United States District Court, D. New Jersey
December 12, 2005.
JEFFREY MANNING, Petitioner,
ROY L. HENDRICKS, et al., Respondents.
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 (3d Cir.
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
II. STANDARD OF REVIEW
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 at the time the state court renders its decision."
Lockyer v. Andrade, 538 U.S. 63, 71, 72 (2003). III. DISCUSSION
Grounds One and Three challenge the constitutionality of the
jury instructions. In Ground Three, Petitioner asserts that the
failure to instruct the jury that alibi witnesses have no duty to
speak to the police allowed the prosecutor to imply in summation
that the pretrial silence of his alibi witnesses was indicative
of Petitioner's guilt. Petitioner argues that this violated his
constitutional rights under State v. Silva, 131 N.J. 438
(1993). The government argues that Ground Three involves state
law and, to the extent that it raises a constitutional claim,
Petitioner has not shown that the failure to instruct was
contrary to or an unreasonable application of Supreme Court
A habeas petitioner who challenges state jury instructions must
"point to a federal requirement that jury instructions on the
elements of an offense . . . must include particular provisions"
or demonstrate that the jury "instructions deprived him of a
defense which federal law provided to him." Johnson v.
Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997). As the Third
It thus follows that for the error of state law in
the justification instructions, assuming that there
was an error, to be meaningful in this federal habeas
corpus action, there would have to be a body of
federal law justifying the use of deadly force which
is applicable in a state criminal action charging an
offense based on the defendant's use of that force.
Then the error in the jury instructions would be
significant if the instructions did not satisfy that
body of law. Put in a different way, the jury
instructions on justification, even if correct under
state law, would need to have relieved the state of
the necessity of proving an element of the offense as
required by federal law or to have deprived the
petitioner of a defense the state had to afford him
under federal law in order to be significant in a
federal habeas corpus action. If we concluded that a
petitioner could obtain habeas corpus relief without making such
a showing, then district courts in habeas corpus
cases would sit as super state supreme courts for the
purpose of determining whether jury instructions were
correct understate law with respect to the elements
of an offense and defenses to it.
Johnson, 117 F.3d at 110.
The problem with Petitioner's claim involving the failure to
instruct is that he does not point to a federal requirement that
jury instructions must include this particular provision, nor
does he show that the absence of this instruction deprived him of
a defense which federal law provided to him. Johnson at 111.
Moreover, Petitioner relies not on Supreme Court precedent but a
ruling of the New Jersey Supreme Court. Under these
circumstances, Petitioner has not shown that the failure to
instruct was contrary to or involved an unreasonable application
of the Constitution, as determined by the Supreme Court of the
United States. He is not entitled to habeas relief on Ground
In Ground One, Petitioner contends that the following section
of the instructions unconstitutionally diluted the reasonable
doubt standard by injecting a preponderance-of-the-evidence
standard into the charge:
You may find a fact exists and you may draw an
inference from the fact whenever it's more probable
than not that the fact or inference is true. The
existence of each fact and the truth of each
inference need not be established beyond a reasonable
doubt in order for you to find the fact or draw the
inference, but to convict you must be satisfied that
each element of the offense charged has been proved
beyond a reasonable doubt. For example, you do not
have to believe everything a witness says beyond a
reasonable doubt to use such parts of the witness
testimony as you find to be credible, worthy of
belief. But finally you may not convict unless the
State has proved each and every element of the crime
charged and that the defendant did it beyond a
reasonable doubt. (Pet. ¶ 12.A. Supporting Facts at 6.)
In 1970, the Supreme Court held "that the Due Process Clause
protects the accused against conviction except upon proof beyond
a reasonable doubt of every fact necessary to constitute the
crime with which [one] is charged." In re Winship,
397 U.S. 358
, 364 (1970). Winship's rationale requires that the jury be
instructed on the necessity of proof beyond a reasonable doubt.
Cool v. United States, 409 U.S. 100
, 104 (1972). A jury
instruction that "reduce[s] the level of proof necessary for the
Government to carry its burden . . . is plainly inconsistent with
the constitutionally rooted presumption of innocence." Id.,
"[T]rial courts must avoid defining reasonable doubt so as to
lead the jury to convict on a lesser showing than due process
requires." Victor v. Nebraska, 511 U.S. 1
, 22 (1994); see
also Cage v. Louisiana, 498 U.S. 39
, 41 (1990) (per curiam).
