SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4021-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH E. WILSON,

Defendant-Appellant.

_________________________

Submitted April 8, 2019 – Decided May 14, 2019

Before Judges Messano and Gooden Brown.

On appeal from Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 92-10-3652.

Kenneth E. Wilson, appellant pro se.

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent (Frank J. Ducoat,

Special Deputy Attorney General/Acting 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NOT FOR PUBLICATION WITHOUT THE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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Defendant Kenneth Wilson appeals from the February 28, 2018 Law 

Division order, denying his subsequent petition for post-conviction relief (PCR)

without an evidentiary hearing. We affirm.

On October 22, 1992, defendant and three co-defendants, Eugene Jenkins, 

Samuel Dugger, Jr., and Clara Sloan, were indicted by an Essex County Grand 

Jury and charged with second-degree conspiracy to commit robbery and murder, 

N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1, and N.J.S.A. 2C:11-3(a)(1), (2); first-degree 

robbery, N.J.S.A. 2C:15-1; felony murder, N.J.S.A. 2C:11-3(a)(3); knowing or 

purposeful murder, N.J.S.A. 2C:11-3(a)(1), (2); fourth-degree unlawful 

possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a 

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The charges stemmed 

from the killing of Matthew McDaniels, who was homosexual, after defendants

had agreed to kill a homosexual during a cocaine binge on or about July 3, 1992. 

Several days later when police responded to a neighbor's complaint of foul odors 

emanating from McDaniels' home, his decomposing body was found, bound and 

gagged, and the cause of death was ligature strangulation. 

Pursuant to a plea agreement, co-defendant Dugger pled guilty to the 

conspiracy charge and agreed to testify against the others in exchange for a 

reduced sentence. After the trial court dismissed the conspiracy, robbery, and 
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felony murder charges, defendant and the other co-defendants were tried by a 

jury and convicted of the remaining charges, based largely on Dugger's 

incriminating testimony that as he and co-defendant Sloan sat at the kitchen 

table of McDaniels' apartment, he heard the victim scream for help while alone 

in a bedroom with defendant and co-defendant Jenkins. 

On September 30, 1993, defendant was sentenced to an aggregate term of 

life imprisonment, with a thirty-year period of parole ineligibility, consecutive

to a term he was then serving. On direct appeal, defendant's convictions and 

sentence were affirmed in an unpublished opinion, State v. Wilson, No. A-3884-

93 (App. Div. May 25, 1995),1and the Supreme Court denied certification. State 

v. Wilson, 142 N.J. 514 (1995). Defendant's direct appeal unsuccessfully

challenged the trial court's failure to charge the jury on accomplice liability, as 

well as the jury instructions on intoxication and evaluation of Dugger's 

testimony and role in the commission of the offenses. 

In 1997, defendant filed his first petition for PCR, which was denied 

without an evidentiary hearing on October 18, 2000. He appealed, alleging that 

 

1

 The matter was remanded to correct the violent crimes penalties in the 

judgment of conviction only. Wilson, slip op. at 9. 
4

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he was denied the effective assistance of trial, appellate, and PCR counsel. 2 We 

affirmed the denial in an unpublished opinion, State v. Wilson, No. A-2164-00 

(App. Div. May 30, 2002), and the Supreme Court denied certification. State v. 

Wilson, 174 N.J. 547 (2002). In the first PCR petition, defendant had argued 

unsuccessfully that trial counsel was ineffective for failing to: 1) properly crossexamine Dugger; 2) thoroughly investigate and present expert testimony 

concerning the extent to which Dugger's testimony may have been affected by 

his ingestion of Thorazine, cocaine, and alcohol;3 3) consult an entomologist to 

determine the exact time of the victim's death, thus precluding an alibi defense; 4

and 4) investigate potential defense witnesses. 

 

2

 To prevail on a claim of ineffective assistance of counsel, a defendant must 

satisfy the two-part test established in Strickland v. Washington, 466 U.S. 668 

(1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). 

Specifically, the defendant must show that his attorney's performance was 

deficient and that the "deficient performance prejudiced the defense." 

Strickland, 466 U.S. at 687.

3

 At trial, Dugger was rigorously cross-examined about his drug use on the date 

of the murder, his mental health thereafter, and the nature of his plea bargain, 

prompting the first PCR court to conclude that presenting expert testimony 

"would [not] have altered the outcome."

