### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 20 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. D.L.M., Defendant

- Appellant.

_______________________

Submitted September 29, 2022

– Decided October 7 , 2022 Before Judges Vernoia and Natali. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04

- 05

- 0483. D.L.M., appellant pro se. LaChia L. Bradshaw, Burlington County Prosecutor, attorney for respondent (Jennifer Paszkiewicz, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not " constitute precedent or be binding upon any court

. " A lthough 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

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- 20

Defendant D.L.M. appeals from the Law D ivision ' s March 22, 2021 o rder denying his second petition for post

- conviction relief (PCR). In that order, the
PCR court concluded defendant ' s petition was untimely under Rule 3:22

- 4(b) , and procedurally deficient under Rule 3:22

- 5

. We affirm.
I. On direct appeal, we affirmed defendant ' s January 18, 2007 conviction and aggregate sixty

- year sentence for three counts of first

- degree aggravated sexual assault, N.J.S.A. 2C:14

- 2(a)(1); six counts of second

- degree endangering the welfare of a child, N.J. S.A. 2C:24

- 4(a); three counts of second

- degree sexual assault, N.J.S.A. 2C:14

- 2(b); and one count of a lesser included offense of offensive touching, N.J.S.A. 2C:33

- 4(b). State v. D.M. , No. A

- 1050

- 07 (App. Div. Jul y 21, 2010) (slip op. a t 1

- 2 , 6 ). The Su preme Court denied defendant ' s petition for certification. State v. D.M. , 204 N.J. 41 (201 0 ). In January 2011, defendant filed a timely first petition seeking PCR. In his application , he alleged, among other things, that his standby trial counsel was constitutionally ineffective under Strickland v. Washington , 466 U.S. 668 (1984) , 1 because he failed to subpoena a p hysician identified only as Dr.

1 To establish ineffective assistance of counsel, a convicted defendant must satisfy the two

- part test enunciated in Strickland , 466 U.S. at 687, by3 A

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Shee n an. At oral argument on that petition, defendant a lso a sserted his standby counsel was i neffective because he failed to obtain DNA evidence from the victim

. In a June 22, 2012 order, t he court denied defendant's p etition, finding his claims lacked merit and could have been raised on direct appeal. A mong other reasons, the court explained tha t defendant failed to articulate any reason counsel should have subpoenaed Dr. Sheenan , and thus failed to demonstrate how he was prejudiced by counsel ' s failure to do so.
In a second unpublished opinion, we affirmed the court's denial of defendant's petition , holding that since " no DNA evidence was ever recovered from the victim, " counsel " was not ineffective for failing to obtain discovery regarding evidence that did not exist. " State v. D.L.M. , No. A

- 0831

- 12 (App. Div. May 5, 2015) (sli p op. at 2, 9, 12). Further, we agreed with the court 's finding that "defendant ha [d] failed to articulate any reason standby counsel should have subpoenaed [Dr. Sheenan] and he ha [d] failed to demonstrate that he was prejudiced by standby counsel's failu re to do so." Id. at 5. The Supreme

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 for application under our State con stitution in New Jersey. See State v. Fritz , 105 N.J. 42, 58 (1987).4 A

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Court later denied defendant ' s petition for certification. State v. D.L.M. , 227 N.J. 237 (2016). In March 2017, defendant filed a motion pursuant to N.J.S.A. 2A:84A

32a for post

- conviction DNA testing. He requested that vaginal swabs obtained from the victim be tested for the presence of his DNA. He also repeated his
assertion that standby counsel should have subpoenaed Dr. Shee n an. Defendant claimed the subpoena was necessary to determine if Dr. Shee n an took vaginal cultures or swabs from the victim. He provided the court with handwritten notes, purportedly written by Dr. Shee n an, but th o se notes failed to mention any vaginal cultures or swabs. He also provided the court with a medical report which c onfirmed that in 2002 a second doctor obtained vaginal swabs from the victim to test for sexually transmitted diseases. The trial court denied the motion without a hearing

. In a third unpublished opinion, we affirmed. State v. D.L.M. , No. A

- 3656

- 16 (App. Div. Oct. 2 3 , 2018) (slip op. at 2). We concluded the court correctly
denied the motion without a hearing because defendant failed to show that his identity was a significa nt issue in the case and that the evidence he sought wa s available for testing. Id. at 3.5 A

