SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1127-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIO RIVERO, a/k/a JULIO

C. RIVERO, JULIO TORRES,

JULIO C. TORRES, JULIO C.

TORRESRIVEROS and

JULIO C. RIVEROS,

Defendant-Appellant.

_________________________

Submitted February 28, 2022 – Decided March 11, 2022

Before Judges Vernoia and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 10-10-1089.

Julio C. Rivero, appellant pro se.

William A. Daniel, Union County Prosecutor, attorney 

for respondent (Milton S. Leibowitz, 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NOT FOR PUBLICATION WITHOUT THE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.
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A-1127-19

Defendant Julio C. Rivero, who is self-represented, appeals from the 

October 4, 2019 Law Division order denying his second petition for postconviction relief (PCR) without an evidentiary hearing. Defendant has not 

demonstrated a prima facie case of ineffectiveness and has failed to show good 

cause for the appointment of counsel. We affirm.

I.

A jury convicted defendant of first-degree carjacking, N.J.S.A. 2C:15-2;

first-degree robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for 

an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of 

a weapon, N.J.S.A. 2C:39-5(d); third-degree terroristic threats, N.J.S.A. 2C:12-

3(a); third-degree resisting arrest, N.J.S.A. 2C:29-2(a); and third-degree 

possession of cocaine, N.J.S.A. 2C:35-10(a)(1). He was sentenced to a twentyyear term of imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-

7.2. We affirmed the convictions and sentence. See State v. Rivero, No. A4179-11 (App. Div. Aug. 4, 2014). The Office of the Public Defender (OPD)

notified defendant their office would not provide counsel to file a petition for 

certification, and he was obligated to arrange for its filing on his own. 

Defendant did not file a petition for certification from this court's decision.
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On September 18, 2014, defendant filed his first PCR petition, which was 

denied without an evidentiary hearing. In his first PCR petition, defendant 

alleged ineffective assistance of trial counsel based on his attorney not 

presenting an expert witness at trial on the effects of intoxication. We affirmed

the denial of the first PCR petition. State v. Rivero, No. A-5562-14 (App. Div. 

Sept. 14, 2017) (slip op. at 6). On September 27, 2017, defendant filed a petition 

for certification with our Supreme Court, which was denied. State v. Rivero, 

232 N.J. 306 (2018).

Following the Court's denial, the OPD provided defendant with a copy of 

the order denying his petition for certification. The letter also explained that 

defendant could file a pro se petition for habeas corpus relief in federal court. 

Thereafter, defendant did in fact file a petition for habeas corpus in the United 

States District Court for the District of New Jersey. On July 3, 2018, the habeas 

corpus petition was denied without prejudice because defendant failed to 

exhaust his state court remedies, including by failing to file a petition for 

certification from our decision affirming his conviction. See Rivero v. Nogan, 

Civ. No. 18-9105, 2018 U.S. Dist. WL 3242293 (D.N.J. July 3, 2018).

In its August 23, 2018 letter to defendant, the OPD reiterated it would not 

"file an out-of-time petition for certification" from our affirmance of his 
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conviction as he had requested. Citing State v. Welch, 225 N.J. 215 (2016), the

OPD letter explained "the attorney from the [OPD] that represents [him] gets to 

make the call whether a case is certification-worthy or not . . . [and] that it is not

the defendant's call." In addition, the letter advised defendant he could file a 

PCR petition as a self-represented litigant.

On February 20, 2019, defendant filed his second PCR petition claiming 

the OPD provided ineffective assistance of counsel in 2014 when it refused to 

file a petition for certification following our August 4, 2014 decision. 1 

Defendant also requested assignment of a public defender, which was denied. 

On October 4, 2019, the PCR court dismissed defendant's petition pursuant to 

Rule 3:22-6(b), which states:

Upon any second or subsequent petition filed pursuant 

to this Rule attacking the same conviction, the matter 

shall be assigned to the [OPD] only upon application 

therefor and showing of good cause. For purposes of 

this section, good 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 [Rule] 3:22-4.

[(Emphasis added).]

1

 After three months passed from the filing of his second PCR petition and 

having received no adjudication on its merits, defendant moved for leave to 

appeal on June 3, 2019. We denied the motion for leave to appeal on September 

25, 2019.
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The PCR court concluded the OPD was not obligated to file a petition for 

certification following the affirmance of defendant's conviction on his direct 

appeal. The judge explained that under Rule 3:8-3,2the OPD's obligation to 

2

 Rule 3:8-3: Representation by Public Defender

(a) Application; Determination; Referral. The criminal 

division manager's office shall receive applications for 

services of the Public Defender and shall determine 

indigence. A defendant who qualifies for service shall

be referred to the [OPD] no later than the arraignment. 

