Opinion
Civ. No. 98-3813 (DRD).
November 30, 1998
Mr. John F. Mandich, East Jersey State Prison, Lock Bag R, Rahway, N.J., Pro se Petitioner.
Marcy H. Geraci, Esq., Deputy Attorney General, New Jersey Department of Law Public Safety, Division of Criminal Justice, Appellate Bureau, Trenton, N.J., Attorneys for Respondents.
OPINION
Petitioner, John F. Mandich ("Mandich"), has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2244. Petitioner is currently serving a sentence of life imprisonment with a thirty year parole ineligibility in the East Jersey State Prison in Rahway, New Jersey. Respondents, Steven Pinchak, the Administrator of the East Jersey State Prison, and Peter Verniero, the New Jersey Attorney General, oppose Mandich's petition on the grounds that there is no federal or constitutional issue presented in the petition. For the reasons set forth below, Mandich's petition for a writ of habeas corpus will be denied.
I. BACKGROUND
Mandich was indicted by a Hudson County grand jury for the murder of his live-in girlfriend, Maritza Aviles, in the early morning hours of March 31, 1986. Mandich was tried on one count of first degree murder,see N.J.S.A. 2C:11-3a(1), one count of third degree possession of a weapon, a knife, for an unlawful purpose, see N.J.S.A. 2C:39-4d, and one count of fourth degree unlawful possession of a weapon, a knife, for an unlawful purpose, see N.J.S.A. 2C:39-5d. Mandich was tried in the Superior Court of New Jersey in Hudson County before the Honorable Joseph Thuring, J.S.C. The trial began on October 14, 1986, and concluded with a guilty verdict on all counts on October 21, 1986.
Mandich filed a notice of appeal with the New Jersey Superior Court, Appellate Division, on January 2, 1987. After review of the trial record, the Appellate Division, in an unpublished opinion issued on November 17, 1987, reversed Mandich's conviction on all grounds and remanded the case to the Law Division for a new trial.
Mandich was again tried on all three counts of the indictment from April 4, 1988, to April 8, 1988. After the close of evidence and prior to the jury deliberations, the court dismissed the second count of the indictment, third degree possession of a weapon. On April 8, 1988, the jury rendered a verdict of guilty as to the count of first degree murder. At that time a mistrial was declared as to the third count, fourth degree possession of a weapon. On May 6, 1988, Mandich was sentenced on the murder conviction to a term of life imprisonment with a thirty year parole ineligibility.
On May 25, 1988, a notice of appeal was filed with the New Jersey Superior Court, Appellate Division. After a full briefing on the appeal, the Appellate Division affirmed Mandich's conviction. Mandich then filed a petition for certification with the Supreme Court of New Jersey which was subsequently denied. See New Jersey v. Mandich, 122 N.J. 191, 584 A.2d 251 (1990).
Thereafter, Mandich filed a petition for post conviction relief with the New Jersey Superior Court. An order denying the petition was entered on April 18, 1995. That order was affirmed by the Appellate Division in an unpublished per curiam opinion dated November 7, 1997. Mandich filed a petition for certification which was later denied by the New Jersey Supreme Court. See New Jersey v. Mandich, 153 N.J. 216, 708 A.2d 67 (1998). Mandich then filed the instant petition for a writ of habeas corpus on August 17, 1998.
II. DISCUSSION
Mandich's petition sets forth twenty-two separate grounds for which he believes the issuance of a writ of habeas corpus is appropriate. Mandich states his grounds for relief in a brief and appendix accompanying his petition. See Docket Entry No. 1. The brief states the grounds for relief as follows:
Ground One: Petitioner is entitled to a writ of habeas corpus because the trial court erred by failing to instruct the jury on self defense.
Ground Two: Petitioner is entitled to a writ of habeas corpus because the trial court erred by ruling inflammatory photographs admissible.
Ground Three: Petitioner is entitled to a writ of habeas corpus because the trial court erred by not granting a motion for a new trial.
Ground Four: Petitioner is entitled to a writ of habeas corpus because the trial court erred by denying petitioner's motion for judgment of acquittal.
Ground Five: Petitioner is entitled to a writ of habeas corpus because the cumulative error doctrine requires a reversal of petitioner's conviction.