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- 20

We explained that at trial the victim positively identified defendant as the perpetrator and testified in detail about the abuse. Ibid. Furthe r , we determined
t he court correctly found that Rule 3:22

- 5 barred defendant from re

- litigating his related claim of ineffective assistance of counsel with respect to, among other issues, counsel's failure to have subpoenaed Dr. Shee n an because in the prior PCR proceeding, defendant had raised those claim s and they had been rejected by the court. Ibid. The Supreme Court denied defendant ' s petition for certification from tha t opinion. State v. D.L.M. , 238 N.J. 424 (2019)

. Defendant filed another PCR petition on or about March 1, 2020 , 2 eight years after the court denied his first petition in June 2012

. In his application , defendant argued that h is "first PCR counsel failed to glean from the record that the prosecutor violated

. . . Rules of Professional Conduct 3.3(A)(5)( 2)

. . . when it misrepresented the fact that it did not know who Dr. Sheenan was." This argument apparently stems from a statement made by the prose cutor at the 2012 oral argument that the " State doesn't even know who Dr. Shee [n] an is . . ." Defendant argues th at assertion was "disingenuous at best , " because Dr. Sheenan

was identified on the State's witness list. He claims his PCR counsel's failure to

2 The record before us contains a s igned but unfiled copy of defendant's petition dated January 2 0, 2020. In his merits brief , defendant contends he filed his petition nearly three months later on or about March 1, 2020.6 A

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correct th e prosecutor's statement rendered his assistance ineffective. Defendant also claim ed again that his standby counsel at trial was ineffective because he failed
t o "secure" Dr. Sheenan's testimony and was therefore dep rived of a "significant opportunity to investigate potential defenses." As noted, on March 22, 2021, the court issued a n order which denied
defendant ' s second petition. In that order, the court first noted that Rule 3:22

- 4(b) requires that a second or subsequent PCR petition be filed in a timely manner in accordance with Rule 3:22

- 12(a)(2) , and defendant's petition was deficient because it was not timely under th ose rules. The court also explained that Rule 3:22

- 5 prohibited the court from addressing the merits of any claim previously adjudicated, including any argument "whether made in the proceedings resulting in the conviction or in any post

- conviction proceeding brought pursuant to this rule or prior to the adop tion thereof, or in any appeal taken from such proceedings." Applying that Rule , the
court determined that defendant 's claim that his first PCR counsel was "ineffective for failing to subpoena Dr. Sheenan " was an issue we had previously adjudicated in our May 5, 2015 and October 23, 2018 decisions. This appeal followed

. Before us, defendant contends :7 A

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- 20 THE PCR COURT ERRED IN APPLYING A PROCEDURAL BAR AS APPELLANT'S CLAIM HAS SUBSTANTIAL MERIT, WHICH HAD NOT BEEN PREVIOUSLY ADJUDICATED ON THE MERITS AND WHERE IMPOSITION OF ANY PROCEDURAL BAR WOULD RESULT IN A FUNDAMENTAL INJUSTICE.
He further argues in his reply submission that : THIS MATTER SHOULD BE REMANDED FOR THE LIMITED PURPOSE OF PERMITTING DEFENDANT THE OPPORTUNITY TO OBTAIN A C ERTIFICATION OR STATEMENT FROM DR. SHEENAN. Defendant specifically claim s the court erred in concluding his petition was untimely because he did not discover that the prosecutio n's statement at the 2012 oral argument was false until he received the State' s witness list in his related federal habe a s corpus filing

. 3 H e maintains he filed the March 2020 petition within a year of that discovery and thus, his petition was timely filed under Rule 3:22

- 12(a)(2)

. Defendant further contends the State's "false representation" regarding Dr. Sheenan denied " his right to a fair hearing and
result [ed] in a fundamental injustice." He also argues the court erroneously

3 Defendant filed a habeas petition in the d istrict c ourt, which was denied in 2019. McGee v. Johnson , No. 17

- 2746, 2019 WL 5617562, at *15 (D.N.J. Oct. 31, 2019). Following that denial, defendant filed a r equest for a certificate of appealability in the Third Circuit, which was denied in 2020. McGee v. Adm'r N.J. State Prison , No. 19

- 3724, 2020 WL 2730903, at *1 (3d Cir. May 22, 2020).8 A

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relied on Rule 3:22

- 5 in denying his petition because his current ineffective

ass istance of counsel claim is distinct from our prior adjudications in which we determined his counsel was not constitutionally deficient for failing to subpoena

or call Dr. Sheenan as a witness

. II.

