PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 23-1240

____________

LENNY ROSS,

Appellant

v.

ADMINISTRATOR EAST JERSEY STATE PRISON; 

ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 1:19-cv-06595)

District Judge: Honorable Noel L. Hillman

____________

Argued: January 17, 2024

____________

Before: HARDIMAN, MATEY, and PHIPPS, Circuit Judges

(Filed: September 30, 2024)

__________
2

Steven D. Altman

Philip Nettl [ARGUED]

BENEDICT ALTMAN AND NETTL

247 Livingston Avenue

New Brunswick, NJ 08901

Counsel for Appellant

Linda A. Shashoua [ARGUED]

John J. Santoliquido

ATLANTIC COUNTY OFFICE OF PROSECUTOR

4997 Unami Boulevard

P.O. Box 2002

Mays Landing, NJ 08330

Counsel for Appellees

_______________________

OPINION OF THE COURT

_______________________

PHIPPS, Circuit Judge.

The Appellate Division of the New Jersey Superior Court 

provides two options for appealing a criminal conviction: a 

plenary appeal or an expedited challenge to the sentence. After 

his conviction and sentencing, a criminal defendant twice 

instructed his attorney to file a plenary appeal, but his intake 

appellate counsel instead designated the appeal for the 

expedited sentence-review track. That appeal was 

unsuccessful. So were the defendant’s post-conviction 

collateral challenges in state court as well as his § 2254 petition 

for habeas relief in District Court. While those challenges 

raised claims of ineffective assistance of counsel, only his 

Rule 60(b) motion following the District Court’s rejection of 

the habeas petition presented a claim related to the initial 

placement of the direct appeal on the expedited sentencing 
3

calendar. Pursuing that claim for the first time so late in the 

process is fatal to its success, and for the reasons below, we 

will affirm the orders of the District Court denying the petition 

and the Rule 60(b) motion.

I. BACKGROUND

A. Ross’s Conviction for Aggravated Manslaughter

and His Resulting Thirty-Year Prison Sentence

In 2011, Lenny Ross, Jr., worked as a drug dealer, and he 

set out on Christmas Eve to sell $225 in heroin to one of his 

clients, Steven Gurss, in Pleasantville, New Jersey. Gurss 

arrived in a silver Dodge pickup truck, and, according to Ross,

Gurss took the drugs without paying for them. Ross then shot 

him in the head with a Glock 19, and Gurss died on Christmas.

1

In November 2012, Ross was indicted in the Law Division 

of the Superior Court of New Jersey in Atlantic County on 

charges of the first-degree murder of Gurss as well as ten other 

crimes related to drugs or guns. See N.J. Stat. Ann. §§ 2C:11-

3(a)(1), (2). In January 2014, after a jury was empaneled, Ross 

decided to plead guilty to one count of aggravated 

manslaughter, and the prosecutor dropped the other charges. A 

few weeks later, before sentencing, Ross changed his mind and 

moved to withdraw his guilty plea. The trial judge denied that 

motion and then sentenced Ross to thirty years’ imprisonment 

and five years’ supervised release. 

1 According to Ross, once Gurss received the heroin, “he sped 

off in his truck [and] he almost ran [Ross] over,” Guilty Plea 

Hr’g Tr. 8:19–20 (App. 283), and Ross responded by firing a 

single shot toward the truck, which struck and killed Gurss. 

But forensic evidence suggested that Ross shot Gurss in the 

side of the head at point-blank range.
4

B. The Appellate Options for Criminal 

Defendants in New Jersey

New Jersey provides two tracks for criminal appeals. See 

N.J. Ct. R. 2:3-2. The first is the standard plenary process that 

allows for ordinary appellate review of all disputed issues. See

State v. Robinson, 974 A.2d 1057, 1068–69 (N.J. 2009). The 

second is an opt-in alternative that provides an expedited 

review of challenges to sentences by placing the appeal on the

calendar for Excessive Sentence Oral Argument, or ‘ESOA’ for 

short. See N.J. Ct. R. 2:9-11; State v. Bianco, 511 A.2d 600, 

603–04, 606, 608 (N.J. 1986). Once an appeal is placed on the 

ESOA calendar, it is usually decided without briefing, based on 

only oral argument. See N.J. Ct. R. 2:9-11; see, e.g., Bianco, 

511 A.2d at 602–03.

The initial requirements for both appellate tracks are the 

same. In addition to a notice of appeal, a prospective appellant 

must file a case information statement. See N.J. Ct. R. 2:5-

1(a)(3). The template in New Jersey’s appellate rules for the 

case information statement requires information about the 

parties and their attorneys, the facts of the case, and the 

disposition below. See N.J. Ct. R. 2:5-1(h)(1); N.J. Ct. R. 

