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UNIT ED S TAT ES COU RT OF A PP EALS FOR THE THIR D CIR CUIT

No. 04-1307

GEORGE JOHNSON

v.

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

Appellant s

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. Hay den

Argued November 1, 2004 Befor e: ALI TO
, FUENTES , and BECKER
, Circuit Judges

.
(Filed: December 22, 2004)

JEAN D. BARRETT (Argued) Ruhnke &

Barre tt 47 Park Street Montclair, New Jersey 07042 Attorney for Appellee

PAUL H. HEI

NZEL (Ar

gued) Office of Attorney

General of New Jersey Division of Criminal Justice Richard J. Hughes Justice Complex Trenton, New Jersey

08625-0086 Attorney for Appellant2 _____

OPIN ION OF THE CO URT

BECKER
, Circuit Judge

. When petitioner, George Johnson, pled guilty to felony murder under the misappre hension th at he wa s eligib le for the death pe nalty for that crime, felony

murder in New Jersey

was not in fact a capital offense. However, after r eceiving a sentence of life imprisonment with thirty

ye ars par ole inelig ibility and afte r exhausting his sta

te remedies, Johnson sought federal habeas corpus re lief alleging ineffective assistance of counsel and involuntariness of his g uilty plea. The Distr ict Court ultimately

granted relief

on grou nds that the state court’s mistake about Johnson’s death eligibility for felony murder was structural error, and thus, per se re versible. The threshold question on this appeal is whether Johnson’s claim is pr

ocedura lly d efaulte d. Johnson did

not raise the deat h penalty eligibility claim in his direct appeal to the New Jersey Superior Court, App ellate D ivision, no r did he a ddress 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 de nied. Over a year la ter, Johnson raised the death penalty eligibility claim in a second PCR petition, but that petition was filed more than five yea rs after his sentence was handed down, and thus wa s 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 procedur al default rules, which allows consideration of the merits of a claim, notwithstanding procedural default, to avoid a miscarriag e of justice. We conclude that, in so doing, the District Court misconstrued the scope of the actual innocence exception by applying it whe

re the petitioner wrongly

was led to believe he was death eligible, but whe re the death penalty

was not actually imposed. Rather , we hold that the touchstone of the actual innocence inquiry is innocence of the

se nt en ce ac tu al ly imposed , not innocence of a sentence for whic h the petitioner was merely

eligible. We also conclude that Johnson’s death-e ligibility claim wa s proced

urally default ed beca use of his failure to bring the claim before the New Je

rsey state courts in accordance with their procedur al rules. Supporting the procedural default conclusi on are th

e factsthat: (1) the New Je rsey courts3 considering Johnson’s application clearly relied on such procedural default as a separate and independe nt basis for their denial of relief, and (2) t he five- ye ar time ba

r under N .J.R. 3:22-1 2 is an adequate state ground, as it is strictly a nd consistently enforc ed 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. F ACTS AND PRO CEDURAL HIST ORY In 1983, Johnson pled guilty to felony murder f

or the smothering death of a 76-y ear old man during the course of a r obbery. The relevant facts of the crime are not in dispute. Johnson and his coconspirator Mary

Susan Karnish, entered Gerald Clay ton’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 Clay

ton’s room to search under the bed. Clay ton awoke a nd screa med. Johnson

then gr abbed a pillow and

placed it over Clayton’s fa

ce, holding it there until Clay ton suffocated to death. Johnson then saw the wallet on the bed, took it, and fled. The next day, Karnish g ave 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 Clay ton. In May

1983, the grand jury

charged Johnson with five crimes: murder in the first degree for purposely or knowing ly c ausing t

he death of or ser ious bodily

injury resulting in death of Gerald Clay

ton; felony murder; robbe ry; conspiracy; and burgla ry . JA 15-18. Pu

rsuant to a plea a greem ent, the s tate ag

reed to dismiss the

first deg ree mur der cha rge in e xchange for a g uilty plea to felony murder . Johnson entered a guilty plea to the second count of the indictment for felony mur der. 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 c ourt, Johnson’s defense counsel, and the prosecution, all of whom erroneously believed that felony

murder could be a capital offense under Ne w Jersey law. New

Jersey had only reinstat ed the de ath pena

lty o ne y ear bef

ore Johnson

entere d his guilty plea, N .J. Stat. Ann. § 2C:11-3C, effective August 6, 1982, and confusio n about the

applica bility of the de ath pena

lty a pparent ly abounde d in New Jer sey

courts. Joh

nson pled t

o felony murder, with the under standing

that the p rosecut ion would n ot in fac t seek the death penalty, and that to this end, it would stipulate to severa l mitigating factors and only

one aggravating

factor at sentencing. At the1 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 sentencing hearing, on Aug ust 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 miti gating

and ag grava

ting fa ctors, se ntenced him to life

in prison with thirty y

ears parole ineligibility

. Johnson pursued a timely direct appea l which challenged the voluntariness of his plea and the effectiveness of trial c ounsel, but which did not raise the claim that he wa s misinfor

