The opinion of the court was delivered by: DENNIS CAVANAUGH, District Judge
Jeffrey Manning filed a Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254(a) challenging a judgment of
conviction in the Superior Court of New Jersey. Respondents filed
an Answer, arguing that the Petition should be dismissed on the
merits. For the reasons expressed below, the Court dismisses the
Petition with prejudice and declines to issue a certificate of
appealability. See 28 U.S.C. §§ 2253(c), §§ 2253(a), (b), (c). I. BACKGROUND
Petitioner challenges a judgment of conviction entered on
December 6, 1996, in the Superior Court of New Jersey, Law
Division, Essex County, after a jury convicted him of aggravated
manslaughter in connection with the death of John Cherry,
attempted murder of Gary Riley, two counts of first degree
robbery, and related weapons offenses. The Law Division granted
the State's motion to sentence Petitioner to a mandatory extended
term as a second offender under the Graves Act, and sentenced him
to a term of life imprisonment, with a 25-year period of parole
ineligibility, for aggravated manslaughter, and a consecutive
20-year sentence, with 10 years of parole ineligibility, for
attempted murder. Petitioner appealed. In an opinion filed
December 7, 1998, the Appellate Division of the Superior Court of
New Jersey affirmed. State v. Manning, Nos. A-4409-96T4,
A-4411-96T4 (App.Div. Dec. 7, 1998). On February 17, 1999, the
Supreme Court of New Jersey denied certification. State v.
Manning, 158 N.J. 73 (1999) (table).
On June 16, 1999, Petitioner filed his first State petition for
post conviction relief in the Law Division. On February 29, 2000,
the Law Division denied relief. Petitioner appealed, and in an
opinion filed March 27, 2001, the Appellate Division affirmed the
order denying post conviction relief. State v. Manning, No.
A-3769-99T4 (App.Div. Mar. 27, 2001). The Supreme Court of New
Jersey denied certification on July 6, 2001. State v. Manning,
169 N.J. 608 (2001) (table).
Petitioner filed his second State petition for post conviction
relief on August 31, 2001. The Law Division denied relief on
August 8, 2002, and the Appellate Division affirmed in an opinion
filed December 23, 2003. State v. Manning, No. A-969-02T2. The
Supreme Court of New Jersey denied certification on April 26, 2004. State v.
Manning, 180 N.J. 152 (2004) (table).
Petitioner executed the Petition which is now before the Court
on August 5, 2004. The Court notified Petitioner of the
consequences of filing such a Petition under the Antiterrorism
and Effective Death Penalty Act ("AEDPA") and gave him an
opportunity to withdraw the Petition and file one all-inclusive
Petition, pursuant to Mason v. Meyers, 208 F.3d 414
2000). The Petition presents five grounds, which are set forth
Ground One: THE COURT ERRED IN PROVIDING THE JURY
WITH A CONFUSING AND CONTRADICTORY INSTRUCTION THAT
IMPROPERLY DILUTED THE STATE'S BURDEN OF PROOF AS TO
ALL OF THE UNDERLYING CHARGES, AND THEREBY VIOLATED
PETITIONER'S FIFTH, SIXTH AND FOURTEENTH AMENDMENT
RIGHTS UNDER THE FEDERAL CONSTITUTION.
Ground Two: SINCE THE STATE DID NOT PRODUCE EVIDENCE
SUFFICIENT TO WARRANT A CONVICTION ON THE MURDER
CHARGE, THE COURT ERRED IN FAILING TO DISMISS THAT
CHARGE AT THE CLOSE OF THE STATE'S CASE, AND THEREBY
VIOLATED PETITIONER'S FIFTH, SIXTH AND FOURTEENTH
AMENDMENT RIGHTS UNDER THE FEDERAL CONSTITUTION.
Ground Three: THE COURT'S FAILURE TO INSTRUCT THE
JURY THAT DEFENDANT'S ALIBI WITNESSES HAD NO DUTY TO
SPEAK TO THE AUTHORITIES PRIOR TO TRIAL WAS ERROR,
AND THAT SUCH VIOLATED PETITIONER'S FIFTH, SIXTH AND
FOURTEENTH AMENDMENT RIGHTS UNDER THE FEDERAL
Ground Four: THE PROSECUTOR COMMITTED MISCONDUCT BY
COMMENTING ADVERSELY IN SUMMATION ON THE DEFENSE'S
FAILURE TO CALL COLLATERAL WITNESSES, AND THE COURT
COMPOUNDED THE ERROR BY FAILING TO PROVIDE A CURATIVE INSTRUCTION THEREBY VIOLATING PETITIONER'S
FIFTH, SIXTH AND FOURTEENTH AMENDMENT RIGHTS UNDER
THE FEDERAL CONSTITUTION.
Ground Five: DEFENSE COUNSEL'S NUMEROUS TRIAL ERRORS
DEPRIVED DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO
THE EFFECTIVE ASSISTANCE OF COUNSEL.
(Pet. ¶¶ 12.A.-12.E.)
The State filed an Answer seeking dismissal of the Petition on
Section 2254(a) of Title 28 of the United States Code gives the
court jurisdiction to entertain a habeas petition challenging a
state conviction or sentence only where the inmate's custody
violates federal law:
[A] district court shall entertain an application for
a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United
28 U.S.C. § 2254(a).
A district court must give deference to determinations of state
courts. Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.), cert.
denied, 534 U.S. 919 (2001); Dickerson v. Vaughn, 90 F.3d 87,
90 (3d Cir. 1996). Where a federal claim was "adjudicated on the
merits"*fn1 in state court proceedings, § 2254 does not
permit habeas relief unless adjudication of the claim (1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal Law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
A decision is "`contrary to' a Supreme Court holding if the
state court `contradicts the governing law set forth in [the
Supreme Court's] cases' or if it `confronts a set of facts that
are materially indistinguishable from a decision of th[e Supreme]
Court and nevertheless arrives at a [different] result."
Rompilla v. Horn, 355 F.3d 233, 250 (3d Cir. 2004) (quoting
Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
Under the "`unreasonable application' clause, a federal habeas
court may grant the writ if the state court identifies the
correct governing legal principle from th[e Supreme] Court's
decisions but unreasonably applies that principle to the facts of
the prisoner's case." Williams, 529 U.S. at 413. Whether a
state court's application of federal law is "unreasonable" must
be judged objectively; an application may be incorrect, but still
not unreasonable. Id. at 409-10.
A court begins the analysis by determining the relevant clearly
established law. See Yarborough v. Alvarado, 541 U.S. 652,
___, 124 S.Ct. 2140, 2147 (2004). Clearly established law "refers
to the holdings, as opposed to the dicta, of [the Supreme
Court's] decisions as of the time of the relevant state-court
decision." Williams, 529 U.S. at 412. A court must look for
"the governing legal principle or principles set forth by the
Supreme Court ...