conviction, or in a post-conviction proceeding brought
and decided prior to the adoption of this rule, or in any
appeal taken in any such proceedings is barred from
assertion in a proceeding under this rule unless the court
on motion or at the hearing finds (a) that the ground for
relief not previously asserted could not reasonably have
been raised in any prior proceeding; or (b) that
enforcement of the bar would result in fundamental
injustice or (c) that denial of relief would be contrary to
the Constitution of the United States or the State of New
Jersey.
R. 3:22-4 preserves the State’s strong interest in
finality by requiring defendants to consolidate issues so
that judicial and attorney resources are not consumed
with piecemeal litigation. State v. Mitchell, 126 N.J. at
- The three exceptions to the bar exist to ensure
fairness to petitioners. Id.
Under exception (a), it is not enough for defendant
to assert that he had not thought of the claim in the prior
proceeding. Id. at 585. The standard under the
exception is objective: the claim must be one that a
reasonable attorney, aware of the relevant facts and law,
could not reasonably have raised. Id. When a defendant
raises an issue in his petition for certification on direct
appeal, even if not raised in the Appellate Division,
exception (a) does not apply because defendant raised the
issue “in the proceedings resulting in the conviction.”
State v. Burgess, 154 N.J. at 185. See also State v. Afanador
(II), 151 N.J. at 50-51 (bar not applied because
defendant raised issue in petition for certification on
direct appeal).
Under exception (b), the term “fundamental
injustice” has no precise definition, but it should be
invoked only in “exceptional circumstances.” State v.
Mitchell, 126 N.J. at 586-587. It is defendant’s burden
to prove that barring his petition would lead to injustice.
Id. Defendant must allege specific facts, which, if
believed, demonstrate the likelihood of injustice by a
preponderance of the evidence. Id. at 589.
“Fundamental injustice” pertains to the fairness of the
proceedings that resulted in conviction. Id. at 585. In
order to avoid putting form over substance, defendant
must also show that the claim being raised for the first
time on post-conviction relief played a role in
determining guilt. Id.
Under exception (c), it is not enough for defendant
to couch his claim in constitutional terms. Id. at 586.
The court must scrutinize the claim to ascertain whether
a constitutional right is truly at stake. Id. For example,
an ineffective assistance of counsel claim will almost
always come within exception (c). See State v. Preciose,
129 N.J. at 459-460; State v. Moore, 273 N.J. Super. at
125; State v. Sloan, 226 N.J. Super. 605, 612 (App. Div.
1988), certif. denied, 113 N.J. 647 (1988). In Mitchell,
defendant attacked the adequacy of his factual basis, but
the Court held it did not fall within the exceptions to R.
3:22-4 because it did not implicate a constitutional
right. 126 N.J. at 584-589. Accord, State v. Cacamis, 230
N.J. Super. at 4-5.With respect to belated challenges to jury
instructions on PCR, a “genuinely alleged serious defect”
will circumvent R. 3:22-4. State v. Cupe, 289 N.J. Super.
1, 8 (App. Div. 1996), certif. denied, 144 N.J. 589
(1996). The procedural bar was not applied in State v.
Burgess, supra; State v. Afanador (II), supra; State v.
Lawton, 298 N.J. Super. 27, 39 (App. Div. 1997) (State
conceded procedural bar did not apply), certif. denied,
151 N.J. 72 (1997) and in State v. Cupe, supra. The bar
was applied to jury instruction claims in State v. Norman,
151 N.J. 5, 38 (1997) and in State v. Culley, 250 N.J.
Super. 558, 563 (App. Div. 1991), certif. denied, 126 N.J.
387 (1991).Note that the procedural bar can be overcome if
defendant couches the claim under ineffective assistance
of trial and appellate counsel. State v. Norman, 151 N.J.
at 36. The claim of instructional error would be
evaluated in accordance with Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052 (1984) and State v. Fritz,
105 N.J. 42 (1987). Id. at 37. In order to prevail,
defendant must demonstrate the instructional error was
prejudicial. Thus, in State v. Reyes, 140 N.J. 344 (1995),
defendant’s claim of ineffective assistance of appellate
counsel failed because the alleged error, not raising a
challenge to the diminished capacity instruction on
direct appeal, would not have resulted in a reversal on
direct appeal because defendant was not even entitled to
the charge. 140 N.J. at 365.B. R. 3:22-5The rule provides that a prior adjudication on the
merits of any ground for relief is conclusive whether made
in the proceedings resulting in the conviction or in any
post-conviction proceeding. For the bar to apply, the
issue previously adjudicated must be “identical” or
“substantially equivalent” to the issue being raised on
PCR. State v. McQuaid, 147 N.J. at 484; State v. Cupe,
289 N.J. Super. at 8. Defendants should not couch the
same claim in different verbiage to avoid the bar. Id.
Although an ineffective assistance of counsel claim