NOT FOR PUBLICATION WITHOUT THE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-0798-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ASHLEY A. GEORGES,
Defendant-Respondent.
_____________________________
Argued telephonically May 24, 2018 – Decided July 10, 2018
Before Judges Koblitz, Manahan and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
00-04-1057.
Ashley A. Georges, appellant, argued the cause
pro se.
Barbara A. Rosenkrans, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Robert D. Laurino,
Acting Essex County Prosecutor, attorney;
Barbara A. Rosenkrans, of counsel and on the
brief).
PER CURIAM
Defendant Ashley A. Georges appeals from the denial of his
second and third petitions for post-conviction relief (PCR).
Defendant also appeals the denial of a motion for a new trial
based upon newly discovered evidence. We affirm.
We recite the procedural history of the case necessary for
our review. Tried by a jury in 2001, defendant was convicted of
first-degree murder, N.J.S.A. 2C:11-3(a)(1); two third-degree
charges of unlawful possession of a handgun, N.J.S.A. 2C:39-5(b);
and second-degree possession of a handgun for an unlawful purpose,
N.J.S.A. 2C:39-4(a).1 On February 8, 2002, the judge sentenced
defendant to an aggregate sentence of life imprisonment with a
thirty-year parole disqualifier. Appropriate fines and fees were
imposed.
Defendant filed a direct appeal. We affirmed defendant's
convictions in an unpublished opinion, State v. Georges, No. A-
3960-01 (App. Div. Sept. 29, 2003). The Supreme Court denied
defendant's petition for certification. State v. Georges, 180
N.J. 453 (2004).
Defendant then filed a first petition for PCR, which was
denied. We affirmed the denial in an unpublished opinion, State
v. Georges, A-2215-07 (App. Div. July 9, 2010). The Supreme Court
1
Prior to trial, the judge held a Miranda hearing, after which
he ruled that defendant's statement to police was admissible.
Miranda v. Arizona, 384 U.S. 436 (1966).
2 A-0798-16T4
denied defendant's petition for certification. State v. Georges,
205 N.J. 15 (2010).
On December 6, 2010, defendant petitioned for a writ of habeas
corpus before the United States District Court.2 On January 21,
2011, while that petition was pending, defendant filed his second
petition for PCR. Defendant filed an amended petition for writ
of habeas corpus with the District Court, as well as a motion to
stay the petition in order to pursue the second collateral relief
motion in state court. An answer was filed by respondent to
defendant's amended petition for a writ of habeas corpus and in
opposition to defendant's motion to stay on February 17, 2012.
Two months later, defendant filed motions with the District
Court for an evidentiary hearing and for admissions. Both motions
were opposed by the State.
By letter dated July 24, 2012, the Law Division advised
defendant that he "must decide" whether he wished to "proceed with
[his] case in State Court or Federal Court." A decision was to
be submitted by August 13, 2012. Two days prior to the expiration
date, defendant advised that he wanted to dismiss his petition
without prejudice pending the outcome of his motion for a stay
before the District Court. Due to defendant's pending habeas
2
Defendant's brief and appendix indicate the petition for writ
of habeas corpus was mailed on November 30, 2010.
3 A-0798-16T4
corpus application, the court denied defendant's second PCR motion
without prejudice.
In November 2014, a certification was signed by Hakim Kelly,
an inmate at the Essex County Jail at the time of the victim's
death, regarding an unspecified murder committed in Newark. The
certification disclosed that Kelly was identified by a witness
from a photo array of suspects. Within his certification, Kelly
stated, "I can honestly say that I will never forget that date of
December[] 4, 1999, because that was the first time I was happy
to be in jail because I was wrongly identified for a murder."
On December 10, 2014, defendant filed motions in the District
Court for a stay to resolve newly discovered evidence; for
discovery; to expand the record; and for an evidentiary hearing.
A memorandum was filed by the State, as respondent.
On March 9, 2015, the District Court ordered defendant to
submit details of his pending State matter, which defendant
answered by letter in April 2015. In February 2016, the District
Court granted defendant's motion to stay the habeas corpus
proceeding to allow him to exhaust State court claims.
Defendant filed his third petition for PCR in April 2016.
The PCR was denied on August 30, 2016 in a written opinion by
Judge Michael A. Petrolle. The judge held that defendant's second
and third petitions were time barred. As for the newly discovered
4 A-0798-16T4
evidence claim, the judge found, given the overwhelming evidence
of defendant's guilt and lack of specificity in Kelly's
certification, the contents of the certification would not have
led the jury to acquit defendant.
