SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3220-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LOUIS WATLEY,

Defendant-Appellant.

_________________________

Argued May 23, 2017 — Decided

Before Judges Reisner and Koblitz.

On appeal from the Superior Court of New 

Jersey, Law Division, Union County, Indictment 

No. 98-01-0099.

Louis Watley, appellant, argued the cause pro 

se.

Milton S. Leibowitz, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued 

the cause for respondent (Grace H. Park, 

Acting Union County Prosecutor, attorney for 

respondent; Mr. Liebowitz, 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NOT FOR PUBLICATION WITHOUT THE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.

July 26, 2017
2 A-3220-14T3

Defendant Louis Watley appeals from the January 30, 2015 

order denying his second petition for post-conviction relief (PCR) 

without an evidentiary hearing. Defendant argues that his 

privately retained PCR appellate attorney was prejudicially 

ineffective because he did not argue the appeal before us, although 

retained to do so. The PCR judge, Judge Robert J. Mega, found 

counsel was ineffective, but the failure to argue was not 

prejudicial. We affirm.

Defendant was convicted in 2000 of the 1997 kidnapping and 

aggravated sexual assault of an eighteen-year-old woman who was 

an employee at his accounting office. The assault occurred on a 

bed in defendant's home while the victim was menstruating. Blood 

and DNA evidence were found on the bed sheets. He was sentenced 

to an aggregate term of eighteen years imprisonment.1 

On direct appeal, we affirmed defendant's conviction. State 

v. Watley, No. A-4295-00 (App. Div. April 23, 2004) (Watley I), 

certif. denied, 180 N.J. 458 (2004). On April 5, 2007, we reversed 

the denial of defendant's first petition for PCR "with respect to 

his trial counsel's treatment of blood evidence produced at trial." 

State v. Watley, No. A-5970-04 (App. Div. April 5, 2007) (slip op. 

at 19) (Watley II). We remanded for an evidentiary hearing on 

that issue. After holding the evidentiary hearing, defendant's 

 

1 Defendant was released from custody in 2011.
3 A-3220-14T3

petition was denied in 2007 by Judge Ross R. Anzaldi, who had also 

been the trial judge. 

Defendant appealed the denial of PCR and hired private 

appellate counsel to argue on his behalf. However, oral argument 

was not held because counsel failed to make a timely request. We 

affirmed the trial court's denial of defendant's PCR petition. 

State v. Watley, No. A-1132-07 (App. Div. December 17, 2008) (slip 

op. at 12) (Watley III). He now appeals from the denial of his

second petition for PCR without an evidentiary hearing, claiming 

ineffective assistance of appellate PCR counsel.

On appeal defendant raised the following points:2

POINT I: PCR COURT ERRED IN DENYING DEFENDANT 

RELIEF WHERE IT WAS CLEAR PROSECUTOR PRESENTED 

FALSE SEROLOGIC (ABO BLOOD TYPE) EVIDENCE TO 

THE JURY. THAT EVIDENCE WAS THE PRINCIPLE 

PIECE OF FORENSIC EVIDENCE LINKING THE 

DEFENDANT TO THE CRIME. IN ADDITION BRADY 

EVIDENCE ALSO WITHHELD RELATED TO THE SAME.

Laboratory Report Produced by Prosecutor Was 

Improper and Deceptive

1. Material Evidence Withheld

2. Evidence Altered and Withheld From Defense 

3. Blood Type Data Missing From Evidence 

Report

4. Material Evidence Altered and Brady 

Evidence Withheld

POINT II: PCR COURT ERRED IN DENYING 

DEFENDANT RELIEF WHERE IT WAS CLEAR PROSECUTOR 

PRESENTED FALSE AND MISLEADING DNA BLOOD 

 

2 We reproduce the point headings as written, without any

corrections.
4 A-3220-14T3

EVIDENCE. THE BLOOD EVIDENCE WAS THE 

PRINCIPLE PIECE OF FORENSIC EVIDENCE LINKING 

THE DEFENDANT TO THE CRIME.

A. Applicable Law

B. Prosecutor misrepresented DNA Evidence 

Connected to non-sperm fraction of Specimen 

and failed to disclose lack of Genetic 

material finding in blood sample To the jury

C. Document Evidence establish prosecutor 

acted In bad faith by planning to use false 

DNA To corroborate the tainted serologic 

report

POINT III: PCR COURT ERRED IN DENYING 

DEFENDANT RELIEF ON INEFFECTIVE ASSISTANCE OF 

COUNSEL CLAIM WHERE IT WAS CLEAR COUNSEL 

KNOWING ALLOW PROSECUTOR TO PRESENT FALSE 

SEROLOGIC (ABO BLOOD TYPE) EVIDENCE TO THE 

JURY. THAT EVIDENCE WAS THE PRINCIPLE PIECE 

OF FORENSIC EVIDENCE LINKING THE DEFENDANT TO 

THE CRIME.