App’x VIII. In addition, the case-information-statement

template asks whether the only issues on appeal relate to 

sentencing: 

Will the issue(s) in this appeal involve only 

whether the trial court imposed a proper 

sentence? If so, briefs shall not be filed without 

leave of court.

N.J. Ct. R. App’x VIII (citing N.J. Ct. R. 2:9-11). Next to that 

question, the template contains boxes for the filer to check 

‘yes’ or ‘no.’ Id. The Appellate Division uses the response to 

that question to determine whether the appeal should be placed

on the plenary calendar or the ESOA calendar. 
5

The placement of a case on the ESOA calendar does not 

necessarily limit the appeal to only sentencing challenges. An 

ESOA panel may transfer a case to the plenary calendar “at its 

discretion.” N.J. Ct. R. 2:9-11; see, e.g., State v. Walters, 

139 A.3d 1214, 1216 n.1 (N.J. Super. Ct. App. Div. 2016). And 

ESOA panels may allow oral argument on additional topics. 

See, e.g., State v. Marshall, 2022 WL 1160968, at *2 (N.J. 

Super. Ct. App. Div. Apr. 20, 2022) (recounting that the ESOA 

panel had heard oral argument on a motion to withdraw a guilty 

plea and remanded the case on that issue); see also Cabrera v. 

Barbo, 175 F.3d 307, 308 (3d Cir. 1999) (describing an ESOA 

panel’s remand order that allowed consideration of nonsentencing issues).

C. The Placement of Ross’s Direct Appeal on 

the ESOA Calendar

After receiving the thirty-year prison sentence, Ross twice 

requested that his counsel file a plenary appeal. On his appeal 

request form, the box for a plenary appeal – not the box for an 

ESOA appeal – was checked. His transmittal-of-adult-appeal 

form also indicated a request for a full appeal.

Despite Ross’s requests for a plenary appeal, the intake 

appellate counsel who filed the case information statement

checked the ‘yes’ box in response to the ESOA question. 

Ross’s appeal was then placed on the ESOA calendar.

After he discovered that, Ross moved pro se for the ESOA 

panel to exercise its discretion and transfer his case to the 

plenary calendar. But the two-judge ESOA panel did not do 

so, and the appeal proceeded to oral argument without briefing.

At oral argument, a different court-appointed attorney 

represented Ross. She reminded the panel of Ross’s pro se 

motion and that Ross was asking that his appeal “be moved to 

the plenary calendar rather than just be reviewed by [the ESOA 

panel].” ESOA Oral Arg. Tr. 5:7–9 (App. 309). She also raised 

non-sentencing challenges by arguing that Ross “maintained 
6

his innocence” and “felt pressured into entering the guilty 

plea.” Id. 2:16–18 (App. 306). In addition, that attorney used 

oral argument to attack Ross’s sentence by arguing that it was 

“excessive” and that Ross “didn’t have to get the 30 years.” Id. 

4:22–24 (App. 308).

The prosecutor did not address the request to transfer the 

case to the plenary calendar but did oppose the other 

arguments. She asserted that “there was no colorable claim of 

innocence” and that Ross “readily admitted that he killed the 

victim because he tried to take off without paying the full 

amount for drugs.” Id. 5:20–24 (App. 309). She also 

emphasized the timing – that the “plea agreement . . . took 

place on the day after a jury was picked” – for the proposition 

that Ross did “not provide a strong basis for withdrawal of his 

guilty plea.” Id. 6:9–10, 15–17 (App. 310). Finally, the 

prosecutor defended the reasonableness of Ross’s thirty-year 

sentence in light of his criminal history.

The ESOA panel declined to transfer the case to the plenary 

calendar and instead affirmed Ross’s sentence in a oneparagraph summary order. Ross then petitioned unsuccessfully 

to the New Jersey Supreme Court for certification. See State v. 

Ross, 124 A.3d 239, 239 (N.J. 2015) (table). 

