STATE OF NEW JERSEY VS. LINWOOD COLA PARKER (94-04-0885, CAMDEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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.
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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
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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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