SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3594-19

STATE OF NEW JERSEY, 

Plaintiff-Respondent, 

v. 

ASHLEY A. GEORGES, 

Defendant-Appellant. 

________________________

Argued November 9, 2021 – Decided November 22, 2021

Before Judges Fasciale and Vernoia. 

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 00-04-1057. 

Ashley A. Georges, appellant, argued the cause pro se. 

Barbara A. Rosenkrans, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for respondent (Theodore N. Stephens, II, Acting Essex 

County Prosecutor, attorney; Barbara A. Rosenkrans, 

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NOT FOR PUBLICATION WITHOUT THE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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Defendant Ashley Georges appeals from an order denying his fourth postconviction relief (PCR) petition without an evidentiary hearing. Based on our 

review of the record in light of the applicable legal principles, we affirm.

Prior to addressing defendant's arguments, we summarize the lengthy 

procedural history that serves as the backdrop to the pending appeal. In 2001, a

jury convicted defendant of first-degree murder, N.J.S.A. 2C:11-3(a)(1); two

third-degree charges of unlawful possession of a handgun, N.J.S.A. 2C:39-5(b);

and second-degree possession of a handgun for an unlawful purpose, N.J.S.A.

2C:39-4(a). On February 8, 2002, the court sentenced defendant to an aggregate

sentence of life imprisonment with a thirty-year period of parole ineligibility. We

affirmed defendant's conviction and sentence, State v. Georges, No. A-3960-01

(App. Div. Sept. 29, 2003), and the Supreme Court denied defendant's petition

for certification, State v. Georges, 180 N.J. 453 (2004).

Defendant filed a PCR petition in 2005 that was denied in an August 30,

2007 order. We affirmed the denial, State v. Georges, A-2215-07 (App. Div. July

9, 2010), and the Supreme Court rejected defendant's petition for certification,

State v. Georges, 205 N.J. 15 (2010).

On December 6, 2010, defendant filed a petition for a writ of habeas corpus 

in the United States District Court for the District of New Jersey. In January 
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2011, while that petition was pending, defendant filed his second PCR petition in 

the Law Division. Defendant then filed an amended petition for writ of habeas 

corpus with the District Court, and a motion to stay the petition to allow defendant 

to prosecute his second PCR petition in the Law Division. 

The Law Division later advised defendant he "must decide" whether he 

wished to "proceed with [his] case in State Court or Federal Court." Defendant 

subsequently requested dismissal of his PCR petition without prejudice pending 

the outcome of his motion for a stay of the petition for a writ of habeas corpus in 

the United States District Court. Based on the pendency of the federal 

proceeding, the Law Division denied defendant's second PCR petition without 

prejudice. 

In February 2016, the District Court stayed the habeas corpus proceeding 

to allow defendant to exhaust his State court claims. Two months later, defendant

filed his third PCR petition. In a written decision, the court later determined 

defendant's second and third PCR petitions were time barred.1 We affirmed the 

court's order denying his second and third petitions, State v. Georges, No. A1

 The court also rejected defendant's claim he was entitled to a new trial based 

on newly discovered evidence.
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0798-16 (App. Div. July 10, 2018), and defendant's petition for certification was 

denied by the Supreme Court, State v. Georges, 235 N.J. 453 (2018).

On February 8, 2020, defendant filed his fourth PCR petition. Defendant

claimed the statement he provided during a 1999 interrogation by the police was 

obtained in violation of his Miranda2rights because he was not advised prior to 

the statement he had been charged with the murder for which he was later 

convicted at trial. More particularly, defendant relied on the Supreme Court's 

holding in State v. A.G.D., that a defendant who has been charged with a crime

cannot knowingly and voluntarily waive the right to remain silent under the Fifth 

Amendment to the United States constitution and New Jersey common law unless

he or she is first advised of the pending criminal charge. 178 N.J. 56, 67-68 

(2003). He argued he was entitled to PCR because his rights, as explained by the 

Court in A.G.D., were violated when his statement was taken in 1999. He 

asserted his statement should have been excluded at trial.