Ground Six: Petitioner is entitled to a writ of habeas corpus because the sentence imposed by the trial court was manifestly excessive.
Ground Seven: Petitioner is entitled to a writ of habeas corpus because the trial court's failure to charge the jury on lesser and included offenses was error and deprived the petitioner of his constitutional right to a fair trial and to due process of law.
Ground Eight: Petitioner is entitled to a writ of habeas corpus because the trial court's instruction on burden of proof in its manslaughter charge was improper, not accurate and contradictory and thereby deprived the petitioner of his constitutional right to a fair trial.
Ground Ten: Petitioner is entitled to a writ of habeas corpus because the petitioner received ineffective assistance of counsel on appeal.
Ground Eleven: Petitioner is entitled to a writ of habeas corpus because the sequential pattern of deliberation in the verdict sheet precluded the jury from considering passion/provocation in mitigation of petitioner's guilt from murder to manslaughter.
Ground Twelve: Petitioner is entitled to a writ of habeas corpus because the trial court committed reversible error when it shifted the burden of proof during its instruction to the jury on passion/provocation.
Ground Thirteen: Petitioner is entitled to a writ of habeas corpus because assuming arguendo that diminished capacity does not apply, voluntary intoxication does.
Ground Fourteen: Petitioner is entitled to a writ of habeas corpus because the petitioner was denied the effective assistance of counsel in that (1) counsel was negligent in failing to interview witnesses, (2) counsel provided negligent advice concerning the petitioner's testimony, (3) counsel threw away the petitioner's only viable defense, and (4) counsel failed to ask the court to provide the funds for an expert witness for the indigent petitioner.
Ground Fifteen: Petitioner is entitled to a writ of habeas corpus because the PCR judge erred in characterizing the defendant's use of steroids as one of voluntary intoxication rather than one of diminished capacity.
Ground Sixteen: Petitioner is entitled to a writ of habeas corpus because the defendant was denied the effective assistance of appellate counsel.
Ground Eighteen: Petitioner is entitled to a writ of habeas corpus because the defendant was denied the effective assistance of PCR counsel.
Ground Nineteen: Petitioner is entitled to a writ of habeas corpus because the trial court's jury instruction to return a guilty verdict on a charge of manslaughter if defendant caused the death of the victim in the heat of passion/provocation that would otherwise be purposeful or knowing murder, contradicted the jury verdict form statements on both the murder and manslaughter charges which instructed the jury to return a guilty verdict on a charge of manslaughter only if the defendant caused death of the victim in the heat of passion under circumstances that first required the jury to acquit the defendant of purposeful or knowing murder, and taken together resulted in reversible error, violating due process, all in contravention of defendant's fifth, sixth, and fourteenth amendment rights inter the United States Constitution, and the New Jersey Constitution, Article 1, Paragraph 10.
Ground Twenty: Petitioner is entitled to a writ of habeas corpus because the trial court's failure to give the jury additional instruction on the state's burden of proof on passion/provocation shifted to defendant the burden of proving passion/provocation, violating due process, even though the jury was generally instructed that the burden of proof remained on the state throughout, and therefore violated defendant's fifth, sixth and fourteenth amendment rights under the United States Constitution, and as incorporated into the Constitution of New Jersey.
Ground Twenty-One: Petitioner is entitled to a writ of habeas corpus because the imposition of the prior adjudication bar pursuant to New Jersey Court Rule 3:22-5 by Judge Olivieri, on post conviction hearing barring defendant's issue with regard to the shift to of the burden of proof and the entire charge, was prejudicial error, and constituted a fundamental injustice in violation of defendant's Fifth, Sixth and Fourteenth Amendment rights under the United States and New Jersey Constitutions.
Ground Twenty-Two: Petitioner is entitled to a writ of habeas corpus because where sufficient evidence clearly supported the defense of diminished capacity, and the New Jersey 2C code defense under intoxication would impose a higher standard, based upon the long term use of steroids and induced chronic level of toxicity defendant had, under the constitutionally deficient standard as applied to a drug dependant person, there is no legal distinction as opposed to an intoxication defense, that would not permit the defense of diminished capacity to have properly been raised by counsel, and the combined resulting failure of the trial court to instruct the jury on both defenses denied defendant a fair trial, and resulted in reversible error.
