SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5659-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. 

MIKE NEWMAN, a/k/a

MICHAEL NEWMAN, 

Defendant-Appellant.

________________________

Submitted September 13, 2021 – Decided September 21, 2021

Before Judges Rothstadt and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Cumberland County, Indictment No. 09-02-

0140. 

Mike Newman, appellant pro se.

Jennifer Webb-McRae, Cumberland County 

Prosecutor, attorney for respondent (Danielle R. 

Pennino, 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NOT FOR PUBLICATION WITHOUT THE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.
2 A-5659-18

Defendant appeals from an order denying his second petition for postconviction relief (PCR). We affirm.

I.

In 2010, defendant was convicted of first-degree attempted murder, first 

degree-robbery, second-degree aggravated assault, and various weapons-related 

offenses. After merger, the court sentenced defendant to an aggregate forty-year 

mandatory term as a persistent offender. 

The heavy sentence was the consequence of defendant's extensive 

criminal record and the violent nature of the crimes he committed when he 

assaulted and shot the victim in the leg. Defendant was implicated in the 

shooting by his father, cousin, and the victim's former girlfriend, who told police 

that weeks before the shooting, she observed defendant on his bicycle with 

bullets attached to his vest and in possession of what she believed to be a 

shotgun. When she confronted defendant, he told her "[n]obody's going to hurt 

me again." The victim also identified defendant by name, and later affirmed his 

identification after an investigating officer showed him defendant's photograph. 

We affirmed defendant's convictions and sentence on direct appeal, see

State v. Newman, No. A-2947-10 (App. Div. Oct. 10, 2012), and the Supreme 

Court denied defendant's petition for certification. State v. Newman, 213 N.J. 
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535 (2013). Defendant filed a timely pro se petition for PCR in which his courtappointed counsel alleged that defendant's trial counsel was constitutionally 

ineffective under Strickland v. Washington1 because his attorney failed to confer 

with him adequately prior to trial and ignored his advice to challenge a juror 

during jury selection. 

In a supplemental pro se submission, defendant additionally claimed his 

counsel erred in failing to: hire an expert witness to investigate the crime scene 

and evaluate the victim's injuries; elicit testimony from the victim about his 

"inconsistent" descriptions; argue that he could not be convicted of robbery 

because the victim said he did not take anything from him; request a cross-racial 

identification; and move to suppress all of the victim's statements because the 

detective who questioned him did not retain his handwritten notes.

On May 20, 2014, the first PCR court heard oral argument and later issued 

an order and comprehensive written opinion in which it concluded that the 

majority of defendant's claims were barred by Rule 3:22-4(a) as they could have 

1

 To establish ineffective assistance of counsel, a convicted defendant must 

satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 

687 (1984), by demonstrating that: 1) counsel's performance was deficient, and 

2) the deficient performance actually prejudiced the accused's defense. The 

Strickland test has been adopted in New Jersey. See State v. Fritz, 105 N.J. 42, 

58 (1987) (Strickland/Fritz). 
4 A-5659-18

been presented on direct appeal. The court also determined that an evidentiary 

hearing was not required because defendant failed to establish a prima facie case 

of ineffective assistance of counsel. We affirmed the denial of defendant's PCR 

petition in an unpublished opinion, see State v. Newman, No. A-5222-13 (App. 

Div. Nov. 4, 2015), and on February 5, 2016, the Supreme Court denied 

defendant's petition for certification. State v. Newman, 224 N.J. 125 (2016). 

Nearly two and a half years later, on July 24, 2018, defendant filed a

second PCR petition in which he alleged his trial counsel was ineffective for 

failing to: challenge a juror who knew the victim, voir dire the jury and 

investigate their backgrounds, and request a competency hearing. Defendant 

also sought the appointment of counsel to assist in the prosecution of his second 

petition, a request that the public defender's office denied in a February 5, 2019

letter. 

In a form June 12, 2019 order, the PCR court denied defendant's petition 

on the papers and without further proceedings. It also concluded good cause did 

not exist entitling defendant to assignment of counsel. 

On appeal, defendant raises two arguments for our consideration. First, 

he contends the PCR court erred in denying his petition without an evidentiary 

hearing because his counsel's failure to request a competency hearing satisfied 
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both the performance and prejudice prongs of the Strickland/Fritz test as there 

was a "reasonable probability that [he] would not have been found guilty of 

attempted murder, where the intent to kill would have been mitigated by the 

testimony of a medical professional discussing his state of mind . . . ." He also 

contends his counsel's failure to remove a juror at his instruction, adequately 

voir dire the jury, and conduct any investigation into the jurors' backgrounds 

established a prime facie case of ineffective assistance warranting an evidentiary 

hearing. 

