New Jersey Criminal Lawyer Blog
Post-conviction relief in New Jersey is often fraught with many difficulties, making it one of the most challenging areas of the law to practice in. One of its most challenging aspects is the five year time bar under New Jersey Court Rule 3:22-1. The relaxing of that time bar, which is under the legal concept of “excusable neglect” pursuant to N.J.C.R. 3:22-12(a), is one of the most hotly contested aspects of post-conviction relief petitions.
Having handled hundreds of post-conviction relief petitions over the years, I have seen a varied treatment of the time bar among the judges. Some judges give little leeway to litigants filing for post-conviction after the five year time bar whereas others are more sympathetic to relaxing the restrictions, particularly if the post-conviction relief concerns immigration issues. One thing is clear: the five year time bar is something to be concerned about when filing for post-conviction relief.
Over last couple years, I crafted a legal argument grounded in due process rights and notice to the litigants that has been successful in relaxing the five year time bar on post-conviction relief. It involves the New Jersey Supreme Court case of State v. Molina, 187 N.J. 531 (2006). The New Jersey Supreme Court in Molina essentially held that one cannot hold a criminal defendant to an appellate time bar if the defendant is not told of that time bar. Although Molina dealt with defendants on direct appeal time limits, the opinion is surely applicable to post-conviction relief time limits. After the Molina decision in 2006, criminal defendants were required to be provided with appellate rights forms and told on the record of their direct appeal rights at sentencing. The modern appeal rights form signed by all defendants after sentencing today has its origins derived from the Molina decision.
So how does the Molina decision assist post-conviction relief clients on getting around the five year time bar? The concept simple: if a defendant is not told about the five year time bar concerning post-conviction relief at sentencing, then that defendant cannot be held to the five year time bar. Essentially, if the defendant was not told, it cannot be used against him in barring his petition for post-conviction relief. I have been successful with this argument in relaxing the five year time bar in cases where the conviction is 10 or even over 15 years old.
The argument is grounded in the defendant’s Fourteen Amendment due process rights to a fair trial. During the criminal process, there are certain rights which the court nor prosecutor cannot ignore, such as the right to a jury trial, right to confront witnesses against you, and right to remain silent. All of those rights are the hallmark of a fair and justice criminal justice system. Additionally, there is also the right to be properly informed of your appellate rights, which includes post-conviction relief time bars. I found in my extensive work representing clients on post-conviction relief in New Jersey that many judges simply forgot to advise defendants during their sentencing of their post-conviction relief rights and particularly the five year time bar. This is a violation of their due process rights and a viable due process ground for excusable neglect.