Judge Michael A. Petrolle issued a cogent written decision denying 

defendant's petition. The judge noted the fourth PCR petition was filed more than 

eighteen years after defendant's 2001 conviction, and there was no support for 

defendant's contention the Court's 2003 decision in A.G.D. was given pipeline 

2

 Miranda v. Arizona, 384 U.S. 436 (1966).
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retroactivity. Judge Petrolle determined defendant's petition was time-barred 

under Rule 3:22-12(a)(2)(A), which bars the filing of a second or subsequent PCR 

petition more than one year after "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 retroactive by either of those Courts to cases on collateral review." The judge 

found "[t]he Supreme Court's making [its] holding retroactive to cases on 

collateral review is [a] prerequisite to" the invocation of the one-year period the 

Rule allows for filing a second or subsequent PCR petition, and that the Court did 

not make its holding in A.G.D. retroactive to cases on collateral review. 

The judge further rejected defendant's claim counsel were ineffective by

failing to raise the A.G.D. issue on his direct appeal and on the initial and 

subsequent PCR petitions. The judge found the claim was time-barred under Rule

3:22-12(a)(2). Judge Petrolle also explained A.G.D. was decided on October 9, 

2003, and that any PCR claims based on ineffective assistance of appellate 

counsel should have been asserted in defendant's initial petition, which was filed 

in 2005. The judge determined that because A.G.D. was decided in 2003, 

defendant's PCR claim founded on the decision was also procedurally barred 

under Rule 3:22-4. 
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Defendant appeals from the court's denial of his fourth PCR petition. He 

presents the following arguments for our consideration:

POINT I

THE PCR COURT'S RULING WAS BOTH 

ERRONEOUS AND AN ABUSE OF DISCRETION 

WHEN IT REFUSE[D] TO RECOGNIZE 

APPELLANT'S VESTED RIGHTS TO FILE [A] 

SUBSEQUENT PETITION, DEVIATED FROM THE 

TRIAL COURT'S ORIGINAL RULING, AND 

FAILED TO EVALUATE APPELLANT'S CLAIMS 

UNDER THE DOCTRINE OF FUNDAMENTAL 

FAIRNESS.

POINT II

THE PCR COURT'S RULING WAS ERRONEOUS 

WHEN IT MISINTERPRE[T]ED THE JIMENEZ

RULING AND MISAPPLIED IT TO THIS MATTER, 

IT WAS ALSO AN ABUSED DISCRETION WHEN 

IT FAILED [TO] THOROUGHLY EVALUATE 

APPELLANT'S RETROACTIVE APPLICATION 

UNDER THE THREE FACTORS.

We review the legal conclusions of a PCR court de novo. State v. Harris, 

181 N.J. 391, 419 (2004). The de novo standard of review also applies to mixed 

questions of fact and law. Id. at 420. Where, as here, an evidentiary hearing 

has not been held, it is within our authority "to conduct a de novo review of both 

the factual findings and legal conclusions of the PCR court." Id. at 421. We 

apply these standards here.
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Having considered defendant's arguments in light of controlling 

procedural rules and substantive law, we affirm substantially for the reasons set 

forth in Judge Petrolle's opinion. We add only the following.

We affirm the court's denial of the petition because defendant's PCR claim 

is premised on a factual assertion that finds no support in the competent 

evidence. Defendant argues his constitutional rights were violated under the 

principles established by the Court in A.G.D. because he was interrogated by 

the police and provided the statement introduced at his trial without first being 

advised he had been formally charged with the murder for which he was later 

convicted. We reject the claim because defendant did not present any competent 

evidence he was charged with any offense prior his waiver of Miranda rights

and the completion of the interrogation, and the record otherwise establishes he 

was formally charged with a crime only after the interrogation and his statement 

to the police ended.

