                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-22-2004

Johnson v. Pinchak
Precedential or Non-Precedential: Precedential

Docket No. 04-1307




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                                                  PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                             No. 04-1307


                       GEORGE JOHNSON

                                 v.

STEVEN PINCHAK; ATTORNEY GENERAL OF THE STATE OF
                   NEW JERSEY,

                             Appellants



          On Appeal from the United States District Court
                    for the District of New Jersey
                       (D.C. No. 99-cv-00685)
          District Judge: Honorable Katharine S. Hayden



                    Argued November 1, 2004
     Before: ALITO, FUENTES, and BECKER, Circuit Judges.

                   (Filed:   December 22, 2004)

JEAN D. BARRETT (Argued)
Ruhnke & Barrett
47 Park Street
Montclair, New Jersey 07042
       Attorney for Appellee

PAUL H. HEINZEL (Argued)
Office of Attorney General of New Jersey
Division of Criminal Justice
Richard J. Hughes Justice Complex
Trenton, New Jersey 08625-0086
   Attorney for Appellant
                                  _____

                      OPINION OF THE COURT



BECKER, Circuit Judge.
         When petitioner, George Johnson, pled guilty to felony murder
under the misapprehension that he was eligible for the death penalty
for that crime, felony murder in New Jersey was not in fact a capital
offense. However, after receiving a sentence of life imprisonment
with thirty years parole ineligibility and after exhausting his state
remedies, Johnson sought federal habeas corpus relief alleging
ineffective assistance of counsel and involuntariness of his guilty plea.
The District Court ultimately granted relief on grounds that the state
court’s mistake about Johnson’s death eligibility for felony murder
was structural error, and thus, per se reversible.
         The threshold question on this appeal is whether Johnson’s
claim is procedurally defaulted. Johnson did not raise the death
penalty eligibility claim in his direct appeal to the New Jersey
Superior Court, Appellate Division, nor did he address it in his first
Post Conviction Relief (PCR) petition to the New Jersey courts. He
first raised the claim in his petition for certification to the New Jersey
Supreme Court; however, this petition was summarily denied. Over a
year later, Johnson raised the death penalty eligibility claim in a
second PCR petition, but that petition was filed more than five years
after his sentence was handed down, and thus was time-barred under
New Jersey Rule of Court 3:22-12. Rather than barring Johnson’s
claim on procedural grounds, however, the District Court invoked the
“actual innocence” exception to the procedural default rules, which
allows consideration of the merits of a claim, notwithstanding
procedural default, to avoid a miscarriage of justice.
         We conclude that, in so doing, the District Court misconstrued
the scope of the actual innocence exception by applying it where the
petitioner wrongly was led to believe he was death eligible, but where
the death penalty was not actually imposed. Rather, we hold that the
touchstone of the actual innocence inquiry is innocence of the
sentence actually imposed, not innocence of a sentence for which the
petitioner was merely eligible. We also conclude that Johnson’s
death-eligibility claim was procedurally defaulted because of his
failure to bring the claim before the New Jersey state courts in
accordance with their procedural rules. Supporting the procedural
default conclusion are the facts that: (1) the New Jersey courts


                                    2
considering Johnson’s application clearly relied on such procedural
default as a separate and independent basis for their denial of relief,
and (2) the five-year time bar under N.J.R. 3:22-12 is an adequate
state ground, as it is strictly and consistently enforced in all but the
most exceptional cases.
         Accordingly, we will reverse the order of the District Court
and remand with directions to dismiss Johnson’s habeas petition as
procedurally defaulted.
              I. FACTS AND PROCEDURAL HISTORY
         In 1983, Johnson pled guilty to felony murder for the
smothering death of a 76-year old man during the course of a robbery.
The relevant facts of the crime are not in dispute. Johnson and his co-
conspirator Mary Susan Karnish, entered Gerald Clayton’s hotel room
at the Poughkeepsie Hotel in Asbury Park, New Jersey, with the intent
to steal his wallet. As Clayton slept, they searched the room, but
initially found nothing and left. Shortly thereafter, Johnson and
Karnish returned to Clayton’s room to search under the bed. Clayton
awoke and screamed. Johnson then grabbed a pillow and placed it
over Clayton’s face, holding it there until Clayton suffocated to death.
Johnson then saw the wallet on the bed, took it, and fled.
         The next day, Karnish gave a statement to the police, detailing
her involvement in the crime and naming Johnson as an accomplice.
Later that day, Johnson gave a confession to the authorities in which
he admitted suffocating Clayton. In May 1983, the grand jury charged
Johnson with five crimes: murder in the first degree for purposely or
knowingly causing the death of or serious bodily injury resulting in
death of Gerald Clayton; felony murder; robbery; conspiracy; and
burglary. JA 15-18. Pursuant to a plea agreement, the state agreed to
dismiss the first degree murder charge in exchange for a guilty plea to
felony murder. Johnson entered a guilty plea to the second count of
the indictment for felony murder.
         This case hinges around a mistake, made during the course of
the plea negotiations and at the plea and sentencing hearing, by the
New Jersey trial court, Johnson’s defense counsel, and the
prosecution, all of whom erroneously believed that felony murder
could be a capital offense under New Jersey law. New Jersey had
only reinstated the death penalty one year before Johnson entered his
guilty plea, N.J. Stat. Ann. § 2C:11-3C, effective August 6, 1982, and
confusion about the applicability of the death penalty apparently
abounded in New Jersey courts. Johnson pled to felony murder, with
the understanding that the prosecution would not in fact seek the death
penalty, and that to this end, it would stipulate to several mitigating
factors and only one aggravating factor at sentencing. At the


