d 305, 323 (1986) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). Therefore, Badger "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).
As we have outlined, the focus of Badger's argument concentrates on a conflict of interest that arose on Badger's direct appeal and subsequent remand hearing. Again, Badger contends that his sister's affidavit that alludes to a clandestine agreement between the State and Frank Johnson whereby the State offered to "get [Frank Johnson's] wife off so she can be with [Frank Johnson's] son" in exchange for Frank Johnson's testimony against Badger, confirms a conflict of interest since Badger's counsel previously represented the sister. Furthermore, it was this representation that allegedly precluded Badger's counsel from calling Patricia Johnson to testify at Badger's remand hearing. And, had she so testified, the remand court's finding that Frank Johnson's testimony was not worthy of belief would have been obviated.
This argument is meritless to prove that Badger's counsel's performance was deficient. Badger's counsel successfully appealed Badger's sentence and garnered a remand hearing arising from problems stemming from Frank Johnson's testimony. Badger I, supra, slip op. at 16. The remand hearing transcripts provide every indication that Badger received effective assistance of counsel. Notably, Badger's attorney not only called Frank Johnson to testify, but she also called the prosecutor and Frank Johnson's defense attorney because both allegedly participated in a discussion with Frank Johnson concerning the potential dropping of charges against Patricia Johnson. However, even these best efforts were not rewarded with a new trial.
Under these circumstances, Badger points to a single strategic decision on his counsel's part to omit calling a particular witness — Patricia Johnson — due to a potential conflict of interest. In these situations, the Supreme Court counsels that "strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" State v. Castagna, 187 N.J. 293, 315 (2006) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). Badger's attorney's decision does not represent one of those rare instances. Badger's contention to the contrary is nothing more than a bald assertion engineered following the Third Circuit's adjudication of the matter in an attempt to re-litigate the issue in a state forum.
Regarding the second Strickland/Fritz factor, Badger must demonstrate that there was a reasonable probability that the proceeding's outcome would have been different but for his counsel's conduct. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Here, "a reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. In this context, it is insufficient for Badger to demonstrate that his counsel's errors "had some conceivable effect on the outcome of the proceeding [since] [v]irtually every act or omission of counsel would meet that test." Id. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697 (citing United States v. Valenzuela-Bernal, 458 U.S. 858, 866-67, 102 S. Ct. 3440, 3446-47, 73 L. Ed. 2d 1193, 1201-03 (1982)).
Here, there is nothing beyond naked conjecture that the remand court's consideration of Patricia Johnson's information would have altered the result. The evidence remains both extensive and consistent that no undisclosed promises were made to Frank Johnson in exchange for testimony favorable to the State. Patricia Johnson's tardy affidavit does not change the posture of the case in any meaningful way.
Badger's remaining arguments, including claims that his first PCR counsel and appellate PCR counsel were deficient, are meritless. R. 2:11-3(e)(2).
Badger has not presented any arguments on appeal with respect to the Law Division's denial of his reconsideration request for the assignment of counsel. We consider the issue waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived.").
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION