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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1388-19






                   Submitted January 11, 2021 – Decided March 24, 2021

                   Before Judges Messano and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No. 07-09-

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Steven M. Gilson, Designated Counsel, of
                   counsel and on the brief).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Debra G. Simms, Deputy Attorney
                   General, of counsel and on the brief).

      Defendant Carl Holdren appeals the denial of his petition for post-

conviction relief (PCR) without an evidentiary hearing.       A jury convicted

defendant of criminal racketeering, the murder of Michael Montgomery, the

attempted murders of Keith Logan and Michael Stallworth, and other related

crimes. The judge imposed an aggregate sentence of life imprisonment, plus

forty years, subject to ninety-two and one-half years of parole ineligibility. We

affirmed defendant's convictions and sentence. State v. Holdren, A-1056-14

(App. Div. Sept. 1, 2017). The Supreme Court denied certification. State v.


232 N.J. 300


      Montgomery and Logan were both shot at close range in a parking lot in

Long Branch on November 22, 2006, during the throes of a gang war; "Logan

survived the shooting; Montgomery did not." Holdren, slip op. at 3–4. Based

on phone calls intercepted pursuant to court-ordered wiretaps, police discovered

that defendant also agreed to kill Stallworth, a member of a rival gang who had

kidnapped and assaulted a member of defendant's gang.

Id. at 4.


defendant's gang hatched a plan to kill Stallworth by renting a car and obtaining

a firearm destined for delivery to defendant, police foiled the plot before its

purpose was accomplished.

Id. at 4–5.

We characterized the totality of the

evidence against defendant and one of his co-defendants, Valdo Thompson, who

pled guilty, as "compelling."

Id. at 2.

      Defendant filed a timely PCR petition, alleging, among other things, that

trial counsel provided ineffective assistance (IAC) by failing to "investigate

essential witnesses."   After the court appointed counsel, defendant filed a

supplementary amended certification with exhibits that alleged specific

examples of trial counsel's ineffective assistance, only two of which are

preserved on appeal.

      Specifically, defendant certified that he unsuccessfully sought to have

counsel removed and replaced, met with counsel "a minimal amount of time,"

and had no meaningful discussion with counsel regarding "trial strategy."

Defendant said he wanted counsel to call two witnesses at trial, Briana Robinson

and Nichelle Dupree. Defendant attached copies of statements both gave to law

enforcement days after the Long Branch shooting.

      Robinson said she was outside with Dupree across the street from the site

of the shooting. She noticed defendant arrive with another man who wore a

mask over his face; defendant wore no face covering. Together with Dupree and

another friend, Robinson crossed the street, and they began talking to defendant,

whom both knew. According to Robinson, defendant kept whispering to the

masked man. When the masked man started shooting, everyone ran.

      Dupree knew defendant "for a long time." He arrived at the scene with

another man who wore a ski mask. Dupree said defendant "had a hoodie on and

he had it tight, so you couldn't notice that it was him," but she recognized him

and crossed the street to talk with him. Dupree said defendant and the man

"looked suspicious," and the other man "was surprised that we were there and I

knew [defendant's] name." Dupree said defendant "kept whispering in [the other

man's] ear[.]" When she heard gunshots, Dupree ran with the others. Dupree

claimed at one point that she did not actually see the shooting but only heard

shots being fired. She never saw a gun in defendant's hand, and described

defendant's reaction:

            I saw [defendant] look at his friend like he was shocked
            or something . . . it seemed like it wasn't meant for that
            to go down. . . . Back in the driveway . . . [defendant]
            was looking at the [shooter] and kept stepping back
            when he started shooting . . . [defendant] was looking
            at him like that wasn’t supposed to happen . . .
            [defendant] was whispering to the shooter right before
            it happened.

      Defendant also included a letter trial counsel sent him after sentencing in

which the attorney responded directly to defendant's questions about the

decision not to call Robinson and Dupree as witnesses.

              In reference to having the witnesses such as . . . Dupree
              or . . . Robinson appear on your behalf, the [S]tate
              should have brought those witnesses to testify as to the
              evidence. Remember, we do not have to prove anything
              as the defense. If I had called them to trial, I may never
              have been able to fully control what they would say.
              The mere fact that the [S]tate did not call them clearly
              shows to the jury that there was no witness putting a
              gun in your hand. The problem here was the [wiretaps].
              You were [e]ffectively convicted by your own words as
              well as Mr. Thompson's words. The jury heard the
              telephonic conversations that you had in reference to
              gang activity, including the Long Branch shooting.