med about

his death eligibility. I

nstead, he contended that his trial counsel did not inform him of the thirty-y

ear parole ineligibility . On November 29, 1984, the New Jersey Superior Court Appe llate Division affirmed Johnson’s conviction and sentence. He did not seek discretionary review by the New Jerse

y Sup reme Cour

t. In 1987, Johnson filed a pro se petition for post conviction relief (PCR), which raised issues of the effectivene ss 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 e ligibility for the felony

murder count. The New Jer sey

Supreme C ourt deni ed cert ificatio n in September 1989. Johnson then filed a pro se petition for a writ of habeas corpus in th e U ni te d S ta te s D is tr ic t C ou rt fo r t he Di st ri ct of Ne w J er se y, which wa s dismissed

without pr

ejudice in Febru ary

1991 bec ause it was a “mixed” petition, containing both exhausted and unexhausted claims. Re

turning to state c ourt, Johnso n filed a second PCR application in August 1991, in which he explicitly raised the deatheligibility issue as well as the une xhausted issue that he was suffering from Post T

raumatic Stress Dis order a

t the time o f the cr

ime and hi s plea. The trial court denied his petition as untimely under Rule 3:22- 12, which requires a PCR petition challenging a sentenc e to be filed within five year s after the sentence is imposed. I n June 1994, the Appellate Division affirmed and the New Jersey Supreme Court denied certification. 1 John son, s till procee ding pro se , then sought federal review of5 his state c ourt conv

iction pur suant to 28 U.S.C. § 225 4, reviving his
argume nt that his p lea was not enter ed knowingly

and intelligently because he was op erating

under the mistaken impression

that he c ould have received the death penalty for felony mur

der. The District Court found tha t Johnson had

procedu rally default ed this cla

im by failing to bring it before the New Jersey courts in a timely fashion. Nevertheless, the court excused the procedura l default on the grounds that Johnson

was “actually

innocent ” of the d eath pen alty

and that h

is conviction would constitute a fundamental miscarriage of justice. Even though Johnson was not actually se ntenced to death, the District Court determined that the actual innocence inquiry focuses on eligibility for the death penalty , rather than imposition of a dea th
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 analy sis. On this basis, the District Court entered an order granting Johnson’s applica tion for a writ of ha

beas cor pus. The State filed this appeal, arguing that Johnson had procedurally

defaulted on the death-eligibility claim and that the District C ourt err

ed in invok

ing the “ actual in

nocenc e” exception to excuse the procedural default. The State also contends that the District C ourt err

ed in holding that t

he misinfo

rmation a bout deat h eligibility constituted a “structur al error” requiring automatic r eversal. Inste ad, the Sta

te submits t

hat this ty pe of er ror shoul d be subje cted to harmlesserror a

naly sis, and th at the er

ror was indeed ha

rmless because the evidence shows Johnson would have acce pted the plea even if he had been properly informed about his eligibility for the de at h p en al ty. Before the District Court can entertain a federal habeas petition, i t is well es tablished

that a pe titioner m ust first e xhaust his federa l 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 f ederal courts review. Vasquez v. Hillery , 474 U.S. 2 54, 257 (1 986). Eve n if a state court fails to rule on the merits of a claim, a proper ly 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, as6 Johnson cle arly

present ed the cl aim to the N

ew Jersey courts in his second PCR petition, and the denial of relief was affirmed by the New Jersey Appellate Division and Ne w Jersey Supreme Court. II. PR OCE DUR AL DE FAU LT Where a s tate cou

rt refus es to cons ider a pe titioner’ s claims because of a violation of state procedura l rules, a federal habeas court is barred by the

procedural default doctrine from consider ing the claims, Harris v. Reed , 489 U.S. 2 55 (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. 7 2, 87 (197 7). Any procedu ral def ault, however, must rest on “adequate and independe nt” state law grounds. Harris
, 489 U.S. at 262. The District Court concluded that the New Jersey courts hadrefused to consider Johnson’s claim because his petition was timebarred under N. J.R. 3:22-12 , that Johnso n proced urally default ed his death-eligibility c laim and did not demonstrate “cause and prejudice.” In a federa

l habeas proceeding, “re

view of the district court’s legal conclusions is plenary a

nd factual findings in dispute are reviewe d under the clearly

erroneous standard.” Bond v. Fulcomer , 864 F.2d 306, 309 (3d Cir. 1989).

