STATE OF NEW JERSEY v. JULIO RIVERO (10-10-1089, UNION 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NOT FOR PUBLICATION WITHOUT THE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-1127-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIO RIVERO, a/k/a JULIO
C. RIVERO, JULIO TORRES,
JULIO C. TORRES, JULIO C.
TORRESRIVEROS and
JULIO C. RIVEROS,

Defendant-Appellant.
_________________________

Submitted February 28, 2022 – Decided March 11, 2022

Before Judges Vernoia and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 10-10-1089.

Julio C. Rivero, appellant pro se.

Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Milton S. Leibowitz, Special
Deputy Attorney General/Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM

Defendant Julio C. Rivero, who is self-represented, appeals from the

October 4, 2019 Law Division order denying his second petition for post -

conviction relief (PCR) without an evidentiary hearing. Defendant has not

demonstrated a prima facie case of ineffectiveness and has failed to show good

cause for the appointment of counsel. We affirm.

I.

A jury convicted defendant of first-degree carjacking, N.J.S.A. 2C:15-2;

first-degree robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for

an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of

a weapon, N.J.S.A. 2C:39-5(d); third-degree terroristic threats, N.J.S.A. 2C:12-

3(a); third-degree resisting arrest, N.J.S.A. 2C:29-2(a); and third-degree

possession of cocaine, N.J.S.A. 2C:35-10(a)(1). He was sentenced to a twenty-

year term of imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-

7.2. We affirmed the convictions and sentence. See State v. Rivero, No. A-

4179-11 (App. Div. Aug. 4, 2014). The Office of the Public Defender (OPD)

notified defendant their office would not provide counsel to file a petition for

certification, and he was obligated to arrange for its filing on his own.

Defendant did not file a petition for certification from this court's decision.

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 On September 18, 2014, defendant filed his first PCR petition, which was

denied without an evidentiary hearing. In his first PCR petition, defendant

alleged ineffective assistance of trial counsel based on his attorney not

presenting an expert witness at trial on the effects of intoxication. We affirmed

the denial of the first PCR petition. State v. Rivero, No. A-5562-14 (App. Div.

Sept. 14, 2017) (slip op. at 6). On September 27, 2017, defendant filed a petition

for certification with our Supreme Court, which was denied. State v. Rivero,

232 N.J. 306 (2018).

Following the Court's denial, the OPD provided defendant with a copy of

the order denying his petition for certification. The letter also explained that

defendant could file a pro se petition for habeas corpus relief in federal court.

Thereafter, defendant did in fact file a petition for habeas corpus in the United

States District Court for the District of New Jersey. On July 3, 2018, the habeas

corpus petition was denied without prejudice because defendant failed to

exhaust his state court remedies, including by failing to file a petition for

certification from our decision affirming his conviction. See Rivero v. Nogan,

Civ. No. 18-9105, 2018 U.S. Dist. WL 3242293 (D.N.J. July 3, 2018).

In its August 23, 2018 letter to defendant, the OPD reiterated it would not

"file an out-of-time petition for certification" from our affirmance of his

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conviction as he had requested. Citing State v. Welch, 225 N.J. 215 (2016), the

OPD letter explained "the attorney from the [OPD] that represents [him] gets to

make the call whether a case is certification-worthy or not . . . [and] that it is not

the defendant's call." In addition, the letter advised defendant he could file a

PCR petition as a self-represented litigant.

On February 20, 2019, defendant filed his second PCR petition claiming

the OPD provided ineffective assistance of counsel in 2014 when it refused to

file a petition for certification following our August 4, 2014 decision. 1

Defendant also requested assignment of a public defender, which was denied.

On October 4, 2019, the PCR court dismissed defendant's petition pursuant to

Rule 3:22-6(b), which states:

Upon any second or subsequent petition filed pursuant
to this Rule attacking the same conviction, the matter
shall be assigned to the [OPD] only upon application
therefor and showing of good cause. For purposes of
this section, good cause exists only when the court finds
that a substantial issue of fact or law requires
assignment of counsel and when a second or subsequent
petition alleges on its face a basis to preclude dismissal
under [Rule] 3:22-4.

[(Emphasis added).]

1
After three months passed from the filing of his second PCR petition and
having received no adjudication on its merits, defendant moved for leave to
appeal on June 3, 2019. We denied the motion for leave to appeal on September
25, 2019.
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 The PCR court concluded the OPD was not obligated to file a petition for

certification following the affirmance of defendant's conviction on his direct

appeal. The judge explained that under Rule 3:8-3,2 the OPD's obligation to

2
Rule 3:8-3: Representation by Public Defender

(a) Application; Determination; Referral. The criminal
division manager's office shall receive applications for
services of the Public Defender and shall determine
indigence. A defendant who qualifies for service shall
be referred to the [OPD] no later than the arraignment.
The defense counsel appointed by the [OPD] shall
promptly file an appearance.