STRICKLAND TEST 1: Deficient Performance

QUESTION 1: Opening Statement

QUESTION 2: Evans blood testimony 

QUESTION 3: N.R. Blood Testimony

QUESTION 4: Prosecutor's Closing

STRICKLAND TEST 2: Prejudice to defendant

STIPULATED FACT

POINT IV: WITNESS DURING THE FIRST POSTCONFICTION EVIDENTIARY HEARING PROVIDED FALSE 

TESTIMONY WHICH WARRANTS NEW HEARING.

POINT V: ABUSE OF DISCRESION BY PCR COURT 

JUDGE SUBSTANTIALLY PREJUDICED THE 

DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL 

REMAND EVIDENTIARY HEARING THEREBY DENYING THE 

DEFENDANT THE CONSTITUTIONAL RIGHT TO DUE 

PROCESS.

A. CLAIM 1: PCR court made collateral review 

of Appellate Division order, altering it's 

contents to favor the State
5 A-3220-14T3

B. CLAIM 2: PCR court vouched for the 

credibility of defense expert whose statements 

were false, inconsistent and perjurious.

C. CLAIM 3: PCR court denied material evidence 

connected to tainted blood report to pro-se 

counsel on appeal

D. CLAIM 4: PCR court prohibited the testimony 

of a the material witness Donna Hansen, 

chemist who manufacture the tainted report 

used by the State at trial

POINT VI: ABUSE OF DISCRETION BY PCR COURT 

JUDGE AS ARTICULATED IN THE PCR COURTS JANUARY 

30, 2015 OPINION SUBSTANTIALLY PREJUDICE THE

DEFENDANT'S RIGHT TO A FAIR AND PCR PROCEEDING 

THEREBY DENYING THE PETITIONER HIS 

CONSTITUTIONAL RIGHT TO DUE PROCESS.

I. Whether Petitioner Is Entitled to an 

Evidentiary Hearing

II. Whether Petitioner's Appellate Counsel 

Provided Petitioner with Ineffective 

Representation and Prejudiced Defendant 

Thereby denying the defendant his 

constitutional right to due process

III. Whether Alteration of Appellate Documents 

by the Appellate Division Warrants a New Trial

IV. Whether Witness during the First PostConviction Relief Evidentiary Hearing 

Provided False Testimony, Requiring a New 

Hearing

V. Whether Petitioner is Entitled to New 

Counsel

Defendant argues in Points I, II and III of his brief that 

Judge Mega, the PCR judge for defendant's second PCR petition,

erred by denying his petition without an evidentiary hearing. He 

argues that the prosecutor intentionally perpetrated a fraud on 

the trial court by presenting "false and fabricated" DNA blood and 

serologic evidence and that his trial attorney was deficient for 
6 A-3220-14T3

failing to challenge the prosecutor's actions. This is the issue 

that was resolved in defendant's first PCR. Watley II, supra,

slip op. at 19.

Prior adjudication of any issue on the merits bars PCR. See

R. 3:22-4(b); R. 3:22-5. An issue raised on PCR is procedurally 

barred if it is "'identical or substantially equivalent' to the 

issue already adjudicated on the merits." State v. Afanador, 151 

N.J. 41, 51 (1997) (quoting State v. McQuaid, 147 N.J. 464, 484 

(1997)). PCR is not "an opportunity to relitigate matters already 

decided on the merits." Id. at 50. 

Defendant's claims about the blood and serologic evidence are 

procedurally barred because defendant raised identical issues on 

appeal of the denial of his first PCR petition. Watley II, supra, 

slip op. at 8. We denied these claims, finding that they lacked 

merit. Id. at 11-12. We remanded only on the issue of defense 

counsel's handling of the blood evidence. Id. at 19.

Defendant argues in Point IV of his brief that he is entitled 

to an evidentiary hearing because defendant's forensic expert, Dr. 

Robert Shaler, testified falsely during the evidentiary hearing 

after our remand stemming from his first PCR appeal. Defendant

alleges that we determined in an affirmance of the dismissal of 

his civil suit against Dr. Shaler that Dr. Shaler gave false 

testimony to further conceal the State's plot to frame defendant.
7 A-3220-14T3

In his January 30, 2015 written opinion denying defendant's 

second PCR petition, Judge Mega discussed defendant's civil suit 

against Dr. Shaler. In that suit, defendant claimed he was 

fraudulently induced to retain Dr. Shaler, who then testified at 

the PCR hearing contrary to previous statements he made in 

preparation for testimony. Watley v. Shaler, No. A-0893-12 (App. 

Div. September 23, 2013) (slip op. at 1-2). The trial court 

granted Dr. Shaler's motion to dismiss on the basis that Dr. Shaler 

was protected by the litigation privilege. Id. at 3. We affirmed. 

Id. at 6.

In defendant's current appellate brief, he alleges that we

"made it clear that Dr. Shaler had in fact perpetrated a fraud on 

the court" because in our decision we stated "we accept as true

plaintiff's allegations, Printing Mart-Morristown v. Sharp Elecs. 

