STATE OF NEW JERSEY VS. KEITH BLACK (05-06-0790, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0045-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEITH BLACK,

Defendant-Appellant.

______________________________________________________________

Submitted November 9, 2016 – Decided August 9, 2017

Before Judges Fasciale and Sapp-Peterson.

On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
05-06-0790.

Keith Black, appellant pro se.

Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Erica M. Bertuzzi,
Assistant Prosecutor, on the brief).

PER CURIAM
 Defendant Keith Black appeals from the denial of his second

petition for post-conviction relief (PCR). For the reasons that

follow, we affirm.

On November 21, 2004, defendant became embroiled in a dispute

with Tyrone Fuller over their respective territories for selling

drugs. Defendant fatally shot Fuller, who died within seconds of

the shooting. Fuller's brother, Marquis, was present and witnessed

the fatal shooting. He attempted to run away, but was chased by

defendant, who shot him in the back and neck. Marquis survived

and identified defendant. Defendant fled New Jersey, but was

eventually apprehended in Arizona. He waived extradition and was

returned to New Jersey for prosecution.

Following a trial, the jury convicted defendant of first-

degree murder, N.J.S.A. 2C:11-3(a)(1); first-degree attempted

murder, N.J.S.A. 2C:5-1 and 2C:11-3; second-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(2); and second-degree possession of a weapon

for an unlawful purpose, N.J.S.A. 2C:39-4(a). At sentencing, the

court imposed an aggregate forty-five year custodial sentence,

with an eighty-five-percent period of parole ineligibility

pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.

Defendant filed a direct appeal in which he challenged the

trial court's instructions to the jury regarding his flight, the

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court's failure to conduct a hearing after a juror started crying,

and the excessiveness of the sentence imposed. In an unpublished

opinion, we affirmed the convictions and sentence imposed. State

v. Black, No. A-2060-06 (App. Div. July 1, 2009). The Supreme

Court denied defendant's petition for certification. State v.

Black, 200 N.J. 371 (2009).

In 2010, defendant filed his first PCR petition. In the

petition, he alleged: (1) the indictment should have been

dismissed; (2) evidence of prior bad acts was improperly admitted;

(3) the court's jury instructions were improper; (4) he was denied

his constitutional right to testify; (5) the sentence imposed was

excessive; (6) he was denied effective assistance of trial and

appellate counsel; and (7) the cumulative effect of the errors

about which he complained resulted in an unfair trial. Defendant

sought an evidentiary hearing to address his PCR claims.

By order dated January 28, 2011, the PCR judge denied the

petition and also denied defendant's request for an evidentiary

hearing. The PCR judge found that defendant's claim relating to

his sentence was procedurally barred pursuant to Rule 3:22-5

because it had been raised and resolved on direct appeal. The

judge next addressed the other claimed errors and determined that

these claims were procedurally barred pursuant to Rule 3:22-4

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because they could have been raised on direct appeal and none of

the claims fell within any exception.

Defendant appealed, raising the same arguments advanced

before the PCR judge and adding the following claims: (1)

ineffective assistance of appellate counsel; (2) his claims were

not procedurally barred; and (3) error in the denial of his request

for an evidentiary hearing. In an unpublished opinion, we affirmed

the denial of his petition. State v. Black, No. A-0398-11 (App.

Div. July 18, 2013). We agreed with the PCR judge's determination

that defendant's claims were procedurally barred under Rule 3:22-

4 and -5 and determined that the remaining arguments were without

sufficient merit to warrant discussion in a written opinion. Id.

at op. 1, 8.

Defendant subsequently filed a petition for certification.

On March 13, 2014, the Supreme Court entered an order denying

defendant's motion for a limited remand to the Law Division, but

did so without prejudice to defendant filing a new PCR petition

based upon his claim of newly discovered evidence. On June 2,

2014, the Supreme Court denied defendant's petition for

certification. State v. Black, 217 N.J. 589 (2014).

On July 1, 2014, defendant filed his second PCR petition.

