NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Omar Austin appeals from the Law Division's June 30, 2014 order denying his petition for post-conviction relief (PCR) following an evidentiary hearing. Defendant was convicted by a jury of two 2001 murders and related charges, and sentenced on October 6, 2005, to two consecutive thirty-year sentences, each with thirty-year periods of parole ineligibility. We affirmed defendant's conviction, see State v. Austin, No. A-0637-09 (App. Div. May 7, 2012) (slip op. at 3), and the Supreme Court denied his petition for certification on November 9, 2012. 212 N.J. 459 (2012).

Defendant filed a pro se petition for PCR in December 2012, and PCR counsel was appointed. Defendant alleged the ineffective assistance of counsel (IAC), specifically that trial counsel failed to contact exculpatory witnesses, although he named only one, Sharese Watson, and that, during the subsequent trial of his co-defendant, Al-Quaadir Green, one of the State's witnesses, Kyshael Ivery, stated she was "high" when she testified at defendant's trial.1

In her brief, PCR counsel also argued that trial counsel was ineffective because: 1) he entered into a stipulation that defendant and Green were in possession of handguns in New York approximately one week after the murders; 2) failed to "advocate" for the removal of a "distraught juror"; 3) failed to adequately investigate Ivery's "drug use"; and 4) failed to request the "`mere presence'" jury charge. See, e.g., Model Jury Charge (Criminal), "Liability for Another's Conduct (N.J.S.A. 2C:2-6) Accomplice," at 2-3 (May 22, 1995). Additionally, PCR counsel argued that defendant was entitled to jail credits.

The original PCR judge granted defendant an evidentiary hearing limited to IAC claims that trial counsel failed to adequately investigate. Now-retired Assignment Judge Patricia K. Costello, who was not the trial judge or the original PCR judge, conducted the evidentiary hearing. In a thorough written opinion, Judge Costello summarized the evidence at the hearing. We defer to Judge Costello's factual findings which were "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013).

Defendant testified and denied committing the murders. He claimed he was high and had a gun in his possession on the night in question, but that it was not the weapon he had on the day of his arrest in New York. Defendant also said that he and Ivery were in a "relationship," contrary to her testimony that she met defendant shortly before the murders.

Trial counsel testified, and, although he "was unsure of some specifics[,]" Judge Costello found him to be a credible witness. Counsel remembered conferring with defendant about whether to call Ivery as a witness, but, because she was a drug user, she could be "unpredictable." Counsel believed that if Ivery testified consistently with her statement, it would help the defense, which essentially was that, although defendant was present, Green shot the victims without defendant's foreknowledge. Counsel requested an adjournment on the day of trial but was unsure why he made that request. He admitted never interviewing Ivery before trial and acknowledged he could have used additional time to do so.

Defendant's relative, Sharese McMillian2 testified that defendant and Ivery were in a relationship at the time of the murders. Ivery was the final witness at the PCR hearing. A bench warrant had been issued for her arrest because she failed to appear at the first day of the PCR hearing.

Ivery testified that she was using drugs on the night of the murders and during Green's trial.3 She could not remember her testimony during that trial. Ivery claimed that she and defendant were not in a relationship, although they were intimate, and that after the shootings, he spent the night with her. Ivery denied being coerced by police into giving a statement. Judge Costello determined that Ivery "was firm in her recollection that both men had guns and both fired shots." The judge reasoned that if trial counsel had interviewed her, Ivery would have told him the same thing. Judge Costello found "[Ivery] was unshaken in these facts."

Before turning to defendant's specific IAC claims, Judge Costello concluded that the petition was time-barred, having been filed more than five years after the judgment of conviction. See R. 3:22-12(a) (providing that with certain exceptions, "no petition shall be filed ... more than [five] years after the date of entry ... of the judgment of conviction that is being challenged"). The judge examined defendant's excuses for the delay and concluded none of them amounted to "excusable neglect" which would toll the time for filing, or that failure to hear the petition "would result in a fundamental injustice." Ibid. Judge Costello also concluded that each of defendant's claims "could have been raised on appeal," and thus were barred by Rule 3:22-4(a).

Nonetheless, Judge Costello considered the merits of defendant's IAC claims under the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). To establish an IAC claim under the Strickland/Fritz standard, a defendant must first show "`that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed ... by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. "If [a] defendant establishes one prong of the Strickland-Fritz standard, but not the other, his claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012) (citing State v. Echols, 199 N.J. 344, 358 (2009)).