(b) Scope of Services. The [OPD] shall represent
indigent defendants who qualify for its services
through:

(1) Direct appeal from conviction;

(2) Post-conviction proceedings for which the [r]ules of
[c]ourt provide assigned counsel;

(3) Direct appeal from those post-conviction
proceedings; and

(4) Review of cases after the Appellate Division issues
a judgment in an appeal as of right and compliance with
the provisions of paragraph (c) of this Rule following
that review.

(c) Services Following Appellate Division Judgment.
In cases that present a potentially meritorious petition

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provide representation exists only through direct appeal. Therefore, the PCR

court held the second PCR petition did not state a cognizable claim because it is

not ineffective assistance of counsel to refuse to provide representation the OPD

has no obligation to provide. A memorializing order was entered.

In this appeal, defendant asserts the following arguments:

POINT I:

PURSUANT TO [RULE] 3:8-3 AND THE DOCTRINE
OF EXHAUSTION GOVERNING APPEALS AND
PCR PETITIONS, THE ASSISTANT PUBLIC
DEFENDER ERRED IN NOT FILING THE DENIED
DIRECT APPEAL IN THE NEW JERSEY SUPREME
COURT FOR PETITION FOR CERTIFICATION.

POINT II:

THE SUPERIOR COURT ERRS IN DETERMINING
THAT DEFENDANT IS NOT ENTITLED TO BE
REPRESENTED BY THE [OPD].

for certification in accordance with the standards in
R[ule] 2:12-4, the [OPD] shall file a petition for
certification accompanied by a letter brief or a letter
relying on defendant's Appellate Division arguments.
In cases in which defense counsel appointed by the
[OPD] cannot certify that a petition "presents a
substantial question and is filed in good faith," as
required by [Rule] 2:12-7(a), the [OPD] shall not file a
petition but shall notify defendant of this position in
writing and offer copies of relevant briefs, transcripts,
and any other documents.

[(Emphasis added).]
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 POINT III:

GOOD CAUSE EXISTS FOR FILING A SECOND
PCR PETITION.

II.

We review de novo a decision to deny a petition for PCR without an

evidentiary hearing. State v. Harris, 181 N.J. 391, 419 (2004); see also State v.

Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018) (applying a de novo standard

of review to the denial of a second petition for PCR). "[PCR] is New Jersey's

analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451,

459 (1992). PCR "is neither a substitute for direct appeal nor an opportunity to

relitigate cases already decided on the merits." Ibid. (citations omitted). Under

Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there

was a "substantial denial in the conviction proceedings" of defendant's rights

under the Constitution of the United States or the Constitution or laws of the

State of New Jersey. Ibid.

An appellate court will uphold a PCR court's factual "findings that are

supported by sufficient credible evidence in the record." State v. Nash, 212 N.J.

518, 540 (2013). "However, where the [PCR] court does not hold an evidentiary

hearing, [this court] may exercise de novo review over the factual inferences the

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trial court has drawn from the documentary record." State v. O'Donnell, 435

N.J. Super. 351, 373 (App. Div. 2014) (citing Harris, 181 N.J. at 420-21); see

also Jackson, 454 N.J. Super. at 291 (applying a de novo standard of review to

the denial of a second petition for PCR). Nevertheless, a PCR court's

determinations of law are given no deference and are reviewed de novo. State

v. Pierre, 223 N.J. 560, 576-77 (2015) (quoting Nash, 212 N.J. at 540-41). If a

question concerns both law and fact, we give deference to supported factual

findings but review de novo any legal conclusions. Id. at 577 (quoting Harris,

181 N.J. at 416).

To establish a prima facie claim of ineffective assistance of counsel, a

defendant must satisfy the two-pronged test enumerated in Strickland v.

Washington, 466 U.S. 668, 687 (1984), which our Court adopted in State v.

Fritz, 105 N.J. 42, 58 (1987). To meet the first Strickland/Fritz prong, a

defendant must establish that his "counsel made errors so serious that counsel

was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment." Strickland, 466 U.S. at 687. The defendant then must rebut the

"strong presumption that counsel's conduct [fell] within the wide range of

reasonable professional assistance." Id. at 689. Thus, we consider whether

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counsel's performance fell below an objective standard of reasonableness. Id.

at 688.

On appeal, defendant argues he "was not filing a second PCR petition" but

instead, he "moved for adherence to [the] [r]ules of [c]ourt so that he could

legally preserve issues for filing in the federal courts should that be needed."

