STATE OF NEW JERSEY VS. KENNETH E. WILSON (92-10-3652, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-4021-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH E. WILSON,

Defendant-Appellant.
_________________________

Submitted April 8, 2019 – Decided May 14, 2019

Before Judges Messano and Gooden Brown.

On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 92-10-3652.

Kenneth E. Wilson, appellant pro se.

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

PER CURIAM
 Defendant Kenneth Wilson appeals from the February 28, 2018 Law

Division order, denying his subsequent petition for post-conviction relief (PCR)

without an evidentiary hearing. We affirm.

On October 22, 1992, defendant and three co-defendants, Eugene Jenkins,

Samuel Dugger, Jr., and Clara Sloan, were indicted by an Essex County Grand

Jury and charged with second-degree conspiracy to commit robbery and murder,

N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1, and N.J.S.A. 2C:11-3(a)(1), (2); first-degree

robbery, N.J.S.A. 2C:15-1; felony murder, N.J.S.A. 2C:11-3(a)(3); knowing or

purposeful murder, N.J.S.A. 2C:11-3(a)(1), (2); fourth-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The charges stemmed

from the killing of Matthew McDaniels, who was homosexual, after defendants

had agreed to kill a homosexual during a cocaine binge on or about July 3, 1992.

Several days later when police responded to a neighbor's complaint of foul odors

emanating from McDaniels' home, his decomposing body was found, bound and

gagged, and the cause of death was ligature strangulation.

Pursuant to a plea agreement, co-defendant Dugger pled guilty to the

conspiracy charge and agreed to testify against the others in exchange for a

reduced sentence. After the trial court dismissed the conspiracy, robbery, and

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felony murder charges, defendant and the other co-defendants were tried by a

jury and convicted of the remaining charges, based largely on Dugger's

incriminating testimony that as he and co-defendant Sloan sat at the kitchen

table of McDaniels' apartment, he heard the victim scream for help while alone

in a bedroom with defendant and co-defendant Jenkins.

On September 30, 1993, defendant was sentenced to an aggregate term of

life imprisonment, with a thirty-year period of parole ineligibility, consecutive

to a term he was then serving. On direct appeal, defendant's convictions and

sentence were affirmed in an unpublished opinion, State v. Wilson, No. A-3884-

93 (App. Div. May 25, 1995), 1 and the Supreme Court denied certification. State

v. Wilson, 142 N.J. 514 (1995). Defendant's direct appeal unsuccessfully

challenged the trial court's failure to charge the jury on accomplice liability, as

well as the jury instructions on intoxication and evaluation of Dugger's

testimony and role in the commission of the offenses.

In 1997, defendant filed his first petition for PCR, which was denied

without an evidentiary hearing on October 18, 2000. He appealed, alleging that

1
The matter was remanded to correct the violent crimes penalties in the
judgment of conviction only. Wilson, slip op. at 9.

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he was denied the effective assistance of trial, appellate, and PCR counsel. 2 We

affirmed the denial in an unpublished opinion, State v. Wilson, No. A-2164-00

(App. Div. May 30, 2002), and the Supreme Court denied certification. State v.

Wilson, 174 N.J. 547 (2002). In the first PCR petition, defendant had argued

unsuccessfully that trial counsel was ineffective for failing to: 1) properly cross-

examine Dugger; 2) thoroughly investigate and present expert testimony

concerning the extent to which Dugger's testimony may have been affected by

his ingestion of Thorazine, cocaine, and alcohol;3 3) consult an entomologist to

determine the exact time of the victim's death, thus precluding an alibi defense; 4

and 4) investigate potential defense witnesses.