                                   3
sentencing hearing, on August 19, 1983, the trial court did consider
the death penalty as a possibility for felony murder. Nevertheless, the
court did not sentence Johnson to death, but rather, based on a balance
of the mitigating and aggravating factors, sentenced him to life in
prison with thirty years parole ineligibility.
         Johnson pursued a timely direct appeal which challenged the
voluntariness of his plea and the effectiveness of trial counsel, but
which did not raise the claim that he was misinformed about his death
eligibility. Instead, he contended that his trial counsel did not inform
him of the thirty-year parole ineligibility. On November 29, 1984, the
New Jersey Superior Court Appellate Division affirmed Johnson’s
conviction and sentence. He did not seek discretionary review by the
New Jersey Supreme Court.
         In 1987, Johnson filed a pro se petition for post conviction
relief (PCR), which raised issues of the effectiveness of counsel and
the voluntariness of his plea, and asserted that the sentencing
proceedings were improperly conducted. This (first) PCR petition
also failed to raise the death-eligibility mistake as a basis for relief.
The petition was denied by the trial court and the Appellate Division
affirmed. Johnson then sought certification from the New Jersey
Supreme Court, where for the first time, he claimed that it had been
error for the trial court to accept his plea because he had been
misinformed about his death penalty eligibility for the felony murder
count. The New Jersey Supreme Court denied certification in
September 1989.
         Johnson then filed a pro se petition for a writ of habeas corpus
in the United States District Court for the District of New Jersey,
which was dismissed without prejudice in February 1991 because it
was a “mixed” petition, containing both exhausted and unexhausted
claims. Returning to state court, Johnson filed a second PCR
application in August 1991, in which he explicitly raised the death-
eligibility issue as well as the unexhausted issue that he was suffering
from Post Traumatic Stress Disorder at the time of the crime and his
plea. The trial court denied his petition as untimely under Rule 3:22-
12, which requires a PCR petition challenging a sentence to be filed
within five years after the sentence is imposed. In June 1994, the
Appellate Division affirmed and the New Jersey Supreme Court
denied certification.1
         Johnson, still proceeding pro se, then sought federal review of


       1 In July 1995, Johnson filed a third PCR application, pro se,
arguing other defects in the sentencing and plea procedure, which were
also denied.

                                   4
his state court conviction pursuant to 28 U.S.C. § 2254, reviving his
argument that his plea was not entered knowingly and intelligently
because he was operating under the mistaken impression that he could
have received the death penalty for felony murder. The District Court
found that Johnson had procedurally defaulted this claim by failing to
bring it before the New Jersey courts in a timely fashion.
Nevertheless, the court excused the procedural default on the grounds
that Johnson was “actually innocent” of the death penalty and that his
conviction would constitute a fundamental miscarriage of justice.
Even though Johnson was not actually sentenced to death, the District
Court determined that the actual innocence inquiry focuses on
eligibility for the death penalty, rather than imposition of a death
sentence.
         Following the determination that Johnson can proceed on the
merits of his claim under the actual innocence exception, the court
went on to determine that the misinformation provided to Johnson
constituted a “structural error” requiring an automatic reversal or
vacatur, as such errors are not subject to harmless error analysis. On
this basis, the District Court entered an order granting Johnson’s
application for a writ of habeas corpus.
         The State filed this appeal, arguing that Johnson had
procedurally defaulted on the death-eligibility claim and that the
District Court erred in invoking the “actual innocence” exception to
excuse the procedural default. The State also contends that the
District Court erred in holding that the misinformation about death
eligibility constituted a “structural error” requiring automatic reversal.
Instead, the State submits that this type of error should be subjected to
harmless error analysis, and that the error was indeed harmless
because the evidence shows Johnson would have accepted the plea
even if he had been properly informed about his eligibility for the
death penalty.
         Before the District Court can entertain a federal habeas
petition, it is well established that a petitioner must first exhaust his
federal claims in state court. 28 U.S.C. § 2254(b), (c); Rose v. Lundy,
455 U.S. 509, 510 (1982). Exhaustion requires that petitioner present
in substance the same claim he is now seeking to have the federal
courts review. Vasquez v. Hillery, 474 U.S. 254, 257 (1986). Even if
a state court fails to rule on the merits of a claim, a properly presented
claim will be considered exhausted. See Swanger v. Zimmerman, 750
F.2d 291, 295 (3d Cir. 1984).
         Notwithstanding the fact that the New Jersey trial court
refused to hear Johnson’s death-eligibility claim on procedural
grounds, the exhaustion requirement was satisfied in this case, as


