SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2824-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN LOYAL,

Defendant-Appellant.

____________________________

Submitted September 18, 2018 – Decided

Before Judges Hoffman and Firko.

On appeal from Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 96-06-2036.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Richard Sparaco, Designated Counsel, on the 

brief).

Theodore Stephens II, Acting Essex County Prosecutor, 

attorney for respondent (Barbara A. Rosenkrans, 

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NOT FOR PUBLICATION WITHOUT THE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.

September 26, 2018
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Defendant John Loyal appeals from the December 4, 2015 Law Division 

order denying his petition for post-conviction relief (PCR) without an 

evidentiary hearing. We affirm.

I

In connection with the February 7, 1996 shooting death of Carl Watson, 

an Essex County grand jury indicted defendant for purposeful or knowing 

murder, N.J.S.A. 2C:11-3(a)(1) and (2); aggravated assault by pointing a 

firearm, N.J.S.A. 2C:12-1(b)(4); possession of a handgun without a permit, 

N.J.S.A. 2C:39-5(b); and possession of a handgun with the intent to use it 

unlawfully against the person or property of another, N.J.S.A. 2C:39-4(a). After 

defendant's first trial resulted in a mistrial, he moved to dismiss the indictment,

arguing a new trial would result in double jeopardy. The trial court denied the 

motion. 

A second jury found defendant guilty on all four counts. The trial court 

sentenced defendant to life in prison with a thirty-year parole disqualifier on the 

murder charge and concurrent sentences on the remaining charges. State v. 

Loyal, 164 N.J. 418, 428 (2000).

We affirmed defendant's convictions and sentence on direct appeal. State 

v. Loyal, No. A-1404-97 (App. Div. July 9, 1999) (slip op. at 22). Our Supreme 
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Court granted certification, and also affirmed. Loyal, 164 N.J. at 443. 

Subsequently, the United States District Court for the District of New Jersey 

denied defendant's petition for a writ of habeas corpus. In 2003, the Third 

Circuit Court of Appeals denied defendant's application for a certificate of 

appealability. In 2004, the United States Supreme Court denied defendant's 

application for a petition for writ of certiorari. 

On July 8, 2014, defendant filed a pro se petition for PCR, and designated 

PCR counsel subsequently filed a supporting brief. On December 4, 2015, the 

PCR judge delivered an oral opinion denying defendant's petition without an 

evidentiary hearing. This appeal followed. 

On appeal, defendant argues:

POINT I — DEFENDANT WAS ENTITLED TO AN 

EVIDENTIARY HEARING[.]

A. DEFENDANT ESTABLISHED A PRIMA 

FACIE CASE OF INEFFECTIVE 

ASSISTANCE OF COUNSEL IN TRIAL 

COUNSEL'S FAILURE TO CALL A CRITICAL 

WITNESS (SHARONDA POSEY) AT THE 

RETRIAL. 

B. TRIAL COUNSEL WAS INEFFECTIVE IN 

FAILING TO PROPERLY AND 

EFFECTIVELY IMPEACH THE 

CREDIBILITY OF STATE'S WITNESS 

WANDA COLON.
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C. APPELLATE COUNSEL WAS INEFFECTIVE 

IN FAILING TO RAISE ON APPEAL THAT 

DEFENDANT WAS ENTITLED TO A JURY 

INSTRUCTION ON CROSS-RACIAL 

IDENTIFICATION.

D. TRIAL COUNSEL FAILED TO CONDUCT 

ADEQUATE PRETRIAL INVESTIGATION OF 

THE CASE RESULTING IN THE FAILURE TO 

CALL THREE ESSENTIAL WITNESSES AT 

TRIAL, THEREBY DENYING DEFENDANT 

THE RIGHT TO EFFECTIVE ASSISTANCE 

OF COUNSEL.

i. TRIAL COUNSEL WAS INEFFECTIVE IN 

FAILING TO CALL JEFFREY WISE AS A 

WITNESS FOR THE DEFENSE.

ii. TRIAL COUNSEL WAS INEFFECTIVE IN 

FAILING TO CALL VALERIE FIELDS AS 

A WITNESS FOR THE DEFENSE.

iii. TRIAL COUNSEL WAS INEFFECTIVE IN 

FAILING TO CALL ALJIVA A[.] POSEY 

AS A WITNESS FOR THE DEFENSE. 

POINT II — DEFENDANT'S PETITION WAS NOT 

TIME BARRED UNDER R[ULE] 3:22-12. 

II

We first consider defendant's argument that the PCR court erred in 

determining his PCR petition was time-barred. We reject his argument.

Under Rule 3:22-12(a)(1), a petition for PCR, for reasons other than to 

correct an illegal sentence, must be filed within five years of entry of the 
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judgment of conviction, unless there is a showing of excusable neglect. State v. 

Afanador, 151 N.J. 41, 52 (1997). "In the context of [PCR], a court should only 

relax the bar of Rule 3:22-12 under exceptional circumstances." Ibid. 

Here, defendant claims the delay in filing his PCR petition resulted from 

excusable neglect. He alleges he filed the petition within seven months after the 

Supreme Court denied his application for a petition for writ of certiorari; 

however, when he contacted the court after the federal appeals process ended, 

he learned a record of his filing did not exist. He further contends he relied upon 

his counsel to file for PCR, and therefore, was unaware of the five-year 

limitation. 

