NOT FOR PUBLICATION

PER CURIAM.

Defendant Delrice Cunningham appeals from the Law Division's February 23, 2010 order denying his third petition for post-conviction relief (PCR) and request for an evidentiary hearing. Defendant had alleged, in part, ineffective assistance of trial and appellate counsel, and sought relief from the procedural bar and an evidentiary hearing. We affirm.

The record reflects that a jury convicted defendant of purposeful and knowing murder, N.J.S.A. 2C:11-3(a)(1), and weapons offenses in the shooting death of Huberston Dieujuste. After merging possession of a weapon for an unlawful purpose with the murder charge, Judge John F. Malone sentenced defendant to a fifty-year term of imprisonment with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the murder charge, and a concurrent five-year term with a two-and-one-half period of parole ineligibility for the unlawful possession of a handgun. In an unpublished opinion, we affirmed defendant's conviction and remanded for resentencing, as NERA was inapplicable to the murder conviction. State v. Cunningham, No. A-1513-00T4 (App. Div. April 11, 2003). After remand, the court resentenced defendant to fifty years of imprisonment with a period of thirty years of parole ineligibility. Defendant's petition for certification was denied by the Supreme Court on July 21, 2003. State v. Cunningham, 177 N.J. 496 (2003).

On June 25, 2004, defendant filed his first PCR petition asserting ineffective assistance of trial and appellate counsel, prosecutorial misconduct, and evidence tampering by the police. In an unpublished opinion, we affirmed Judge Malone's May 24, 2006 order denying defendant's petition. State v. Cunningham, No. A-5862-05T4 (Nov. 2, 2007). The Supreme Court denied certification. State v. Cunningham, 194 N.J. 271 (2008). Defendant's second PCR petition was denied by Judge Malone by order of July 3, 2008. The appellate record does not contain the substance of that petition or the reasons for the denial.

On October 11, 2009, defendant filed his third petition for PCR relief. Defendant first argued his claims for ineffective assistance of counsel should not be barred by Rule 3:22-4 as he did not raise these issues on appeal or in previous PCR petitions and he could not have raised these issues in prior proceedings because of his attorneys' ineffectiveness. He also argued there would be a fundamental injustice warranting relief under Rule 3:22-4(b) if he were not permitted to assert these claims in his third PCR petition, and if he were precluded from doing so under the five-year time bar of Rule 3:22-12.

According to defendant, trial counsel was ineffective in failing to object to: (1) the court's response to the jury's question regarding the difference between murder and aggravated manslaughter; (2) the court's instruction on uses of the verdict sheet; (3) the court's exclusion of a voluntary intoxication question on the verdict sheet; (4) the court's instruction to deliberate sequentially in accordance with the verdict sheet; and (5) the court's instruction that the jury should consider passion/provocation manslaughter after it found defendant guilty of murder.

Defendant urged the cumulative errors of trial counsel deprived him of his constitutional rights to effective assistance of counsel, due process, and a fair trial. He further stated, without elaboration, that appellate counsel and PCR counsel were also ineffective for failing to present appropriate arguments on his behalf, and that he was entitled to an evidentiary hearing "to further prove his claims." Judge Malone was not convinced by any of defendant's arguments and entered the order that is the subject of this appeal.

On appeal, defendant presents the following arguments for consideration:

The claims advanced in defendant's third PCR petition are procedurally barred as the petition was filed on October 11, 2009, nine years after the judgment of conviction. See R. 3:22-12(a)(1), (c) (providing for a non-relaxable five-year period after the entry of the judgment of conviction for the filing of a PCR petition); State v. Afanador, 151 N.J. 41, 52 (1997) (holding that only exceptional circumstances will permit relief from the procedural bar and the court must consider prejudice to the State, and the extent of and the reason for the delay). The State will be subject to considerable prejudice if it were forced to re-litigate the case over a decade later, with the likely unavailability of key witnesses and potential other obstacles occasioned by the significant delay. In contrast, defendant has not presented any justifiable reason, let alone established excusable neglect, for his significant delay in filing this PCR petition. See Afanador, supra, 151 N.J. at 52; State v. Mitchell, 126 N.J. 565, 580 (1992). In addition, the claims asserted by defendant in his third PCR petition have little or no merit; accordingly, enforcement of the time bar would not result in a fundamental injustice.

Furthermore, Rule 3:22-4(a) procedurally bars PCR relief if a defendant could have, but did not, raise a ground for relief in a prior proceeding, subject to the following three exceptions: (1) if the issue "could not reasonably have been raised in any prior proceeding"; (2) if "enforcement of the bar to preclude claims . . . would result in fundamental injustice"; and (3) if "denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey." Rule 3:22-5 also procedurally bars PCR relief if a prior adjudication has been made on a defendant's petition.

Defendant has raised issues of ineffective assistance of counsel on direct appeal and in two prior unsuccessful PCR petitions. He now attempts to raise similar ineffective assistance of counsel arguments that were raised or could have and should have been raised in the prior proceedings. Defendant simply makes the bald assertion and circular argument that his attorneys' ineffectiveness precluded him from asserting the claims he now raises in a timely and appropriate proceeding. This does not constitute a fundamental injustice to waive the procedural bar within the intendment of the Rules.

Affirmed.