SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0236-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LLEWELYN JAMES, a/k/a

LOUIS JAMES and LOU JAMES,

Defendant-Appellant.

______________________________

Submitted October 18, 2018 – Decided

Before Judges Simonelli and O'Connor. 

On appeal from Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 02-08-2875.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Steven M. Gilson, Designated Counsel, on 

the brief).

Mary Eva Colalillo, Camden County Prosecutor, 

attorney for respondent (Kevin J. Hein, Assistant 

Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

NOT FOR PUBLICATION WITHOUT THE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.

November 1, 2018
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PER CURIAM 

Defendant Llewelyn James appeals from the July 28, 2017 Law Division 

order, which denied his petition for post-conviction relief (PCR) without an 

evidentiary hearing. On appeal, defendant raises the following contentions:

POINT I - THIS MATTER MUST BE 

REMANDED FOR AN EVIDENTIARY 

HEARING BECAUSE DEFENDANT 

ESTABLISHED A PRIMA FACIE 

CASE OF TRIAL COUNSEL'S 

INEFFECTIVENESS FOR FAILING 

TO INVESTIGATE AND TO PROVIDE 

DISCOVERY TO DEFENDANT; IN 

THE ALTERNATIVE, THIS MATTER 

MUST BE REMANDED FOR THE PCR 

COURT TO ADDRESS THESE 

CLAIMS. (Partially Raised Below).

 POINT II - THIS MATTER MUST BE 

REMANDED FOR A NEW PCR 

HEARING FOR COUNSEL TO 

ADVANCE DEFENDANT'S CLAIMS 

OF TRIAL COUNSELS' 

INEFFECTIVENESS FOR FAILING 

TO INVESTIGATE AND PROVIDE 

DISCOVERY TO HIM. (Not Raised 

Below).

Defendant raises the following contention in his pro se supplemental brief:

Point I:

RESPONDENT'S BRIEF SUPPORTS APPELLANT'S 

CLAIM THAT A FULL EVIDENTIARY HEARING 

SHOULD HAVE BEEN GRANTED.
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We reject these contentions and affirm.

Following a jury trial, defendant was convicted on six counts of firstdegree murder, N.J.S.A. 2C:11-3(a)(1) and (2); four counts of first-degree 

felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree attempted murder, N.J.S.A. 

2C:11-3(a); two counts of third-degree unlawful possession of a weapon, 

N.J.S.A. 2C:39-5(b); and two counts of second-degree possession of a weapon 

for an unlawful purpose, N.J.S.A. 2C:39-4(a). On January 25, 2008, the trial

court sentenced defendant to an aggregate 315-year term of imprisonment with 

an eighty-five percent period of parole ineligibility pursuant to the No Early 

Release Act, N.J.S.A. 2C:43-7.2. 

Defendant appealed his conviction and sentence. We affirmed. State v. 

James, No. A-4153-08 (App. Div. Sept. 7, 2012) (slip op. at 33). We incorporate 

by reference the facts leading to defendant's conviction, as described in our 

opinion. Id. at 1-10. We note that defendant confessed to the murders in a

consensual intercept conversation with his cousin and during a custodial 

interrogation, and there was other evidence inculpating him in those crimes. Id.

at 5-10. The Supreme Court denied defendant's petition for certification. State 

v. James, 213 N.J. 389 (2013). 
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A-0236-17T4

On April 29, 2013, defendant filed a PCR petition pro se, raising six 

grounds for relief, including trial counsels' failure to call defendant's mother,

Fern Ferguson, and cousin, Alvin Bethune, as witnesses at trial. 

Defendant's assigned PCR counsel filed a brief addressing the grounds for 

relief defendant asserted in his pro se petition, and adding that the petition was 

not time-barred under Rule 3:22-12(a)(1) and trial counsel failed to provide the 

State's discovery to defendant and secure the services of an investigator. 

Defendant later filed a certification, stating that PCR counsel was ineffective for 

failing to submit certifications to contest the time bar.

On May 12, 2014, the PCR court denied the petition without an 

evidentiary hearing, finding the petition was time-barred, procedurally barred,

and substantively without merit. Defendant appealed. 

On April 13, 2015, defendant's PCR appellate counsel filed a motion to 

supplement the appellate record with defendant's November 24, 2014 affidavit, 

wherein defendant claimed that PCR counsel was ineffective for failing to

submit affidavits from Ferguson and Bethune to the PCR court, and failing to 

address trial counsels' failure to call Ferguson and Bethune as witnesses at trial. 

PCR appellate counsel filed a brief, arguing the petition was not time 

barred; defendant established a prima facie case of ineffective assistance of trial 
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counsel; and PCR counsel failed to advance a claim defendant raised in his 

petition. Defendant filed a supplemental brief, adding that direct appellate

counsel submitted a certification, stating she did not advise defendant of the 

five-year time bar for a PCR petition. Defendant also argued that PCR counsel 

failed to obtain an affidavit from direct appellate counsel to contest the time bar,

interview and obtain affidavits or certifications from Ferguson and Bethune, and 

review the discovery with defendant.

1

 

We remanded for the appointment of new PCR counsel and a new hearing.

State v. James, No. A-5248-13 (App. Div. Dec. 13, 2016) (slip op. at 14).

