STATE OF NEW JERSEY v. VICTOR P. SIMPSON

Defendant Victor Simpson appeals from a February 12, 2015

order denying his requests for post-conviction relief (PCR), an

evidentiary hearing, and correction of his sentence. Defendant

sought relief arguing counsel failed to challenge

identifications by the victim, who was robbed and assaulted, and

present testimony from additional eyewitnesses. In a written

statement of reasons accompanying the order, the trial judge

concluded defendant's claims were barred as they should have

been or actually were raised on appeal. Alternatively,

addressing the substance of defendant's arguments, the judge

found the pleadings insufficient as they failed to present a

prima facie showing for relief, as required by Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984) and United States v. Cronic, 466 U.S. 648, 104 S. Ct.

2039, 80 L. Ed. 2d 657 (1984). See State v. Fritz, 105 N.J. 42,

58 (1987) (adopting Strickland's two-pronged test).

On appeal, defendant argues:

POINT I.

DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN PROCEDURALLY BARRED.

POINT II.

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S PERVASIVE INEFFECTIVENESS, WHICH INCLUDED INADEQUATE INVESTIGATION, FAILURE TO HAVE APPROPRIATE WITNESSES TESTIFY, AND FAILURE TO OBTAIN AND PROVIDE DEFENDANT WITH REPORTS AND THE GRAND JURY TRANSCRIPT.

After considering the arguments advanced by defendant in

light of the record and applicable law, we affirm substantially

for the reasons set forth in the trial judge's thirteen-page

opinion.

"Post-conviction relief is New Jersey's analogue to the

federal writ of habeas corpus." State v. Goodwin, 173 N.J. 583,

593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459

(1992)). "A petitioner must establish the right to relief by a

preponderance of the credible evidence." Ibid.

For defendants to obtain relief based on ineffective

assistance grounds, he or she is obliged to show not only the

particular manner in which counsel's performance was deficient,

but also that the deficiency prejudiced their rights to a fair

trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064,

80 L. Ed. 2d at 693; accord Fritz, 105 N.J. at 58.

First, defendant raised a challenge on appeal to what he

described as the "impermissibly suggestive out-of-court 'showup'

identification" by the victim and the failure of counsel to seek

a Wade1 hearing to challenge to the identification process.

State v. Simpson, No. A-1047-10 (App. Div. July 26, 2013) (slip

op. at 7). We concluded defendant was unlikely to have

succeeded on a motion to suppress the identification, which was

found reliable, particularly in light of the State's evidence.

1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

A-3633-14T1 4

Id. at 11-12. Thus, the issue has previously been considered

and further review is barred. R. 3:22-4.

Second, although we did not address the claim of

ineffective assistance of counsel on appeal, we have now

reviewed the record of the PCR proceeding and find no new

evidence supporting defendant's factual assertions was

proffered. The failure to present facts to support a prima

facie case is fatal to obtaining relief. Although defendant

identified witnesses not called at trial, he provided no

affidavits or certifications expressing the testimony each could

have presented, if called. "[W]hen a petitioner claims his

trial attorney inadequately investigated his case, he must

assert the facts that an investigation would have revealed,

supported by affidavits or certifications based upon the

personal knowledge of the affiant or the person making the

certification." State v. Cummings, 321 N.J. Super. 154, 170

(App. Div.), certif. denied, 162 N.J. 199 (1999).

Defendant also suggests counsel should have introduced his

photograph, taken contemporaneously with the events, to refute

the physical description of the victim. However, he does not

attach the proffered photograph he claims would support his

assertions.

A-3633-14T1 5

An evidentiary hearing to review a defendant's PCR

allegations is required only when a defendant establishes a

prima facie case supporting PCR and the judge determines "there

are material issues of disputed fact that cannot be resolved by

reference to the existing record, and a determination that an

evidentiary hearing is necessary to resolve the claims for

relief." R. 3:22-10(b); Preciose, supra, 129 N.J. at 462-63.

(1992). A defendant will not be entitled to an evidentiary

hearing simply because relief is requested.