The defense counsel appointed by the [OPD] shall 

promptly file an appearance.

(b) Scope of Services. The [OPD] shall represent 

indigent defendants who qualify for its services 

through:

(1) Direct appeal from conviction;

(2) Post-conviction proceedings for which the [r]ules of 

[c]ourt provide assigned counsel;

(3) Direct appeal from those post-conviction 

proceedings; and

(4) Review of cases after the Appellate Division issues 

a judgment in an appeal as of right and compliance with 

the provisions of paragraph (c) of this Rule following 

that review.

(c) Services Following Appellate Division Judgment. 

In cases that present a potentially meritorious petition 
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provide representation exists only through direct appeal. Therefore, the PCR 

court held the second PCR petition did not state a cognizable claim because it is 

not ineffective assistance of counsel to refuse to provide representation the OPD 

has no obligation to provide. A memorializing order was entered.

In this appeal, defendant asserts the following arguments:

POINT I:

PURSUANT TO [RULE] 3:8-3 AND THE DOCTRINE 

OF EXHAUSTION GOVERNING APPEALS AND 

PCR PETITIONS, THE ASSISTANT PUBLIC 

DEFENDER ERRED IN NOT FILING THE DENIED 

DIRECT APPEAL IN THE NEW JERSEY SUPREME 

COURT FOR PETITION FOR CERTIFICATION.

POINT II:

THE SUPERIOR COURT ERRS IN DETERMINING 

THAT DEFENDANT IS NOT ENTITLED TO BE 

REPRESENTED BY THE [OPD].

for certification in accordance with the standards in 

R[ule] 2:12-4, the [OPD] shall file a petition for 

certification accompanied by a letter brief or a letter 

relying on defendant's Appellate Division arguments. 

In cases in which defense counsel appointed by the 

[OPD] cannot certify that a petition "presents a 

substantial question and is filed in good faith," as 

required by [Rule] 2:12-7(a), the [OPD] shall not file a 

petition but shall notify defendant of this position in 

writing and offer copies of relevant briefs, transcripts, 

and any other documents.

[(Emphasis added).]
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POINT III:

GOOD CAUSE EXISTS FOR FILING A SECOND 

PCR PETITION.

II.

We review de novo a decision to deny a petition for PCR without an 

evidentiary hearing. State v. Harris, 181 N.J. 391, 419 (2004); see also State v. 

Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018) (applying a de novo standard 

of review to the denial of a second petition for PCR). "[PCR] is New Jersey's 

analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 

459 (1992). PCR "is neither a substitute for direct appeal nor an opportunity to 

relitigate cases already decided on the merits." Ibid. (citations omitted). Under 

Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there 

was a "substantial denial in the conviction proceedings" of defendant's rights 

under the Constitution of the United States or the Constitution or laws of the 

State of New Jersey. Ibid.

An appellate court will uphold a PCR court's factual "findings that are 

supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 

518, 540 (2013). "However, where the [PCR] court does not hold an evidentiary 

hearing, [this court] may exercise de novo review over the factual inferences the 
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trial court has drawn from the documentary record." State v. O'Donnell, 435 

N.J. Super. 351, 373 (App. Div. 2014) (citing Harris, 181 N.J. at 420-21); see 

also Jackson, 454 N.J. Super. at 291 (applying a de novo standard of review to 

the denial of a second petition for PCR). Nevertheless, a PCR court's 

determinations of law are given no deference and are reviewed de novo. State 

v. Pierre, 223 N.J. 560, 576-77 (2015) (quoting Nash, 212 N.J. at 540-41). If a 

question concerns both law and fact, we give deference to supported factual

findings but review de novo any legal conclusions. Id. at 577 (quoting Harris, 

181 N.J. at 416).

To establish a prima facie claim of ineffective assistance of counsel, a 

defendant must satisfy the two-pronged test enumerated in Strickland v. 

Washington, 466 U.S. 668, 687 (1984), which our Court adopted in State v. 

Fritz, 105 N.J. 42, 58 (1987). To meet the first Strickland/Fritz prong, a 

defendant must establish that his "counsel made errors so serious that counsel 

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

Amendment." Strickland, 466 U.S. at 687. The defendant then must rebut the 

"strong presumption that counsel's conduct [fell] within the wide range of 

reasonable professional assistance." Id. at 689. Thus, we consider whether 
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counsel's performance fell below an objective standard of reasonableness. Id.

at 688.

On appeal, defendant argues he "was not filing a second PCR petition" but 

instead, he "moved for adherence to [the] [r]ules of [c]ourt so that he could 

legally preserve issues for filing in the federal courts should that be needed." 

