Post-conviction relief counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. The brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them. That procedure, which will serve to preserve defendant's contentions for federal exhaustion purposes, is all that is required.
Defendant was sentenced to a term of life with 30 years of parole ineligibility. His conviction was affirmed on appeal. In June 2002, defendant filed an amended PCR petition, arguing that he was denied effective assistance of counsel on direct appeal because appellate counsel failed to argue various issues. The court found that an assistant deputy public defender submitted a brief in support of defendant's PCR petition. The only argument included in that brief was that trial counsel was ineffective for failing to raise the defense of diminished capacity. A PCR hearing was held at which the diminished capacity issue was the only argument advanced. The trial judge denied the petition and defendant appealed. Defendant contended that the failure of his PCR counsel to brief and argue all of the claims advanced in his pro se petition warranted reversal. The court reversed the judgment of the appellate division and remanded the matter for a hearing for the trial judge to determine the issues advanced in defendant's pro se brief.
Did the failure of his PCR counsel to brief and argue all of the claims advanced in the pro se petition warrant reversal?
The court found that since the trial judge expressly stated that the diminished capacity issue was the sole issue before him, it was not clear that he had considered the other issues raised in defendant's pro se brief. The court set forth the procedure PCR counsel was required to follow under Rule 3:22-6(d).