D. Ross’s Post-Conviction State-Court 

Collateral Challenges

Ross next attempted to collaterally challenge his conviction 

through a pro se application for post-conviction relief in the 

New Jersey Superior Court in Atlantic County. See N.J. Ct. 

R. 3:22-1. He asserted five claims of ineffective assistance of 

counsel – four against his trial counsel and one against his 

appellate counsel. His claim against his appellate counsel was 

for failing to adequately argue for a transfer to the plenary 

calendar.
7

Ross later filed a counseled brief. It incorporated his pro se

arguments by reference, but it did not raise a claim of 

ineffective assistance of intake appellate counsel.

The Law Division of the New Jersey Superior Court 

rejected Ross’s application for post-conviction relief. Its

opinion acknowledged his claim for ineffective assistance of 

appellate counsel, but that opinion did not explain the basis for 

denying that claim. 

Ross timely appealed that ruling. In so doing, he did not 

assert any challenge related to the placement of his initial direct 

appeal on the ESOA calendar. The Appellate Division rejected 

the arguments that Ross had presented and affirmed the denial 

of post-conviction relief. See State v. Ross, 2018 WL 2925426, 

at *4 (N.J. Super. Ct. App. Div. June 12, 2018) (per curiam). 

Ross then petitioned the New Jersey Supreme Court for 

certification, and that request was denied on January 18, 2019. 

See State v. Ross, 199 A.3d 1215, 1215 (N.J. 2019) (table).

E. Ross’s § 2254 Habeas Petition in District 

Court

After obtaining no relief from New Jersey’s post-conviction

review process, Ross invoked the subject-matter jurisdiction of 

the District Court through a pro se petition for a writ of habeas 

corpus. See 28 U.S.C. § 2254(a). That petition raised seven 

claims, and two of them challenged issues associated with 

Ross’s state-court direct appeal. The first of those two was the 

assertion that the ESOA panel’s refusal to transfer his appeal to 

the plenary calendar violated his constitutional right to a direct 

appeal. The second was a contention that appellate counsel’s 

performance was deficient because counsel did not do more to 

advocate for the transfer of the appeal to the plenary calendar. 

That challenge also argued that counsel’s alleged deficient 

performance should be presumed prejudicial as “a complete 

breakdown of the adversarial process.” Habeas Pet. 34

(App. 107). Ross’s petition did not complain about the actions 

of intake appellate counsel, nor did it include as an exhibit the 
8

case information statement that had the box checked for the 

ESOA calendar. In denying that petition on June 2, 2022, the 

District Court expressly considered and rejected the two claims

related to Ross’s state-court direct appeal. See Ross v. Nogan, 

2022 WL 1802853, at *4–11, *20–21 (D.N.J. June 2, 2022).

Shortly afterward, on June 28, 2022, Ross, then represented 

by counsel, moved for relief from that judgment under 

Rule 60(b) of the Federal Rules of Civil Procedure. The crux 

of that motion challenged the conduct of intake appellate 

counsel in designating the appeal for the ESOA calendar. In 

addition, Ross argued that he was presumptively prejudiced 

under the standard in Roe v. Flores-Ortega, 528 U.S. 470 

(2000). That motion also included the case information 

statement from Ross’s direct appeal as an exhibit. 

The District Court did not evaluate whether Ross’s 60(b) 

motion constituted a second-or-successive habeas application,

but it did address the claim of prejudice. In so doing, it 

concluded that Flores-Ortega did not apply because Ross’s 

“counsel did file an appeal,” and that consideration of the case 

information statement was improper. See Ross v. Nogan, 

2023 WL 166698, at *5–7 (D.N.J. Jan. 12, 2023) (italicized 

text substituted for underlined text). Accordingly, the District 

Court denied his motion and refused a certificate of 

appealability. See id. at *7.

Within thirty days of that ruling, Ross filed a notice of 

appeal, and after granting a certificate of appealability, this 

Court has appellate jurisdiction over the District Court’s orders 

denying habeas relief and denying his Rule 60(b) motion. See

28 U.S.C. §§ 1291, 2253; Fed. R. App. P. 4(a)(1)(A), 

(a)(4)(A)(vi). 