      After considering oral argument, the PCR judge, who was not the trial

judge, denied defendant's petition without an evidentiary hearing. We discuss

the judge's oral decision below. This appeal followed.

      Before us, defendant contends trial counsel provided ineffective

assistance "due to inadequate consultation and/or not pursuing exculpatory

witnesses."    After examining the record and considering applicable legal

standards, we disagree and affirm.

      To establish a viable IAC claim, a defendant must establish both prongs

of the test enunciated in Strickland v. Washington, 

466 U.S. 668

, 687 (1984),

and adopted by our Supreme Court in State v. Fritz, 

105 N.J. 42

, 58 (1987). He

must first show "that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." 

Fritz, 105

N.J. at 52


Strickland, 466 U.S. at 687

). As to this prong, "there is 'a

strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance[,]' [and t]o rebut that strong presumption, a

defendant must establish that trial counsel's actions did not equate to 'sound trial

strategy.'" State v. Castagna, 

187 N.J. 293

, 314 (2006) (quoting 

Strickland, 466

U.S. at 689

). "If counsel thoroughly investigates law and facts, considering all

possible options, his or her trial strategy is 'virtually unchalleng[e]able.'" State

v. Savage, 

120 N.J. 594

, 617 (1990) (quoting 

Strickland, 466 U.S. at 690


      Additionally, a defendant must prove he suffered prejudice due to

counsel's deficient performance. 

Strickland, 466 U.S. at 687

. A defendant must

show by a "reasonable probability" that the deficient performance affected the


Fritz, 105 N.J. at 58

. "A reasonable probability is a probability

sufficient to undermine confidence in the outcome." State v. Pierre, 

223 N.J.


, 583 (2015) (quoting 

Strickland, 466 U.S. at 694


Fritz, 105 N.J. at 52


      Our rules anticipate the need to hold an evidentiary hearing on PCR

petitions "only upon the establishment of a prima facie case in support of post -

conviction relief[.]" R. 3:22-10(b). We review a PCR court's denial of an

evidentiary hearing under an abuse of discretion standard. State v. Brewster,

429 N.J. Super. 387

, 401 (App. Div. 2013) (citing State v. Marshall, 

148 N.J.


, 157–58 (1997)).

      On direct appeal, defendant challenged the trial court's denial of his

motion to dismiss the indictment because of the prosecutor's alleged failure to

provide exculpatory evidence to the grand jury, i.e., Robinson's and Dupree's

statements. Holdren, slip op. at 9–10. In affirming that decision, we observed

that "[d]uring a grand jury proceeding, the prosecutor must present any evidence

that 'both directly negates the guilt of the accused and is clearly exculpatory.'"

Id. at 10

(quoting State v. Saavedra, 

222 N.J. 39

, 63 (2015)). "We note[d] further

that [defendant] was charged both as a principal and an accomplice in the

murder, and that, even when the [witnesses'] formal statements are considered,

they do not 'directly negate[]' his guilt."

Id. at 11

(fourth alteration in original)


Saavedra, 222 N.J. at 63


      In part, the PCR judge accepted the State's argument, reiterated now

before us, that defendant's IAC claim premised on trial counsel's failure to call

Robinson and Dupree as witnesses was procedurally barred. See R. 3:22-5

(holding that "[a] prior adjudication upon the merits of any ground for relief is

conclusive" for PCR purposes). We disagree.

      Initially, the onerous standard applicable to a motion to dismiss an

indictment for failing to present exculpatory evidence, here, two witnesses'

statements, to the grand jury — the evidence must directly negate guilt and be

clearly exculpatory — has nothing to do with whether trial counsel rendered

deficient performance in failing to call the very same witnesses at trial.

Moreover, we have recognized that raising a related issue on direct appeal "does

not preclude consideration" of an IAC claim on PCR, where the focus may be

on trial counsel's decision making. State v. Allen, 

398 N.J. Super. 247

, 256–57

(App. Div. 2008).