                                    5
Johnson clearly presented the claim to the New Jersey courts in his
second PCR petition, and the denial of relief was affirmed by the New
Jersey Appellate Division and New Jersey Supreme Court.
                      II. PROCEDURAL DEFAULT
         Where a state court refuses to consider a petitioner’s claims
because of a violation of state procedural rules, a federal habeas court
is barred by the procedural default doctrine from considering the
claims, Harris v. Reed, 489 U.S. 255 (1989); Caswell v. Ryan, 953
F.2d 853, 857 (3d Cir. 1992), unless the habeas petitioner can show
“cause” for the default and “prejudice” attributable thereto.
Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Any procedural default,
however, must rest on “adequate and independent” state law grounds.
Harris, 489 U.S. at 262.
         The District Court concluded that the New Jersey courts had
refused to consider Johnson’s claim because his petition was time-
barred under N.J.R. 3:22-12, that Johnson procedurally defaulted his
death-eligibility claim and did not demonstrate “cause and prejudice.”
In a federal habeas proceeding, “review of the district court’s legal
conclusions is plenary and factual findings in dispute are reviewed
under the clearly erroneous standard.” Bond v. Fulcomer, 864 F.2d
306, 309 (3d Cir. 1989).
                  A. The “Independence” Requirement
         A state procedural ground will not bar federal habeas relief if
the state law ground is so “interwoven with federal law” that it can not
be said to be independent of the merits of a petitioner’s federal claims.
Coleman, 501 U.S. at 740. Relatedly, “[i]f the last state court to be
presented with a particular federal claim reaches the merits, it
removes any bar to federal-court review that might otherwise have
been available.” Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991). The
threshold question, therefore, is whether the New Jersey courts, in
denying Johnson’s death-eligibility claim, relied independently on a
violation of state procedure or based their decision on the merits of
the claim.
         In Harris v. Reed, supra, the Supreme Court established a
“plain statement” rule that there would be no procedural default, for
purposes of federal habeas review, unless “the last state court
rendering judgment in the case ‘clearly and expressly’ states that its
judgment rests on a state procedural bar.” 489 U.S. at 263. Harris’s
plain statement rule was subsequently narrowed by Coleman v.
Thompson, 501 U.S. 722 , 735 (1991), which established that the first
step is to determine whether the decision of the last state court to
which the petitioner presented his federal claims “fairly appears to rest
primarily on federal law, or to be interwoven with the federal law.”


                                   6
See also Caswell, 953 F.2d at 859-60. Only then, if there is such a
reliance on federal law, do we look at whether the state court clearly
and expressly based its ruling on a state procedural ground. Id.
         The last state court to render judgment in this case, the New
Jersey Supreme Court, denied certification on Johnson’s petition. The
U.S. Supreme Court addressed such a situation in Ylst v. Nunnemaker,
supra, 501 U.S. 797, holding that when the last state court decision
simply affirms summarily the lower court’s denial of relief, a federal
court should look to the “last explained state-court judgment on the . .
. claim” to determine whether it “fairly appears to rest primarily on
federal law” or instead relies upon a state procedural bar to deny
relief. Id. at 802, 805 (emphasis in original). Therefore, “[W]here . .
. the last reasoned opinion on the claim explicitly imposes a
procedural default, we will presume that a later decision rejecting the
claim did not silently disregard that bar and consider the merits.” Id.
at 803.
         The New Jersey courts, while addressing the merits of the case
as alternative holdings, clearly rested on state procedural grounds as a
separate and independent basis for their decision to deny Johnson’s
death-eligibility claim. The Appellate Division, which is the highest
state court to write an opinion on the case, itself relied on the trial
court’s reasoning, affirming “essentially for the reasons expressed in
the oral opinion of [the trial court judge].” The Appellate Division
found that the trial judge barred the review of sentence under N.J.R.
3:22-12 because the petition was filed beyond the rule’s five-year time
limit, but that the trial judge, in the event that the petition was not
time barred, also rejected certain claims on the merits. JA 487. The
Appellate Division’s only comment on the merits was, “However,
assuming the petition was not time barred, the [trial] court found no
evidence defendant had made a motion to dismiss counsel nor that
defendant had suffered from mental disease; the claim of ineffective
assistance of counsel was found to be without merit.” JA 487.
         In Johnson’s second PCR petition, the trial court expressly
cited N.J.R. 3:22-12, which requires a petition to be filed within five
years after the sentence unless the delay was due to excusable neglect,
and found that there were not “any facts alleged that would constitute
excusable neglect.” JA 654. Similarly, the trial court found that “the
challenge” could have been made on the defendant’s many appeals
and prior applications for post-conviction relief. JA 654. Although
“the challenge” does not refer to any one specific claim, it appears that




                                   7
the trial court was referring to all the claims in the petition.2
         The fact that both the New Jersey trial court and Appellate
Division made reference to the merits of the case as an alternative
holding does not prevent us from finding procedural default. In
Harris v. Reed, the U.S. Supreme Court noted that
           a state court need not fear reaching the merits of a
           federal claim in an alternative holding. By its very
           definition, the adequate and independent state ground
           doctrine requires the federal court to honor a state
           holding that is a sufficient basis for the state court’s
           judgment, even when the state court also relies on
           federal law. Thus, by applying this doctrine to habeas
           cases, Sykes curtails reconsideration of the federal issue
           on federal habeas as long as the state court explicitly
           invokes a state procedural bar rule as a separate basis
           for decision. In this way, a state court may reach a
           federal question without sacrificing its interests in
           finality, federalism, and comity.

489 U.S. at 264 n.10 (citations omitted, emphasis in original); see also
Cabrera v. Barbo, 175 F.3d 307, 314 (3d Cir. 1999) (holding that the
fact that Appellate Division also addressed the lack of merit in the
ineffective assistance of counsel claim “does not undermine our
conclusion that the state courts rejected Cabrera’s claim on an
independent and adequate state basis, as the comment at most was an
alternative holding”).
        In this case, both the Appellate Division and the trial court
explicitly invoked the procedural bar under N.J.R. 3:22-12, which was
an independent basis for the Appellate Division to deny Johnson
relief.
                   B. Adequacy of the Procedural Bar


         2 The trial court went on to briefly address some of the claims
on their merits. On the claim that it was error to allow Johnson to plead
without investigating his motion to dismiss, the trial court considered
that “if for some reason the matter is not time barred and someone finds
excusable neglect” then the defendant would fail because of a lack of
evidence. For the mental illness claim, the trial court also found a lack
of evidence that he suffered from mental illness. Finally, the court
rejected the ineffective assistance claim by applying the Strickland test.
JA 655. The trial court did not address the death-eligibility claim on the
merits.