A. The “Indepe

ndence” Requirement A state pr ocedura l ground will not ba

r feder al habea s relief

if the state law ground is so “interwoven with feder al law” that it can not be said to be independent of the merits of a petitioner’s fede ral claims. Coleman , 501 U.S. at 740. Relatedly, “[i]f the last state court to be present ed with a p articula

r feder al claim r eachesthe merit s, it
removes any

bar to federal-court review tha t might otherwise have been available.” Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991). The threshol d question , theref ore, is wh ether the New Jer sey

courts, i n denying Johnson’s death-eligibility claim, relied indepe ndently on a violation of state procedure or based their decision on the mer its of the claim. In Harris v. Reed
, supra , the Supreme Court established a “plain statement” rule that there would be no procedur al default, for purposes of federal habeas re view, unless “the last state court render ing judgment in the

case ‘c learly

and expre ssly ’ states t

hat its judgment rests on a state procedural bar.” 489 U.S. at 263. Harris ’s pl ai n s ta te me nt ru le wa s s ub se qu en tl y na rr ow ed by Coleman v. Thompson , 501 U.S. 7 22 , 735 (1 991), whi ch estab lished tha t the firs t step is to de

termine w

hether t he decis ion of the

last state court to which the petitione r prese nted his f ederal claims “f airly appear s to rest primarily on fede

ral law, or to be interwoven with the federal law .”7 See also C

aswell , 953 F.2d at 859-60. Only the n, if there is such a relianc e on fede

ral law, do we look

at whethe

r the stat e court c learly and expressly based its ruling on a state procedural ground. Id

. The last state court to render judgment in this case, the Ne w Jersey Supreme Court, denied c ertification 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 t

he “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 r easoned opinion on t

he claim e

xplicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregar d that bar and consider the merits.” Id

. at 803. The New

Jersey courts, w hile addr essing t he meritsof the ca se as alter native ho ldings, c learly

rested o n state pr

ocedura l ground s as a separate and independent basis for their decision to deny Johnson’s death-e ligibility claim. Th

e Appella te Division, which i s the highest state court to write an opinion on the case, itself relied on the trial court’sreasoning, af

firming “essent ially for the r easons e xpressed in the oral opinion of [the trial court judge].” The Appellate Division found tha t the tria l judge b arred t

he revie w of sente

nce unde r N.J.R. 3:22-12 be

cause th e petition was file d bey ond the rule’s five -y ear time limit, but that the trial judge, in the event that the petition was not time barred, also rejected certain c laims on the merits. JA 487. The Appellate Division’s only comment on the mer its 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 disea se; the claim of ineffective assistance of counsel was found to be without merit.” JA 487. In John son’s sec ond PCR petit ion, the tr ial cour t expressly cited N.J.R. 3:22-12, which requires a petition to be filed within five
ye ars afte r the sen tence un less the d elay was due t

o excusabl e neglect, and foun d that the

re were not “any facts a lleged that would

constitute excusable neglect.” JA 654. Similarly, the tr ial court found that “the challen ge” c ould have

been mad

e on the de

fendant ’s many

appeals and pr ior ap plica tion s for p ost-c onvi ction relie f. JA 654. A ltho ugh “the challenge” does not ref er to any one

specific claim, it appears that2 The tria l court we

nt on to bri efly

addresssome of the claims

on their merits. On the claim that it was error to allow Johnson to plead withoutinvestig ating hi s motion to di smiss, the t rial cou rt cons idered that “if for some reason the matter is not time barred and someone finds excusable neglect” then the defendant woul d fail beca use of a lack of evidence. For the mental illness claim, the trial court also found a lack of evidenc e that he

suffer ed from ment al illness. Finally, the court rejected the ineffective assistance claim by apply

ing the Strickland

test. JA 655. The t

rial cou rt did not addre ss the dea

th-elig ibility

claim on the merits.

8 the trial court was referring to a ll the claims in the petition. 2 The fact that both t

he New Jer sey

trial cou rt and Ap pellate Division made reference to the merits of the ca se as an alternative hol di ng d oes not pre ven t u s fr om fin di ng p roc edu ral def aul t. In Harris v. Reed , the U.S. Su preme Cou

rt noted th at a state court need not fear rea ching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state gr ound doctrine require s the fed

eral court to hono

r 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 apply ing this doctrine to habeas
cases, Sykes curtails reconsideration of the federa l issue on feder al habea s as long

as the sta te court explicitly invokes a state pro cedura

l bar rule as a sepa rate ba sis for decision. In this way , a state court may reach a federa l question without sa

crifici ng its inte rests in fi na li ty, fe de ra li sm , a nd co mi ty.

489 U.S. a

t 264 n.10 ( citationsomitted, e mphasis in o

rigina l); 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 mer it in the ineffective assistance of counsel claim “doe s 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 a n alternative holding”). In this case, both the Appellate Division and the trial c ourt explicitly invoked the procedural ba r 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 Bar9 Johnson also challenges the adequacy of the procedural bar under N.J.R. 3:22-12.

A state r ule provi des an ind

epende nt and ade

quate basis for preclud ing fed eral re view of a state prisoner ’s habea s claims on ly if : (1) the s tate procedu ral rule speaks in unmistaka

ble terms ; (2) all state appellate courts refused to review the petitione r’s claims on the me

rits; and ( 3) the sta

te courts’ refusa

l in this insta

nce is co nsistent w ith other de cisions.