We find defendant's allegations insufficient to warrant relaxing the timebar. Defendant's judgment of conviction was entered on September 8, 1997,

therefore, he had until September 2002 to timely file his PCR petition. The 

Supreme Court denied certiorari in 2004. Accordingly, even had defendant filed 

his PCR petition within seven months of the Supreme Court's denial, he still 

would have filed his petition beyond the five-year time-bar. See also State v. 

Milne, 178 N.J. 486, 494 (2004) (holding federal habeas corpus proceedings 

"ordinarily" do not toll the Rule 3:22-12 time-bar). Moreover, defendant's 

assertion that he was unaware of the time-bar fails to constitute excusable 
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neglect. See State v. Murray, 162 N.J. 240, 246 (2000) (holding a lack of

"sophistication in the law does not satisfy the exceptional circumstances 

required" to overcome the time-bar). 

III

We analyze ineffective assistance of counsel claims by using the twoprong test established by the Supreme Court in Strickland v. Washington, 466 

U.S. 668, 694 (1984). See State v. Preciose, 129 N.J. 451, 463(1992); see also

State v. Fritz, 105 N.J. 42, 58 (1987). The first prong of the Strickland test 

requires a defendant to establish counsel's performance was deficient. Preciose, 

129 N.J. at 463. "The second, and far more difficult, prong . . . is whether there 

exists 'a reasonable probability that, but for counsel's unprofessional errors, the 

result of the proceeding would have been different.'" Id. at 463-64 (quoting 

Strickland, 466 U.S. at 694).

There exists a strong presumption that counsel rendered adequate 

assistance and made all significant decisions in the exercise of reasonable 

professional judgment. Strickland, 466 U.S. at 689. Further, because prejudice 

is not presumed, defendant must demonstrate how specific errors of counsel 

undermined the reliability of the proceeding. Fritz, 105 N.J. at 61.
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Defendant's substantive arguments lack persuasion. His first argument, 

that trial counsel was ineffective in failing to call Sharonda Posey1as a witness 

at the second trial, fails to satisfy the first Strickland prong. At the first trial,

Sharonda's credibility was undermined after she recanted her original statement 

that defendant shot the victim, instead identifying another individual, and 

admitted her boyfriend at the time was the individual who ordered the victim's 

murder. Accordingly, the PCR judge did not err in finding her testimony could 

be "more of a liability than an asset to the defense," and that trial counsel's 

failure to call her as a witness was a reasonable, strategic decision.

Defendant next contends his trial counsel provided ineffective assistance 

in failing to impeach Wanda Colon, the State's eyewitness. He argues Colon's

testimony about her heroin use was inconsistent between the first and second 

trials, and counsel should have impeached her on those statements. 

The record reflects trial counsel effectively impeached Colon at the 

second trial. As the PCR judge noted, 

[T]he record clearly indicates that defense counsel 

vigorously attempted to undermine Colon's credibility 

on cross examination. . . . [C]ounsel pointed out how 

Colon had lied [about] material facts when she gave her 

sworn statement to [the detective], as well as how 

Colon misidentified [an individual] . . . . Counsel also 

 

1 To avoid confusion, but intending no disrespect, we refer to Sharonda Posey 

and Aljiva A. Posey by their first names.
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examined both Colon and [the detective] on their prior, 

personal relationship[,] suggesting . . . perhaps some 

bias on the part of both witnesses.

Accordingly, the record reflects trial counsel provided effective 

assistance. As such, defendant's argument fails.

Defendant next argues trial counsel failed to adequately investigate 

Jeffery Wise, Valerie Fields, and Aljiva as potential witnesses. In support, 

defendant submitted the certifications of Wise and Aljiva, who stated they were 

witnesses to the shooting and someone other than defendant committed the 

murder. Defendant also submitted Field's certification, which states she 

witnessed the victim arguing with two men — neither of whom were defendant 

— shortly before the victim's murder. 

We decline to address defendant's argument. The record reflects the 

witnesses' certifications lack signatures, as required under Rule 1:4-4(c); 

accordingly, defendant failed to present competent evidence supporting his 

claim. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)

("[W]hen a petitioner claims his [or her] . . . attorney inadequately investigated 

[the] case, he [or she] must assert the facts that the investigation would have 

revealed, supported by affidavits or certifications based upon the personal 

knowledge of the affiant or the person making the certification."). 
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Finally, defendant argues appellate counsel provided ineffective 

assistance in failing to argue defendant was entitled to a cross-racial 

identification jury instruction. See State v. Cromedy, 158 N.J. 112, 132 (1999) 

(instructing courts to provide cross-racial jury instructions under specific

circumstances). We disagree.

As the PCR judge noted, our Supreme Court did not decide Cromedy until 

two years after defendant's trial. Accordingly, trial counsel was under no 

obligation to argue for a cross-racial identification instruction, and his appellate 

counsel did not provide ineffective assistance in failing to raise that issue on 

appeal. Moreover, defendant fails to present any evidence demonstrating his 

appellate counsel's allegedly deficient performance prejudiced the outcome of 

his appeal, particularly in light of appellate counsel's zealous advocacy 

pertaining to the viable double jeopardy defense. 

Affirmed.