State of New Jersey v. Fuquan Khalif

NOT FOR PUBLICATION WITHOUT THE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-0854-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FUQUAN KHALIF, a/k/a
FUQUAN KAHALIF, and
ALFRED WALKER,

Defendant-Appellant.
_______________________

Submitted February 12, 2024 – Decided February 29, 2024

Before Judges DeAlmeida and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 91-01-0437.

Fuquan Khalif, appellant pro se.

Theordore N. Stephens, II, Acting Essex County
Prosecutor, attorney for respondent (Lucille M.
Rosano, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant Fuquan Khalif appeals from the April 1, 2022 order of the Law

Division denying his motion to correct an illegal sentence and the August 3,

2022 order denying his motion for reconsideration of the April 1, 2022 order.

We affirm.

I.

In 1991, defendant was charged in an eighteen-count indictment arising

from the murder of his cousin and attempted murder of her fiancé, both of whom

he shot in the head. A jury convicted defendant of fourteen counts, the most

serious of which were felony murder, aggravated manslaughter, and attempted

murder. The trial court sentenced defendant to an aggregate term of life

imprisonment, plus forty years, with a fifty-year-period of parole ineligibility.1

We affirmed defendant's conviction and sentence, rejecting his argument

that the trial court misapplied State v. Yarbough, 100 N.J. 627 (1985), at

sentencing. State v. Kahalif, No. A-0553-92 (App. Div. Jan. 23, 1995). 2 We

remanded with directions to the trial court to make corrections to defendant's

judgment of conviction that did not affect his aggregate sentence. Ibid. The

1
This was defendant's second murder conviction. In 1978, he pled guilty to
second-degree murder.
2
Defendant's name is spelled Kahalif in opinions issued on his direct appeal.
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Supreme Court denied defendant's petition for certification. State v. Kahalif,

140 N.J. 327 (1995).

Defendant subsequently filed five petitions for post-conviction relief

(PCR). He filed his first PCR petition on December 26, 1995, alleging he was

denied effective assistance of trial and appellate counsel. The trial court denied

the petition after holding an evidentiary hearing. We affirmed. State v. Khalif,

No. A-2286-97 (App. Div. Oct. 29, 1999). The Supreme Court denied

certification. State v. Khalif, 163 N.J. 76 (2000).

On June 5, 2000, defendant filed his second PCR petition, alleging

ineffective assistance of counsel. The trial court, finding defendant's claims to

be "wholly frivolous," denied the petition. We affirmed. State v. Khalif, No.

A-1201-00 (App. Div. Oct. 15, 2001). The Supreme Court denied certification.

State v. Khalif, 171 N.J. 44 (2002).

Defendant filed his third PCR petition along with a motion to correct an

illegal sentence on May 21, 2007. He alleged it was unconstitutional for the

trial court to impose an extended sentence without a jury finding that an

extended sentence was warranted. The trial court denied the petition and

motion, concluding that the issues he asserted had been previously raised and

rejected in his direct appeal. We affirmed. State v. Khalif, No. A-0487-07 (App.

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Div. Apr. 6, 2009). The Supreme Court denied certification. State v. Khalif,

199 N.J. 543 (2009).

On August 20, 2009, defendant filed a fourth PCR petition. The trial court

denied the petition as time barred because it was filed beyond the five-year

period established in R. 3:22-12(a). We affirmed. State v. Khalif, No. A-3362-

09 (App. Div. Feb. 8, 2011). The Supreme Court denied certification. State v.

Khalif, 207 N.J. 35 (2011).

Defendant filed a fifth PCR petition on January 2, 2013. He alleged

ineffective assistance of counsel with respect to his first and second PCR

petitions. The trial court denied defendant's fifth PCR petition because it was

time barred, procedurally barred, and otherwise frivolous. We affirmed. State

v. Khalif, No. A-4158-12 (App. Div. Nov. 13, 2014). 3

Defendant also filed four motions to correct an illegal sentence. The trial

court denied the first on February 25, 2015, because defendant's claims were

previously adjudicated in his direct appeal and raised in prior PCR petitions.

We affirmed. State v. Khalif, No. A-3668-14 (App. Div. June 28, 2017). The

Supreme Court denied certification. State v. Khalif, 232 N.J. 51 (2018).

3
On July 2, 2002, defendant filed a petition for a writ of habeas corpus in the
United States District Court. On September 28, 2005, the District Court denied
the petition. Khalif v. Hendricks, Civ. No. 02-3193 (D.N.J. Sept. 28, 2005).
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 On April 11, 2018, the trial court denied defendant's second motion to

correct an illegal sentence because the claims he raised were previously

adjudicated. Defendant did not appeal that decision.

On July 19, 2018, the trial court denied defendant's third motion to correct

an illegal sentence because his claims were previously adjudicated and were

substantively meritless. We affirmed. State v. Khalif, No. A-5513-17 (App.

Div. Aug. 26, 2019). The Supreme Court denied certification. State v. Khalif,

241 N.J. 142 (2020).

Defendant filed his fourth motion to correct an illegal sentence, which

gave rise to this appeal, on June 10, 2020. He amended his motion on December

28, 2020.