Doctor v . Walt

ers , 96 F.3d 6 75, 683-8 4 (3d Cir. 1 996). Thu s, a state rule ca n be rend ered ina dequate if the rul e is not “s trictly or reg ularly followed.” Hathorn v . Lovorn , 457 U.S. 2 55, 263 (1 982) (“St ate courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly

to all similar claims.”). Neverth eless, ne ither “a n occasi onal act

of gra ce by a state c ourt in excusing or disre garding a stat

e proce dural rule” nor a

“willingness in a few c ases to ov erlook the rule a nd addre ss a claim

on the mer

its” renders a state procedural rule ina dequate. Banks v. Horn , 126 F.3d 206, 211 (3d Cir. 1997). The proc edural r

ule, in thiscase N. J.R. 3:22-12 , speaks in unmistakable terms requiring any challenge to a sentence to be f iled within five year s of the sentencing proceeding . Moreover, as we discussed above, see Part II .A, supra , the state appellate courts found that this r ule proc edurall

y ba rred Johns on’s dea

th-elig ibility

claim, and thus discussed the merits of the case only as an alternative holding. Instead, Johnson challenge s the adequacy of the state court rulings by a

rguing that the state courts’ ref usal to hear his claim is not consiste nt with othe

r New Jer sey

decision s and that

N.J.R. 3:22- 12 is not “strictly or reg

ularly followed.” As it will appear, New Jersey state law ultimately resolves the adequ acy issue agains t Jo hnson , and i t arguab ly might b e enou gh simply to rely

on the state court’s holding. However, in view of the vigor with which Johnson advanced the argument that the Ne w Jersey procedu ral bar constitute s inadequ ate state law gr ounds, it seems prudent to address this claim, hence we do so. 1. The Putative Exception to the Time Limit as a Procedural Ba r Johnson cla

ims that he

did not ac tually

violate a state procedural rule because his case falls into a “well-recognized exception ” to the f

ive-y ear time limit. Citing

a New Jer sey

Supreme Court decision, State v. Milne , 842 A.2d 140, 144 (N.J. 2004), Johnson contends that when a new case is announced, which provides10 relief not previously

availab le to the d

efenda nt, the New Jersey

courts permit the five-ye ar time limitation to run from the date of that “new” decision. Johnson points to State v. Ki ett , 582 A.2d 630 (N.J. 1990), which he says ope

ned such a new avenue of relief by holding that “a defenda nt who ent

ered a g uilty plea to a void imposit

ion of the death penalty, but who ca

nnot 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 a

rgumen ts are un availing

on sever al counts . First, New Jersey precedent does not support his claim that there is an automatic “new la w” excep tion to the f

ive-y ear time limit. While State v. Milne reason ed tha t new l aw can, in cert ain “co mpell ing” circumstances, reset the five-y ear 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 whe ther 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

mea ns a ut om ati c, b ut rat her req ui res a ba lan cin g of in ter est s. In Milne , the defendant tried to raise his claim more than five y ears 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 rese rvations about the prosp ect of r

eviewing a sixteen- ye ar old co nviction a s 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 yea rs old, and certainly

the State’s ability to put on a t

rial at th is late da te would b e seriou sly handicapped. Second, it is not cle ar that Kiett should be considered new grounds for relief, as there w ere several earlier ca ses 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 parol e ineligibility). While no prior New Jersey

case specifically dealt with a mistake about death eligibility , these earlier cases afford ed relie f to petiti oners who labore d under mi stakes a bout their eligibility for less g

rave sentences, so it would seem logical that such relief would a fortiori

have been available to petitioners who were3 It should be noted that

even if Kiett

could be considered “new” grounds for relief, it is not clear th at the New Jersey courts wo

uldgive it retroactive effect. See State v. Afanador , 697 A.2d 529, 536 -38 (N. J. 1997) (explaining the re

troactiv ity a naly sis for “n

ew law”in New Jersey

as a series of three factors but gener ally resting

on the court’s discretion).

4 Johnson’s c ounsel al so claime d, at ora l argum ent, th at th ere

are thousands of

unpublished New Jersey state c ourt decisions, many of which take a pe

rmissive a

pproach to the five -y ear time

bar. We find that undoc umente d assertio n unhelpf ul, and co nfine our

analy sis to

11 mi st ak en ab ou t e li gi bi li ty f or th e d ea th pe na lt y. 3 At all eve nts, the a rgumen t that Kiett

opened a new avenue of relief is contradicted by

the history of this case, f or it is clear that Johnson wasput on notic e of the viability of his dea

th-elig ibility 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 additiona l ground s for app eal. The Appellat e Division

specific ally commented that it had not been called upon to determine whether misinformation about death eligibility pre judicially impacted the defenda nt’s dec ision to ple ad guilt y, imply ing that this omissio n 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 c laim in his petition for certification to the New Jersey Supreme Court, filed in 1989–one ye ar before Kiett . In that petition, Johnson cited Nichols, supra , 365 A.2d 467, to sup