Ground Twenty-Three: Petitioner is entitled to a writ of habeas corpus because where in Cameron the New Jersey Supreme Court identified the statutory defense of intoxication, and determined admissibility of evidence of intoxication, and those factors pertinent to a determination of sufficiency to satisfy the "prostration of faculties" test, it would be inconsistent with constitutional construction, safeguards and protections under the Constitution and of the 2C code and that defense, to exclude the definition of "drug dependent person[s]" and accompanying evidence of toxicity levels as equally negate the "specific intent" of knowledge and purpose with the standard set of factors as set forth in 2c:35-2, as a standard for that defense.
Ground Twenty-Four: Petitioner is entitled to a writ of habeas corpus because petitioner was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, and as incorporated under Article 1, Paragraph 10 of the New Jersey Constitution.See Brief and Appendix on Behalf of Petitioner. Respondents filed a lengthy answer in which they oppose Mandich's petition and set forth numerous reasons why it should be denied and/or dismissed.
Petitioner numbers his grounds for relief one through twenty-four. There are, however, only twenty-two ground for relief listed as Petitioner skipped over the numbers nine and seventeen. To keep this opinion consistent with both the petition and answer, I did not renumber the grounds to eliminate Petitioner's oversight.
A. Habeas Corpus Under 28 U.S.C. § 2254
A prisoner who is in custody pursuant to the judgment of a state court may file a petition for a writ of habeas corpus with the "Supreme Court, a Justice thereof, a circuit judge, or a district court," on the ground that he or she is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). A federal court, however, may refuse to hear habeas corpus cases where some of the petitioner's claims were not litigated and appealed at the state court level. 28 U.S.C. § 2254(b)(1); Duarte v. Hershberger, 947 F. Supp. 146, 149 (D.N.J. 1996). Under the 1996 amendments to the habeas corpus statute, district courts now have the discretion to hear and deny a petitioner's non-exhausted claims on their merits or dismiss the petition in its entirety and defer the matters to the state courts. Id. at 150.
Mandich presents several claims that were not raised in his appeals and post conviction relief proceedings in state court. See Respondents Exhibits Ra9, Ra21. Mandich's petition for certification filed on May 22, 1990, cited eight different grounds for appeal. Those eight grounds correspond to Grounds One through Eight of the instant petition. Mandich has exhausted his state remedies as to those eight grounds. The petition for certification file on January 14, 1998, cited four separate grounds for appeal. Those four grounds correspond to Ground Fourteen, Ground Ten, Ground Sixteen, and Ground Eighteen of the current petition, respectively. Mandich has exhausted his state remedies as to each of those grounds. The remaining ten grounds for relief listed in the instant petition, however, were not raised in his state court actions and are unexhausted.
While this Court endorses the normal practice of dismissing habeas corpus petitions containing unexhausted claims so that state appellate courts can have the initial opportunity to correct trial court decisions, I will not do so in this case. Mandich's time to pursue his unexhausted claims in the New Jersey state court system has expired. To avoid any future litigation in federal court, the merits of Mandich's twenty-two grounds for relief will be discussed.
B. Standard of Review
"A federally issued writ of habeas corpus . . . reaches only convictions obtained in violation of some provision of the United States Constitution." Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982); see Smith v. Zimmerman, 768 F.2d 69, 71 (3rd Cir. 1985). An application for a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless that adjudication 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 "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)(1)-(2) (Supp. 1998).
C. Jury Charges
In Grounds One, Seven, Eight, Eleven, Twelve, Thirteen, Nineteen, Twenty, Twenty-Two, and Twenty-Three Mandich claims that portions of the trial court's jury charge were erroneous and that he is entitled to relief because of these errors. Challenges to jury instructions solely as in error under state law do not state a claim cognizable in federal habeas corpus proceedings. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783, reh'g denied, 456 U.S. 1001, 102 S.Ct. 2286, 73 L.Ed.2d 1296, reh'g denied, 457 U.S. 1141, 102 S.Ct. 2976, 73 L.Ed.2d 1361 (1982); Zettlemoyer v. Fulcomer, 923 F.2d 284, 309 (3d Cir.), cert.denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed.2d 232, reh'g denied, 502 U.S. 1000, 112 S.Ct. 624, 116 L.Ed.2d 646 (1991). Instead, federal courts will evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process. Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991); Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 399, 38 L.Ed.2d 368 (1973); United States ex rel. Harding v. Marks, 541 F.2d 402, 405 (3d Cir. 1976); Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977); Polsky v. Patton, 890 F.2d 647, 650 (3d Cir. 1989). The court will then determine whether the ailing instructions so infected the entire trial such that the resulting conviction violated due process rendering the trial fundamentally unfair. Estelle, 502 U.S. at 71, 112 S.Ct. at 482.