4

In his first PCR petition, PCR counsel admitted that "the lack of a specific 

date [of death] was . . . part of the defense" and trial counsel decided not to "use 

an alibi defense[.]" The first PCR court thus concluded that trial counsel's 

failure to "seek out . . . alibi witnesses was consistent with his trial strategy[.]" 
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Defendant had also asserted to no avail that PCR counsel "failed to 

investigate these contentions and obtain [corroborating] statements and 

reports[,]" and appellate counsel failed to "present several viable contentions 

which would have resulted in a reversal of his convictions." Wilson, slip op. at 

2-3. Specifically, according to defendant, "appellate counsel was ineffective 

because he did not argue that . . . the prosecutor erred by referring to Dugger as 

a co-conspirator[.]" Id. at 8. 

In 2003, defendant filed a pro se motion for a new trial based on alleged 

newly discovered evidence. Relying on a private investigator's report, defendant 

asserted he was entitled to a new trial because the State failed to accurately 

disclose its plea agreement with Dugger, and because Dugger was taking antipsychotic medication at the time of trial that could have affected his ability to 

correctly recall the events. On March 3, 2008, the motion court denied the 

motion. We affirmed the denial in an unpublished opinion, State v. Wilson, No. 

A-3347-07 (App. Div. Aug. 19, 2010), and the Supreme Court denied 

certification. State v. Wilson, 205 N.J. 80 (2011). In our opinion, while we 

described the application as defendant's "second request for post-conviction 

relief," we acknowledged that the application was "governed by the three[-
6

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]pronged test set forth in State v. Carter, 85 N.J. 300, 314 (1981)." Wilson, slip 

op at 1. 

In 2011, defendant sought a writ of habeas corpus in the United States 

District Court pursuant to U.S.C. § 2254. Wilson v. Sweeney, No. 11-1201, 

2014 U.S. Dist. LEXIS 23036, at *36 (D.N.J. Feb. 24, 2014). On February 24, 

2014, the petition was dismissed as "time-barred[,]" ibid., and on October 1, 

2014, the Third Circuit denied all appeals. Wilson v. Superintendent E. Jersey 

State Prison, No. 14-1706 (3d Cir. Oct. 1, 2014). 

On January 31, 2017, defendant filed the petition for PCR that is the 

subject of this appeal, alleging again that he was denied the effective assistance 

of trial, appellate, and PCR counsel. Specifically, defendant asserted trial 

counsel was ineffective for failing to investigate and obtain impeachment 

evidence regarding Dugger's psychiatric history; permitting Dugger to implicate 

him in the conspiracy when the conspiracy charge had been dismissed; and 

allowing the indictment to be amended immediately before trial to reflect "on or 

about July 3, 1992[,]" as the date of the murder, without requesting a 

continuance to further investigate potential alibi witnesses. Defendant asserted 

that appellate counsel was ineffective for failing to raise these issues on direct 

appeal, and for filing virtually the same brief as co-defendant Jenkins. Further, 
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defendant asserted PCR counsel was ineffective for failing to advance 

defendant's meritorious claims, misrepresenting the facts at oral argument, and 

failing to provide defendant with a copy of the PCR brief or request his presence 

at the PCR hearing. Defendant also argued that his application was not 

procedurally or substantively barred.5

Following oral argument, on February 28, 2018, the PCR court denied the 

petition as "procedurally defective and substantively meritless." In a written 

decision, the court determined that the petition was time-barred under Rule 3:22-

12(a)(2) and rejected defendant's contention that the exceptions contained in 

Rule 3:22-12(a)(2)(B) and 3:22-12(a)(2)(C) applied. The court explained that 

the Rule 3:22-12(a)(2)(C) exception was inapplicable because the petition "was 

filed on January 31, 2017, more than [sixteen] years" after his first PCR petition

was denied on October 18, 2000.6 Likewise, the Rule 3:22-12(a)(2)(B)

exception was inapplicable because the private investigator's report on Dugger's 

psychiatric history, which purportedly established the factual predicate upon 

 

5

 Because defendant failed to provide the petition in the record, we rely on the 

PCR court's recitation of its contents. 

6

 Even if defendant's motion for a new trial constituted his most recent PCR 

petition, the present petition was still time-barred given the nine-year gap 

between the applications. 
8

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which defendant relied, was "completed" on "September 12, 2001, more than 

[fifteen] years ago."

The court also determined that some of defendant's claims were barred by 

Rule 3:22-5, having been previously adjudicated on the merits in prior 

proceedings. See R. 3:22-5 (providing "[a] prior adjudication upon the merits 

of any ground for relief is conclusive whether made in the proceedings resulting 

in the conviction or in any post-conviction proceeding . . . or in any appeal taken 

from such proceedings"); see also State v. Pagan, 378 N.J. Super. 549, 557 (App. 