port the p roposition

that the mi sinforma

tion about

his death el igibility render ed his ple a involunt

ary and “co nceded

that this issue could have (and should have) been raised on dir ect appeal.” Johnson did not file his s econd PCR p etition, r aising t he instan t claim, until over a yea

r after offering this admission in his petition to the New Jerse

y Sup reme Cour

t. The fact that he was on notice that he could raise this cla im as an avenue of relief, and failed to do so, see ms to exclude Johnson’s petition f rom the se

t of “com

pelling ” casesthat Milne contemplates fo r l en ie nc y. 2. Adequa cy of the Sta

te Proce dural Rule In the same vein, Johnson claims that the state grounds we re inadequa te beca use New Je

rsey courts do not strict ly o r 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, su pra , and State v. P reciose , 609 A.2d 1280 (1992). 4 Milne noted that thedocument ed mater ial.

12 “five-y ear time limit is not absolute” and that a “court may relax the time bar if the defendant alleges fa cts 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]bs ent compe

lling, e xtenuating

circumst ances, t he burde n to justify filing a petition afte r the five-y ear period will increase with the extent of the delay.” Id. at 144. In Preciose , the New Jersey Supre me Court engaged in an exegesi s of the f

ederal law of pr ocedura l defaul t in its atte

mpt to decide whether state lower courts should make e xpress rulings on state procedural grounds in order to for eclose potential avenues of federa l habeasrelief. 609 A.2d a t 1292. Announcing

a relati vely pliable view of state procedural rules, in Preciose
, the court declined to read at least one procedural rule na rrowly, and c oncluded that New Jersey’s sy stem of post-conviction relief is broader than federa l habeas review. Id . at 1294. In so doing, the court noted tha t “when meritorious issues are raised that require analy sis and explanation, our traditions of comprehensive justice will best be served by decisions that reflect thoughtful and thorough consider ation and disposition of substantive contentions.” Id. No tw it hs ta nd in g t he se pr on ou nc em en ts of re la ti ve fl ex ib il it y, a review of New Jersey

case law, set forth infra , reveals that the New Jersey courts ha ve generally

applied t he time ba

r set for th in N.J.R. 3:22-12 so

that this r

ule can f airly be said to

have be en firmly established and regularly

followed. See Bank

s v. Horn , 126 F.3d 206, 211 (3d Cir. 1997) (“[I]f a state supreme c ourt 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 cla im on the merits does not mean that it does not apply the proc edural rule regularly or consiste ntly .”). The

refore , the mer

e fact th at Preciose

and Milne expressed the potential for greater leniency than fede ral habeas law does not mean that the five-year time limit is not adequate grounds for procedural default. I

ndeed, Milne itself refused to relax the time bar where the defendant failed to file his petition within five y ears 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 y ear 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-yea

r window of the “new law.” Id. Somewhat analogously , in this case, Johnson’s petition for13 certifi cation f

or his fir st PCR petitio n raised the deat h-elig ibility claim. Although this certification was denied, Johnson waited more than a yea

r to file his second PCR petition and to again raise the death-eligibility c laim. While Johnson would not have been within the five-ye ar time bar even if he had filed his second PCR petition more expeditiously, such delay does not exhibit exceptional diligence. Therefore, Milne ’s applic ation of th e proce dural ba

r, rathe r 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 cour

ts have enforced the time bar. We too have conducted a review of New Jersey

Supreme Court precedents and have found few ca ses that h ave act

ually relaxed N .J.R. 3:22-1 2’s five -y ear time bar. To th

is end, the

New Jerse

y Sup reme Cour

t has rep eatedly emphasized that the time bar should be relaxed only in “ exceptional,” “compelling,” or “extenuating” circ umstances. See, e.g.
, State v. Goodwin , 803 A.2d 102, 108 (N.J. 2002) (“The time bar [under 3:22- 12] sh ould b e rel axed o nly unde r exce ption al ci rcum stanc es . . . We consiste ntly have recognize d the impor tance of adhering to this procedu ral bar .”); State v. M

arshall , 801 A.2d 1142, 1150 (N.J. 2002) (finding no basis for excusable neglect a nd barring the PCR petition under Rul e 3:22-12 ); State v. Murray , 744 A.2d 131 (N.J. 2000) (recognizing two exceptions to the five-y ear limit, an illegal sentence and excusa

ble neg lect, finding defendant satisfie d 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 burde n to justify filing a petition after the five-y ear period will increase with the extent of the delay.” ). From the unambiguous languag e of Rule 3:22-12 and from the many prior

cases that have consistently applied the time bar, it is clea r that thisprocedu

ral rule was an in depende

nt and ade

quate state ground establishing procedura l default. Instead of looking to the over whelming majority of