                                    8
       Johnson also challenges the adequacy of the procedural bar
under N.J.R. 3:22-12.
          A state rule provides an independent and adequate
          basis for precluding federal review of a state
          prisoner’s habeas claims only if: (1) the state
          procedural rule speaks in unmistakable terms; (2) all
          state appellate courts refused to review the
          petitioner’s claims on the merits; and (3) the state
          courts’ refusal in this instance is consistent with
          other decisions.

Doctor v. Walters, 96 F.3d 675, 683-84 (3d Cir. 1996). Thus, a state
rule can be rendered inadequate if the rule is not “strictly or regularly
followed.” Hathorn v. Lovorn, 457 U.S. 255, 263 (1982) (“State
courts may not avoid deciding federal issues by invoking procedural
rules that they do not apply evenhandedly to all similar claims.”).
Nevertheless, neither “an occasional act of grace by a state court in
excusing or disregarding a state procedural rule” nor a “willingness in
a few cases to overlook the rule and address a claim on the merits”
renders a state procedural rule inadequate. Banks v. Horn, 126 F.3d
206, 211 (3d Cir. 1997).
        The procedural rule, in this case N.J.R. 3:22-12, speaks in
unmistakable terms requiring any challenge to a sentence to be filed
within five years of the sentencing proceeding. Moreover, as we
discussed above, see Part II.A, supra, the state appellate courts found
that this rule procedurally barred Johnson’s death-eligibility claim,
and thus discussed the merits of the case only as an alternative
holding. Instead, Johnson challenges the adequacy of the state court
rulings by arguing that the state courts’ refusal to hear his claim is not
consistent with other New Jersey decisions and that N.J.R. 3:22-12 is
not “strictly or regularly followed.”
        As it will appear, New Jersey state law ultimately resolves the
adequacy issue against Johnson, and it arguably might be enough
simply to rely on the state court’s holding. However, in view of the
vigor with which Johnson advanced the argument that the New Jersey
procedural bar constitutes inadequate state law grounds, it seems
prudent to address this claim, hence we do so.
   1. The Putative Exception to the Time Limit as a Procedural Bar
        Johnson claims that he did not actually violate a state
procedural rule because his case falls into a “well-recognized
exception” to the five-year time limit. Citing a New Jersey Supreme
Court decision, State v. Milne, 842 A.2d 140, 144 (N.J. 2004),
Johnson contends that when a new case is announced, which provides


                                    9
relief not previously available to the defendant, the New Jersey courts
permit the five-year time limitation to run from the date of that “new”
decision. Johnson points to State v. Kiett, 582 A.2d 630 (N.J. 1990),
which he says opened such a new avenue of relief by holding that “a
defendant who entered a guilty plea to avoid imposition of the death
penalty, but who cannot be put to death as a matter of law, labors
under the kind of mistake that entitles him or her to withdraw the
plea.” Id. at 633.
         Johnson’s arguments are unavailing on several counts. First,
New Jersey precedent does not support his claim that there is an
automatic “new law” exception to the five-year time limit. While
State v. Milne reasoned that new law can, in certain “compelling”
circumstances, reset the five-year clock, 842 A.2d at 144, Milne
considered the “extent and cause of the delay, the prejudice to the
State, and the importance of petitioner’s claim in determining whether
there has been an injustice sufficient to relax the time limits” before
allowing any exception to the time bar. Id. at 143-44 (internal
quotation marks omitted). Thus, the “new law” exception is by no
means automatic, but rather requires a balancing of interests. In
Milne, the defendant tried to raise his claim more than five years after
the “new law” had been handed down. Although that was the primary
rationale for the New Jersey Supreme court’s rejection of petitioner’s
claim in that case, the court also expressed strong reservations about
the prospect of reviewing a sixteen-year old conviction as it would
entail substantial prejudice to the State and cause “difficulties and
hardships to the system.” Id. at 144. In Johnson’s case the guilty plea
and conviction are twenty-one years old, and certainly the State’s
ability to put on a trial at this late date would be seriously
handicapped.
         Second, it is not clear that Kiett should be considered new
grounds for relief, as there were several earlier cases which are
congruent with Kiett’s holding. See State v. Nichols, 365 A.2d 467
(N.J. 1976) (permitting defendant to withdraw guilty plea where he
was misinformed about whether he could receive consecutive
sentences for his involvement in an armed robbery if he went to trial);
State v. Kovack, 453 A.2d 521, 524 (N.J. 1982) (finding that a plea
was not entered knowingly where the defendant was not informed of
his parole ineligibility). While no prior New Jersey case specifically
dealt with a mistake about death eligibility, these earlier cases
afforded relief to petitioners who labored under mistakes about their
eligibility for less grave sentences, so it would seem logical that such
relief would a fortiori have been available to petitioners who were



                                  10
mistaken about eligibility for the death penalty.3
         At all events, the argument that Kiett opened a new avenue of
relief is contradicted by the history of this case, for it is clear that
Johnson was put on notice of the viability of his death-eligibility
claim well before Kiett. The Appellate Division decision on direct
appeal, in Johnson’s own case, handed down in 1984, should have put
Johnson on notice that the death-eligibility claim could have provided
additional grounds for appeal. The Appellate Division specifically
commented that it had not been called upon to determine whether
misinformation about death eligibility prejudicially impacted the
defendant’s decision to plead guilty, implying that this omission was a
mistake by Johnson’s counsel.
         Although he did not raise it in his first PCR petition to the trial
court, Johnson included the death-eligibility claim in his petition for
certification to the New Jersey Supreme Court, filed in 1989–one year
before Kiett. In that petition, Johnson cited Nichols, supra, 365 A.2d
467, to support the proposition that the misinformation about his
death eligibility rendered his plea involuntary and “conceded that this
issue could have (and should have) been raised on direct appeal.”
Johnson did not file his second PCR petition, raising the instant claim,
until over a year after offering this admission in his petition to the
New Jersey Supreme Court.
          The fact that he was on notice that he could raise this claim as
an avenue of relief, and failed to do so, seems to exclude Johnson’s
petition from the set of “compelling” cases that Milne contemplates
for leniency.
                2. Adequacy of the State Procedural Rule
         In the same vein, Johnson claims that the state grounds were
inadequate because New Jersey courts do not strictly or regularly
enforce N.J.R. 3:22-12’s five-year time bar. He points to liberal
language in the New Jersey Supreme Court opinions in Milne, supra,
and State v. Preciose, 609 A.2d 1280 (1992).4 Milne noted that the