II. DISCUSSION

Federal habeas review of an incarcerated person’s 

challenge to the state conviction that is the basis for 

imprisonment is a powerful protection of liberty. See 
9

Blackledge v. Allison, 431 U.S. 63, 72 (1977) (“The writ of 

habeas corpus has played a great role in the history of human 

freedom. It has been the judicial method of lifting undue 

restraints upon personal liberty.” (quoting Price v. Johnston, 

334 U.S. 266, 269 (1948))). But several threshold

requirements for habeas relief ensure that the writ is not used 

to disrupt comity between federal and state courts. See Davila 

v. Davis, 582 U.S. 521, 527–28 (2017). In this case, where a 

certificate of appealability has been granted, see 28 U.S.C. 

§ 2253(c),

2

there are two applicable threshold issues. 

First, the Antiterrorism and Effective Death Penalty Act of 

1996, commonly abbreviated as ‘AEDPA,’ generally bars 

second or successive § 2254 habeas petitions. See Pub. L. 

No. 104-132, § 106, 110 Stat. 1214, 1220–21 (codified in 

relevant part at 28 U.S.C. § 2244(b)); In re Rosado, 7 F.4th 

152, 156 (3d Cir. 2021). That jurisdictional bar applies to 

motions challenging the disposition of the initial habeas 

petition brought pursuant to Federal Rule of Civil Procedure 

60(b). See Gonzalez v. Crosby, 545 U.S. 524, 531–32 (2005).

And in this appeal, Ross presents arguments pertinent only to

the denial of his Rule 60(b) motion. Thus, if Ross’s Rule 60(b) 

motion is a second-or-successive application, then it would be 

subject to dismissal on jurisdictional grounds. See 28 U.S.C. 

§ 2244(b)(2)(A)–(B); Burton v. Stewart, 549 U.S. 147, 157 

(2007) (per curiam).

Second, before a federal court may consider the merits of a 

§ 2254 habeas petition, an inmate ordinarily must exhaust the 

state-court remedies for the claimed violation of federal law. 

2 See also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) 

(“[U]ntil a [certificate of appealability] has been issued federal 

courts of appeals lack jurisdiction to rule on the merits of 

appeals from habeas petitioners.”); United States v. Doe, 

810 F.3d 132, 144 (3d Cir. 2015) (“[E]ven if we issued a 

defective [certificate of appealability], it would still give us 

jurisdiction over the appeal.”).
10

See 28 U.S.C. § 2254(b)(1)(A); see also id. § 2254(b)(1)(B) 

(enumerating exceptions); Granberry v. Greer, 481 U.S. 129, 

131 (1987) (explaining that § 2254 exhaustion is nonjurisdictional). Applied here, if Ross did not exhaust those 

remedies or is deemed to have exhausted those remedies only 

through procedural default, then his claims may be rejected 

without adjudicating them on their merits. See Wilkerson v. 

Superintendent Fayette SCI, 871 F.3d 221, 228 (3d Cir. 2017).

As explained below, Ross’s petition clears the first 

threshold issue but fails the second.

A. This Court Has Jurisdiction over 

Ross’s Appeal of the Denial of His 

§ 2254 Habeas Petition and Rule 60(b) 

Motion.

The general bar on second-or-successive § 2254 habeas 

applications does not foreclose a state prisoner from having 

“one chance to bring a federal habeas challenge to his 

conviction.” Banister v. Davis, 590 U.S. 504, 509 (2020); see 

also United States v. Santarelli, 929 F.3d 95, 104–05 (3d Cir. 

2019) (holding “that AEDPA ensures” a habeas petitioner “one 

full opportunity to seek collateral review” (quoting Blystone v. 

Horn, 664 F.3d 397, 413 (3d Cir. 2011) (internal quotation 

marks and citation omitted))). Under this Court’s precedent, 

the one full opportunity to seek collateral review is not 

evaluated based on only the issuance of a final, appealable 

order by a District Court, but rather upon the exhaustion of 

appellate options or expiration of the time for appellate review

with respect to the initial habeas petition. See Santarelli, 

929 F.3d at 104–05.

As a point of reference, under that one-full-opportunity 

standard, a Rule 59(e) motion to alter or amend a habeas 

court’s judgment is not considered a second or successive 

application. See Banister, 590 U.S. at 511. That is so because 

a Rule 59(e) motion must be filed within 28 days of the 

underlying judgment, and the timely filing of such a motion 
11

resets the time to appeal the underlying judgment so that it runs 

from the date of resolution of the Rule 59(e) motion. See Fed. 