cases where th e time bar has been consiste ntly applied, Johnson point s to the few exceptional cases where the Ne w 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 w here the defendant was “caught in a Catch-22 situation” beca use for four y ears and seven months he could not file a PCR petition while his direct review was pending , and whe

re defe ndant “di d every

thing wit hin his pow er to pr es er ve th e i ss ue ” i nc lu di ng at te mp ti ng to ra is e i t i n a ti me ly pro se petition). In particular, Johnson and the District Court cite State v.5 Indeed, it is wort h noting that the factors that would allow a defendant to withdrawalhis plea on the merits are similar to those that might excuse a proce dural bar . A separ ate New Jersey procedu ral rule requires a motion to withdraw a plea to be made befo re sen tenci ng, N.J.R. 3:21-1; however, after se ntencing a court c an permitwithdrawal
to “correct a manifest injustice.” New Jersey courts, therefore, have established a balancing test to deter mine whet

her a ple a may

be withdrawn which is nearly ide ntic al to the test for relaxation of a procedural bar set forth in Milne , 842 A.2d at 143-44

(consi derin g the “extent a nd cause of the delay , the prejudice to the State, and th e

14 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 reg arding death eligibility notwithstanding several
pr oc ed ur al de fa ul ts . M cQ ua id ha d b ee n a n a cc om pl ic e i n a ro bb er yturned-murder. McQuaid too labored under the misappre hension that he faced the dea

th penalt y, in that ca se, on count one of his indictmen t---“mu rder by his own co nduct”- --and so pled gu ilty to felony murder

to avoid what he wrongly believed was a capital charg e. I n fact, t he court subseque ntly decided that “mur

der by his own conduct” is not a capital offense unless the defe ndant was the trigger-person, which Mc Quaid was not. Similar to this case, McQuaid did not ra

ise the c laim of misinformati on about d eath eligibility until his second PCR petition, which was filed more than five-ye ars after his sentence. The New Jersey

Supreme Court considered a range of reasons McQuaid might face procedura l bars to his PCR petition, including Rule 3:22- 12; howev er, bec ause the misinformation wasimmateria l 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

containsexpansive

langua ge about the har shness of strictly barring

claims on procedural grounds. 688 A.2d at 600 (observing that

“defendants should not pay the exact ing pric e for sta

te procedural forfeitures that result from the ig norance or inadvertence of their counsel”). Still, McQuaid does not stand for the proposition that the New Jersey

courts wi ll simply

forgiv e a proc edural d

efault; rather, it demonstrates that in accord with Preciose , they are will ing to weigh procedural and substantive g rounds, at times, in the alternative. Indeed, in considering

the merits the court particularly stressed the signific ant prej udice to t

he State i f it was to

allow the defenda nt to withdraw his guilty plea, a f actor wh ich would also cut a

gainst a relaxation of the procedural bar under Milne ’s balancing test. Id . at 601-02. 5importance of the pe titioner’ s claim in determining whether there has been an injustice sufficient to relax the time limits” before allowing any exception to the time

bar). Th e test for withd rawal weighs the State’s interest in the fina

lity of judgm

ents ag ainst the d

efenda nt’s inter est in entering a knowing and voluntary plea. See McQuaid

, 688 A.2d at 596. The defenda

nt’s inter est in with drawal 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 ba lance, the state’s interest in finality will be gre ater whenthe state would be preju diced in its ab il it y to re-tr

y the defe

ndant. Id. at 601. Th

us, the finding in McQuai d that the d

efenda nt’s claim was unde serving on the mer

its would also inform a future court’s decision on w hether it would be appropriate to waive the procedural ba r.

15 Notwi thst andin g McQuaid ’s decision to deny the pe tition 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 norma l rule limiting the time to challenge a sentence to five -year s. In light of the foregoing discussion, this decision reflects a n adequate state law ground. C. Cause and Prejudice A procedural default gene rally bars r

eview of a federal habea s corpus petition absent a showing of cause and pre judice. 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 suc

h error rises to the level of ineffe ctive as sistance

of counse

l in violati on of the Sixth Amendme nt. Murray , 477 U.S. at 488-89. Nevertheless, “ineffective a ssistance of post-con viction c ounsel ca

nnot const

itute ‘ca use’ bec ause 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 de termined that Johnson did not16 establish cause for the procedural def ault of this claim. Johnson does not now even argue that he had ca use or suffered prejudice. Moreover, none of the ty

pical reasons for “cause” a pply in this case. There was no novel constitutional rule, nor was there a ne w factual predicate. There was no hindrance by the state cour

t in complying with the procedural rule. Johnson cannot claim ineffective assistance of counse l for his f ailure to raise the death-e ligibility claim in hi s post-con viction pr oceedings bec ause he h ad no rig ht to couns el to pursue his appeal in state post-conviction relief; thus, attorney error at that stage cannot constitute cause. Coleman , 50 1 U. S. at 7 52- 54. In short, Johns on’s fai lure to ra ise the de ath-elig

ibility claim in hi s 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. II I. AC TUAL

