NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-4974-18
STATE OF NEW JERSEY,
Submitted January 13, 2021 – Decided May 12, 2021
Before Judges Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 01-03-
Alberto Salazar, appellant pro se.
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Albert Cernadas, Jr., Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
Defendant Alberto Salazar appeals from a May 14, 2019 order denying
his second petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm, substantially for the reasons set forth in Judge Michael A.
Toto's written opinion. We add only the following brief remarks.
Following a jury trial, defendant was convicted of second-degree reckless
manslaughter, N.J.S.A. 2C:11-4(b)(1), first-degree felony murder, N.J.S.A.
2C:11-3(a)(3), and second-degree robbery, N.J.S.A. 2C:15-1. Defendant was
sentenced to a thirty-year term of imprisonment without parole. Defendant
appealed his conviction, and we affirmed in an unpublished opinion. State v.
Salazar, A-6235-03 (App. Div. Feb. 6, 2008) (slip op. at 2). The Supreme Court
denied certification. State v. Salazar,
195 N.J. 523
In September 2008, defendant filed a petition for PCR, which was denied
without an evidentiary hearing. Defendant appealed, and we reversed and
remanded for an evidentiary hearing. State v. Salazar, A-2504-11 (App. Div.
May 21, 2014) (slip op. at 2). In April 2015, following the hearing on remand,
defendant's petition for PCR was again denied. We affirmed that decision in an
unpublished opinion. State v. Salazar, A-0058-15 (App. Div. Oct. 6, 2017) (slip
op. at 2), and defendant's petition for certification was denied. State v. Salazar,
233 N.J. 214
In November 2018, more than three years after the denial of his first PCR
petition, defendant filed a second petition. Defendant claimed his PCR counsel
was ineffective in failing to present an expert witness to establish an intoxication
defense. Defendant also contended that PCR counsel was ineffective for not
challenging the indictment on the basis that the prosecutor was related to the
victim and, therefore, had a conflict of interest. Finally, defendant averred that
PCR counsel was ineffective for refusing to contest the trial judge's decision to
deny his application to change venue.
On May 14, 2019, Judge Toto denied defendant's petition after finding
that it was time-barred under Rule 3:22-12(a)(2). Notwithstanding, the judge
proceeded to assess the merits of defendant's contentions and concluded that he
failed to establish a prima facie ineffective assistance of counsel claim under
Strickland v. Washington,
466 U.S. 668
, 687 (1984).
On appeal, defendant raises the following argument for our consideration:
THE PCR COURT ERRED BY DISMISSING
DEFENDANT'S SECOND PCR PETITION
WITHOUT ORAL ARGUMENT, OR ALLOWING
HIM AN OPPORTUNITY TO ARGUE EXCEPTIONS
TO ANY POTENTIAL PROCEDURAL BARS, AND
BY NOT ADDRESSING HIS CLAIMS THAT HIS
PCR ATTORNEY AND PCR APPELLATE
ATTORNEY WERE INEFFECTIVE FOR FAILING
TO: (1) INVESTIGATE AND PROVIDE AN
EXPERT WITNESS IN ORDER TO ESTABLISH AN
INTOXICATION DEFENSE; (2) TO RAISE THE
ALLEGED TRIAL COURT ERROR IN THE JURY
INSTRUCTION THEREFORE THE ORDER
SHOULD BE REVERSED.
Where a PCR judge does not conduct an evidentiary hearing, we "conduct
a de novo review of both the factual findings and legal conclusions of the PCR
court." State v. Blake,
444 N.J. Super. 285
, 294 (App. Div. 2016) (quoting State
181 N.J. 391
, 421 (2004)). We need not address defendant's
substantive arguments because we agree with Judge Toto that defendant's
second petition for PCR is time-barred under Rule 3:22-12(a)(2) and Rule 3:22-
Rule 3:22-12(a)(2) imposes strict time limits on the filing of a second PCR
petition, requiring a defendant to file within one year of the latest of three
(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 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.
In this case, subsection (A) is inapplicable because defendant does not
rely on a new constitutional right. Likewise, subsection (B) does not apply
because both the toxicology report and defendant's statement to police were
available at the time the first PCR petition was filed. Moreover, we agree with
Judge Toto that the information regarding the prosecutor – that she was related
to the victim – was easily discoverable "through the exercise of reasonable
diligence." Even under subsection (C), however, defendant's second PCR
petition is untimely because it was filed more than a year after the 2015
dismissal of the first PCR petition.
The time bar under Rule 3:22-12(a)(2) may not be ignored or relaxed.
State v. Jackson,
454 N.J. Super. 284
, 292-94 (App. Div. 2018); see also R. 1:3-
4(c) ("Neither the parties nor the court may . . . enlarge the time specified by . .
. R. 3:22-12 . . . ."). Because defendant's second PCR petition was filed more
than three years after the denial of his first petition, the latter was properly
denied as untimely. Additionally, since defendant's second PCR petition was
time-barred, an evidentiary hearing was not required. See State v. Brewster, 429
N.J. Super. 387
, 401 (App. Div. 2013) ("If the court perceives that holding an
evidentiary hearing will not aid the court's analysis of whether the defendant is
entitled to post-conviction relief, . . . then an evidentiary hearing need not be
granted." (omission in original) (quoting State v. Marshall,
148 N.J. 89