assistance. State v McIlhenny, 333 N.J. Super. 85, 87
(App. Div. 2000).
Assigned counsel is not permitted to withdraw on the
ground of a lack of merit to the petition. R. 3:22-6(d).
The rule also states that counsel should advance “any
ground” insisted upon by defendant notwithstanding
that counsel deems it without merit.
Note: under the federal constitution, a defendant
does not have a constitutional right to effective assistance
of counsel in collateral proceedings. Coleman v.
Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566
(1991); Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct.
1990 (1987). See also 28 U.S.C. § 2254(i).
V. EVIDENTIARY HEARINGS ON POST-
CONVICTION RELIEF
Although R. 3:22-1 does not require evidentiary
hearings, a trial court has discretion to conduct one under
R. 3:22-10. State v. Preciose, 129 N.J. at 462. Similarly,
a trial court has the discretion to determine a PCR
petition on the papers. State v. Flores, 228 N.J. Super. at
589-590. The trial court must state its findings on the
petition and it conclusions of law. R. 3:22-11. See Id. at
590 (Appellate Court stated its preference for reasons
supporting trial court’s decision).
When a defendant raises an ineffective assistance of
counsel claim, defendant must establish a prima facie case
of ineffective assistance under Strickland v. Washington,
supra, and State v. Fritz, supra, before he can get an
evidentiary hearing. State v. Preciose, 129 N.J. at 462-
- In other words, the defendant must demonstrate
the reasonable likelihood of succeeding under the tenets
set forth in Strickland and Fritz. Id. at 463. Bald
assertions of counsel’s ineffectiveness will not suffice.
State v. Cummings, 321 N.J. Super. at 170.
In State v. Moore, the Appellate Division rejected
defendant’s proffer of an expert on appellate procedure
where defendant claimed ineffective assistance of
appellate counsel. 273 N.J. Super. at 127-128. The
proffered testimony simply was not helpful. Id. The
preferable tactic would have been to offer appellate
counsel whose judgment was being attacked. Id. at 127.
An evidentiary hearing also is warranted when there
are material issues of disputed facts which cannot be
resolved by reference to the existing record. State v. Russo,
333 N.J. Super. 119, 140-141 (App. Div. 2000). State
v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif.
denied, 158 N.J. 72 (1998). Compare State v. Moore, 273
N.J. Super. at 127 (no hearing required when defendant’s
claim determined by reference to trial record).Generally, the trial court should ascertain whether
the defendant would be entitled to post-conviction relief
if the facts are viewed in the light most favorable to
defendant. State v. Marshall (III), 148 N.J. at 158.
However, an evidentiary is not to be used to permit
defendant to investigate whether the State has failed to
deliver discoverable materials to defendant. Id. An
evidentiary hearing is not to be used as a fishing
expedition to search for potential claims. Id. at 158, 167.The PCR rules do not expressly authorize discovery,
but the trial court has the inherent authority to order it
if justice requires. Id. at 269. But, any order for discovery
on PCR should be narrow and limited. Id. at 270. Thus,
a defendant is not entitled to access to the State’s entire
file. Id.The trial court has the discretion to order defendant’s
presence at any PCR hearing. R. 3:22-10. Defendant is
entitled to be present when oral testimony is adduced on
a material issue of fact within the defendant’s personal
knowledge. Id.VI. RETROACTIVITY ON COLLATERAL
REVIEW
Post-conviction relief is not a device to give
retroactive effect to rules and statutes that have no
constitutional underpinning. State v. Staruch, 326 N.J.
Super. 245, 250 (App. Div. 1999). But, decisions that
implicate constitutional rights may or may not be
retroactively applied on post-conviction review. For a
sample of cases that dealt with issues regarding
retroactivity on post-conviction review, see State v.
Purnell, 161 N.J. 44 (1999); State v. Burgess, 154 N.J. at
184-185; State v. Lark, 117 N.J. 331 (1989); State v.
Cupe, 289 N.J. Super. at 9-14.