On April 1, 2022, Judge Harold W. Fullilove, Jr., issued a written opinion

denying defendant's motion. The judge found that defendant's motion was

procedurally deficient because it did not include our 1995 opinion remanding to

the trial court for correction of the original judgment of conviction, the transcript

of his resentencing proceeding, or his current judgment of conviction. In

addition, the court concluded that the validity of defendant's sentence had been

affirmed and reaffirmed repeatedly over a period of twenty-seven years. An

April 1, 2022 order memorializes the judge's decision.

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 Defendant subsequently moved for reconsideration. He included some,

but not all, of the documents Judge Fullilove previously found were missing

from his motion. In an August 3, 2022 written opinion, the judge denied

defendant's motion for reconsideration. The judge concluded that the motion

record remained incomplete, and defendant's repetition of his prior legal

arguments did not warrant reconsideration of the April 1, 2022 order.

This appeal followed. Defendant raises the following arguments.

POINT I

THE SUPERIOR COURT JUDGE COMMITTED
"HARMFUL ERROR" BY (1) "IMPROPERLY
DISCERNING RULE 3:21-10(c); "ERRONEOUSLY
ACCUSING DEFENDANT OF DEFICIENCY," AND
(2) "APPLYING A RULE TO DEFENDANT["] NOT
PURSUANT TO R. 3:21-10(b) OR (c). VIOLATING
HIS XIV AMENDMENT (SIC).

POINT II

AFTER "REVIEWING MATERIAL," AS
PRESCRIBED IN R. 3:21-10(c), THE COURT THEN
ACKNOWLEDGES THAT THERE IS A
"YARBOUGH, CLAIM," YET, NEVER
ARTICULATED BY THE COURT AN "OVERALL
FAIRNESS" OF A [FIFTY-EIGHT] YEAR STIP,
NEVER ASSESSED. VIOLATING DUE PROCESS
UNDER THE XIV AMENDMENT.

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 II.

A motion to correct an illegal sentence may be filed at any time. R. 3:21-

10(b)(5); State v. Schubert, 212 N.J. 295, 309 (2012). An illegal sentence

"exceed[s] the penalties authorized by statute for a specific offense." State v.

Murray, 162 N.J. 240, 246 (2000). "A sentence may also be illegal because it

was not imposed in accordance with law. This category includes sentences that,

although not in excess of the statutory maximum penalty," are not authorized by

statute. Id. at 247. "In addition, a sentence may not be in accordance with law

because it fails to satisfy required presentencing conditions" or "include a

legislatively mandated term of parole ineligibility." Ibid. We review de novo

the trial court's finding that a sentence is legal. Schubert, 212 N.J. at 303-04.

In addition, Rule 4:49-2 provides:

Except as otherwise provided by R. 1:13-1 (clerical
errors) a motion for rehearing or reconsideration
seeking to alter or amend a judgment or final order shall
. . . state with specificity the basis on which it is made,
including a statement of the matters or controlling
decisions that counsel believes the court has overlooked
or as to which it has erred, and shall have annexed
thereto a copy of the judgment or final order sought to
be reconsidered and a copy of the court’s corresponding
written opinion, if any.

"A motion for reconsideration . . . is a matter left to the trial court's sound

discretion." Lee v. Brown, 232 N.J. 114, 126 (2018) (quoting Guido v. Duane

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Morris, LLP, 202 N.J. 79, 87 (2010)); see also Cummings v. Bahr, 295 N.J.

Super. 374, 389 (App. Div. 1996). A party may move for reconsideration of a

court's decision pursuant to Rule 4:49-2, on the grounds that (1) the court based

its decision on "a palpably incorrect or irrational basis," (2) the court either

failed to consider or "appreciate the significance of probative, competent

evidence," or (3) the moving party is presenting "new or additional information

. . . which it could not have provided on the first application." Cummings, 295

N.J. Super. at 384 (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch.

Div. 1990)). The moving party must "initially demonstrate that the [c]ourt acted

in an arbitrary, capricious, or unreasonable manner, before the [c]ourt should

engage in the actual reconsideration process." D'Atria, 242 N.J. Super. at 401.

A motion for reconsideration is not an opportunity to "expand the record and

reargue a motion. . . . [It] is designed to seek review of an order based on the

evidence before the court on the initial motion, . . . not to serve as a vehicle to

introduce new evidence in order to cure an inadequacy in the motion record.''

Capital Fin. Co. of Del. Valley v. Asterbadi, 398 N.J. Super. 299, 310 (App.

Div. 2008).

We have carefully reviewed the record in light of these legal principles

and agree with Judge Fullilove's conclusion that defendant is not entitled to

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relief. Even if defendant submitted all of the documents supporting his claim

that he received an illegal sentence, the validity of his sentence was raised in his

direct appeal, repeated in a series of PCR petitions, and reiterated in a

subsequent series of motions to correct an illegal sentence. Defendant's

substantive challenges to his sentence were rejected by every court to adjudicate

them. It has long since been decided by the courts that defendant received a fair

and lawful sentence for the brutal, senseless murder of his cousin and the equally

pointless attempted murder of her fiancé. Judge Fullilove correctly denied both

of defendant's motions.

Affirmed.

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