2 We 

concluded as follows:

based on [State v.] Hicks[, 411 N.J. Super. 370 (App. 

Div. 2010)] and Rule 3:22-6(d), a remand is necessary 

to enable the PCR court to consider the grounds for 

relief defendant articulated in [PCR appellate] 

counsel's merits brief and defendant's supplement brief, 

as well as defendant's November 24, 2014 affidavit and 

direct appellate counsel's certification. 

Defendant contends he expressly asked PCR 

counsel to obtain affidavits from Ferguson and Bethune 

and submit them to the court, but counsel's brief before 

the PCR court was silent on this issue. Even if PCR 

counsel believed trial counsel had not been ineffective 

 

1

 Defendant raised other arguments that are not pertinent to this appeal.

2

 We affirmed the PCR court's denial of PCR on defendant's sentencing issues. 

Ibid. 
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for not calling these two witnesses at trial, he was not 

free to ignore this claim. See R. 3:22-6(d). He should 

have certified "no further argument or elaboration" was 

necessary or, if he did not agree with defendant's claim, 

should have at least referenced such claim in his brief. 

Hicks, 411 N.J. Super. at 377.

In addition, there is no indication PCR counsel 

reviewed the State's discovery. Counsel had a duty to 

investigate the merits of defendant's claim trial 

counsels' failure to share this discovery with him or to 

conduct an investigation fatally altered the outcome of 

the trial.

We recognize defendant has not come forward 

with evidence indicating how the outcome of the trial 

would have been different had the subject witnesses 

been called, the subject discovery shared with him, and 

an investigation conducted. However, it is unclear 

whether defendant has seen the discovery or has had 

contact with the two witnesses.

On the question whether the petition was timely 

filed, defendant contends he alerted PCR counsel of the 

certification direct appellate counsel was willing to 

execute. That certification and the impact of Rule 3:22-

3 must be addressed by PCR counsel in accordance with 

Hicks and Rule 3:22-6(d).

Finally, we express no opinion on the merits of 

defendant's application against either trial or PCR 

counsel. None of the comments or observations made 

in this opinion are to be interpreted as an indication of 

how the PCR court should decide this matter on 

remand.

[Id. at 13-14.] 
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On remand, the PCR court appointed new PCR counsel and afforded

counsel time to obtain discovery, provide it to defendant, and prepare for the 

hearing. Second PCR counsel obtained the discovery and provided it to 

defendant; defendant reviewed the discovery; and counsel spoke with defendant. 

Second PCR counsel did not obtain affidavits or certifications from Ferguson or 

Bethune, deciding instead to rely on their sworn testimony at defendant's 

Miranda3 hearing. Second PCR counsel noted that defendant had asked trial 

counsel "to go out and get these witnesses for trial, thinking that he needed to 

get them interviewed, but they had already been interviewed and [gave] 

statements." 

Regarding the discovery, second PCR counsel argued that had trial 

counsel provided it to defendant prior to trial, defendant could have provided 

trial counsel with methods to challenge the testimony of a State witness who 

testified that defendant told him he had had killed six people and, if released, 

would kill his cousin for snitching on him for money. 

The PCR court found defendant demonstrated excusable neglect to relax 

the five-year time bar, but concluded the petition was substantively without 

merit to warrant an evidentiary hearing. The PCR court determined that second 

 

3

 Miranda v. Arizona, 384 U.S. 436 (1966). 
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PCR counsel obtained the discovery, provided it to defendant, spoke to 

defendant, and defendant failed to show how the outcome of the trial or the first 

PCR petition would have been different had trial counsel reviewed the discovery

with him before trial. 

The PCR court found that even if trial counsel had called Ferguson or 

Bethune to testify at trial, defendant failed to show how the outcome would have 

been different. The PCR court also found that defendant did not indicate the 

facts to which Ferguson and Bethune would have testified. As to defendant's 

remaining arguments, the court found defendant failed to demonstrate a prima 

facie case of ineffective assistance of trial or first PCR counsel. 

On appeal, defendant argues this matter must be remanded because the 

PCR court and second PCR counsel failed to address his claims as to trial 

counsels' failure to call Ferguson and Bethune to testify at trial and review 

discovery with him. We disagree.

We review a judge's decision to deny a PCR petition without an 

evidentiary hearing for abuse of discretion. State v. Brewster, 429 N.J. Super. 

387, 401 (App. Div. 2013) (citing State v. Marshall, 148 N.J. 89, 157-58 (1997)). 

However, where no evidentiary hearing was conducted, we "may review the 

factual inferences the court has drawn from the documentary record de novo." 
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A-0236-17T4

State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016). We also review de 

novo the trial court's conclusions of law. Ibid.

We have considered defendant's argument in light of the record and 

applicable legal principles and conclude it is without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(2). The PCR court and second 

PCR counsel addressed defendant's claims as to trial counsel's failure to call 

Ferguson and Bethune to testify at trial. The PCR court concluded that 

defendant failed to show the outcome would have been different had they 

testified. While the PCR court did not directly address trial counsels' failure to 

review discovery with defendant, the court determined that defendant had 

reviewed the discovery with second PCR counsel and failed to show how the 

outcome would have been different. 

Affirmed.