Under “extraordinary circumstances,” a guilty plea
can be “illegal” within the meaning of the post-
conviction relief rules, but constitutional issues, such as
the voluntary nature of the plea, must be at stake. State
v. Mitchell, 126 N.J. at 577. A claim that the trial court
failed to elicit an adequate factual basis for the plea is not,
itself, of constitutional dimension. Id. A factual basis is
constitutionally required only when the defendant
claims innocence or does not understand the nature of the
law as it applies to the facts of his case. Id.
With respect to challenges against jury instructions
on post-conviction relief, the New Jersey Supreme Court
has ruled that they are cognizable under R. 3:22-2(a).
State v. Burgess, 154 N.J. 181, 185 (1998). Correct jury
instructions lay at the heart of proper jury function. State
v. Afanador (II), 151 N.J. 41, 54 (1997). However, a
challenge to a jury instruction raised for the first time on
PCR is subject to the bar under R. 3:22-4, see Section III,
infra, but it is not usually applied by the courts. See State
v. Burgess, supra; State v. Afanador (II), supra.
Ineffective assistance of counsel claims are
“particularly suited” for post-conviction relief. State v.
Preciose, 129 N.J. at 460. These claims have found a
“niche” in PCR procedure because they usually cannot be
raised on direct appeal. State v. Moore, 273 N.J. Super.
118, 125 (App. Div. 1994), certif. denied, 137 N.J. 311
(1994). See also State v. Sparano, 249 N.J. Super. 411,
419 (App. Div. 1991) (ineffective assistance of counsel
claims raised on direct appeal should be left for PCR).
With the advent of DNA testing, requests for post-
trial testing have arisen in the post-conviction relief
context. In State v. Velez, 329 N.J. Super. 128 (App. Div.
2000), defendant argued on post-conviction relief,
among other things, that he was entitled to subject
certain evidence to new DNA testing that was not
performed at the time of his trial. The Appellate Division
ruled that defendant was entitled to show that new DNA
tests might yield definitive findings which would require
the trial court to determine if the newly discovered
evidence would “probably” change the jury’s verdict. Id.
at 136. In State v. Halsey, 329 N.J. Super. 553 (App. Div.
2000), certif. denied, 165 N.J. 491 (2000), defendant
filed a motion to compel DNA testing several years after
his PCR petition was denied. The Appellate Division
ruled that defendant’s application was not “technically”
one that sought post-conviction relief, so the PCR rules
under R. 3:22-1 et seq. did not apply. Id. at 555-556.
The distinction between cognizable and non-
cognizable claims is important because post-conviction
relief is not a substitute for direct appeal. R. 3:22-3; State
v. Jenkins, 221 N.J. Super. 286, 291 (App. Div. 1987),
certif. denied, 113 N.J. 343 (1988). Accord State v. White,
260 N.J. Super. 531, 538 (App. Div. 1992), certif. denied,
133 N.J. 436 (1993); State v. Cacamis, 230 N.J. Super. 1,
5 (App. Div. 1988), certif. denied, 114 N.J. 496 (1989).
Thus, in Jenkins, defendant lost the benefit of retroactive
application of a United States Supreme Court decision
when he failed to raise it on direct appeal. State v. Jenkins,
221 N.J. Super. at 291. But see State v. Guzman, 313 N.J.
Super. 363, 375 (App. Div. 1998) (because defendant
received ineffective assistance of counsel on direct appeal,
appellate court considered PCR issues as if they were
being presented on direct appeal), certif. denied, 156 N.J.
424 (1998); State v. Shabazz, 263 N.J. Super. at 251
(defendant did not file a direct appeal, but his challenge
to the voluntary nature of his guilty plea warranted
relaxation of rule).III. PROCEDURAL BARS
Generally, the New Jersey Supreme Court has
acknowledged and emphasized the importance of
procedural bars on post-conviction relief. State v.
Afanador (II), 151 N.J. at 50; State v. Mitchell, 126 N.J.
at 583. Consistent application of procedural bars
prevents abuse of PCR proceedings. State v. Preciose, 129
N.J. at 474. However, the procedural rules “are not ends
in themselves, they are a means to achieving a functioning
and just system.” State v. Mitchell, 126 N.J. at 578.
Accord State v. Preciose, 129 N.J. at 474. The rules, thus,
are not to be applied rigidly. State v. Mitchell, 126 N.J.
at 589. And, while the procedural rules should be
invoked in the appropriate case, their application should
not be shaped or influenced by the federal standards
governing habeas corpus. State v. Preciose, 129 N.J. at 477.
In other words, the Supreme Court has admonished our
courts not to apply our procedural bar rules artificially to
accommodate federal habeas review. Id. As the Court put
it, “... considerations of finality and procedural
enforcement count for little when a defendant’s life or
liberty hangs in the balance.” Id. at 476See also State v. Guzman, 313 N.J. Super. at 371 n.1
(no need for State to cross-appeal when it argues the trial
court erred by not applying a procedural bar because
appeals are from judgments, not opinions).A. R. 3:22-4The rule provides:Any ground for relief not raised in a prior proceeding
under this rule, or in the proceeding resulting in the