Johnson v. Pinchak

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Precedential or Non-Precedential: Precedential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

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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

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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