R. App. P. 4(a)(4)(A)(iv); see also Banister, 590 U.S. at 511. 

Since both the Rule 59(e) motion and the underlying judgment 

are potentially simultaneously reviewable on appeal, such a 

motion is considered a part of the petitioner’s one full 

opportunity to seek collateral review. See Banister, 590 U.S. 

at 517 (“Rule 59(e) motions are not second or successive 

petitions, but instead a part of a prisoner’s first habeas 

proceeding.”).

In contrast to Rule 59(e) motions, motions under Rule 60(b) 

to vacate or set aside a judgment – such as the one Ross filed 

in District Court – have longer time periods in which they may 

be filed. Some Rule 60(b) motions must be filed within a year 

of the underlying judgment. See Fed. R. Civ. P. 60(c)(1)

(providing that deadline for Rule 60(b) motions filed under 

subsections (1), (2), and (3)). Other Rule 60(b) motions must 

be filed “within a reasonable time” after the judgment. Id.

(providing that deadline for Rule 60(b) motions under 

subsections (4), (5), and (6)). In light of those time periods 

allowed for filing a Rule 60(b) motion, such a motion often 

“does not prevent the original habeas judgment from becoming 

final” but instead “seeks to set aside the already final 

judgment.” Blystone, 664 F.3d at 413; see also Fed. R. App. 

P. 4(a)(1)(A) (allowing thirty days from entry of judgment in a 

civil case for filing a notice of appeal); Bowles v. Russell, 

551 U.S. 205, 214 (2007) (holding in the context of the denial 

of a habeas petition that “the timely filing of a notice of appeal 

in a civil case is a jurisdictional requirement”). So, when a 

Rule 60(b) motion with those attributes “seeks to add a new 

ground for relief” or “attacks the federal court’s previous 

resolution of a claim on the merits,” it is a second-orsuccessive habeas application subject to the AEDPA bar.

Gonzalez, 545 U.S. at 531–32; see also Blystone, 664 F.3d at

413 (“[A] Rule 60(b) motion is, in substance, both a collateral 

attack on the first habeas judgment and a new collateral attack 
12

on the underlying criminal judgment.”); 28 U.S.C. 

§ 2244(b)(2).

There is a scenario, however, in which a Rule 60(b) motion 

that challenges the disposition of a § 2254 petition on the 

merits does not constitute a second or successive application

under this one-full-opportunity rule. See Santarelli, 929 F.3d 

at 105. The Federal Rules of Appellate Procedure have a 

provision for Rule 60(b) motions filed within the time 

permitted for filing a Rule 59 motion: Rule 60(b) motions filed 

within 28 days of the underlying judgment likewise reset the 

timeline for appealing the underlying judgment so that the 

appeal time runs from the date of resolution of the Rule 60(b) 

motion. See Fed. R. App. P. 4(a)(4)(A)(vi). Accordingly, like 

a Rule 59(e) motion, a Rule 60(b) motion filed within 28 days 

of the judgment “suspends the finality of the judgment by 

tolling the time for appeal” and merges with that judgment for 

appellate review. Blystone, 664 F.3d at 414; see Banister, 

590 U.S. at 520; see also Carter v. City of Alton, 922 F.3d 824, 

826 n.1 (7th Cir. 2019) (Barrett, J.) (“[T]he important question 

for categorizing [Rule 59(e) and 60(b)] motions is their 

timing.”). A Rule 60(b) motion filed within that time period, 

therefore, does not implicate the concerns about finality, 

judicial economy, and piecemeal litigation that underlie the bar 

on second or successive applications as that bar allows for one 

full opportunity to exhaust appellate review of the initial 

petition. See Banister, 590 U.S. at 512; Santarelli, 929 F.3d at 

105. In addition, because the same legal standards govern 

motions under Rule 59(e) and Rule 60(b), a Rule 60(b) motion 

filed within 28 days of the final judgment is “substantively 

interchangeable” with a Rule 59(e) motion. Walker v. Astrue, 

593 F.3d 274, 279 (3d Cir. 2010). For these reasons, a 

Rule 60(b) motion filed within 28 days of the underlying 

judgment does not constitute a second or successive habeas 

application for purposes of AEDPA’s bar.

Here, the judgment in Ross’s federal habeas case was 

entered on June 2, 2022, and he filed his Rule 60(b) motion on 
13

June 28, 2022. Because he filed the Rule 60(b) motion within 

28 days of the judgment, it is not a second or successive 

application subject to the AEDPA jurisdictional bar. 

