STATE OF NEW JERSEY VS. LINWOOD COLA PARKER (94-04-0885, CAMDEN COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0038-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LINWOOD COLA PARKER,
a/k/a LENNY PARKER,

     Defendant-Appellant.
_________________________

                   Submitted April 27, 2021 – Decided May 18, 2021

                   Before Judges Fisher and Gilson.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 94-04-0885.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Karen A. Lodeserto, Designated Counsel, on
                   the brief).

                   Jill S. Mayer, Acting Camden County Prosecutor,
                   attorney for respondent (Linda A. Shashoua, Special
                   Deputy Attorney General/Acting Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM
      On November 6, 1993, defendant was a passenger in a vehicle stopped by

a State Trooper on the New Jersey Turnpike. As a result of what transpired after

that stop, defendant was indicted and charged with third-degree unlawful

possession of a weapon and fourth-degree possession of hollow-nose bullets.

On February 10, 1995, defendant pleaded guilty and, at the same time, was

sentenced to two concurrent one-year probationary terms. He filed no appeal.

Instead, on October 12, 2018 – more than twenty-three years later – defendant

filed a pro se post-conviction relief (PCR) petition. After the appointment of

counsel and the filing of a supplemental brief and certification, the PCR judge

heard the argument of counsel and denied relief for reasons set forth in a written

opinion.

      Defendant appeals, arguing:

            I. THE PCR COURT ERRED IN DENYING
            [DEFENDANT] DISCOVERY RELATING TO HIS
            1993 MOTOR VEHICLE STOP, AS HE HAS
            PRESENTED A COLORABLE CLAIM OF RACIAL
            PROFILING AND SELECTIVE PROSECUTION.

            II. THE PCR COURT ERRED IN DENYING
            [DEFENDANT] AN EVIDENTIARY HEARING AS
            TESTIMONY IS NEEDED REGARDING PRIOR
            COUNSEL'S FAILURE TO RAISE RACIAL
            PROFILING AS AN ISSUE.




                                        2                                   A-0038-19
               III. THE PCR COURT ERRED IN FAILING TO FIND
               EXCUSABLE NEGLECT EXISTED FOR THE LATE
               FILING OF [DEFENDANT'S PCR PETITION].

We find insufficient merit in these arguments to warrant further discussion in a

written opinion, R. 2:11-3(e)(2), adding only a few brief comments about the

third point.

      Although never previously raised, defendant argues in his PCR petition

that his conviction was unlawful because the motor vehicle stop was a product

of "racial profiling." Anticipating an argument that the passage of time would

require rejection of his PCR petition, defendant asserted that he was unaware of

the probability that the 1993 motor vehicle stop that led to his 1995 conviction

was the product of racial profiling because his trial attorney never informed him.

For present purposes, we assume the truth of that allegation, but, if true, that

assertion does not explain why defendant might not have known or had reason

to know of facts that may have supported the racial profiling argument long

before he filed his PCR petition in 2018. To be sure, concerns about the

pernicious effect of racial profiling may not have been fully appreciated until

after defendant's conviction, but the problem became well known with the

decisions in State v. Soto, 

324 N.J. Super. 66

(Law Div. 1996), State v. Ballard,

331 N.J. Super. 529

(App. Div. 2000), and numerous later opinions. The


                                        3                                   A-0038-19
problem was also well-publicized in the media at the same time, culminating in

the Legislature's 2003 passage of a bill criminalizing police use of race as the

primary factor in determining who to stop and search. See N.J.S.A. 2C:30-6.

Despite all the notoriety about racial profiling in this State within a short time

after defendant's conviction, defendant claimed he was unaware of the problem

until doing research in a federal prison library "several months" before filing his

PCR petition.

      The untimeliness of defendant's application was plainly revealed on the

face of the PCR petition and no discovery or evidential hearing would have

suggested otherwise. The PCR judge soundly concluded that the petition was

time-barred because of the inordinate passage of time without a plausible

argument excusing the delay.

      Affirmed.




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