Corp., 116 N.J. 739, 746 (1989)." Watley v. Shaler, supra, slip 

op. at 5. Judge Mega correctly discredited this assertion. At 

the summary judgment posture, we must make all inferences in favor 

of the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 

142 N.J. 520, 540 (1995). We thus determined in our decision 

that, even assuming defendant's assertions were true, his civil 

case should be dismissed. We did not find that defendant's claims 

were in any way demonstrated to be valid.
8 A-3220-14T3

Judge Mega further correctly determined that defendant's 

argument was procedurally barred by Rule 3:22-5 because Judge 

Anzaldi, during defendant's first PCR hearing, determined Dr. 

Shaler to be a credible witness, a finding we affirmed in Watley

III, supra, slip op. at 12.

Defendant argues in Point V of his brief that Judge Anzaldi,

"turned a blind eye" to the State's fraud and "actively 

participated in its concealment." Defendant raised this issue of 

Judge Anzaldi's purported improprieties on appeal of his first PCR 

denial and we determined the claim lacked merit. We stated that 

"defendant's complaints about the manner in which the evidentiary 

hearing was conducted are wholly unsupported by the record. To 

the contrary, the record demonstrates that Judge Anzaldi

diligently and patiently received and thoroughly considered and

analyzed the evidence presented." Id. at 11-12. We will not 

reconsider this meritless issue.

Defendant argues in Point VI of his brief that the PCR court 

erred by denying his second PCR petition without an evidentiary 

hearing because his appellate counsel was ineffective. A hearing 

was not necessary because there was no disputed factual issue. 

The second PCR judge, Judge Mega, found appellate counsel committed 

an error in not seeking oral argument when retained to do so.
9 A-3220-14T3

To establish ineffective assistance of counsel, a defendant 

must prove that: (1) "counsel made errors so serious that counsel 

was not functioning as the 'counsel' guaranteed the defendant by 

the Sixth Amendment," and (2) "the deficient performance 

prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 

687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To 

satisfy the prejudice requirement, "[t]he defendant must show that 

there is a reasonable probability that, but for counsel's 

unprofessional errors, the result of the proceeding would have 

been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at

698. The standard for ineffectiveness is applied to both trial 

and appellate counsel. State v. Harris, 181 N.J. 391, 518 (2002), 

cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898

(2005).

Judge Mega found that defendant satisfied the first prong of 

the Strickland test because appellate counsel failed to request 

oral argument "and as a result never argued on [p]etitioner's 

behalf before the Appellate Division." Judge Mega found, however,

that defendant did not satisfy the second prong of the Strickland

test because defendant did not establish that he was prejudiced 

by appellate counsel's deficient performance. Judge Mega wrote:

The Court now examines the facts to consider 

whether oral arguments on appeal would have 

caused a different result. Petitioner has not 

indicated that Appellate Counsel's oral 
10 A-3220-14T3

argument would have created a different 

result. Petitioner had filed a detailed pro 

se brief in support of his claim. Petitioner 

also indicated that he provided Appellate 

Counsel with visual aids, "serologic 

laboratory reports which were blown up and 

modified for simplicity."

. . . .

In the present matter, the use of visual aids 

would not have changed the outcome of 

Petitioner's First PCR appeal because the 

scope of appellate review is based upon the 

factual record below. The Appellate Division 

indicated it relied upon the record in 

rendering its decision. The record before the 

Appellate Division was such that oral 

arguments would not have caused a different 

outcome. . . . Any oral argument provided on 

appeal would have had to rely upon the facts 

that the Appellate Division found did not 

support any of Petitioner's claims. Moreover, 

Petitioner has not indicated what new 

arguments counsel could have raised at oral 

argument. Therefore, as the Appellate 

Division had already determined Petitioner's 

claim to be without merit, this Court finds 

and relies on the findings by the Appellate 

Division such that Petitioner failed to 

demonstrate prejudice from Appellate 

Counsel's deficient conduct. Thus Petitioner 

fails the second prong of the Strickland Test 

and his request for an evidentiary hearing is 

denied.

Unlike in PCR applications before the trial court, oral 

argument of PCR appeals is seldom sought. See R. 2:11-1(b). After 

detailing the history and testimony at the hearing, we expressed 

our reasons for affirming defendant's appeal after the first PCR 

evidentiary hearing, stating:
11 A-3220-14T3

The denial of defendant's application for 

post-conviction relief is affirmed 

substantially for the reasons stated by Judge 

Anzaldi. Although the defendant established 

a prima facie case on his prior appeal, on 

remand the substantial credible evidence on 

the record as a whole did not overcome the 

"strong presumption that counsel's conduct 

falls within the wide range of reasonable 

professional assistance." For that reason, 

there is no basis for concluding that 

counsel's allegedly deficient performance 

"materially contributed to defendant's 

conviction." 

Watley III, supra, slip op. at 11-12 (internal 

citations omitted).

Oral argument would not have influenced our decision because 

counsel is not permitted to present new arguments not set forth

in the appellate brief, nor introduce facts not contained in the 

trial court record. R. 2:5-4.

Defendant also argues in Point VI that we tampered with 

documents during the appeal of his first PCR petition. Judge Mega 

found that this argument lacked merit as defendant provided no 

evidence to support his allegation. This claim, as well as any 

others we have neglected to mention, is without sufficient merit 

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

Affirmed.