B. Although Ross’s Ineffective-Assistance-ofCounsel Claim Is Deemed Exhausted, It Is 

Barred by Procedural Default Because He 

Cannot Make the Requisite Showing of 

Prejudice.

A habeas petitioner, such as Ross, who challenges his 

incarceration pursuant to a state-court judgment must exhaust 

the remedies available in state court by fairly presenting the 

state courts with an opportunity to consider challenges to that

confinement based on federal law. See 28 U.S.C. § 2254(b), 

(c). To satisfy the fair-presentation requirement for 

exhaustion, a petitioner must notify the state courts of the 

“factual and legal substance” of his claim “in a manner that 

puts them on notice that a federal claim is being asserted.” 

Tyson v. Superintendent Houtzdale SCI, 976 F.3d 382, 389 (3d 

Cir. 2020) (quoting Robinson v. Beard, 762 F.3d 316, 328 (3d 

Cir. 2014)). And to complete exhaustion, “[a] claim must be 

presented not only to the trial court but also to the state’s 

intermediate court as well as to its supreme court.” Evans v. 

Ct. of Common Pleas, Del. Cnty., Pa., 959 F.2d 1227, 1230 

(3d Cir. 1992).3

The ineffective-assistance-of-counsel claim that Ross 

raised in his Rule 60(b) motion related to the performance of 

3 Ross contended at oral argument that New Jersey “expressly 

waive[d] the [exhaustion] requirement,” 28 U.S.C. 

§ 2254(b)(3), because the state “admitted” in its brief opposing 

his habeas petition that all grounds for relief Ross raised in his 

habeas petition had been presented in some state or federal 

court. But Ross first raised the claim that is relevant to this 

appeal in his subsequent Rule 60(b) motion, so New Jersey 

could not have expressly waived exhaustion as to this claim. 
14

his intake appellate counsel is subject to that exhaustion 

requirement. See Wilson v. Sec’y Pa. Dep’t of Corr., 782 F.3d 

110, 116 (3d Cir. 2015). Ross, however, did not exhaust that 

claim. In his initial post-conviction relief application, the only 

appellate ineffectiveness argument that he fairly presented was 

that his appellate counsel performed deficiently for failing to 

take more steps to advocate for transfer of the appeal to the 

plenary calendar. And after he was denied relief, Ross did not 

pursue that challenge through appeal. Because Ross did not 

raise a claim related to the initial placement of the direct appeal 

on the ESOA calendar, much less did he appeal the rejection of 

such a claim, he did not fairly present it to “each level of the 

state courts,” including the highest court. Lines v. Larkins, 

208 F.3d 153, 159 (3d Cir. 2000). Accordingly, as his counsel 

now concedes, Ross did not fairly present this challenge in 

state court, and it has not been formally exhausted.

Even so, Ross’s claim may be deemed exhausted because 

he presently has no right under New Jersey law to litigate any 

claim for ineffective assistance of counsel in New Jersey court. 

See McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). 

He cannot seek additional direct review because the New 

Jersey Supreme Court rejected his petition for certification and 

the time for seeking reconsideration has expired. See Ross, 

124 A.3d at 239 (rejecting Ross’s petition for certification on 

direct review); Cunningham v. Dep’t of Civ. Serv., 350 A.2d 

58, 59 (N.J. 1975) (“[A] challenge . . . terminate[s] with a 

denial of [a] petition for certification to [the New Jersey 

Supreme Court].”); N.J. Ct. R. 2:11-6(a)(1) (motions for 

reconsideration must be filed within ten days). Nor can he 

pursue an additional post-conviction challenge now. Here, in 

the absence of the recognition of a new, retroactive rule of 

constitutional law or newly discovered material evidence, such 

a challenge, which would be limited to a claim based on the 

performance of post-conviction-relief counsel, could be timely 

only if brought within one year of the denial of his first 

application for post-conviction relief, but that occurred on 

January 18, 2019. See N.J. Ct. R. 3:22-12(a)(2); see also State 
15

v. Szemple, 252 A.3d 1029, 1039 (N.J. 2021). Consequently, 

while not exhausted in the conventional sense, Ross’s claim of 

ineffective assistance of counsel is deemed exhausted. See

Woodford v. Ngo, 548 U.S. 81, 92–93 (2006) (“In habeas, 

state-court remedies are . . . ‘exhausted’ when they are no 

longer available, regardless of the reason for their 

unavailability.”).