         3 It should be noted that even if Kiett could be considered “new”
grounds for relief, it is not clear that the New Jersey courts would give
it retroactive effect. See State v. Afanador, 697 A.2d 529, 536-38 (N.J.
1997) (explaining the retroactivity analysis for “new law” in New Jersey
as a series of three factors but generally resting on the court’s discretion).

        4 Johnson’s counsel also claimed, at oral argument, that there
are thousands of unpublished New Jersey state court decisions, many of
which take a permissive approach to the five-year time bar. We find that
undocumented assertion unhelpful, and confine our analysis to

                                     11
“five-year time limit is not absolute” and that a “court may relax the
time bar if the defendant alleges facts demonstrating that the delay
was due to the defendant’s excusable neglect or if the ‘interests of
justice’ demand it.” 842 A.2d at 143. Nevertheless, Milne cautioned
that “[a]bsent compelling, extenuating circumstances, the burden to
justify filing a petition after the five-year period will increase with the
extent of the delay.” Id. at 144.
         In Preciose, the New Jersey Supreme Court engaged in an
exegesis of the federal law of procedural default in its attempt to
decide whether state lower courts should make express rulings on
state procedural grounds in order to foreclose potential avenues of
federal habeas relief. 609 A.2d at 1292. Announcing a relatively
pliable view of state procedural rules, in Preciose, the court declined
to read at least one procedural rule narrowly, and concluded that New
Jersey’s system of post-conviction relief is broader than federal
habeas review. Id. at 1294. In so doing, the court noted that “when
meritorious issues are raised that require analysis and explanation, our
traditions of comprehensive justice will best be served by decisions
that reflect thoughtful and thorough consideration and disposition of
substantive contentions.” Id.
          Notwithstanding these pronouncements of relative flexibility,
a review of New Jersey case law, set forth infra, reveals that the New
Jersey courts have generally applied the time bar set forth in N.J.R.
3:22-12 so that this rule can fairly be said to have been firmly
established and regularly followed. See Banks v. Horn, 126 F.3d 206,
211 (3d Cir. 1997) (“[I]f a state supreme court faithfully has applied a
procedural rule in ‘the vast majority’ of cases, its willingness in a few
cases to overlook the rule and address a claim on the merits does not
mean that it does not apply the procedural rule regularly or
consistently.”). Therefore, the mere fact that Preciose and Milne
expressed the potential for greater leniency than federal habeas law
does not mean that the five-year time limit is not adequate grounds for
procedural default. Indeed, Milne itself refused to relax the time bar
where the defendant failed to file his petition within five years of a
case announcing a new rule of law and had no excuse for his neglect.
842 A.2d at 144-46. The Milne court further admonished the
defendant for waiting more than a year after the District Court’s
decision on his federal habeas claim to file his second PCR petition
and noted that if he had acted more promptly, he could have remained
within the five-year window of the “new law.” Id.
         Somewhat analogously, in this case, Johnson’s petition for


documented material.

                                    12
certification for his first PCR petition raised the death-eligibility
claim. Although this certification was denied, Johnson waited more
than a year to file his second PCR petition and to again raise the
death-eligibility claim. While Johnson would not have been within the
five-year time bar even if he had filed his second PCR petition more
expeditiously, such delay does not exhibit exceptional diligence.
Therefore, Milne’s application of the procedural bar, rather than its
rhetoric, seems the appropriate rule in this case.
          The State has provided a list of the many cases in which the
New Jersey courts have enforced the time bar. We too have conducted
a review of New Jersey Supreme Court precedents and have found
few cases that have actually relaxed N.J.R. 3:22-12’s five-year time
bar. To this end, the New Jersey Supreme Court has repeatedly
emphasized that the time bar should be relaxed only in “exceptional,”
“compelling,” or “extenuating” circumstances. See, e.g., State v.
Goodwin, 803 A.2d 102, 108 (N.J. 2002) (“The time bar [under 3:22-
12] should be relaxed only under exceptional circumstances . . . We
consistently have recognized the importance of adhering to this
procedural bar.”); State v. Marshall, 801 A.2d 1142, 1150 (N.J. 2002)
(finding no basis for excusable neglect and barring the PCR petition
under Rule 3:22-12); State v. Murray, 744 A.2d 131 (N.J. 2000)
(recognizing two exceptions to the five-year limit, an illegal sentence
and excusable neglect, finding defendant satisfied neither); State v.
Afanador, 697 A.2d 529, 534 (N.J. 1997) (“[A] court should only
relax the bar of Rule 3:22-12 under exceptional circumstances. . . .
Absent compelling, extenuating circumstances, the burden to justify
filing a petition after the five-year period will increase with the extent
of the delay.”). From the unambiguous language of Rule 3:22-12 and
from the many prior cases that have consistently applied the time bar,
it is clear that this procedural rule was an independent and adequate
state ground establishing procedural default.
         Instead of looking to the overwhelming majority of cases
where the time bar has been consistently applied, Johnson points to
the few exceptional cases where the New Jersey Supreme Court was
willing to overlook the five-year time bar because of compelling
circumstances. See, e.g., Afanador, 697 A.2d at 534 (finding that the
petitioner had alleged exceptional circumstances where the defendant
was “caught in a Catch-22 situation” because for four years and seven
months he could not file a PCR petition while his direct review was
pending, and where defendant “did everything within his power to
preserve the issue” including attempting to raise it in a timely pro se
petition).
         In particular, Johnson and the District Court cite State v.