Div. 2005) (refusing to relax the procedural bar when the record of prior 

proceedings showed sufficient evidence that the defendant's claims had already 

been adjudicated on the merits); State v. Cupe, 289 N.J. Super. 1, 8 (App. Div. 

1996) (explaining that reviewing courts "deplore the practice of couching 

essentially the same argument in different constitutional verbiage in order to 

evade the prohibition against relitigating issues already decided"). 

Further, according to the court, other claims were barred by Rule 3:22-

4(a) because defendant failed to raise the issues in prior proceedings, failed to 

demonstrate that the issues could not reasonably have been raised, and failed to 

demonstrate how "enforcement of this procedural bar would . . . result in a 

fundamental injustice as 'the judicial system ha[d] provided . . . defendant with 
9

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fair proceedings leading to a just outcome.'" See State v. Mitchell, 126 N.J. 565, 

587 (1992). Additionally, the court explained that defendant "failed to 

demonstrate that 'the prosecution or the judiciary abused the process under 

which . . . defendant was convicted or . . . [that] inadvertent errors mistakenly 

impacted a determination of guilt or otherwise 'wrought a miscarriage of justice 

for . . . defendant.'" See ibid. Moreover, the court noted that "none of 

[defendant's] claims ar[o]se under a newly recognized constitutional right," and 

was therefore not subject to Rule 3:22-4(a)(3)'s exemption.

Turning to the merits, the court found that defendant failed to attach any 

"affidavits, certifications, or any other verifiable evidence" to support his claims 

and "merely posit[ed] self-serving statements." Regarding defendant's 

challenge to Dugger implicating him in the dismissed conspiracy charge, the 

court noted defendant failed to identify "any [supporting] case law or 

precedent." Likewise, as to Dugger's psychiatric history, the court explained 

that trial counsel was in possession of Dugger's medical history at the time of 

trial. Further, the court found that defendant's "defense was not prejudiced by 

the amendment to the indictment because his 'ability to present proofs in support 

of [an] alibi was [not] drastically compromised.'" Finally, acknowledging that 

defendant's and co-defendant Jenkins' "appellate briefs . . . were similar[,]" the 
10 A-4021-17T4

court nevertheless rejected defendant's contention that his appeal "would need 

to be materially different" from co-defendant Jenkins', and distinguished State 

v. Guzman, 313 N.J. Super. 363, 373 (App. Div. 1998), on the ground that 

defendant failed to present any evidence that his appellate counsel did not 

adequately review the record and advance the most promising issues for review. 

The court entered a memorializing order and this appeal followed.

On appeal, defendant raises the following points for our consideration:

POINT ONE

DEFENDANT WAS DENIED EFFECTIVE 

ASSISTANCE OF COUNSEL UNDER THE SIXTH 

AMENDMENT OF THE UNITED STATES 

CONSTITUTION, AT TRIAL STAGE, ON DIRECT 

APPEAL, IN HIS FIRST PCR PROCEEDINGS AND 

SUBSEQUENT PCR APPEAL, AS FOLLOWS:

1. TRIAL COUNSEL WAS CONSTITUTIONALLY 

INEFFECTIVE, IN THAT:

A) FAILURE TO OBJECT TO 

CONSPIRATORIAL TESTIMONY OF 

STATE'S WITNESS IMPLICATING 

DEFENDANT IN THE CRIME, WHEN 

THE CHARGE OF CONSPIRACY HAD 

BEEN DISMISSED AGAINST ALL 

DEFENDANTS[.]

B) FAILURE TO OBJECT TO 

PROSECUTORIAL MISCONDUCT FOR 

PURPOSEFULLY SOLICITING FALSE 

AND PREJUDICIAL TESTIMONY ON 
11 A-4021-17T4

THE SUBJECT OF CONSPIRACY[.

NOT RAISED BELOW.]

C) FAILED TO ADEQUATELY 

PREPARE FOR TRIAL, SPECIFICALLY 

FAILURE TO CONDUCT 

PRELIMINARY INVESTIGATION, 

INCLUDING INVESTIGATING OF 

MITIGATING FORENSIC EVIDENCE 

AND DISCOVERIES PROVIDED BY 

THE STATE WHICH WOULD HAVE 

AIDED IN THE DEFENSE[.]

2. APPELLATE COUNSEL WAS INEFFECTIVE, 

BECAUSE:

A) FAILURE TO FILE AN INDIVIDUAL 

APPELLATE BRIEF [O]N BEHALF OF 

DEFENDANT, INSTEAD FILING A 

COPY OF CODEFENDANT'S, 

EQUIVALENT TO CONSTRUCTIVE 

DENIAL OF APPELLATE COUNSEL[.]

