SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2891-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN ROBINSON,

Defendant-Appellant.

_______________________

Submitted May 31, 2022 – Decided July 1, 2022

Before Judges Messano and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Somerset County, Indictment No. 07-10-

0731.

Kevin Robinson, appellant pro se.

Annmarie Taggart, Acting Somerset County 

Prosecutor, attorney for respondent (Lauren E. Bland, 

Special Deputy Attorney General/Acting Assistant 

Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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A jury convicted defendant Kevin Robinson of murder and possession of 

a knife for an unlawful purpose; the judge sentenced him to a fifty-year term of 

imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. State v. 

Robinson, No. A-3586-08 (Apr. 26, 2011) (Robinson I) (slip op. at 1–2). We 

affirmed defendant's conviction and sentence but remanded the matter for the 

court to conduct a restitution hearing. Id. at 4. The Supreme Court denied 

defendant's petition for certification. 208 N.J. 370 (2011). 

Defendant filed a petition for post-conviction relief (PCR) alleging 

ineffective assistance of trial counsel. State v. Robinson, No. A-5820-12 (Apr. 

20, 2015) (slip op. at 2–4). The PCR court denied relief, we again affirmed, id.

at 4-5, and the Court again denied defendant's petition for certification. 222 N.J. 

19 (2015).

More than five years after our judgment, on November 16, 2020, 

defendant filed a pro se second PCR petition. Although he alleged PCR counsel 

provided ineffective assistance, the claim was more appropriately directed at 

appellate counsel, who defendant said did not raise on direct appeal that the 

State failed to disprove defendant acted in the heat of passion after a reasonable 

provocation. Defendant also alleged the State's proofs were insufficient to 

convict him of murder for the same reason, and further that this court erred by 
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affirming defendant's conviction because one of the jurors had a relative who 

worked in the county prosecutor's office.

The second PCR judge, who had not handled any of the prior proceedings, 

entered an order that, after noting it was defendant's second PCR petition, simply 

said "none of the enumerated exceptions in [Rule] 3:22-4(b)(2) applie[d]." He 

denied the petition and this appeal followed.

Before us, defendant contends it was fundamentally unjust for the judge 

to deny the petition without hearing argument, our affirmance of his conviction 

given a juror's disqualifying conflict was a fundamental injustice, PCR counsel 

or appellate counsel were ineffective for not raising at any point the State's 

failure to disprove defendant acted in the heat of passion after reasonable 

provocation. Defendant also asserts again that the State's evidence failed to 

disprove that passion/provocation mitigated the homicide to manslaughter. 

The State counters that the second PCR petition was untimely, and none 

of the exceptions in Rule 3:22-4(b)(2) apply. We agree with the State and 

affirm.

Under Rule 3:22-4(b), "[a] second or subsequent petition for postconviction relief shall be dismissed unless" it is both "timely under R. 3:22-

12(a)(2)," and
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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, 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 postconviction relief.

Rule 3:22-12(a)(2)(C) provides that

[n]otwithstanding any other provision in this rule, no 

second . . . petition shall be filed more than one year 

after . . . the date of the denial of the first . . . application 

for post-conviction relief where ineffective assistance 

of counsel that represented the defendant on the first 

. . . application for post-conviction relief is being 

alleged.

Rule 3:22-12(b) states that these time limits "shall not be relaxed," except as 

otherwise provided within the Rule. 
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In State v. Jackson, we detailed the historical progression leading to the 

Court's adoption of the current Rules. 454 N.J. Super. 284, 292–94 (App. Div. 

2018). We concluded that under their current iteration, a defendant could not 

successfully urge relaxation of these time frames, as he could under Rule 3:22-

12(a)(1) governing first PCR petitions, with claims of excusable neglect and a 

resulting fundamental injustice if the petition were time-barred. Id. at 293–94. 

We never reached the merits of the defendant's PCR petition because it was 

untimely and subject to mandatory dismissal. Id. at 297; see also State v. Brown, 

455 N.J. Super. 460, 470 (App. Div. 2018) (holding that absent competent 

evidence establishing the defendant's entitlement to relaxation of Rule 3:22-12's 

five-year time limit for first PCR petitions, "the court does not have the authority 

to review the merits of the claim").

Here, defendant filed his second PCR more than five years after our 

judgment affirming the Law Division's earlier denial of his first PCR petition. 

To the extent defendant asserted a claim that PCR counsel was ineffective, the 

second petition was time barred. Moreover, none of the other exceptions in Rule

3:22-4(b) apply.

Finally, on direct appeal we rejected defendant's claims the State failed to 

prove every element of murder beyond a reasonable doubt, and that the judge 
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committed error in conducting juror voir dire. See Robinson I, slip op. at 8–9, 

13–15. Those claims are barred by Rule 3:22-5 ("A prior adjudication upon the 

merits of any ground for relief is conclusive whether made in the proceedings 

resulting in the conviction or in any post-conviction proceeding brought 

pursuant to this rule . . . ."). To the extent we have not otherwise addressed 

them, defendant's remaining arguments lack sufficient merit to discuss in a 

written opinion. R. 2:11-3(e)(2). 

Affirmed.