State v. Marvin Mathis, unpublished opinion, App. Div. Docket No. A-3695-07T4 (October 12, 2010) – Denial of PCR reversed, case remanded for new hearing.
“We agree with defendant and assigned counsel that PCR counsel rendered ineffective assistance when he failed to prepare a brief on behalf of defendant, or, at a minimum, failed to certify that after reviewing the pro se petition and brief he was satisfied that no further argument or elaboration was required…. Here, PCR counsel’s performance was deficient in two respects. First, counsel’s oral presentation did not satisfy the [applicable] standards … because counsel did not present all of defendant’s PCR claims, instead confining his remarks to the issue of competency to proceed. Even if counsel believed some of defendant’s arguments were meritless, counsel [was obligated], at a minimum, to either list defendant’s arguments, or incorporate them by reference, so that the judge would be able to consider the defendant’s additional arguments…. Counsel may not simply ignore the arguments he deems unconvincing…. Second, PCR counsel never certified to the court that he had thoroughly reviewed defendant’s memoranda and determined that ‘no further argument or elaboration [was] required.’ [Citation omitted]. From the record before us, we can have no confidence that defendant received the benefit of … independent review of his claims…. PCR counsel’s omissions constitute a structural defect in the proceedings, for which defendant need not demonstrate actual prejudice…. The remedy for counsel’s failure to conduct an independent investigation of the entire trial record is a remand for a new hearing.”