" As the [second] PCR court did not hold an evidentiary hearing on the claim[s] defendant now raises on appeal, we ' conduct a de novo review. ' " State

v. Jackson , 454 N.J. Super. 284, 291 (App. Div. 2018) (quoting State v. Harris , 181 N.J. 391, 421 (2004)). Applying that standard, we are unpersuaded by
defendant ' s arguments, and w e affirm substantially for the written reasons provided by the court in its order

. We find defendant ' s contentions challenging the court's determination to be without sufficient merit to warrant discussion in a written decision. R. 2:11

- 3(e)(2). We add the following to amplify the reasons for our decision. Rule 3:22

- 4(b)(1) requires dismissal of a second PCR petition if untimely
under Rule 3:22

- 12(a)(2). Specifically, under Rule 3:22

- 4(b):

[a] second or subsequent petition for post

- conviction relief shall be dismissed unless: (1) it is timely under [ Rule ] 3:22

- 12(a)(2); and (2) it alleges on its face either:9 A

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- 20 (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 post

- conviction relief. Under Rule 3:22

- 12(a)(2), a second or subsequent petition for PCR must be filed within one ye ar 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 has been newly recognized by either of those Courts and made retro active 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 dilige nce; 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 on10 A

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- 20 the first or subsequent application for post

- conviction relief is being alleged. A 2009 amendment to Rule 3:22

- 12 makes clear the one

- year limitation for second or subsequent PCR petitions is non

- relaxable. See R. 3:22

- 12(b); Jackson , 454 N.J. Super. at 292

– 94; see also R. 1:3

- 4(c) (prohibiting the court and the parties from enlargin g the time to file a petition for PCR under Rule
3:22

- 12). Application of these rules establishes th at the PCR court correctly dismissed defendant's March 2020 PCR petition as untimely , or otherwise deficient. Indeed, as noted, defendant's first PCR petit ion was denied in a June 22, 2012 order. R. 3:22

- 12(a)(2)(C). According to defendant, he filed his most recent petition challenging the performance of his PCR and standby trial counsel

over eight years later. Nor do any of the other exceptions detailed in Rule 3:22

- 12(a)(2)(A)

- ( B) apply. First, d efendant's petition does not assert or concern a newly recognized constitutional right by either the Supreme Court or the New Jersey Supreme
Court

. R. 3:22

- 12(a)(2)(A). His petition is also barred because the record does not support any claim that the factual predicate for any relief could not have been discovered through the exercise of due diligence

. R. 3:22

- 12(a)(2)(B). Defendant's current petition is also barred under Rule 3:22

- 5. "In11 A

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assessing whether there has been a 'prior adjudication on the merits,'" for purposes of triggering this procedural bar, "the challenged claim should be compared with the prior claim to det ermine if the two claims 'are either identical or substantially equivalent.'" State v. Marshall , 173 N.J. 343, 351 (2002). "If the claims are substantially the same, the petition is procedurally barred." Ibid. As noted, defendant argued that standby co unsel at trial was ineffective because he failed to "secure" Dr. Shee n an's testimony, thereby depriving him of the opportunity to "investigate potential defenses." That claim is "substantially equivalent " to the issue we decided in our May 5, 2015 and Oct ober 23, 2018 opinions when we concluded defendant's counsel was not ineffective for fail ing
to subpoena Dr. Sheenan

. F urther , defendant's claim that the court misc haracterized his current argument when it stated he contended "his first PCR counsel was ineffective for failing to subpoena Dr. Sheenan" is inconsequential as we review orders, not opinions. See El

- Sioufi v. St. Peter's Univ. Hosp. , 382 N.J. Super. 145, 169 (App. Div. 2005). In any event , his untimely claim that his PCR counsel was ineffective for not correcting the prosecut or' s misstatement regarding Dr. Sheenan is factually and legally meritless under the two

- part Strickland test. Affirmed.