                                   13
McQuaid, 688 A.2d 584 (N.J. 1997), a case decided nearly six years
after Johnson filed his second PCR petition, as precedent for collateral
review of an error regarding death eligibility notwithstanding several
procedural defaults. McQuaid had been an accomplice in a robbery-
turned-murder. McQuaid too labored under the misapprehension that
he faced the death penalty, in that case, on count one of his
indictment---“murder by his own conduct”---and so pled guilty to
felony murder to avoid what he wrongly believed was a capital
charge. In fact, the court subsequently decided that “murder by his
own conduct” is not a capital offense unless the defendant was the
trigger-person, which McQuaid was not. Similar to this case,
McQuaid did not raise the claim of misinformation about death
eligibility until his second PCR petition, which was filed more than
five-years after his sentence.
         The New Jersey Supreme Court considered a range of reasons
McQuaid might face procedural bars to his PCR petition, including
Rule 3:22-12; however, because the misinformation was immaterial to
his plea decision, the court did not decide the procedural bar issue but
rather denied the petition on the merits. Id. at 600. Like Milne and
Preciose, McQuaid contains expansive language about the harshness
of strictly barring claims on procedural grounds. 688 A.2d at 600
(observing that “defendants should not pay the exacting price for state
procedural forfeitures that result from the ignorance or inadvertence
of their counsel”). Still, McQuaid does not stand for the proposition
that the New Jersey courts will simply forgive a procedural default;
rather, it demonstrates that in accord with Preciose, they are willing to
weigh procedural and substantive grounds, at times, in the alternative.
Indeed, in considering the merits the court particularly stressed the
significant prejudice to the State if it was to allow the defendant to
withdraw his guilty plea, a factor which would also cut against a
relaxation of the procedural bar under Milne’s balancing test. Id. at
601-02.5


        5 Indeed, it is worth noting that the factors that would allow a
defendant to withdrawal his plea on the merits are similar to those that
might excuse a procedural bar. A separate New Jersey procedural rule
requires a motion to withdraw a plea to be made before sentencing,
N.J.R. 3:21-1; however, after sentencing a court can permit withdrawal
to “correct a manifest injustice.” New Jersey courts, therefore, have
established a balancing test to determine whether a plea may be
withdrawn which is nearly identical to the test for relaxation of a
procedural bar set forth in Milne, 842 A.2d at 143-44 (considering the
“extent and cause of the delay, the prejudice to the State, and the

                                   14
        Notwithstanding McQuaid’s decision to deny the petition on
the merits in an analogous case, the New Jersey courts have reviewed
Johnson’s claim and have not found that his case fits into the
exceptional category of cases, but rather, have applied their normal
rule limiting the time to challenge a sentence to five-years. In light of
the foregoing discussion, this decision reflects an adequate state law
ground.
                         C. Cause and Prejudice
        A procedural default generally bars review of a federal habeas
corpus petition absent a showing of cause and prejudice. Wainwright
v. Sykes, supra, 433 U.S. 72; Moscato v. Federal Bureau of Prisons,
98 F.3d 757, 761 (3d Cir. 1996). “[T]he existence of cause for a
procedural default must ordinarily turn on whether the prisoner can
show that some objective factor external to the defense impeded
counsel’s efforts to comply with the State’s procedural rule.” Murray
v. Carrier, 477 U.S. 478, 488 (1986). Cause, therefore, can be
established by showing, for example, that the factual or legal basis for
a claim was not reasonably available to counsel or that government
interference made compliance with the procedural rule impracticable.
Id.; Hull v. Freeman, 991 F.2d 86, 91 (3d Cir. 1993). Attorney error
may constitute cause only where such error rises to the level of
ineffective assistance of counsel in violation of the Sixth Amendment.
Murray, 477 U.S. at 488-89. Nevertheless, “ineffective assistance of
post-conviction counsel cannot constitute ‘cause’ because the Sixth
Amendment does not entitle a defendant to post-conviction counsel,”
and thus, the petitioner bears the risk of attorney error in such
proceedings. Hull, 991 F.2d at 91; See also Coleman v. Thompson,
501 U.S. 722, 752-54 (1991).
        The District Court rightly determined that Johnson did not


importance of the petitioner’s claim in determining whether there has
been an injustice sufficient to relax the time limits” before allowing any
exception to the time bar). The test for withdrawal weighs the State’s
interest in the finality of judgments against the defendant’s interest in
entering a knowing and voluntary plea. See McQuaid, 688 A.2d at 596.
The defendant’s interest in withdrawal will depend on whether the
misinformation was material to his plea and whether he was prejudiced
as a result. Id. at 598. On the other side of the balance, the state’s
interest in finality will be greater when the state would be prejudiced in
its ability to re-try the defendant. Id. at 601. Thus, the finding in
McQuaid that the defendant’s claim was undeserving on the merits
would also inform a future court’s decision on whether it would be
appropriate to waive the procedural bar.

