SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3064-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN SOUTHERLAND,

a/k/a KEITH DAVIS, and

SHAWN OBEE,

Defendant-Appellant.

_______________________

Argued November 30, 2021 – Decided February 16, 2022

Before Judges Rothstadt and Mayer.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 09-10-1750.

Shawn Southerland, appellant, argued the cause pro se.

Stephanie Davis Elson, Assistant Prosecutor, argued 

the cause for respondent (Esther Suarez, Hudson 

County Prosecutor, attorney; Stephanie Davis Elson, 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NOT FOR PUBLICATION WITHOUT THE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.
2 A-3064-19

Defendant Shawn Southerland appeals from the September 3, 2019 denial 

of his second petition for post-conviction relief (PCR), and from the March 12, 

2020 denial of his motions for reconsideration and for a new trial. We affirm.

The facts leading to defendant's conviction are set forth in our earlier 

opinions affirming defendant's conviction and sentence, State v. Southerland

(Southerland I), No. A-4663-11 (App. Div. Jan. 30, 2015) (slip op. at 6-14, 29), 

and affirming the denial of his first PCR petition, State v. Southerland

(Southerland II), No. A-3299-15 (App. Div. Mar. 19, 2018) (slip op. at 1), and 

need not be repeated here. Suffice it to say that after unsuccessfully opposing 

the State's motion at trial to admit into evidence a police officer's testimony 

about a conversation he overheard between defendant and the victim's brother, 

defendant was convicted after a bench trial of committing murder, N.J.S.A. 

2C:11-3(a), and hindering apprehension, N.J.S.A. 2C:29-3(b)(1). Defendant's 

motion for a new trial was denied, and the sentencing court imposed an 

aggregate sentence of thirty years' imprisonment subject to a No Early Release 

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

As part of our description of the issues defendant raised on direct appeal

from his conviction, we observed the following:

In Points III, IV, and V, defendant argues the judge 

erred by granting the State's motion to admit the 
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statements he made to [the victim's brother] during their 

telephone conversation into evidence. Defendant 

asserts that [the police o]fficer . . . violated the New 

Jersey Wiretapping and Electronic Surveillance Act, 

N.J.S.A. 2A:156-1 to -34 (the Wiretap Act), by 

listening to the telephone call, and that the officer's 

lengthy presence in [the victim's] apartment constituted 

an unlawful search. Defendant contends the 

prosecutor's subsequent use of the statements "tainted" 

the grand jury proceedings and the trial and, therefore, 

he should be granted a new trial.

[Southerland I, slip op. at 20.]

We explained in detail our reasons for rejecting defendant's contentions 

as to these issues. Id. at 20-24. After we affirmed defendant's conviction and 

sentence, the Supreme Court denied his petition for certification. State v. 

Southerland, 221 N.J. 566 (2015). 

On June 1, 2015, defendant filed his first PCR petition, which was denied

by Judge Sheila A. Venable. Defendant appealed, and we affirmed substantially 

for the reasons expressed by Judge Venable. Southerland II, slip op. at 11. In 

his first PCR petition, defendant claimed, among other issues, ineffective 

assistance of appellate counsel for failure to raise the issue of the admission of 

the officer's testimony regarding the overheard phone call. Pertinent to the 

present appeal, in our opinion affirming the denial of PCR, we described Judge 
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Venable's response to the issues raised by defendant's first petition by stating 

the following:

Last, Judge Venable found that defendant's argument 

that appellate counsel was ineffective because he failed 

to argue the admissibility of statements defendant made 

on the phone when a police officer was present on the 

other line was meritless. The judge observed that 

appellate counsel explained to defendant that he was 

"reluctant to raise [the] issue on direct appeal as [he] 

believe[d], strategically, that it would detract from the 

issues that [he] intend[ed] to raise[.]" Further, 

defendant raised the issue himself in a pro se 

supplemental appellate brief, and we found his 

argument to be meritless.

[Southerland II, slip op. at 7-8 (alterations in original).]

The Supreme Court later denied defendant's petition for certification on 

October 23, 2018. State v. Southerland, 235 N.J. 351 (2018).

Defendant then filed a petition for habeas corpus with the United States 

District Court for the District of New Jersey, which was denied on March 26, 

2019, based on its conclusion, like ours, that there was no Fourth Amendment 

violation in the officer's listening to the conversation with the victim's brother's 

consent. Southerland v. Nogan, No. 18-9469 (JLL), 2019 U.S. Dist. LEXIS 

51572, at *1, *16-19 (D.N.J. Mar. 26, 2019). On October 4, 2019, the United

States Court of Appeals for the Third Circuit denied his application for a 
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Certificate of Appealability. Southerland v. Adm'r E. Jersey State Prison, No. 