As the Supreme Court explained in Victor,
so long as the court instructs the jury on the
necessity that the defendant's guilt be proved beyond
a reasonable doubt, the Constitution does not require
that any particular form of words be used in advising
the jury of the government's burden of proof. Rather,
taken as a whole, the instructions [must] correctly
conve[y] the concept of reasonable doubt to the jury.
Victor, 511 U.S. at 6 (citations and internal quotation marks
omitted); see also Cupp v. Naughten, 414 U.S. 141
(1973) ("[A] single instruction to a jury may not be judged in
artificial isolation, but must be viewed in the context of the
The proper inquiry is not whether the instruction "`could have'
been applied in an unconstitutional manner, but whether there is
a reasonable likelihood that the jury did so apply it."
Victor, 511 U.S. at 6 (quoting Estelle v. McGuire,
502 U.S. 62, 72 and n. 4 (1991)). The constitutional question is "whether
there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to
meet the Winship standard." Victor, 511 U.S. at 6.
In this case, Petitioner presented Ground One to the Appellate
Division on direct review. The Appellate Division rejected the
claim as without merit as follows:
We have reviewed the judge's instructions as a whole
. . . and conclude that the judge fully instructed
the jury on the State's burden to prove each element
of each charged offense beyond a reasonable doubt. We
do not consider the judge's instructions concerning
inferences which are permitted from facts in evidence
as confusing or as diluting the State's ultimate
burden of proof. In fact, the judge's instruction was
correct. Moreover, the judge's instructions did not
have the clear capacity to lead the jury to a result
it otherwise might not have reached. See R.
2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).
Additionally, defendant's counsel's failure to object
to that portion of the charge permits the inference
that defendant's counsel did not consider the error
to be significant in the context of the trial.
State v. Manning, Nos. A-4409-96T4, 4411-96T4 slip op. at 9
(App.Div. Dec. 7, 1998).
The Appellate Division, reading the challenged preponderance of
the evidence instruction in context, essentially found, as the
Supreme Court put it in Holland v. United States, 348 U.S. 121,
140 (1954), that "the instruction as given was not of the type
that could mislead the jury into finding no reasonable doubt when
in fact there was some." Id. Thus, the Appellate Division's
adjudication of the claim was not an unreasonable application of
clearly established constitutional law, as determined by the
Supreme Court. Petitioner is therefore not entitled to habeas
relief on Ground One.
B. First Degree Murder
Petitioner asserts in Ground Two that, because there was
insufficient evidence to support a guilty verdict for knowing or
purposeful murder, the submission of the murder charge to the jury violated due process, even though the jury acquitted
Petitioner of first degree murder and convicted him of the lesser
included offense of aggravated manslaughter. Petitioner argues
that the submission of the murder charge to the jury made it more
likely that the jury would convict Petitioner of the lesser
included charge than it otherwise would have. Without citing
Supreme Court or any precedent, Petitioner argues that, "even if
a defendant is ultimately acquitted of the charge that is
unsupported by the evidence, in may instances there may be
reversible error because of the danger that the deliberation on
the inappropriate charge led the jury to compromise." (Pet. ¶
12.B., Supporting Facts at 11.)
Petitioner presented this claim on direct appeal. The Appellate
Division disposed of it as follows:
Defendant contends that the judge erred in failing to
sua sponte dismiss count one of the indictment
charging murder. It is clear from the record that the
judge properly permitted the jury to consider the
charge of murder predicated upon the concept of
transferred intent, as defined by N.J.S.A.
2C:2-3d. . . .
We find defendant's contention is wholly without
merit. . . . Although there was evidence from which
the jury might conclude, as they apparently did by
their ultimate verdict, that defendant's intent in
shooting his weapon was to generally discourage crowd
pursuit from the scene, there was testimony offered
by Riley, consistent with the version Riley gave to
the police, from which the jury could infer that
defendant intended to cause death or serious bodily
injury to Riley's brother or his friend.
Additionally, the jury was entitled to conclude that
one of the two bullets fired by defendant in the
direction of Riley's brother and his friend struck
Cherry resulting in his death. We additionally note
that the judge's charge on the doctrine of
transferred intent was specifically approved by
defendant's counsel. We thus conclude that the
judge's charge did not constitute plain error.