                                   15
establish cause for the procedural default of this claim. Johnson does
not now even argue that he had cause or suffered prejudice.
Moreover, none of the typical reasons for “cause” apply in this case.
There was no novel constitutional rule, nor was there a new factual
predicate. There was no hindrance by the state court in complying
with the procedural rule. Johnson cannot claim ineffective assistance
of counsel for his failure to raise the death-eligibility claim in his
post-conviction proceedings because he had no right to counsel to
pursue his appeal in state post-conviction relief; thus, attorney error at
that stage cannot constitute cause. Coleman, 501 U.S. at 752-54. In
short, Johnson’s failure to raise the death-eligibility claim in his first
PCR petition can not be excused by attorney error. Finally, Johnson
has “fail[ed] to allege the existence of an external impediment” and
therefore, cannot establish cause for his procedural default. Moscato,
98 F.3d at 762.
      III. ACTUAL INNOCENCE/MISCARRIAGE OF JUSTICE
         In addition to the cause and prejudice standard, a limited
exception to procedural default has been recognized where “failure to
consider the claims will result in a fundamental miscarriage of
justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). The
miscarriage of justice exception, however, applies only to the case
where the miscarriage is tied to the petitioner’s actual innocence.
Schlup v. Delo, 513 U.S. 298, 321-22 (1995). In those “rare” or
“extraordinary” cases, the “truly deserving” may receive relief by
allowing “the principles of comity and finality, which animate the
procedural default rule” to “yield to the imperative of correcting a
fundamentally unjust incarceration.” Schlup v. Delo, 513 U.S. at 319-
21.
         The “prototypical example” of the application of the “actual
innocence” exception is where a petitioner is innocent of all criminal
wrongdoing, such as where he claims that the government has
convicted the wrong person for the crime. See Sawyer v. Whitley, 505
U.S. 333, 340 (1992). Nevertheless, the Court has recognized that the
exception can be extended to cases where the defendant claims to be
“innocent of the death penalty.” Id. at 340-41. To qualify for this
exception, a petitioner “must show by clear and convincing evidence
that no reasonable juror would have found him eligible for the death
penalty in light of the new evidence. Calderon v. Thompson, 523 U.S.
538, 560 (1998) (internal quotations omitted).
         The District Court relied on this exception to excuse Johnson’s
procedural default and to permit a consideration of Johnson’s claim
on the merits. The court concluded that Johnson was actually
innocent of the death penalty and that the miscarriage of justice was


                                   16
that he was “wrongfully exposed to a pro forma capital sentencing
hearing,” even though he was actually sentenced to life imprisonment.
(emphasis added).
        There is no dispute that Johnson, at a minimum, is guilty of
felony murder. He does not deny suffocating the victim in the course
of a robbery. Rather, the District Court’s holding rests on the
assumption that he was “innocent” of a capital crime. This first
proposition is disputed and arguably incorrect. While Johnson pled
guilty to felony murder, a crime which was wrongly believed at the
time of sentencing to potentially carry a death sentence, he was also
charged with, and potentially was guilty of, capital murder. See State
v. Bey, 610 A.2d 814, 825 (N.J. 1992) (“Strangulation is commonly
understood as a form of violence designed and likely to kill a victim,
and hence would ordinarily not be used by one whose purpose was
only to inflict serious bodily injury.”).
        As a result, even if exposure to the death penalty could trigger
the actual innocence exception, Johnson still would not likely be
entitled to relief because “In cases where the Government has forgone
more serious charges in the course of plea bargaining, petitioner’s
showing of actual innocence must also extend to those charges.”
Bousley v. United States, 523 U.S. 614, 624 (1998). Under this case
law, Johnson would need to demonstrate not only that he was
ineligible for the death penalty for felony murder, but also that he was
innocent of the capital murder charge, which the prosecution
dismissed in exchange for his guilty plea to felony murder. Under the
facts of Johnson’s confession, it is far from clear that he could
establish actual innocence of the capital murder charge.
        But even if Johnson could not have received the death
sentence for any charge, the key factor is that Johnson was not
sentenced to death and is indubitably guilty of the sentence he actually
received for felony murder---life imprisonment. Even though the state
trial court wrongly considered the death penalty at sentencing, it did
not impose the death penalty. While Johnson may have been
prejudiced in his decision to accept the plea because he believed he
faced a looming, but ultimately improper, death penalty, this fact does
not make him actually innocent of felony murder.
        We hold that the District Court erred in concluding that the
focus of the “actual innocence” standard is eligibility for the death
penalty and in holding that “the ultimate sentence is not dispositive of
whether the [actual innocence exception] applies. Instead, the critical
issue is whether there was wrongful exposure to the death penalty.”
Rather, the touchstone of the actual innocence inquiry is the sentence
actually imposed.