Defendant filed a notice of appeal. We granted defendant
leave to proceed as indigent on December 19, 2016. On January 30,
2017, we denied defendant's motions for the assignment of counsel
and for a remand to conduct an evidentiary hearing. On March 2,
2017, we denied defendant's motion for disclosure of materials
related to identification procedures.
Defendant raises the following points on appeal:
POINT I
NEWLY DISCOVERED EVIDENCE THAT HAKIM KELLY WAS
IDENTIFIED AS THE SHOOTER OF KEVIN JACKSON
BEFORE [DEFENDANT'S] EYEBROWS WERE IDENTIFIED
BY THE STATE'S WITNESS AS BEING SIMILAR TO THE
EYEBROWS OF AN INDIVIDUAL SHE OBSERVED ON THE
DAY OF THE SHOOTING WALKING FROM ONE CAR TO
ANOTHER.
A. THE NEWLY DISCOVERED EVIDENCE
THAT RIDDICK IDENTIFIED HAKIM
KELLY, SOMEONE OTHER THAN THE
APPELLANT IS 'MATERIAL' AND NOT
MERELY IMPEACHING OR CONTRATICTORY
[SIC], AND HAD THE CAPACITY TO
UNDERMINE THE IDENTIFICATION OF
APPELLANT.
B. A DETERMINATION OF IMPERMISSIVE
SUGGESTIBILITY IS TO BE ASSESSED BY
THE TOTALITY OF THE CIRCUMSTANCES OF
MELAINE [SIC] RIDDICK'S
5 A-0798-16T4
IDENTIFICATION, AS TO WHETHER OR NOT
THAT A SUBSTANTIAL LIKELIHOOD OF
IRREPARABLE MISIDENTIFICATION CAN
BE SAID TO EXIST.
C. FAILURE OF THE PROSECUTION TO
DISCLOSE THIS IMPEACHMENT EVIDENCE
CONSTITUES [SIC] A BRADY[3]
VIOLATION.
POINT II
THE POST-CONVICTION RELIEF (PCR) COURT
ERRONEOUSLY DETERMINED THAT, "THE ASSERTIONS
OF FACTUAL PREDICATES FOR CLAIMS OF
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL ARE
TIME BARRED UNDER [RULE] 3:22-12[(a)](2)(B)
AND MUST BE DISMISSED UNDER [RULE] 3:22-
4(B)(1) AND (2)(B) BECAUSE OF LAPSE OF TIME."
POINT III
[DEFENDANT'S] CASE DEFINES "FUNDAMENTAL
INJUSTICE[,"] THE PASSAGE OF TIME IS AN
INSUFFICIENT REASON NOT TO CORRECT AN
INJUSTICE WHEN THE JUDICIAL SYSTEM HAS DENIED
A DEFENDANT WITH FAIR PROCEEDINGS LEADING TO
A JUST OUTCOME OR WHEN INADVERTENT ERRORS
MISTAKENLY IMPACTED A DETERMINATION OF GUILT
OR OTHERWISE WROUGHT A MISCARRIAGE OF JUSTICE.
(Not Raised Below).
In his reply brief, defendant raises the following arguments:
POINT I
[DEFENDANT] FILED A SUBSEQUENT PETITION FOR
[PCR], TIMELY ALLEGING A PRIMA FACIE CASE OF
INEFFECTIVE ASSISTANCE OF COUNSEL THAT
REPRESENTED HIS FIRST [PCR].
3
Brady v. Maryland, 373 U.S. 83 (1963).
6 A-0798-16T4
POINT II
[DEFENDANT'S] CASE DEFINES "FUNDAMENTAL
INJUSTICE[,]" THE PASSAGE OF TIME IS AN
INSUFFICIENT REASON NOT TO CORRECT AN
INJUSTICE WHEN THE JUDCICIAL [SIC] SYSTEM HAS
DENIED A DEFENDANT WITH FAIR PROCEEDINGS
LEADING TO A JUST OUTCOME OR WHEN INADVERTENT
ERRORS MISTAKENLY IMPACTED A DETERMINATION OF
GUILT OR OTHERWISE WROUGHT A MISCARRIAGE OF
JUSTICE.