2
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
deficient and that the "deficient performance prejudiced the defense."
Strickland, 466 U.S. at 687.
3
At trial, Dugger was rigorously cross-examined about his drug use on the date
of the murder, his mental health thereafter, and the nature of his plea bargain,
prompting the first PCR court to conclude that presenting expert testimony
"would [not] have altered the outcome."
4
In his first PCR petition, PCR counsel admitted that "the lack of a spe cific
date [of death] was . . . part of the defense" and trial counsel decided not to "use
an alibi defense[.]" The first PCR court thus concluded that trial counsel's
failure to "seek out . . . alibi witnesses was consistent with his trial strategy[.]"
A-4021-17T4
4
 Defendant had also asserted to no avail that PCR counsel "failed to

investigate these contentions and obtain [corroborating] statements and

reports[,]" and appellate counsel failed to "present several viable contentions

which would have resulted in a reversal of his convictions." Wilson, slip op. at

2-3. Specifically, according to defendant, "appellate counsel was ineffective

because he did not argue that . . . the prosecutor erred by referring to Dugger as

a co-conspirator[.]" Id. at 8.

In 2003, defendant filed a pro se motion for a new trial based on alleged

newly discovered evidence. Relying on a private investigator's report, defendant

asserted he was entitled to a new trial because the State failed to accurately

disclose its plea agreement with Dugger, and because Dugger was taking anti-

psychotic medication at the time of trial that could have affected his ability to

correctly recall the events. On March 3, 2008, the motion court denied the

motion. We affirmed the denial in an unpublished opinion, State v. Wilson, No.

A-3347-07 (App. Div. Aug. 19, 2010), and the Supreme Court denied

certification. State v. Wilson, 205 N.J. 80 (2011). In our opinion, while we

described the application as defendant's "second request for post-conviction

relief," we acknowledged that the application was "governed by the three[-

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]pronged test set forth in State v. Carter, 85 N.J. 300, 314 (1981)." Wilson, slip

op at 1.

In 2011, defendant sought a writ of habeas corpus in the United States

District Court pursuant to U.S.C. § 2254. Wilson v. Sweeney, No. 11-1201,

2014 U.S. Dist. LEXIS 23036, at *36 (D.N.J. Feb. 24, 2014). On February 24,

2014, the petition was dismissed as "time-barred[,]" ibid., and on October 1,

2014, the Third Circuit denied all appeals. Wilson v. Superintendent E. Jersey

State Prison, No. 14-1706 (3d Cir. Oct. 1, 2014).

On January 31, 2017, defendant filed the petition for PCR that is the

subject of this appeal, alleging again that he was denied the effective assistance

of trial, appellate, and PCR counsel. Specifically, defendant asserted trial

counsel was ineffective for failing to investigate and obtain impeachment

evidence regarding Dugger's psychiatric history; permitting Dugger to implicate

him in the conspiracy when the conspiracy charge had been dismissed; and

allowing the indictment to be amended immediately before trial to reflect "on or

about July 3, 1992[,]" as the date of the murder, without requesting a

continuance to further investigate potential alibi witnesses. Defendant asserted

that appellate counsel was ineffective for failing to raise these issues on direct

appeal, and for filing virtually the same brief as co-defendant Jenkins. Further,

A-4021-17T4
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defendant asserted PCR counsel was ineffective for failing to advance

defendant's meritorious claims, misrepresenting the facts at oral argument, and

failing to provide defendant with a copy of the PCR brief or request his presence

at the PCR hearing. Defendant also argued that his application was not

procedurally or substantively barred. 5

Following oral argument, on February 28, 2018, the PCR court denied the

petition as "procedurally defective and substantively meritless." In a written

decision, the court determined that the petition was time-barred under Rule 3:22-

12(a)(2) and rejected defendant's contention that the exceptions contained in

Rule 3:22-12(a)(2)(B) and 3:22-12(a)(2)(C) applied. The court explained that

the Rule 3:22-12(a)(2)(C) exception was inapplicable because the petition "was

filed on January 31, 2017, more than [sixteen] years" after his first PCR petition

was denied on October 18, 2000. 6 Likewise, the Rule 3:22-12(a)(2)(B)

exception was inapplicable because the private investigator's report on Dugger's

psychiatric history, which purportedly established the factual predicate upon

5
Because defendant failed to provide the petition in the record, we rely on the
PCR court's recitation of its contents.
6
Even if defendant's motion for a new trial constituted his most recent PCR
petition, the present petition was still time-barred given the nine-year gap
between the applications.
A-4021-17T4
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which defendant relied, was "completed" on "September 12, 2001, more than

[fifteen] years ago."