As to the "stipulation" regarding defendant's possession of a handgun, Judge Costello noted that it was the State's theory that Green shot the two victims, and "[t]hat was defendant's theory as well...." At trial, the.380 handgun recovered from Green in New York was identified through expert ballistic testimony as the weapon that killed the victims. The gun found on defendant in New York was not linked to the shootings. Judge Costello reasoned that "[f]orcing the State to call in arresting officers on points which were not in dispute makes no sense." She found that "there [was] no basis to suggest that this tactic harmed defendant."

As to the "distraught" juror and trial counsel's failure to seek her removal, Judge Costello noted that when the issue arose at trial, "[b]oth attorneys agreed that the underlying facts did not rise to an appropriate excuse to remove a juror." She found, "[t]here [wa]s simply no factual or legal basis to suggest the juror was distraught, or had to be removed, or that her ability to be fair was ever placed in jeopardy."

Turning to defendant's claim of inadequate investigation, Judge Costello carefully reviewed Ivery's testimony at Green's trial, in which she admitted her extensive drug use when she first spoke to police and at the time of defendant's trial.4 At Green's trial, Ivery claimed not to remember the events of the night of the shooting. However, Judge Costello found that Ivery "reiterated the critical testimony against defendant at the PCR hearing," and there was no evidence that police coerced her into giving her initial statement. Lastly, Judge Costello found that trial counsel was not ineffective for failing to request the "mere presence" jury instruction because the trial judge actually provided it during her charge to the jury.

Judge Costello also concluded that defendant was not entitled to any jail credits. Taking judicial notice of official court records from New York, the judge determined that seven days after the homicides, defendant was arrested in New York and ultimately convicted and sentenced for weapons offenses. While in custody in New York, defendant was brought to New Jersey pursuant to the Interstate Agreement on Detainers (IAD). "Defendant did not satisfy his New York sentence until November 21, 2009[,]" well after his sentence in this case. Judge Costello concluded, therefore, that he was not entitled to any jail credits. She entered the order under review and this appeal followed.

Before us, defendant argues that his petition was not time-barred pursuant to Rule 3:22-12(a), or procedurally-barred pursuant to Rules 3:22-4 and-5, that trial counsel provided ineffective assistance by entering into the gun stipulation, failing to investigate Ivery and failing to seek removal of the "distraught" juror. He also argues he was entitled to jail credits from the date he was transferred pre-trial to the Essex County jail on April 23, 2003, until he was sentenced on October 6, 2005.

Having considered these arguments in light of the record and applicable legal standards, we affirm substantially for the reasons stated by Judge Costello. We add the following brief comments.

We disagree that defendant's petition was time-barred by Rule 3:22-12(a), or procedurally-barred by Rule 3:22-4. Defendant's argument that the time constraints of Rule 3:22-12 may be relaxed, see Rule 1:1-2, ignores the explicit proscription against doing so contained in Rule 3:22-12(c) and Rule 1:3-4(c). However, Rule 3:22-6A(2) requires dismissal without prejudice of a PCR petition filed while a direct appeal or petition for certification is pending, and Rule 3:22-12(a)(3) permits the petition to be considered as a "first petition" if it is refiled within ninety days "of the date of the judgment on direct appeal, including consideration of a petition for certification[.]" Our review of the record indicates defendant did so.

Also, not all the issues defendant raised in his PCR petition were barred by Rule 3:22-4. In particular, defendant's claim that counsel failed to adequately prepare for and investigate Ivery's testimony was especially appropriate for PCR. See, e.g., State v. Hess, 207 N.J. 123, 145 (2011) (discussing the procedural bar of Rule 3:22-4 and concluding it generally did not apply to IAC claims requiring proof outside of the trial record).

Regarding jail credits, defendant does not contradict any of the facts contained in Judge Costello's opinion regarding the interplay between his New York conviction and his custody status on these charges. Judge Costello found that defendant's New York sentence was not satisfied until November 21, 2009. Defendant only argues that it was "unclear" whether he had "attained parole" prior to being transferred. Defendant cites no legal authority for the proposition that he is entitled to jail credits when, while still serving his New York sentence, he was transferred to New Jersey pursuant to the IAD.5

Affirmed.