B) FAILURE TO RAISE INEFFECTIVE 

ASSISTANCE OF TRIAL COUNSEL[.

NOT RAISED BELOW.]

C) FAILURE TO RAISE ON APPEAL 

ALL OF THE ABOVE TRIAL ISSUES[.]

3. INEFFECTIVE ASSISTANCE OF PCR COUNSEL, 

BASED ON:

A) KNOWINGLY PROVIDING 

[DEFENDANT] WITH A COPY OF A 

PCR BRIEF ALLEGEDLY FILED WITH 

THE COURT, WHEN IT WAS NEVER 

FILED, THUS CONSIDERABLY 
12 A-4021-17T4

PREJUDICING [DEFENDANT'S] PCR 

APPEAL[.]

4. PCR APPELLATE COUNSEL WAS 

INEFFECTIVE BY:

A) FAILING TO ADEQUATELY 

PRESENT COUNSEL'S ERRORS 

[ABOVE.]

B) FAILURE TO SUBMIT REQUIRED 

AND AVAILABLE EVIDENCE IN 

SUPPORT OF [DEFENDANT'S]

CLAIMS ON PCR APPEAL. (NOT 

RAISED BELOW)[.]

POINT TWO

THE COURT BELOW COMMITTED 

REVERS[I]BLE ERROR BY DENYING 

DEFENDANT'S PETITION FOR [PCR] WITHOUT 

CONDUCTING AN EVIDENTIARY HEARING ON 

DEFENDANT'S CLAIMS BECAUSE THE 

DEFENDANT MADE A PRIMA FACIE SHOWING 

OF INEFFECTIVE ASSISTANCE OF COUNSEL 

UNDER THE [STRICKLAND/FRITZ/CRONIC] 

TEST[.

7

]

POINT THREE

. . . DEFENDANT WAS ENTITLED TO [PCR]

UNDER THE PROVISIONS OF [RULE] 3:22-2, AND 

TO THE LIFTING OF THE PROCEDURAL BARS 

IMPOSED BY RULES 3:22–4, 3:22–5, AND 3:22–

12[.]

 

7

 Strickland, 466 U.S. at 668; United States v. Cronic, 466 U.S. 648 (1984); 

Fritz, 105 N.J. at 42.
13 A-4021-17T4

1. DEFENDANT'S CLAIMS ARE NOT 

PROCEDURALLY BARRED[.]

A) THE PROCEDURAL BAR OF RULE

3:22–4[.]

B) THE PROCEDURAL BAR OF RULE

3:22-12[.]

 

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 applies to mixed 

questions of fact and law. Id. at 420. Where 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.

"[S]econd or subsequent petition[s] for post-conviction relief shall be 

dismissed unless: (1) [they are] timely under Rule 3:22-12(a)(2)[.]" State v. 

Jackson, 454 N.J. Super. 284, 291 (App. Div.) (fourth alteration in original) 

(quoting R. 3:22-4(b)), certif. denied, 236 N.J. 35 (2018). Rule 3:22-12(a)(2) 

provides:

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 
14 A-4021-17T4

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 post-conviction relief where ineffective 

assistance of counsel that represented the defendant on 

the first or subsequent application for post-conviction 

relief is being alleged.

Defendant's present PCR petition is untimely under Rule 3:22-12(a)(2)(A) 

because he claims no newly recognized constitutional right. The petition is also

untimely under Rule 3:22-12(a)(2)(C) because it was not filed within one year 

of the order denying the preceding petition. Defendant's petition is also 

untimely under Rule 3:22-12(a)(2)(B) because it was not filed within one year 

of his receipt of the private investigator's report containing the purported factual 

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

ignored or relaxed. 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"). 

Defendant's claims of fundamental injustice provide no refuge from the 

denial of his petition because, unlike Rule 3:22-12(a)(1)(A), which applies to 
15 A-4021-17T4

the filing of a first PCR petition, Rule 3:22-12(a)(2) does not allow relief from 

the mandatory time bar based on fundamental injustice. See Jackson, 454 N.J. 

Super. at 293-94 (explaining that Rule 3:22-12(a)(1)(A), which allows for the 

late filing of a first PCR petition where excusable neglect and a fundamental 

injustice are shown, "has no application to second or subsequent petitions"). 

Thus, because "enlargement of Rule 3:22-12's time limits 'is absolutely 

prohibited[,]'" id. at 292 (citations omitted), defendant's present PCR petition 

was properly dismissed as mandated by Rule 3:22-4(b)(1), and we need not 

reach the merits of defendant's remaining arguments. See id. at 297.

Affirmed.