INN OCENCE/MISCARRI AGE OF JUST

ICE In addition to the cause and pre judice standard, a limited exception to proce dural default ha s been re cognize d where

“failur e to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson , 501 U.S. 722, 750 (1991). The miscarr iage of justice e xception, however , appliesonly to the ca se where the miscarriage is tied to the petitioner’ s actual innocence. Schlup v. Delo , 513 U.S. 298, 321-22 (1995). In those “ra re” or “extraordinary”

cases, the “truly

deserving” may

receive relief by allowing “the principles of comity and finality, which animate the proced ural d efault rule” t o “yield t o the i mperat ive of correc ting a fundamentally unjust incarc eration.” Schlup v. Delo , 513 U.S. at 319- 21. The “prototypica

l example” of the application of the “actual innocence” exception is where a petitioner is innocent of all cr iminal wrongdoing, such as where he claims that the government has convicted the wrong person for the c rime. 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 defe ndant claims to be “innocent of the death penalty .” Id. at 340-41 . To qualif y f or this exception, a petitioner “must show by clea r and convincing evidence that no re asonable

juror wou

ld have f ound him el

igible f or the de ath penalty in light of the ne

w evidence. Calderon v. Thompson , 523 U.S. 538, 560 (1998) (internal quotations omitted). The District Court relied on this exception to excuse Johnson’s procedu ral def ault and t o permit a

consider ation of Joh

nson’s cl aim on the mer

its. The c ourt conc luded tha t Johnson wa s actually innocent of the death penalty and that the miscarriage of justice was17 th at he wa s “ wr on gf

ul ly exposed

to a pro forma capital sentencing hearing,” even though he was actually se

ntenced to life imprisonment. (emphasis added). There is no dispute that Johnson, at a minimum, is guilty of felony murder. He does n ot deny suffoca ting the victim in the course of a robbery . Rather, the District Court’s holding rests on the assumption

that he wa s “innoce

nt” of a c apital cr

ime. This f

irst proposition is disputed and arguably incorrect. While Johnson pled guilty to felony

murder, a crime which was wrong ly believed at the time of se ntencing to potentia

lly c arry a death s entence , he was a lso charged with, and potentially was guilty of

, capital murder. See State v. Bey , 610 A.2d

814, 825 (N.J. 1992) ( “Strang ulation is c ommonly understo od as a fo

rm of viole

nce desi gned a

nd 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 “I n cases where the Government has for gone more serious charges in the course of plea bargaining, petitioner’ s showing of actual innocence must also extend to those charg es.” Bousley v. United States , 523 U.S. 6 14, 624 (1 998). Und er this ca se law, Johnson would need to demonstrate not only that he wa s ineligible for the death penalty for felony mur

der, but also that he was innocent of the capital murder charg e, which the prosecution dismissed in exchange for his guilty plea to felony murde

r. Under the facts of Johnson’s c onfessio n, it is far from cle ar that he could establish actual innocence of the capital murder c harge. But eve n if Johnson c ould not ha ve rece ived the d eath sentence for any

charge, the key

factor is that Johnson was not sentenced to death and is indubitably guilty of the se

ntence he actually received for felo ny m

urder- --life imprisonme

nt. Even though the

state trial cou rt wrongly c onsidered the dea th penalt y a t sentenc ing, it di d 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 innoce nt of felony murder

. We hold that the District Court erred in concluding that the focus of the “ac tual innoc ence” s tandard is eligibility

for the d eath penalty and in holding

that “the ultimate sentence is not dispositive of whether the [actual innocence exception] applies. I nstead, the critical issue is whether there was wrongful e xposure to the death penalty.” Rather, the touchstone of the actual innocence inquiry is the sentence

ac tu al ly imposed

.18 The District Court’s focus on death eligibility is without preced ential sup port. No c ase has b een cite d to us in wh ich the c ourts have used the actual innocence exception to overturn a conviction or to allow a withdraw al of a pl ea base d on innoc ence of sentenc e 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 rece ived. See,
e.g. , Sawyer , 505 U.S. 333 (“The issue . . . is the standard for determin ing whe ther a pe titioner . . . has sho wn he is ‘a ctually in no ce nt ’ o f t he de at h p en al ty to which he has been sentenced .” (emphas is added) ); Cristin v. Brennan , 281 F.3d 404, 420-22 (3d Cir. 2002) (f raming the inquir

y a s whethe

r defendant was“actua

lly innocent of his sentence ” and questioning whether the exception even applies in cases where a d

efenda nt was not s entenced to death (emphas is added) ); Spence v. Superintendent , 219 F.3d 162, 172 (2d Cir. 2000) (applying

the actual innocence exception where the petitione r “is ac tually

innocent of the co nduct on which hi s sentenc e is based”(emphasis added)); Smith v. Collins , 977 F.2d 951, 959 ( 5th Cir. 1992) (“[F]or a defendant to demonstrate actual innocenc e of the sentence imposed he would have to show that but for the constitutional error he would not have been lega lly eligible for