When a habeas claim is deemed exhausted because of the 

unavailability of additional state-court review, the claim may 

still be subject to dismissal on procedural-default grounds.4 

See Marsalis v. Pa. Dep’t of Corr., 37 F.4th 885, 889 (3d Cir. 

2022); Whitney v. Horn, 280 F.3d 240, 252 (3d Cir. 2002). A 

procedural default occurs when a state-court rule of procedure 

prevents additional consideration of the claim in state court on 

grounds that are both adequate for the court’s decision and 

independent of the merits of the federal claim, such as when a 

claim has been waived or is time-barred. See Nara v. Frank, 

488 F.3d 187, 199 (3d Cir. 2007), as amended (June 12, 2007); 

see also, e.g., Bey v. Superintendent Greene SCI, 856 F.3d 230, 

237 (3d Cir. 2017) (holding that a claim had been procedurally 

defaulted based on waiver); Glenn v. Wynder, 743 F.3d 402, 

409 (3d Cir. 2014) (holding that a claim had been procedurally 

defaulted based on a time-bar). Ordinarily, for procedural 

default, a state-court decision must contain a “plain statement”

that its ruling rests on such an adequate and independent statelaw ground. Harris v. Reed, 489 U.S. 255, 263 (1989) (citing 

Caldwell v. Mississippi, 472 U.S. 320, 327–28 (1985)). But in 

the context of claims that are deemed exhausted by virtue of 

the unavailability of additional state-court review, no such 

4

In instances, such as this, where the claim is deemed 

exhausted only by resort to procedural default, procedural 

default does not function purely as an affirmative defense 

because it serves a basis for saving a claim from dismissal on 

exhaustion grounds, and it is a petitioner’s burden at all stages 

to demonstrate exhaustion. See DeFoy v. McCullough, 

393 F.3d 439, 442 (3d Cir. 2005).
16

plain statement is required for procedural default. See id. at 

263 n.9 (“Of course, a federal habeas court need not require 

that a federal claim be presented to a state court if it is clear 

that the state court would hold the claim procedurally 

barred.”); see also Castille v. Peoples, 489 U.S. 346, 351 

(1989); Teague v. Lane, 489 U.S. 288, 298 (1989). Because 

this Court has long recognized that the New Jersey rules of 

procedure that prevent Ross from filing an additional postconviction challenge satisfy the independent-and-adequate 

standard, his claim is procedurally defaulted. See Johnson v. 

Pinchak, 392 F.3d 551, 563 (3d Cir. 2004).

Even still, a § 2254 habeas petitioner whose deemedexhausted federal claims are subject to procedural default may 

litigate those claims if he can show both cause for the default 

and actual prejudice as a result of the underlying violation of 

federal law. See Shinn v. Ramirez, 596 U.S. 366, 379 (2022); 

Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir. 1992) (citing 

Wainwright v. Sykes, 433 U.S. 72, 87 (1977)).5 To show cause, 

a petitioner must produce an objective reason that prevented 

him from complying with the procedural rule. See Coleman v. 

Thompson, 501 U.S. 722, 753 (1991). The required showing 

of prejudice to overcome procedural default for a claim 

alleging ineffective assistance of counsel mirrors the standard 

of prejudice for the underlying ineffective-assistance-ofcounsel claim. See Werts v. Vaughn, 228 F.3d 178, 193 

(3d Cir. 2000) (citing Sistrunk v. Vaughn, 96 F.3d 666, 670 

(3d Cir. 1996)); see also Leyva v. Williams, 504 F.3d 357, 369

(3d Cir. 2007); Whitney, 280 F.3d at 261. Because both cause 

and prejudice are required for this exception, a court will not 

excuse procedural default if either is lacking. And here, where 

5 Because the record does not support a plausible claim of 

Ross’s actual innocence, there is no reason to believe that his 

default could be excused under the other recognized exception 

to procedural default for a “fundamental miscarriage of 

justice.” Leyva v. Williams, 504 F.3d 357, 366 (3d Cir. 2007); 

see also Murray v. Carrier, 477 U.S. 478, 497 (1986).
17

the merits and the supplemental briefing did not address the 

cause requirement, but the briefing did concentrate on the 

appropriate standard for prejudice, it is appropriate to evaluate 

only the prejudice prong. Cf. Day v. McDonough, 547 U.S. 