In a collateral attack on a conviction, the petitioner must show by clear and convincing evidence that the erroneous instruction was so prejudicial that it denied him due process of law. See Henderson, 431 U.S. at 154-55. The petitioner must make a showing "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimension." United States v. Frady, 456 U.S. 152, 169, 170, 102 S.Ct. 2287, 73 L.Ed.2d 816, reh'g denied, 456 U.S. 1001, 102 S.Ct. 2287, 73 L.Ed.2d 1296 (1982).
Mandich has failed to present sufficient evidence to show that the allegedly erroneous jury instructions denied him due process. Mandich takes issue with the state trial court's failure to charge the jury on self defense, failure to charge the jury on lesser and included offenses, failure to accurately charge the jury on manslaughter, failure to accurately charge the jury on passion/provocation, failure to charge the jury on the defense of voluntary intoxication, failure to charge the jury on the defense of diminished capacity, and the erroneous use of a sequential jury charge. These allegations are not raised in federal constitutional terms and are not cognizable under federal law. They merely challenge the trial judge's actions under New Jersey law on when these instructions are warranted, how they should be delivered, and how they are to be phrased. Because the alleged errors raise at best only issues of state law, there is no authority to grant federal habeas corpus relief. Accordingly, Grounds One, Seven, Eight, Eleven, Twelve, Thirteen, Nineteen, Twenty, Twenty-Two, and Twenty-Three for a writ of habeas corpus will be denied.
Because a defendant in a state criminal case does not have the constitutional right to have a jury consider evidence of intoxication, diminished capacity due to drugs, or other similar defenses or mitigating factors, the absence of these jury charges does not rise to the level of a constitutional violation.
D. Admissibility of Evidence
In Ground Two of Mandich's petition, he alleges that the trial court erred in allowing inflammatory photographs to be introduced into evidence and, because of this, he was denied his constitutional right to a fair trial. Normally, a writ of habeas corpus will only be granted on erroneous state evidentiary rulings if the challenged evidence is a crucial or highly significant factor in the context of the entire trial.Thomas v. Lynaugh, 812 F.2d 225, 230 (5th Cir.), cert. denied, 484 U.S. 842, 108 S.Ct. 132, 98 L.Ed.2d 89 (1987). However, the erroneous admission of evidence that is relevant, but excessively inflammatory, might rise to the level of a constitutional violation. See, e.g., United States ex rel. Mertz v. New Jersey, 423 F.2d 537, 539-40 (3d Cir. 1970);Dudley v. Duckworth, 854 F.2d 967, 972 (7th Cir. 1988), cert. denied, 490 U.S. 1011, 109 S.Ct. 1655, 104 L.Ed.2d 169 (1989); Walker v. Engle, 703 F.2d 959, 968 (6th Cir.), cert. denied sub nom. Marshall v. Walker, 464 U.S. 951, 104 S.Ct. 367, 78 L.Ed.2d 327 (1983); Osbourne v. Wainwright, 720 F.2d 1237, 1239 (11th Cir. 1983) (per curiam);Panzavecchia v. Wainwright, 658 F.2d 337, 341-42 (5th Cir. 1981). Accordingly, the relative probative and prejudicial value of evidence must be examined in order to determine whether its admission violated Mandich's right to a fair trial.