the sentence he received .” (emph asis 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 w as convicted, but rathe r whethe r he wasinnocent

of the ag grava

ting fa ctors upon which his death sentence was based .”(emphasis added)). The Supreme Court, in establishing the actual innocence exception , spoke of

being a ctually innocent of the dea th penalty
, see Smith v. Murray, 477 U.S. 52 7, 537 (19 86), rat her than some general unfai rness in th e sent encin g proces s. Thu s, it is no t enou gh for the petitioner to argue that his sentence mig ht have been different but for the constitu

tional er ror; rat her he mu st establi sh 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 applica tion of the actual innocence exception to cases alleg ing improper discretion or unfairness in sentencing, choosing instead to focus on factual innocence of the elements that per mitted the imposition of the death penalty unde

r state law. See Dugger v. Adams , 489 U.S. 401, 410 (1989)

. In each of these

cases, the Supreme Court’s reasoning re sts on the assum ption that t

he petitio ner fac ed the de ath pena lty, and that it was the potential for an improper imposition of that grave sentenc e, rather than some general irr egularity in the sentencing process that6 Becaus e we res t on p rocedu ral def ault gr ounds, we do not decide the question of structural error. In determining whether an error is structural in nature: T he Supreme Court has distinguished betwee n tw o types of constitutional error that occur at both trial and
sente ncing: ‘trial errors,’ which ar e sub ject to constitutional harmless error analy sis, and ‘structur a l

19 could just ify excus ing th e proce dural bar to avoid a true m iscar riage of justice . It isin this con text that the

Court has r

epeate dly emphasized that the actual innocence inquiry means “actual innocence, not mere legal insufficie ncy.” See Bousley , 523 U.S. at 623-24; Sawyer v. Whitley , 505 U.S. at 339. Given the narrow scope of the exception, we dec line 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 de

fendant would have a habeas claim if the judg e or prosecution considers a sentence of which the de fendant might be “innocent,” and every

defendant who pled guilty to ensure life impri sonm ent bu t was t hreate ned wi th th e death penal ty at sent encin g, might cla im that he w as wrongly e xposed to the

death pe nalty because for some reason he was death ineligible. The result of apply ing the District Court’s exposure rationale would surely run afoul of the Supreme C ourt’s a

dmonition th at this exce

ption is to be

applied o nly in the “extraordinary c ase” and that it is “narrow” in scope. Schlup v. Delo , 513 U.S. a

t 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 ac curacy of a death sentence is far from demonstr ating th at an indi vidual defendant probably is ‘actua lly innocent’ of the sentence he or she received. Th[is] approach . . . would turn the case in which an error results in a funda mental miscarriage of justice, the ‘extraordinary case,’ into an all too ordinary one.”). Additionally, in cases wher e the death sentence was not actually imposed, t

he individ

ual inter est of av oiding in

justice, cited in Schlup , 513 U.S. a

t 324-25, a s an impor

tant factor in allo wing this limited exc eption to th

e proce dural default rul es, is con siderab ly le ss compelling than in cases where an individual fac es imminent execution. Given our past precedents and the extraordinary nature of the actual innocence exception, we hold that the District Court erred in apply ing the a ctual inn ocence

exception

based on improper death eligibility rather

than focusing on the sentence actually imposed. 6defects,’ which re quire au tomati c rev ersal or vacatur. See Arizona v. Fulminant e , 499 U.S. 279, 309 (1991); United States v. Pa velko , 992 F.2d 32, 35 (3d Cir.1993). Structur

al defe cts ‘ d efy ana

lysis by har mless error standards,’ Fulminant e , 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 p rece dent for requiring harmlesserror analy sis in the pleabargaining context. See, e.g. , United States v. Dixon , 308 F .3d 229 ( 3d Cir. 2002) (applying harmless error analy sis where p etitioner

was misinf

ormed ab out his maximu

m possible sentence); United Sta tes v. Ebel , 299 F.3d 187, 191 (3d Cir. 2002) (“inherently

coercive” involvement

of a ju dge in a plea

negotia tion did
notrequire

automatic

revers al); United Sta tes v. W estcott, 159 F.3d 107, 112-14 (2d Cir. 1998) (requiring demonstra t ion 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-Be nitez
, No. 03-167 2004 WL 1300161 (U.S. June 14, 2004), casts ser ious doubt on the District Court’s holding that misinformation about maximu m sentences in the plea

barga ining pr ocess constitutes a structural error. In Dominguez-Benitez
, the Court held that it was not str

uctural error f or th e 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 re commendat io n as required by Fed. R. Crim. P. 11. Id . at *5.

20 IV. CONCL

USION For the foregoing r

easons, we will reverse the District Court order of January 21, 2004 a

nd remand with directions to d ismiss Johnson’s habeas petition.