The court also determined that some of defendant's claims were barred by

Rule 3:22-5, having been previously adjudicated on the merits in prior

proceedings. See R. 3:22-5 (providing "[a] prior adjudication upon the merits

of any ground for relief is conclusive whether made in the proceedings resulting

in the conviction or in any post-conviction proceeding . . . or in any appeal taken

from such proceedings"); see also State v. Pagan, 378 N.J. Super. 549, 557 (App.

Div. 2005) (refusing to relax the procedural bar when the record of prior

proceedings showed sufficient evidence that the defendant's claims had already

been adjudicated on the merits); State v. Cupe, 289 N.J. Super. 1, 8 (App. Div.

1996) (explaining that reviewing courts "deplore the practice of couching

essentially the same argument in different constitutional verbiage in order to

evade the prohibition against relitigating issues already decided").

Further, according to the court, other claims were barred by Rule 3:22-

4(a) because defendant failed to raise the issues in prior proceedings, failed to

demonstrate that the issues could not reasonably have been raised, and failed to

demonstrate how "enforcement of this procedural bar would . . . result in a

fundamental injustice as 'the judicial system ha[d] provided . . . defendant with

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fair proceedings leading to a just outcome.'" See State v. Mitchell, 126 N.J. 565,

587 (1992). Additionally, the court explained that defendant "failed to

demonstrate that 'the prosecution or the judiciary abused the process under

which . . . defendant was convicted or . . . [that] inadvertent errors mistakenly

impacted a determination of guilt or otherwise 'wrought a miscarriage of justice

for . . . defendant.'" See ibid. Moreover, the court noted that "none of

[defendant's] claims ar[o]se under a newly recognized constitutional right ," and

was therefore not subject to Rule 3:22-4(a)(3)'s exemption.

Turning to the merits, the court found that defendant failed to attach any

"affidavits, certifications, or any other verifiable evidence" to support his claims

and "merely posit[ed] self-serving statements." Regarding defendant's

challenge to Dugger implicating him in the dismissed conspiracy charge, the

court noted defendant failed to identify "any [supporting] case law or

precedent." Likewise, as to Dugger's psychiatric history, the court explained

that trial counsel was in possession of Dugger's medical history at the time of

trial. Further, the court found that defendant's "defense was not prejudiced by

the amendment to the indictment because his 'ability to present proofs in support

of [an] alibi was [not] drastically compromised.'" Finally, acknowledging that

defendant's and co-defendant Jenkins' "appellate briefs . . . were similar[,]" the

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court nevertheless rejected defendant's contention that his appeal "would need

to be materially different" from co-defendant Jenkins', and distinguished State

v. Guzman, 313 N.J. Super. 363, 373 (App. Div. 1998), on the ground that

defendant failed to present any evidence that his appellate counsel did not

adequately review the record and advance the most promising issues for review.

The court entered a memorializing order and this appeal followed.

On appeal, defendant raises the following points for our consideration:

POINT ONE

DEFENDANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL UNDER THE SIXTH
AMENDMENT OF THE UNITED STATES
CONSTITUTION, AT TRIAL STAGE, ON DIRECT
APPEAL, IN HIS FIRST PCR PROCEEDINGS AND
SUBSEQUENT PCR APPEAL, AS FOLLOWS:

1. TRIAL COUNSEL WAS CONSTITUTIONALLY
INEFFECTIVE, IN THAT:

A) FAILURE TO OBJECT TO
CONSPIRATORIAL TESTIMONY OF
STATE'S WITNESS IMPLICATING
DEFENDANT IN THE CRIME, WHEN
THE CHARGE OF CONSPIRACY HAD
BEEN DISMISSED AGAINST ALL
DEFENDANTS[.]

B) FAILURE TO OBJECT TO
PROSECUTORIAL MISCONDUCT FOR
PURPOSEFULLY SOLICITING FALSE
AND PREJUDICIAL TESTIMONY ON

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 THE SUBJECT OF CONSPIRACY[.
NOT RAISED BELOW.]