      The PCR judge, however, also considered defendant's IAC claim in this

regard on its merits. The judge cited our decision in State v. L.A., 433 N.J.

Super. 1 (App. Div. 2013). There, we specifically addressed how a judge

considering an IAC claim premised on failure to call a witness should proceed:

"a court should consider: '(1) the credibility of all witnesses, including the likely

impeachment of the uncalled defense witnesses; (2) the interplay of the uncalled

witnesses with the actual defense witnesses called; and (3) the strength of the

evidence actually presented by the prosecution.'"

Id. at 16–17


McCauley-Bey v. Delo, 

97 F.3d 1104

, 1106 (8th Cir. 1996)).

       Defendant's argument is that Robinson and Dupree could have testified

that he fired no shots, thereby supporting his overall defense, i.e., renunciation

of any plot to shoot Logan. 1 However, the PCR judge noted that Robinson and

Dupree "placed [defendant] at the scene" of the fatal shooting, whispering to a

"masked person whom they saw commit the shooting." As the trial judge noted

in denying defense counsel's request for a Clawans2 charge because the State did

not produce Robinson and Dupree as witnesses, their statements included

significant incriminating evidence. Moreover, during the trial judge's colloquy

with counsel, the State revealed that it no longer knew where either witness was

and had no ability to contact them. Trial counsel could hardly have rendered

ineffective assistance under these circumstances.

       Earlier in his oral decision, the PCR judge extensively reviewed some of

the trial evidence, including defendant's conflicting statements to police — first

supplying a false alibi, then admitting to being present, finally admitting to being

 Logan, a member of a rival gang, was the intended target of the shooting, not
Montgomery. The judge instructed the jury on the defense of renunciation.
    State v. Clawans, 

38 N.J. 162

present but giving his gun to a third person and walking away before the

shooting occurred.      Additionally, there was ample proof in the taped

conversations disputing defendant's claim that he left the scene before the

shooting. Moreover, ballistic analysis of shells recovered at the scene of the

shooting revealed they had been fired from two different weapons.            That

scientific forensic evidence certainly would have limited any impact of

Robinson's and Dupree's testimony since neither one mentioned the presence of

a third man at the shooting.

      Additionally, although not mentioned by the PCR judge, trial counsel's

letter to defendant fully explained why he chose not to call Robinson or Dupree

as witnesses, specifically, that he could not be sure exactly what they would say

on the witness stand. He presumed that the State might call them in order to

place defendant at the scene, but, in the end, the prosecutor chose not to do so.

At trial, the State did not call any witnesses present at the Long Branch

shootings, including Logan himself. Instead, as trial counsel noted, the State

relied upon defendant's own incriminating words that not only placed defendant

at the scene but detailed his actual involvement with the shooting pursuant to

orders from the gang's leader. Counsel's exercise of trial strategy by not calling

Robinson or Dupree was neither an example of deficient performance nor

prejudicial under the Strickland/Fritz standard.

      The PCR judge also rejected defendant's amorphous claims of inadequate

investigation by trial counsel and his lack of adequate consultation with

defendant regarding trial strategy. When a defendant claims that his or her trial

attorney "inadequately investigated his case, he must assert the facts that an

investigation would have revealed, supported by affidavits or certifications

based upon the personal knowledge of the affiant or the person making the

certification." State v. Cummings, 

321 N.J. Super. 154

, 170 (App. Div. 1999)

(citing R. 1:6-6). "[B]ald assertions" of deficient performance are insufficient

to support a PCR application. Ibid.; see also State v. Porter, 

216 N.J. 343

, 356–

57 (2013) (reaffirming these principles in evaluating which of a defendant's

various PCR claims warranted an evidentiary hearing).

      Defendant certified that trial counsel only met with him on two occasions

for limited time.   He contends this thwarted a fulsome discussion of trial

strategy, specifically, his desire to call Robinson and Dupree as witnesses. Our

review of the record makes it abundantly clear that trial counsel was prepared,

vigorously cross-examined the State's witnesses, and successfully secured an

acquittal for defendant on some of the charges in the indictment. For reasons

already stated, if the only example of how trial counsel's alleged limited

discussions with defendant demonstrated deficient performance, i.e., Robinson

and Dupree did not appear as witnesses, the contention merits no further

discussion in a written opinion. R. 2:11-3(e)(2).



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