Not every error in balancing probative value against prejudicial effect "amount[s] to error which rises to constitutional dimensions." See United States ex rel. Mertz, 423 F.2d at 539-40. In Bisaccia v. Attorney Gen. of New Jersey, 623 F.2d 307 (3d Cir.), cert. denied, 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980), the Third Circuit identified at what point such an error in balancing might be cognizable in a habeas corpus proceeding. Where relevant probative evidence "is greatly outweighed by the prejudice to the accused from its admission, then use of such evidence by a state may rise to the posture of fundamental fairness and due process of law." 623 F.2d at 313 (quoting United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1223 (7th Cir. 1974)). Accord Osbourne, 720 F.2d at 1239 (error in balancing must be of "such magnitude" as to deny fundamental fairness); United States ex rel. Palmer v. DeRobertis, 738 F.2d 168, 171 (7th Cir.) (when probative value of evidence is "greatly outweighed" by the prejudice to the accused, then use of such evidence may "rise to the posture of the denial of fundamental due process"), cert. denied, 469 U.S. 924, 105 S.Ct. 306, 83 L.Ed.2d 241 (1984). Therefore, only if the inflammatory nature of the photographs so plainly exceeded its evidentiary worth, will I find that a constitutional error has been made.
In making this evaluation, however, the deference given to the trial court is great because, "[l]ike any balancing test, the . . . standard is inexact, requiring sensitivity on the part of the trial court to the subtleties of the particular situation, and considerable deference to the hands-on judgment of the trial judge." United States v. Guerrero, 803 F.2d 783, 785 (3d Cir. 1986). Accordingly, the state trial judge will be accorded the same deference accorded federal trial judges, who are in a unique position to assess the relative probative value and inflammatory effect of proffered testimony. Id.
The probative value of the admitted photographs clearly outweighed any potential prejudice from their inflammatory content. From the pictures of the scene and the victim's wounds, "the jury could infer that the attack was performed with . . . such ferocity that it could only have been a product of a knowing purpose to cause death." New Jersey v. Micheliche, 220 N.J. Super. 532, 545, 533 A.2d 41 (App.Div.), certif. denied, 109 N.J. 40, 532 A.2d 1108 (1987). The record below clearly shows that the trial judge carefully weighed the probative value of each picture against the risk that its admission would unduly prejudice Mandich. This careful selection process used by the trial court resulted in the exclusion of some photographs which were offered by the prosecutor. See New Jersey v. Sanchez, 224 N.J. Super. 231, 250, 540 A.2d 201 (App. Div.), certif. denied, 111 N.J. 653, 546 A.2d 561 (1988). Accordingly, the trial court's decision to allow the photographs into evidence did not violate Mandich's constitutional right to a fair trial and therefore does not present a cognizable habeas corpus claim. The second ground for relief will be denied.
E. Errors by Post Conviction Relief Court
In Grounds Fifteen, Eighteen, and Twenty-One of the Petition, Mandich claims that he is entitled to habeas corpus relief because the state judge hearing his post conviction relief petition ("PCR") erred in framing his issue in terms of voluntary intoxication rather than diminished capacity, he was denied effective assistance of PCR counsel, and the "prior adjudication" bar had been improperly applied by the PCR court. These grounds for relief, however, are not cognizable federal claims. Habeas corpus relief is intended only to address claims attacking underlying state convictions, not matters collateral to those convictions. See Franzen v. Brinkman, 877 F.2d 26 (9th Cir.) (per curiam), cert. denied sub nom. Franzen v. Deeds, 493 U.S. 1012, 110 S.Ct. 574, 107 L.Ed.2d 569 (1989); Hopkinson v. Shillinger, 866 F.2d 1185, 1218-20 (10th Cir. 1989), cert. denied 497 U.S. 1010, 110 S.Ct. 3256, 111 L.Ed.2d 765 (1990); Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988); Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir. 1987) (per curiam); Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir.), cert.denied, 484 U.S. 838, 108 S.Ct. 122, 98 L.Ed.2d 81 (1987); Kirby v. Dutton, 794 F.2d 245 (6th Cir. 1986); Williams v. Missouri, 640 F.2d 140, 143-44 (8th Cir.), cert. denied, 451 U.S. 990, 101 S.Ct. 2328, 68 L.Ed.2d 849 (1981). Accordingly, these grounds for habeas corpus relief will be denied.