                                  17
        The District Court’s focus on death eligibility is without
precedential support. No case has been cited to us in which the courts
have used the actual innocence exception to overturn a conviction or
to allow a withdrawal of a plea based on innocence of sentence to
which the petitioner was merely exposed, rather than innocence of a
sentence actually imposed. To the contrary, each case that has applied
this exception has focused on the sentence which was received. See,
e.g., Sawyer, 505 U.S. 333 (“The issue . . . is the standard for
determining whether a petitioner . . . has shown he is ‘actually
innocent’ of the death penalty to which he has been sentenced.”
(emphasis added)); Cristin v. Brennan, 281 F.3d 404, 420-22 (3d Cir.
2002) (framing the inquiry as whether defendant was “actually
innocent of his sentence” and questioning whether the exception even
applies in cases where a defendant was not sentenced to death
(emphasis added)); Spence v. Superintendent, 219 F.3d 162, 172 (2d
Cir. 2000) (applying the actual innocence exception where the
petitioner “is actually innocent of the conduct on which his sentence is
based”(emphasis added)); Smith v. Collins, 977 F.2d 951, 959 (5th
Cir. 1992) (“[F]or a defendant to demonstrate actual innocence of the
sentence imposed he would have to show that but for the
constitutional error he would not have been legally eligible for the
sentence he received.” (emphasis added)); Mills v. Jordan, 979 F.2d
1273, 1279 (7th Cir. 1992) (“The question in Sawyer was not whether
the petitioner was innocent of the murder for which he was convicted,
but rather whether he was innocent of the aggravating factors upon
which his death sentence was based.”(emphasis added)).
        The Supreme Court, in establishing the actual innocence
exception, spoke of being actually innocent of the death penalty,
see Smith v. Murray, 477 U.S. 527, 537 (1986), rather than some
general unfairness in the sentencing process. Thus, it is not enough
for the petitioner to argue that his sentence might have been different
but for the constitutional error; rather he must establish that he was in
fact ineligible for the sentence imposed. Murray v. Carrier, 477 U.S.
478, 496 (1986). The Supreme Court has also rejected the application
of the actual innocence exception to cases alleging improper
discretion or unfairness in sentencing, choosing instead to focus on
factual innocence of the elements that permitted the imposition of the
death penalty under state law. See Dugger v. Adams, 489 U.S. 401,
410 (1989).
        In each of these cases, the Supreme Court’s reasoning rests on
the assumption that the petitioner faced the death penalty, and that it
was the potential for an improper imposition of that grave sentence,
rather than some general irregularity in the sentencing process that


                                   18
could justify excusing the procedural bar to avoid a true miscarriage
of justice. It is in this context that the Court has repeatedly
emphasized that the actual innocence inquiry means “actual
innocence, not mere legal insufficiency.” See Bousley, 523 U.S. at
623-24; Sawyer v. Whitley, 505 U.S. at 339.
         Given the narrow scope of the exception, we decline to follow
the District Court’s reasoning and consider whether the defendant was
innocent of a sentence which was not actually imposed. If mere
exposure were sufficient to trigger the miscarriage of justice
exception, every defendant would have a habeas claim if the judge or
prosecution considers a sentence of which the defendant might be
“innocent,” and every defendant who pled guilty to ensure life
imprisonment but was threatened with the death penalty at sentencing,
might claim that he was wrongly exposed to the death penalty because
for some reason he was death ineligible. The result of applying the
District Court’s exposure rationale would surely run afoul of the
Supreme Court’s admonition that this exception is to be applied only
in the “extraordinary case” and that it is “narrow” in scope. Schlup v.
Delo, 513 U.S. at 321; see also Dugger, 489 U.S. at 410 n.6
(“Demonstrating that an error is by its nature the kind of error that
might have affected the accuracy of a death sentence is far from
demonstrating that an individual defendant probably is ‘actually
innocent’ of the sentence he or she received. Th[is] approach . . .
would turn the case in which an error results in a fundamental
miscarriage of justice, the ‘extraordinary case,’ into an all too ordinary
one.”).
         Additionally, in cases where the death sentence was not
actually imposed, the individual interest of avoiding injustice, cited in
Schlup, 513 U.S. at 324-25, as an important factor in allowing this
limited exception to the procedural default rules, is considerably less
compelling than in cases where an individual faces imminent
execution. Given our past precedents and the extraordinary nature of
the actual innocence exception, we hold that the District Court erred
in applying the actual innocence exception based on improper death
eligibility rather than focusing on the sentence actually imposed.6


        6 Because we rest on procedural default grounds, we do not
decide the question of structural error. In determining whether an error
is structural in nature:
          The Supreme Court has distinguished between two
          types of constitutional error that occur at both trial and
          sentencing: ‘trial errors,’ which are subject to
          constitutional harmless error analysis, and ‘structural

                                   19
                        IV. CONCLUSION
       For the foregoing reasons, we will reverse the District Court
order of January 21, 2004 and remand with directions to dismiss
Johnson’s habeas petition.




         defects,’ which require automatic reversal or vacatur.
         See Arizona v. Fulminante, 499 U.S. 279, 309 (1991);
         United States v. Pavelko, 992 F.2d 32, 35 (3d
         Cir.1993). Structural defects ‘defy analysis by
         harmless error standards,’ Fulminante, 499 U.S. at 309,
         because they ‘infect the entire trial process,’ Brecht v.
         Abrahamson, 507 U.S. 619, 630 (1993).

U.S. v. Stevens, 223 F.3d 239, 244 (3d Cir. 2000).
        We note that there is significant prior precedent for requiring
harmless error analysis in the plea bargaining context. See, e.g., United
States v. Dixon, 308 F.3d 229 (3d Cir. 2002) (applying harmless error
analysis where petitioner was misinformed about his maximum possible
sentence); United States v. Ebel, 299 F.3d 187, 191 (3d Cir. 2002)
(“inherently coercive” involvement of a judge in a plea negotiation did
not require automatic reversal); United States v. Westcott, 159 F.3d 107,
112-14 (2d Cir. 1998) (requiring demonstration that misinformation
about his maximum possible sentence was material to petitioner’s guilty
plea). Moreover, the recent Supreme Court decision in United States v.
Dominguez-Benitez, No. 03-167 2004 WL 1300161 (U.S. June 14,
2004), casts serious doubt on the District Court’s holding that
misinformation about maximum sentences in the plea bargaining process
constitutes a structural error. In Dominguez-Benitez, the Court held that
it was not structural error for the District Court to fail to warn the
defendant that he would not be allowed to withdraw his plea if the court
rejected the government’s sentencing recommendation as required by
Fed. R. Crim. P. 11. Id. at *5.

                                   20