Once again, he alleged ineffective assistance of trial counsel,

who defendant claimed failed to do a pre-trial investigation. In

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addition he claimed he was denied his constitutional right to a

fair trial because the prosecutor knowingly permitted a witness

to testify falsely. He also provided an affidavit from Tyrone

Kersey, who purportedly witnessed the shooting and stated that

defendant was not the shooter. Defendant further claimed his

petition should not be procedurally barred. Defendant

subsequently filed an amended second PCR petition claim, adding

claims of newly discovered evidence and ineffective assistance of

appellate PCR counsel.

In a letter opinion dated June 26, 2015, the second PCR judge

denied defendant's second petition. The judge determined that the

affidavit submitted by Tyrone Kersey, who purportedly was present

at the time of the shooting, "could have been discovered earlier

through the exercise of reasonable diligence." Additionally, the

judge found that aside from Kersey's assertion that the wrong

person was prosecuted for Fuller's death, Kersey offered no

specific details to support his claim, noting that in his

affidavit, Kersey "never squarely claims that he saw the shooting."

Thus, the judge characterized the newly discovered evidence as

nothing more than a "bald assertion." Further, the judge found

that Kersey offered no reasonable explanation "as to why he did

not come forward with this information other than not knowing how

to approach the situation." As for defendant's remaining claims,

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the judge found those claims were previously addressed and were

procedurally barred. The present appeal followed.

Defendant presents the following issues for our consideration

in his appeal:

POINT I. THE LOWER COURT ORDER MUST BE
REVERSED SINCE APPELLANT RECEIVED INEFFECTIVE
ASSISTANCE OF TRIAL COUNSEL.

A. Trial counsel failed to investigate
and use medical records of Marquis Fuller
to show material facts of truth.

B. Trial counsel failed to investigate
and bring forth statement of witness
Tyrone Kersey.

POINT II. THE LOWER COURT ORDER MUST BE
REVERSED SINCE APPELLANT RECEIVED INEFFECTIVE
ASSISTANCE OF PCR COUNSEL.

A. PCR counsel failed to raise
ineffective assistance of trial counsel
for failure to use medical records of
Marquis Fuller to show material facts of
truth.

B. PCR counsel failed to investigate
and bring forth statement of witness
Tyrone Kersey.

POINT III. THE LOWER COURT ORDER DENYING
PETITION MUST BE REVERSED BECAUSE OF
PROSECUTORIAL MISCONDUCT.

POINT IV. THE LOWER COURT ORDER DENYING
PETITION MUST BE REVERSED SINCE DEFENDANT['S]
CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R.
3:22-5 AND R. 3:22-4.

POINT V. THE CUMULATIVE EFFECT OF THE ERRORS
COMPLAINED OF RENDERED THE TRIAL UNFAIR.

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 POINT VI. THE LOWER COURT ERRED IN NOT
GRANTING DEFENDANT['S] REQUEST FOR AN
EVIDENTIARY HEARING AND SO THE LOWER COURT
ORDER MUST BE REVERSED.

We are not persuaded by any of these arguments. Our analysis

of the issues raised on appeal is guided by a review of the two

court rules that apply to a second or subsequent petition for

post-conviction relief. A defendant's second PCR petition, shall

be dismissed unless:

(1) it is timely under R. 3:22-12(a)(2); and

(2) it alleges on its face . . . :

(A) that the petition relies on a new rule of
constitutional law, made retroactive to
defendant's petition by the United States
Supreme Court or the Supreme Court of New
Jersey, that was unavailable during the
pendency of any prior proceedings[.]

. . . .

[R. 3:22-4(b).]

To be timely under Rule 3:22-12(a)(2),

[N]o 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

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 (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.

The second PCR judge did not err in concluding defendant's

second PCR petition was untimely under Rule 3:22-12(a)(2) because

it was filed more than three years after the January 28, 2011

denial of defendant's first PCR petition. Moreover, defendant's

allegations do not rely upon any new rule of constitutional law.

Further, defendant provides no reasonable explanation why the

purported newly discovered evidence was not discovered earlier.

Finally, as the second PCR judge observed, Kersey's affidavit does

not state that he actually witnessed the shooting. Rather, he was

walking with another individual and saw the two victims pass by

him when "he heard shots [ring] out." At that point, he was not

with defendant and did not see defendant until later.

The remaining arguments are without sufficient merit to

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

Affirmed.

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