Defendant claims he would have had "four" meritorious issues to raise in his

PCR petition if his counsel had petitioned for certification following his direct

appeal, warranting reversal and a retrial. We disagree.

"Procedural bars exist in order to promote finality in judicial

proceedings." State v. McQuaid, 147 N.J. 464, 483 (1997). 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

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 the exercise of reasonable diligence, 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 . . . application for
[PCR].

Furthermore, ----
Rule 3:22-12(a)(2) delineates the requirements for filing a

timely second or subsequent petition for PCR as follows:

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 [PCR] where ineffective assistance of
counsel that represented the defendant on the first or
subsequent application for [PCR] is being alleged.

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

or relaxed, even with good cause. See 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"). By mandating in Rule 3:22-

12(a)(2) that the one-year time limit applied notwithstanding any other provision

of the rule, our Court has made clear the late filing of a second or subsequent

PCR petition cannot be excused in the same manner as the late filing of a first

petition. See Jackson, 454 N.J. Super. at 292-94.

Here, the PCR court correctly dismissed defendant's second petition

because it was barred under Rule 3:22-4(b)(1). "Defendant's second PCR

petition was not timely under Rule 3:22-12(a)(2)(A) because he claims no newly

recognized constitutional right." Id. at 291. Moreover, defendant's second

petition was not timely under Rule 3:22-12(a)(2)(B) because his former counsel

informed defendant that the OPD would not file a petition for certification on

his behalf in 2014 following our decision on his direct appeal.

Defendant did not file his second PCR petition until February 20, 2019 —

almost five years later. Thus, dismissal was mandated under Rule 3:22-

12(a)(2)(B). See ibid. And, defendant's second PCR petition was untimely

under Rule 3:22-12(a)(2)(C) because his claim relates to his appellate counsel

A-1127-19
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and not his PCR counsel, making it an improper ground for a second PCR

petition. ---
See --
R. 3:22-4(b)(2)(A) to (C). We conclude defendant failed to

establish any of the criteria under Rule 3:22-4(b)(2) to preclude dismissal of his

second PCR petition. Nor is there sufficient evidence supporting defendant's

bald assertion that there is a reasonable probability of success on the merits or

to establish a prima facie case of ineffective assistance of counsel. Rule 3:8-

3(c) addresses representation by the OPD following an Appellate Division

judgment:

In cases in which defense counsel appointed by the
[OPD] cannot certify that a petition "presents a
substantial question and is filed in good faith," as
required by [Rule] 2:12-7(a), the [OPD] shall not file a
petition but shall notify defendant of this position in
writing and offer copies of relevant briefs, transcripts,
and any other documents.

Based upon our careful review of the record, we are satisfied counsel duly

notified defendant unequivocally on multiple occasions in writing that the OPD

would not file a petition for certification on his behalf as early as 2014 because

no "substantial question" was presented. Furthermore, the OPD offered to

provide defendant with the necessary documents required to perfect a petition

and answer any questions he may have had in the process. Defendant failed to

show, when viewing the evidence and record as a whole, there was a reasonable

A-1127-19
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probability that his second PCR would be granted, and he failed to establish a

prima facie case under either Strickland/Fritz prong.

III.

We also reject defendant's contention that the PCR court erred in declining

to assign him counsel from the OPD relative to his second PCR petition. To

support his PCR claim, defendant raised two points on appeal: (1) first, the jury

instruction on the defense of intoxication deviated from the model charge and

contradicted itself regarding the assignment of proof as to an intoxication

defense; and (2) his sentence was manifestly excessive. After we affirmed the

convictions and sentence, defense counsel notified defendant, in writing, the

OPD's obligation was to represent him "on one appeal to the Appellate

Division." Counsel added, "Unfortunately, in your case I see no chance at all

that the New Jersey Supreme Court or the federal courts would grant you any

relief in this matter."

Under Rule 3:8-3, the PCR court correctly explained the OPD's obligation

existed only through direct appeal. Moreover, the PCR court noted defendant

was not entitled to the assignment of counsel on his second PCR petition because

he failed to demonstrate "good cause" under Rule 3:22-6(b) warranting an

appointment of counsel. The PCR court was correct in its analysis. Here, for

A-1127-19
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the reasons we previously detailed, defendant failed to establish the existence of

a substantial or legal question as to the merits of his petition.

To the extent we have not addressed defendant's arguments, we conclude

they are without sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).

Affirmed.

I hereby certify th at th e foregoing

1t~
is a true copy of the original on
fil e inmy office.

CLERK OF n-tE A P ~TE DIVISION

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