Second, he argues the court incorrectly failed to find good cause under 

Rule 3:22-6(b) warranting the appointment of counsel to assist in the 

prosecution of his second PCR petition. Although it would have been preferable 

to have a more complete record of the PCR court's reasons for denial of this 

subsequent PCR petition, we have found nothing in defendant's brief on appeal,

or in the PCR petition itself, that requires further review. 

The form order used by the PCR court was in accordance with Directive 

#7-07. Administrative Directive #7-07, "Post-Conviction Applications on 

Indictable Offenses New Form Order" (Sept. 20, 2007). The form contains 

preprinted sections permitting PCR judges to address by means of checkoffs and 
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brief additional text the various issues pertinent to a second or subsequent PCR 

petition, including the court's ultimate decision. 

In addition to completing the order, courts are asked to provide written 

reasons when a pro se litigant files a second or subsequent petition for postconviction relief and the relief sought is denied. Here, the PCR judge did not 

complete the supplemental section or otherwise explain the bases for his 

reasoning to deny the petition and the appointment of counsel. It is clear on the 

face of the petition, however, that defendant's petition was time-barred and 

substantively without merit. Defendant further failed to establish good cause 

warranting the appointment of counsel. 

In this regard, defendant's petition was clearly untimely, having been filed 

far beyond the ordinary five-year time limitation for a PCR petition stated in 

Rule 3:22-12(a)(1). Subsection (a)(2) of the same rule provides alternative and 

potentially additional time periods for the filing of a second or subsequent 

petition. Because that part of the rule contains specificities that should be 

addressed in more detail, the PCR court would have been better advised to attach 

a statement of its findings and reasoning in denying defendant's petition. 

Nevertheless, our independent review of the petition discloses no basis 

covered by subsection (a)(2) to relax the time limitations of the Rule and to 
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permit the filing of this petition almost eight years after defendant's conviction, 

and over two years after his first petition was denied by the Supreme Court. 

Defendant's contentions are stated almost entirely through general statements of 

law, without specific application to the circumstances of his case. In addition, 

defendant's arguments are either substantively without merit under 

Strickland/Fritz, were, or could have been, addressed in his first PCR petition,

or on direct appeal. 

II.

Rule 3:22-4 sets forth specific requirements for second or subsequent PCR 

petitions. Rule 3:22-4(b) states that "[a] second or subsequent petition for postconviction relief shall be dismissed unless: (1) it is timely under Rule 3:22-

12(a)(2)" and alleges on its face either "a new rule of constitutional law," an 

undiscovered factual predicate, or ineffective assistance of counsel. 

Further, the time limits for a second or subsequent PCR petition under 

Rule 3:22-12(a)-(b) provide: 

(a)(2) Notwithstanding any other provision in this rule, 

no second or subsequent petition shall be filed more 

than one year after the latest of:

(A) the date on which the constitutional 

right asserted was initially recognized by 

the United States Supreme Court or the 

Supreme Court of New Jersey, if that right 
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has been newly recognized by either of 

those Courts and made retroactive by either 

of those Courts to cases on collateral 

review; or

(B) the date on which the factual predicate 

for the relief sought was discovered, if that 

factual predicate could not have been 

discovered earlier through the exercise of 

reasonable diligence; or

(C) the date of the denial of the first or 

subsequent application for post-conviction 

relief where ineffective assistance of 

counsel that represented the defendant on 

the first or subsequent application for postconviction relief is being alleged . . . . 

(b) These time limitations shall not be relaxed, except 

as provided herein. 

Subparagraph (b) was added to Rule 3:22-12 in 2009 "to make clear that 

the general time limits to file a petition for post-conviction relief as set forth in

[Rule] 3:22-12 cannot be enlarged or relaxed except as specifically set forth in

[Rule] 3:22-12(a)." State v. Jackson, 454 N.J. Super. 284, 293 (App. Div. 2018) 

(citing Report of the Supreme Court Criminal Practice Committee 2007–2009

Term at 4–5 (Feb. 17, 2009)). Under amended Rule 3:22-12(a)(1)(A), the filing 

of a "First Petition For Post–Conviction Relief" more than five years after the 

date of the judgment of conviction can be excused only if the defendant shows 

both "that the delay beyond said time was due to defendant's excusable neglect
9 A-5659-18

and that there is a reasonable probability that if the defendant's factual assertions 

were found to be true enforcement of the time bar would result in a fundamental 

injustice." That exception to the five-year time limit, however, does not apply 

to second or subsequent petitions under Rule 3:22-12(a)(2). Jackson, 454 N.J. 

Super. at 293–94.

Here, defendant's second PCR petition was clearly untimely. Indeed, he

does not assert a newly recognized constitutional right, Rule 3:22-12(a)(2)(A), 

or that his ineffectiveness claim is based on information or evidence that could 

not have been discovered earlier through the exercise of reasonable diligence. 

