Johnson v. Pinchak, 04-1307.

Citation392 F.3d 551
Decision Date22 December 2004
Docket NumberNo. 04-1307.,04-1307.
PartiesGeorge JOHNSON v. Steven PINCHAK; Attorney General of the State of New Jersey, Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Jean D. Barrett (Argued), Ruhnke & Barrett, Montclair, for Appellee.

Paul H. Heinzel (Argued), Office of Attorney General of New Jersey, Division of Criminal Justice, Richard J. Hughes Justice Complex, Trenton, for Appellant.

Before ALITO, FUENTES, and BECKER, Circuit Judges.

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 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 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 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...

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