A. AFTER THE DENIAL OF CONSENT TO
SEARCH THE VEHICLE WAS EXERCISED[,]
THE VEHICLE WAS ILLEGALLY SEIZED AND
HELD FOR THREE DAYS BEFORE A WARRANT
WAS SOUGHT FOR A SEARCH VIOLATING
THE FOURTH AMENDMENT.
B. THE IDENTIFICATION PROCEDURES
EMPLOYED BY THE LEAD INVESTIGATOR
BALDWIN WAS IMPERMISSIBILY [SIC]
SUGGESTIVE LEADING TO AN UNRELIABLE
SAME EYEBROW IDENTIFICAITON.
Having considered defendant's arguments in light of
controlling procedural rules and substantive law, we affirm for
the reasons set forth in the cogent written opinion of Judge
Petrolle. We add only the following.
Petitions for PCR are governed by time limitations, which are
set forth in Rule 3:22-12. A second or subsequent petition for
PCR must be filed within 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
7 A-0798-16T4
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 [PCR] where
ineffective assistance of counsel that
represented the defendant on the first or
subsequent application for [PCR] is being
alleged.
[R. 3:22-12(a)(2).]
Here, defendant is seeking to appeal the denial of his second
PCR petitions. Consequently, Rule 3:22-12(a)(2) governs. Under
Rule 3:22-4(b),
[a] second or subsequent petition for [PCR]
shall be dismissed unless:
(1) it is timely under [Rule] 3:22-12(a)(2);
and
(2) it alleges on its face either:
(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;
or
(B) that the factual predicate for
the relief sought could not have
been discovered earlier through the
exercise of reasonable diligence,
8 A-0798-16T4
and the facts underlying the ground
for relief, if proven and viewed in
light of the evidence as a whole,
would raise a reasonable
probability that the relief sought
would be granted; or
(C) that the petition alleges a
prima facie case of ineffective
assistance of counsel that
represented the defendant on the
first or subsequent application for
[PCR].
First, defendant's second PCR petition failed to comply with
the time restrictions set forth in Rule 3:22-12(a)(2). Defendant
waited more than one year after we denied his first PCR appeal to
file his second petition for PCR in 2011. Thus, the petition is
time-barred. See R. 3:22-12(a)(2); see also State v. Brewster,
429 N.J. Super. 387, 398 (App. Div. 2013).
Second, defendant's third petition was filed almost six years
after our decision in 2011, and almost four years after the
dismissal of the second petition. Even were we to consider the
third petition to relate back to the second petition, it would be
time-barred.
Third, defendant's arguments relating to ineffective
assistance of trial counsel could have been raised in his first
PCR. The predicate for those arguments, as Judge Petrolle held,
could have been discovered and raised "more than a year, even more
than a decade" prior to the third PCR. The judge also correctly
9 A-0798-16T4
held that the ineffective assistance of trial counsel arguments
had been previously rejected on the merits.
Fourth, even were the petitions not procedurally barred, it
is clear from a review of the record that defendant's contentions
that his trial and PCR counsel were ineffective lack merit.
Defendant asserts only conclusory contentions that do not
establish a prima facie showing of ineffective assistance. State
v. Marshall, 148 N.J. 89, 158 (1997); see also State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999) ("[I]n order to establish
a prima facie claim, a petitioner 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.").
Finally, defendant's assertion of a right to a new trial
based upon newly discovered evidence is more appropriately a motion
for a new trial pursuant to Rule 3:20-1. That noted, in order for
newly discovered evidence to warrant a new trial, the evidence
must be "(1) material to the issue and not merely cumulative or
impeaching or contradictory; (2) discovered since the trial and
not discoverable by reasonable diligence beforehand; and (3) of
the sort that would probably change the jury's verdict if a new
trial were granted." State v. Bey, 161 N.J. 233, 287 (1999);
State v. Ways, 180 N.J. 171, 187 (2004); State v. Carter, 85 N.J.
10 A-0798-16T4
300, 314 (1981). All three prongs must be satisfied before a new
trial is granted. Ways, 180 N.J. at 187. A defendant has the
burden to establish each prong is met. State v. Smith, 29 N.J.
561, 573 (1959).
Here, defendant's arguments relating to "new evidence" not
only do not satisfy any of the Carter prongs, they are wholly
without merit. Suffice it to state that the Kelly certification
is not exculpatory. It is unclear what homicide is involved or
exactly who the witness is who may have wrongly identified Kelly.
Even if this witness was the same witness who later identified
defendant, a prior incorrect identification would not have
counterbalanced the overwhelming evidence against defendant.
Affirmed.
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