State v. Manning, supra at 10-11. Petitioner cites no Supreme Court precedent in support of his
claim. This Court finds that the Appellate Division's
adjudication of this claim was not contrary to or an unreasonable
application of Supreme Court precedent, and that Petitioner is
not entitled to habeas relief on Ground Three.
C. Prosecutorial Misconduct
In Ground Four, Petitioner contends that the prosecutor's
comment during summation regarding the absence of corroborating
alibi witnesses violated his Fifth, Sixth and Fourteenth
Amendment rights. Petitioner asserts that the following comment,
without a curative instruction, violated his constitutional
rights by "suggest[ing] that a jury should draw a negative
inference if the opposing party fails to produce a witness whose
testimony would be cumulative, unimportant or inferior to what
had already been utilized." (Pet. at 17.) In summation, the
Now, I asked [Christina Jackson] what about all these
other people, where were they and remember they were
home, they were home, they are home. These other
third parties who supposedly can corroborate this
where are they? They are home. Get a subpoena, bring
them into court to testify. No, no. They are home.
State v. Manning, supra at 11-12.
On direct appeal, the Appellate Division rejected this claim:
Here, the State did not specifically ask the jury to
draw an adverse inference from the defendant's
failure to produce a witness, nor did the prosecutor
specifically ask the judge to instruct the jury as to
adverse inferences. . . . Additionally, the
prosecutor's comments did not specifically suggest
that the jury draw an adverse inference. As we view
the prosecutor's summation, his statement was a
response to direct testimony elicited from
defendant's witnesses. In light of the prosecutor's
considerable leeway in summations . . . the comment
did not violate defendant's right to a fair trial.
State v. Manning, supra at 12-13 (citations and internal
quotation marks omitted). Prosecutorial misconduct may "so infect the trial with
unfairness as to make the resulting conviction a denial of due
process." Donnelly v. DeChristoforo, 416 U.S. 637
, 643 (1974).
Where "specific guarantees of the Bill of Rights are involved,
[the Supreme] Court has taken special care to assure that
prosecutorial misconduct in no way impermissibly infringes them."
Id. at 642. The quantum or weight of the evidence is crucial to
determining whether the prosecutor's statements before the jury
were so prejudicial as to result in a denial of due process.
Darden v. Wainwright, 477 U.S. 168
, 182 (1986); Donnelly,
416 U.S. at 644; Moore v. Morton, 355 F.3d 95, 111 (3d Cir. 2001).
This Court concludes that the adjudication of Ground Four by
the New Jersey courts did not result in a decision that was
contrary to or involved an unreasonable application of Supreme
Court precedent. Petitioner is therefore not entitled to habeas
relief on Ground Four.
D. Ineffective Assistance of Counsel
In Ground Five, Petitioner argues that trial counsel was
constitutionally ineffective in failing to object to the jury
instruction on burden of proof, failing to move for dismissal of
the first degree murder charge, failing to seek the alibi witness
instruction, and failing to object to the prosecutor's improper
comments in summation or to request a curative instruction. (Pet.
¶ 12.E., Supporting Facts at 19-20.) The Appellate Division
rejected these claims on direct review because the alleged
failures were not deficient. "Had defendant's counsel raised an
objection to either the judge's charge or the prosecutor's
comment, or had defense counsel moved to dismiss the murder
count, his objection or motion would have been properly
rejected." State v. Manning, supra at 14. Petitioner's attorney cannot have been constitutionally
ineffective for failing to request instructions or present
objections that the court would have properly rejected. See
Carpenter v. Vaughn, 296 F.3d 138, 153 (3d Cir. 2002) (because
the availability and adequacy of the jury instructions were
questions of state law, Petitioner's "attorney cannot have been
ineffective for failing to request an instruction that was
unavailable"). The Appellate Division's adjudication of
Petitioner's ineffective assistance claims was not contrary to or
an unreasonable application of Strickland v. Washington,
466 U.S. 668 (1984), and its progeny.
E. Certificate of Appealability
The Court denies a certificate of appealability because
Petitioner has not made "a substantial showing of the denial of a
constitutional right" under 28 U.S.C. § 2253(c)(2). See
Miller-El v. Cockrell, 537 U.S. 322 (2003).
Based on the foregoing, the Court dismisses the Petition with
prejudice and declines to issue a certificate of appealability
under 28 U.S.C. § 2253(c).
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