SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1931-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM SHEPHERD, a/k/a

WILLIAM B. SHEPHERD, WILLIAM

SHEPARD, WILLIAM SHEPERD, MARCUS

GREGORY, WILLIAM SHEPHARD, 

WILLIAM B. SHEPHARD, and WILLIAM

BRYANT SHEPERD, 

Defendant-Appellant.

______________________________

Submitted October 9, 2018 – Decided

Before Judges Messano and Gooden Brown.

On appeal from Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment No. 06-02-

0252.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Mark Zavotsky, Designated Counsel, on the 

brief).

NOT FOR PUBLICATION WITHOUT THE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.

October 23, 2018
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Andrew C. Carey, Middlesex County Prosecutor, 

attorney for respondent (Susan L. Berkow, Special 

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant William Shepherd appeals from the denial of his petition for 

post-conviction relief (PCR) without an evidentiary hearing. We set forth the 

tortured procedural history and trial evidence underlying defendant's 

convictions in our prior opinion. State v. William Shepherd, No. A-2427-08 

(App. Div. Aug. 5, 2014). At the first trial, the jury acquitted defendant of some 

charges, convicted him of burglary and could not reach a verdict on other 

charges. Shepherd, slip op. at 2. Before any retrial, a grand jury returned a 

second indictment charging defendant with obstruction and witness tampering. 

Id. at 3. At a single, joint trial thereafter, the jury acquitted defendant of the 

charges remaining from the first indictment but convicted him of the charges in 

the second indictment. Ibid. The judge sentenced defendant on September 8, 

2008, to an aggregate ten-year period of imprisonment with three and one-half 

years of parole ineligibility. Ibid. 

We affirmed defendant's conviction and sentence on direct appeal. Id. at 

4, 22. The Supreme Court denied his petition for certification. State v. 

Shepherd, 220 N.J. 269 (2015).
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Defendant filed a pro se PCR petition on July 6, 2015, nearly seven years 

after entry of the judgments of conviction.1 The court appointed PCR counsel,

who filed a brief alleging the ineffective assistance of trial counsel (IAC). 

Essentially, defendant claimed that trial counsel's lack of preparation for 

defending the charges in the second indictment forced defendant to testify at the 

second trial against his will. Defendant also claimed trial counsel rendered 

ineffective assistance by failing to object when jurors were sleeping during 

trial.2

The PCR judge, who was not the trial judge, heard oral argument and 

denied defendant's petition. He found it was time-barred, see Rule 3:22-

12(a)(1), because it was filed more than five years after entry of defendant's 

judgments of conviction without any showing of excusable neglect. The judge 

concluded that defendant's claim regarding the joinder of the two indictments, 

and the effect that had upon his decision to testify at the second trial, was also 

procedurally-barred because we had rejected the argument as to improper 

 

1 The trial judge entered two judgments of conviction, one for each indictment.

2 PCR counsel incorporated by reference the allegations made in defendant's 

pro se petition. Although not expressed as IAC claims, defendant alleged he did 

not want to testify at the second trial and jurors were sleeping during trial. He 

also alleged his sentence was "punishment for exercising his right to trial."
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joinder on direct appeal. Shepherd, slip op. at 16-18; see R. 3:22-5 (barring PCR 

relief on any ground previously adjudicated on the merits). Noting the trial 

record revealed that counsel made the judge aware of "sleeping jurors," the PCR 

judge reasoned that defendant's IAC claim on this ground was barred because it 

could have been raised on direct appeal, but was not. Shepherd, slip op. at 4; 

see R. 3:22-4(a) (barring, with certain exceptions, PCR relief based upon "[a]ny 

ground for relief not raised . . . in any appeal"). 

Lastly, without explication, the PCR judge stated he considered the 

"substantive issues" and found "there [was] absolutely no basis for [PCR] relief 

or an . . . evidentiary hearing . . . ." He entered an order denying the petition 

and this appeal followed.

Before us, defendant contends the late filing of his PCR petition was due 

to excusable neglect or confusion, because his direct appeal was pending. He 

notes that he filed the petition shortly after we filed our judgment. Defendant 

also argues that his IAC claim regarding trial counsel's lack of preparation to try 

the charges in the second indictment was never adjudicated on direct appeal, nor 

could his IAC claim regarding the sleeping jurors be presented on direct appeal. 

He asserts he was entitled to an evidentiary hearing as to both substantive IAC 

claims. We disagree and affirm.
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Initially, the petition was time-barred and defendant failed to demonstrate 

the delay was caused by excusable neglect. Rule 3:22-3 provides that a PCR 

petition may not be filed while appellate review is pending, however, our courts 

have uniformly held that neither appellate review, State v. Dillard, 208 N.J. 

Super. 722, 727 (App. Div. 1986), nor the filing of a federal habeas corpus 

petition, State v. Milne, 178 N.J. 486, 494 (2004), tolls the five-year time bar in 

Rule 3:22-12. Rule 3:22-6A specifically provides for the dismissal without 

prejudice of a PCR petition filed while direct appeal is pending and the 

commencement of a new ninety-day filing period after entry of the judgement 

on direct appeal.

Recently, we held:

[W]hen a first PCR petition shows it was filed more 

than five years after the date of entry of the judgment 

of conviction, . . . a PCR judge has an independent, nondelegable duty to question the timeliness of the petition, 

and to require that defendant submit competent 

evidence to satisfy the standards for relaxing the rule's 

time restrictions pursuant to Rule 3:22-12. Absent 

sufficient competent evidence to satisfy this standard, 

the court does not have the authority to review the 

merits of the claim.

[State v. Brown, 455 N.J. Super. 460, 470 (App. Div. 

2018).]
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Here, there was no "competent evidence" demonstrating any excusable 

neglect for the delay in filing the PCR petition. Indeed, during oral argument 

before the PCR judge, without objection, the prosecutor alluded to defendant's 

escape from custody during the first five years of his sentence. 

We do not necessarily agree with the judge's rationale regarding the other 

procedural bars to defendant's IAC claims. See State v. Allen, 398 N.J. Super. 

247, 257 n.8 (App. Div. 2008) (recognizing the difference in some cases between 

issues "framed on direct appeal and as presented now in the context of [IAC]"). 

Nevertheless, there is no evidence supporting defendant's assertion that trial 

counsel was unprepared to try the case. See State v. Porter, 216 N.J. 343, 355 

(2013) (a defendant's PCR petition must contain "specific facts and evidence 

supporting his allegations"). Moreover, the trial record reveals that trial counsel, 

far from rendering ineffective assistance, actually brought the problem of 

"sleeping jurors" to the trial judge's attention on more than one occasion. 

Affirmed.