R. 3:22-12(a)(2)(B). Further, defendant's second PCR petition was not timely 

under Rule 3:22-12(a)(2)(C) because it was not filed within one year of February 

5, 2016, the date the Supreme Court denied his first PCR petition. As noted, 

defendant did not file his second petition until July 24, 2018, well beyond the 

time period required by the Rule. 

In addition, we are satisfied from our review of the record that defendant's 

ineffective assistance of counsel claims are substantively without merit. We 

previously rejected defendant's Strickland/Fritz claims related to his trial 

counsel's decision with respect to the selection of the jury. In affirming the 

court's denial of defendant's first PCR petition, we stated: 
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Defendant has not shown that his counsel's decision not 

to excuse the juror was a strategic miscalculation or 

mistake, particularly in view of the juror's statements 

that he could be fair and impartial. Moreover, even if 

counsel's strategic decision was erroneous, defendant 

has not established that he was prejudiced by the 

decision. Defendant has not shown a reasonable 

probability that the result here would have been 

different if the juror had been excused and another juror 

selected. 

[State v. Newman, No A-5222-13T2 (App. Div. Nov. 

4, 2015) (slip op. at 9).]

We also find no support in the record for defendant's remaining claims, 

including his allegation that counsel's failure to request a competency hearing 

satisfies both prongs of the Strickland/Fritz test. Where evidence "raises a bona 

fide doubt" as to a defendant's competence, a defendant is entitled to such a 

hearing. State v. Purnell, 394 N.J. Super. 28, 47 (App. Div. 2007) (quoting Pate

v. Robinson, 383 U.S. 375, 378 (1966)). Once the issue of competence is raised, 

the State then bears the burden of establishing competence by a preponderance 

of the evidence. State v. Lambert, 275 N.J. Super. 125, 129 (App. Div. 1994).

In Dusky v. United States, the United States Supreme Court defined the 

minimum requirements to determine a defendant's competence to stand trial. 

362 U.S. 402, 402 (1960). The test is "whether [the defendant] has sufficient 

present ability to consult with his lawyer with a reasonable degree of rational 
11 A-5659-18

understanding and whether he has a rational as well as a factual understanding 

of the proceedings against him." Purnell, 394 N.J. Super. at 47 (quoting Dusky, 

362 U.S. at 402); see also State v. Auld, 2 N.J. 426, 435, (1949) ("One unable 

to comprehend his position, to consult intelligently with counsel and plan his 

defense cannot be put to trial."). New Jersey has codified this standard at 

N.J.S.A. 2C:4-4, which provides that "[n]o person who lacks capacity to 

understand the proceedings against him or to assist in his own defense shall be 

tried, convicted or sentenced for the commission of an offense so long as such 

incapacity endures."

Defendant argues that his actions prior to the shooting, and particularly 

his interaction with the victim's former girlfriend, suggest he was in a 

"potentially delusional state" during the commission of the crime and that such 

evidence required a competency exam prior to trial and assignment of counsel 

on his second PCR petition. The record, however, is devoid of affidavits,

certifications, or other competent proofs necessary to support his claim that he 

was incompetent to stand trial. See State v. Porter, 216 N.J. 343, 355 (2013) 

(Court Rules require "[a]ny factual assertion that provides the predicate for a 

claim of relief" to be supported an "affidavit or certification pursuant to Rule

1:4-4."). 
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Absent such evidence, we are satisfied that defendant's trial counsel's 

decision to forego a competency hearing does not fall below an objective 

standard of reasonableness, as an attorney's failure to raise a losing argument

does not amount to deficient performance. State v. Worlock, 117 N.J. 596, 625 

(1990) ("The failure to raise unsuccessful legal arguments does not constitute 

ineffective assistance of counsel."). Simply put, the record before us does not 

raise a bona fide doubt as to defendant's competence, nor does it suggest he had 

an impaired ability to understand the nature of the proceedings against him.

III.

For similar reasons, we are also satisfied from our review of the record 

that defendant failed to establish "good cause" sufficient to require appointment 

of counsel under Rule 3:22-6(b). Indigent defendants who file second or 

subsequent PCR petitions are not entitled to appointment of counsel unless a 

judge determines that "good cause" exists. R. 3:22-6(b); State v. McIlhenny, 

333 N.J. Super. 85, 90 (App. Div. 2000). Under Rule 3:22-6(b), "[g]ood cause 

exists only when the court finds that a substantial issue of fact or law requires 

assignment of counsel and when a second or subsequent petition alleges on its 

face a basis to preclude dismissal under R. 3:22-4." This section of the Rule

limits "good cause" to circumstances where the court finds "a substantial issue 
13 A-5659-18

of fact or law" that signals some merit in the petition. See Pressler & Verniero, 

Current N.J. Court Rules, cmt. on R. 3:22-6(b) (2020). Here, for the reasons we 

previously detailed, defendant failed to establish the existence of a substantial 

factual or legal question as to the merits of his petition. 

Affirmed.