3

 Stated differently, defendant's PCR claim was correctly 

denied because A.G.D. is inapposite; there is no evidence an arrest warrant or 

3

 During the November 30, 2001 hearing on defendant's motion to suppress his 

statement, Essex County Prosecutor's Office Investigator Mark Stollars testified 

he interrogated defendant and obtained defendant's statement that was later 

admitted at trial. Stollars testified defendant was not charged with any offenses 

until shortly after the interrogation of ended. Defendant does not cite to any 

competent evidence demonstrating he was charged with an offense prior to the 

completion of his interrogation and statement.
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criminal complaint was filed against defendant prior to the administration of his 

Miranda rights or at any time prior to completion of the interrogation that 

yielded his statement. See A.G.D., 178 N.J. at 58-59 (holding a defendant's 

waiver of Miranda rights is invalid when the police fail to inform the defendant 

a criminal complaint has been filed, or arrest warrant has been issued, against 

him or her). And, contrary to his contention, the police were not required to 

advise of him of his status as a suspect during the interrogation. See State v.

Nyhammer, 197 N.J. 383, 405 (2009). 

Additionally, defendant's fourth PCR petition is time-barred and 

otherwise procedurally barred. Rule 3:22-12(a)(2) sets forth the time limits

applicable to a fourth PCR petition. The Rule provides that a second or 

subsequent petition for PCR must be filed within 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 

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 [PCR] where ineffective assistance of 
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counsel that represented the defendant on the first or 

subsequent application for [PCR] is being alleged.

[R. 3:22-12(a)(2).]

Under Rule 3:22-4(b),

[a] second or subsequent petition for [PCR] shall be 

dismissed unless:

(1) it is timely under [Rule] 3:22-12(a)(2); and

(2) 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 

[PCR].

Defendant's fourth PCR petition was not filed within the time permitted 

by Rule 3:22-12(a)(2). Defendant relies on A.G.D. for the declaration of the 

constitutional right upon which his claim is based, but A.G.D. was decided in 
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2003, sixteen years and three failed PCR petitions before he filed his fourth 

petition. The PCR petition is therefore time barred under Rule 3:22-12(a)(2)(A) 

because it was filed more than one year after A.G.D. was decided. In addition, 

as Judge Petrolle found, the claim is also barred under the Rule because A.G.D.

was not made retroactive by the Supreme Court "to cases on collateral review." 

R. 3:22-12(a)(2)(A). Thus, even assuming the holding in A.G.D. applied here, 

defendant's PCR founded on the decision is time-barred.

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

the putative factual basis for his claim – defendant's interrogation allegedly 

following the filing of formal charges – has been known to him since the 

challenged 1999 interrogation and was known to him at the time A.G.D. was 

decided in 2003. As noted, however, defendant did not assert the PCR claim

founded on those facts and A.G.D. until 2019, long after the one-year period 

permitted in Rule 3:22-12(a)(2)(B).

To the extent defendant's fourth petition might be broadly interpreted as 

alleging his counsel in the prior PCR proceedings were ineffective by failing to 

assert a claim based on the principles in A.G.D., it is barred under Rule 3:22-

12(a)(2)(C). The Rule requires that claims of ineffective assistance of counsel 

in prior PCR proceedings shall be filed within one year of the orders denying 
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the prior PCR petitions. R. 3:22-12(a)(2)(C). Here, the first PCR petition was 

denied in an August 30, 2007 order, and the second and third PCR petitions were 

denied in an order dated August 30, 2016. Defendant's fourth petition was filed

on February 20, 2020, well more than one year after entry of the orders denying 

his prior PCR petitions, and, for that reason, the fourth petition is time barred 

under Rule 3:22-12(a)(2)(C). See State v. Brewster, 429 N.J. Super. 387, 398

(App. Div. 2013).

Defendant's fourth PCR petition is also barred under Rule 3:22-4(b)

because it is untimely under Rule 3:22-12(a)(2). See R. 3:22-4(b)(1). 

Additionally, the petition does not allege on its face that it "relies on a new rule

of constitutional law, made retroactive" by either the United States Supreme

Court or the New Jersey Supreme Court; the factual predicate for the relief could

have, and should have, been discovered earlier through the exercise of due

diligence and, even if proven, the factual predicate would not have raised a

reasonable probability that the relief sought – reversal of his conviction – would

have been granted; and the petition does not allege a prima facie case of

ineffective assistance of counsel on the prior PCR petitions. See R. 3:22-

4(b)(2)(A) to (C). 
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Defendant's final claim – that PCR on his fourth petition is required to 

prevent a fundamental injustice – is without sufficient merit to warrant 

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

Affirmed.