198, 210–11 (2006).

Typically, claims of Sixth Amendment ineffective 

assistance of counsel are governed by the two-pronged, 

performance-and-prejudice framework articulated in 

Strickland v. Washington, 466 U.S. 668 (1984). To satisfy the 

Strickland prejudice prong requires “a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Id. at 694. But, in 

certain circumstances, usually related to the loss of an 

opportunity for additional process, the Supreme Court applies 

a different standard for prejudice: a reasonable probability that 

but for counsel’s deficient performance, the petitioner would 

have availed himself of the foregone process. See FloresOrtega, 528 U.S. at 484; see also Hill v. Lockhart, 474 U.S. 52, 

59 (1985) (requiring a petitioner to show a reasonable 

probability that but for counsel’s errors, he would have chosen 

to go to trial rather than plead guilty); Lafler v. Cooper, 

566 U.S. 156, 164 (2012) (same for choosing to plead guilty 

rather than go to trial); Vickers v. Superintendent Graterford 

SCI, 858 F.3d 841, 855–57 (3d Cir. 2017), as amended

(July 18, 2017) (same for choosing a bench trial over a jury 

trial). In particular, with respect to a claimed loss of an appeal, 

the Supreme Court’s decision in Flores-Ortega applies that 

standard of prejudice and pays no heed to the likely outcome 

of such an appeal. Compare Flores-Ortega, 528 U.S. at 484, 

with Strickland, 466 U.S. at 694.

Ross argues that the assessment of prejudice in connection 

with the alleged deficient performance of counsel in 

designating the appeal for the ESOA calendar should be 

evaluated under the Flores-Ortega standard as opposed to the 

Strickland standard. That argument lacks merit. The FloresOrtega standard, as an exception to the general Strickland
18

standard, applies only when the entirety of direct appellate 

review has been rendered unavailable. See Flores-Ortega, 

528 U.S. at 483 (explaining that the standard applied because 

there had been a “denial of the entire judicial proceeding”); 

cf. Smith v. Robbins, 528 U.S. 259, 285 (2000) (explaining that 

a claim for failure to file a merits brief on appeal was governed 

by Strickland); United States v. Scripps, 961 F.3d 626, 635

(3d Cir. 2020) (explaining that a claim for failure to raise an

issue on appeal was governed by Strickland). Yet Ross had a 

direct appeal, and even on the ESOA calendar, he had the 

opportunity to transfer his appeal to the plenary calendar or to 

raise additional non-sentencing arguments. See N.J. Ct. R. 2:9-

11; Cabrera, 175 F.3d at 308; Marshall, 2022 WL 1160968, 

at *2. Indeed, Ross attempted to transfer the appeal to the 

plenary calendar through a pro se motion. And at oral 

argument before the ESOA panel, Ross’s appellate counsel not 

only advocated in favor of Ross’s pro se motion but also raised 

the principal non-sentencing challenge that Ross indicated that 

he would have made in a plenary appeal: the contention that 

the trial court erred by denying his motion to withdraw his 

guilty plea. Although the ESOA panel did not grant those 

requests, that does not mean that appeal was unavailable to 

Ross – lack of success on direct appeal is distinct from a lack 

of a direct appeal. And here, where Ross received an 

opportunity for direct appellate review of his sentence that did 

not preclude challenges to his conviction, he was not denied 

appellate review in its entirety. Accordingly, the Flores-Ortega

standard of prejudice does not apply to counsel’s designation 

of a criminal appeal for New Jersey’s ESOA calendar; instead, 

the Strickland standard applies.

Ross, however, does not argue that he satisfies the 

Strickland standard for prejudice. Nowhere does he contend 

that he would have prevailed on his direct appeal if it would 

have proceeded on the plenary calendar. See United States v. 

Mannino, 212 F.3d 835, 844 (3d Cir. 2000) (evaluating 

Strickland prejudice with respect to an appeal from the 

perspective of only likelihood of success on the appeal – not 
19

overall likelihood of success on both the appeal and any 

subsequent remand). And without being able to demonstrate 

the prejudice needed to excuse procedural default for his 

ineffective-assistance-of-counsel claim, that claim, while 

deemed exhausted, cannot succeed.

* * *

For the foregoing reasons, we will affirm the denial of 

Ross’s petition for a writ of habeas corpus under 28 U.S.C. 

§ 2254 and the denial of his Rule 60(b) motion.