19-1784, 2019 U.S. App. LEXIS 40346, at *1-2 (3d Cir. Oct. 4, 2019).

On July 29, 2019, defendant filed his second PCR petition, which was 

denied on September 3, 2019. In his second PCR petition, defendant once again 

claimed ineffective assistance of appellate counsel for failure to raise the issue 

of the admission of the officer's testimony regarding the overheard phone call 

on direct appeal. Judge Venable denied the petition because the claim against 

appellate counsel was not cognizable under Rule 3:22-4(b)(2), which restricts 

the issues that can be raised in a second PCR petition, and because defendant 

raised arguments that were disposed of on direct appeal and in his first PCR 

petition.

On September 23, 2019, defendant filed a motion for a new trial, and, four 

days later, he filed a motion for reconsideration of the denial of his second PCR 

petition. On February 27, 2020, defendant filed a motion for evidentiary 

hearing. 

On March 12, 2020, Judge Venable issued a letter opinion setting forth 

her reasons for denying reconsideration of the order denying defendant's second 

petition for PCR and for denying an evidentiary hearing, reiterating her original 

reasons for the denial of his second PCR petition. The judge also denied
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defendant's motion for a new trial, relying on the same reasons for our rejection 

of defendant's earlier appeals and for her denial of his first petition, concluding 

again that the issue of the admission of the officer's testimony regarding the 

overheard phone call had already been fully addressed and adjudicated and for 

that reason it was not "in the interest of justice" to order a new trial. This appeal 

followed. 

On appeal defendant argues the following points:

POINT I

THE PCR COURT ERRED IN DENYING 

DEFENDANT'S SECOND PETITION FOR POSTCONVICTION RELIEF: CONCERNING HIS CLAIM 

THAT HE WAS DENIED THE EFFECTIVE 

ASSISTANCE OF COUNSEL ON DIRECT APPEAL 

FOR COUNSEL'S FAILURE TO APPEAL 

SUPPRESSIBLE EVIDENCE BECAUSE ABSENT 

EXCLUDABLE EVI[D]ENCE THE RESULT OF THE 

VERDICT WOULD HAVE BEEN DIFFERENT; 

AND, DEFENDANT WOULD BE ENTITLED TO A 

NEW TRIAL. (THE PCR COURT BARRED 

DEFENDANT UNDER [RULE] 3:22-5 ON THE 

FIRST PCR PETITION ON THE ISSUE)[.]

POINT II

DEFENDANT'S RIGHTS WERE VIOLATED WHEN 

THE OFFICER ENTERED DEFENDANT'S HOME 

WITHOUT A WARRANT AND SET UP 

TELEPHONE SURVEILLANCE WITHOUT PRIOR 

APPROVAL THEN [REQUESTED] THAT 

TELEPHONE BE PLACED ON SPEAKER 
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THEREBY VIOLATING DEFENDANT'S RIGHT TO 

PRIVACY AND THE STATUTORY PROVISIONS

OF N.J.S.A. 2A:156[]A[-]4(c): WARRANTING 

SUPPRESSION OF THE ALLEGED ORAL 

STATEMENTS AND ITS FRUIT AND NEW TRIAL 

(UNRESOL[V]ED BY THE APPELLATE DIVISION 

ON DIRECT APPEAL).

POINT III

THE TRIAL COURT ERRED IN DENYING 

DEFENDANT'S MOTION FOR NEW TRIAL UNDER 

BRADY ITS PROGENY AND [RULE] 3:13-3 

BECAUSE THE STATE WITHHELD, SUPPRESSED 

AND FAILED TO DISCLOSE MATERIAL 

IMPEACHMENT EVIDENCE WHICH AFFECTED 

THE OUTCOME OF THE TRIAL.

POINT IV

THE TRIAL COURT DENIED DEFENDANT DUE 

PROCESS IN POST-CONVICTION PROCEEDINGS 

IN FAILING TO ADDRESS THE [SIC] 

DEFENDANT'S MOTION TO COMPEL 

DISCOVERY IN RELATION TO HIS PETITION FOR 

POST-CONVICTION RELIEF AND MOTION FOR 

NEW TRIAL IN THAT COURT.

[(Third alteration in original).]

We are not persuaded by any of defendant's contentions, which we 

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

R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge 

Venable in her written decisions that accompanied the challenged orders. We 
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add only that, contrary to defendant's assertion on appeal that we did not 

conclusively decide the "central issue raised," there should be no doubt now that 

the issue of the admission of the officer's testimony regarding the overheard 

phone call was previously decided by this court. 

Affirmed.