Lenny Ross v. Administrator East Jersey State Prison

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)
__________

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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

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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.

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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.

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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 non-
sentencing 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

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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 one-
paragraph 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.

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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

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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

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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.”).

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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 non-
jurisdictional). 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

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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-or-
successive 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

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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

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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-of-
Counsel 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.

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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

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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 state-
law 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).

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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 post-
conviction 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 deemed-
exhausted 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-of-
counsel 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).

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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 Flores-
Ortega, 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 Flores-
Ortega standard, as an exception to the general Strickland

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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

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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.

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