C) FAILED TO ADEQUATELY
PREPARE FOR TRIAL, SPECIFICALLY
FAILURE TO CONDUCT
PRELIMINARY INVESTIGATION,
INCLUDING INVESTIGATING OF
MITIGATING FORENSIC EVIDENCE
AND DISCOVERIES PROVIDED BY
THE STATE WHICH WOULD HAVE
AIDED IN THE DEFENSE[.]

2. APPELLATE COUNSEL WAS INEFFECTIVE,
BECAUSE:

A) FAILURE TO FILE AN INDIVIDUAL
APPELLATE BRIEF [O]N BEHALF OF
DEFENDANT, INSTEAD FILING A
COPY OF CODEFENDANT'S,
EQUIVALENT TO CONSTRUCTIVE
DENIAL OF APPELLATE COUNSEL[.]

B) FAILURE TO RAISE INEFFECTIVE
ASSISTANCE OF TRIAL COUNSEL[.
NOT RAISED BELOW.]

C) FAILURE TO RAISE ON APPEAL
ALL OF THE ABOVE TRIAL ISSUES[.]

3. INEFFECTIVE ASSISTANCE OF PCR COUNSEL,
BASED ON:

A) KNOWINGLY PROVIDING
[DEFENDANT] WITH A COPY OF A
PCR BRIEF ALLEGEDLY FILED WITH
THE COURT, WHEN IT WAS NEVER
FILED, THUS CONSIDERABLY

A-4021-17T4
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 PREJUDICING [DEFENDANT'S] PCR
APPEAL[.]

4. PCR APPELLATE COUNSEL WAS
INEFFECTIVE BY:

A) FAILING TO ADEQUATELY
PRESENT COUNSEL'S ERRORS
[ABOVE.]

B) FAILURE TO SUBMIT REQUIRED
AND AVAILABLE EVIDENCE IN
SUPPORT OF [DEFENDANT'S]
CLAIMS ON PCR APPEAL. (NOT
RAISED BELOW)[.]

POINT TWO

THE COURT BELOW COMMITTED
REVERS[I]BLE ERROR BY DENYING
DEFENDANT'S PETITION FOR [PCR] WITHOUT
CONDUCTING AN EVIDENTIARY HEARING ON
DEFENDANT'S CLAIMS BECAUSE THE
DEFENDANT MADE A PRIMA FACIE SHOWING
OF INEFFECTIVE ASSISTANCE OF COUNSEL
UNDER THE [STRICKLAND/FRITZ/CRONIC]
TEST[.7]

POINT THREE

. . . DEFENDANT WAS ENTITLED TO [PCR]
UNDER THE PROVISIONS OF [RULE] 3:22-2, AND
TO THE LIFTING OF THE PROCEDURAL BARS
IMPOSED BY RULES 3:22–4, 3:22–5, AND 3:22–
12[.]

7
Strickland, 466 U.S. at 668; United States v. Cronic, 466 U.S. 648 (1984);
Fritz, 105 N.J. at 42.
A-4021-17T4
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 1. DEFENDANT'S CLAIMS ARE NOT
PROCEDURALLY BARRED[.]
A) THE PROCEDURAL BAR OF RULE
3:22–4[.]

B) THE PROCEDURAL BAR OF RULE
3:22-12[.]

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

181 N.J. 391, 419 (2004). The de novo standard of review applies to mixed

questions of fact and law. Id. at 420. 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.) (fourth alteration in original)

(quoting R. 3:22-4(b)), certif. denied, 236 N.J. 35 (2018). 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

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 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.

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) because it was not filed within one year

of the order denying the preceding petition. Defendant's petition is also

untimely under Rule 3:22-12(a)(2)(B) because it was not filed within one year

of his receipt of the private investigator's report containing the purported factual

predicate. 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").

Defendant's claims of fundamental injustice provide no refuge from the

denial of his petition because, unlike Rule 3:22-12(a)(1)(A), which applies to

A-4021-17T4
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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), and we need not

reach the merits of defendant's remaining arguments. See id. at 297.

Affirmed.

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