Defendant claims he would have had "four" meritorious issues to raise in his 

PCR petition if his counsel had petitioned for certification following his direct 

appeal, warranting reversal and a retrial. We disagree.

"Procedural bars exist in order to promote finality in judicial 

proceedings." State v. McQuaid, 147 N.J. 464, 483 (1997). 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 
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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 . . . application for 

[PCR].

Furthermore, Rule 3:22-12(a)(2) delineates the requirements for filing a 

timely second or subsequent petition for PCR as follows:

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 

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 

counsel that represented the defendant on the first or 

subsequent application for [PCR] is being alleged.
11 A-1127-19

The strict time bar imposed under Rule 3:22-12(a)(2) may not be ignored 

or relaxed, even with good cause. See Jackson, 454 N.J. Super. at 292-94; see 

also R. 1:3-4(c) (providing that "[n]either the parties nor the court may . . . 

enlarge the time specified by . . . [Rule] 3:22-12"). By mandating in Rule 3:22-

12(a)(2) that the one-year time limit applied notwithstanding any other provision 

of the rule, our Court has made clear the late filing of a second or subsequent 

PCR petition cannot be excused in the same manner as the late filing of a first 

petition. See Jackson, 454 N.J. Super. at 292-94.

Here, the PCR court correctly dismissed defendant's second petition 

because it was barred under Rule 3:22-4(b)(1). "Defendant's second PCR 

petition was not timely under Rule 3:22-12(a)(2)(A) because he claims no newly 

recognized constitutional right." Id. at 291. Moreover, defendant's second 

petition was not timely under Rule 3:22-12(a)(2)(B) because his former counsel 

informed defendant that the OPD would not file a petition for certification on 

his behalf in 2014 following our decision on his direct appeal.

Defendant did not file his second PCR petition until February 20, 2019—

almost five years later. Thus, dismissal was mandated under Rule 3:22-

12(a)(2)(B). See ibid. And, defendant's second PCR petition was untimely 

under Rule 3:22-12(a)(2)(C) because his claim relates to his appellate counsel 
12 A-1127-19

and not his PCR counsel, making it an improper ground for a second PCR 

petition. See R. 3:22-4(b)(2)(A) to (C). We conclude defendant failed to 

establish any of the criteria under Rule 3:22-4(b)(2) to preclude dismissal of his 

second PCR petition. Nor is there sufficient evidence supporting defendant's 

bald assertion that there is a reasonable probability of success on the merits or 

to establish a prima facie case of ineffective assistance of counsel. Rule 3:8-

3(c) addresses representation by the OPD following an Appellate Division 

judgment:

In cases in which defense counsel appointed by the 

[OPD] cannot certify that a petition "presents a 

substantial question and is filed in good faith," as 

required by [Rule] 2:12-7(a), the [OPD] shall not file a 

petition but shall notify defendant of this position in 

writing and offer copies of relevant briefs, transcripts, 

and any other documents.

Based upon our careful review of the record, we are satisfied counsel duly 

notified defendant unequivocally on multiple occasions in writing that the OPD 

would not file a petition for certification on his behalf as early as 2014 because 

no "substantial question" was presented. Furthermore, the OPD offered to 

provide defendant with the necessary documents required to perfect a petition 

and answer any questions he may have had in the process. Defendant failed to 

show, when viewing the evidence and record as a whole, there was a reasonable 
13 A-1127-19

probability that his second PCR would be granted, and he failed to establish a 

prima facie case under either Strickland/Fritz prong.

III.

We also reject defendant's contention that the PCR court erred in declining 

to assign him counsel from the OPD relative to his second PCR petition. To 

support his PCR claim, defendant raised two points on appeal: (1) first, the jury 

instruction on the defense of intoxication deviated from the model charge and 

contradicted itself regarding the assignment of proof as to an intoxication 

defense; and (2) his sentence was manifestly excessive. After we affirmed the 

convictions and sentence, defense counsel notified defendant, in writing, the 

OPD's obligation was to represent him "on one appeal to the Appellate 

Division." Counsel added, "Unfortunately, in your case I see no chance at all 

that the New Jersey Supreme Court or the federal courts would grant you any 

relief in this matter."

Under Rule 3:8-3, the PCR court correctly explained the OPD's obligation 

existed only through direct appeal. Moreover, the PCR court noted defendant 

was not entitled to the assignment of counsel on his second PCR petition because 

he failed to demonstrate "good cause" under Rule 3:22-6(b) warranting an 

appointment of counsel. The PCR court was correct in its analysis. Here, for 
14 A-1127-19

the reasons we previously detailed, defendant failed to establish the existence of 

a substantial or legal question as to the merits of his petition.

To the extent we have not addressed defendant's arguments, we conclude 

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

2:11-3(e)(2).

Affirmed.