Ground Eighteen, dealing with the denial of effective assistance of PCR counsel, is not cognizable for other reasons. The federal habeas statute states that "[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be ground for relief in a proceeding arising under [this section]." 28 U.S.C. § 2254(I). Accordingly, this ground will be dismissed because there is no federal constitutional or statutory right to an attorney in state post-conviction relief proceedings.
F. Excessive Sentence
Petitioner also argues that the sentence imposed for his conviction on first degree murder is manifestly excessive. Sentencing, however, is a matter of state criminal procedure and does not involve such a denial of fundamental fairness as to fall within the purview of federal habeas corpus. Grecco v. O'Lone, 661 F. Supp. 408, 415 (D.N.J. 1990) (citingCole v. Wyrick, 615 F.2d 1206, 1208 n. 5 (8th Cir. 1980); Johnson v. Beto, 383 F.2d 197, 198 (5th Cir. 1967), cert. denied, 393 U.S. 868, 89 S.Ct. 153, 21 L.Ed.2d 136, reh'g denied, 393 U.S. 992, 89 S.Ct. 455, 21 L.Ed.2d 458 (1968). Accordingly, this ground for habeas corpus will be denied.
G. New Trial
In Ground Three of the Petition, Mandich argues that the evidence produced at trial was insufficient to support a conviction and that the trial court erred in not granting his motion for a new trial on those grounds. Mandich's argument that the evidence was insufficient, however, does not amount to a claim that there was no evidence as to one or more elements of the crime for which he was convicted. Compare Anderson v. United States, 417 U.S. 211, 223, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974),and Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). Therefore, Petitioner's disagreement with the jury's decisions as to the credibility of the evidence, and the inferences to be drawn therefrom, does not rise to a constitutional claim cognizable in federal habeas corpus proceedings. See 28 U.S.C. § 2254(a) (stating that relief is limited to circumstances involving a "violation of the Constitution or laws or treaties of the United States"). Accordingly, this ground for relief is without merit and will be denied.
H. Motion for Judgment of Acquittal
Petitioner claims that the weight of the evidence did not support a conviction of knowing/purposeful murder and that it was error for the trial court to deny his motion for acquittal. The Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970). The standard of review applied to a habeas corpus petition alleging insufficient evidence is not a de novo determination of the trial evidence claimed to establish guilt beyond a reasonable doubt.Woodby v. Immigration Naturalization Serv., 385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362 (1966). Rather, the proper standard is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, reh'g denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979) (emphasis in original).
There is no doubt that the New Jersey courts acted reasonably in denying Petitioner's motion for acquittal and affirming that denial on appeal. Evidence was presented at trial that supported the theory that Mandich entered the victim's apartment through a window, separated the victim from her male friend, broke back into the apartment, and, without any injury to himself, killed the victim. Clearly, a rational factfinder could have found Mandich guilty of murder. Indeed, two separate juries found Mandich guilty of this murder. It is clear that the state judges in this matter acted as reasonable jurists when they denied his motion and affirmed it on appeal. Accordingly, this ground for relief will be denied.
I. Cumulative Error Doctrine
In Ground Five of the Petition, Mandich argues that he was denied a fair trial based upon the cumulation of errors in Grounds One, Two, Three, and Four. Cumulative errors may render a trial unfair, warranting habeas corpus relief. Federal habeas corpus relief, however, may only be granted for cumulative errors in the conduct of a state trial where the individual errors involved matters of constitutional dimension rather than mere violations of state law. Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995), cert. denied, 518 U.S. 1022, 116 S.Ct. 2559, 135 L.Ed.2d 1076 (1996); Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992) (en banc) (quoting Cupp v. Naughten, 414 U.S. 141, 146-49, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973)), cert. denied, 508 U.S. 960, 113 S.Ct. 2928, 124 L.Ed.2d 679 (1993). Because I have already held that Grounds One, Two, Three, and Four did not involve matters of constitutional dimension, Mandich's cumulative error argument is without merit. Accordingly, this ground for relief will be denied.
J. Ineffective Assistance of Trial Appellate Counsel
In Ground Ten, Fourteen, Sixteen, and Twenty-Four, Mandich argues that he is entitled to habeas corpus relief because of ineffective trial and appellate counsel. In Grounds Ten and Fourteen, Mandich claims that his trial counsel was ineffective for failing to interview witnesses, improperly advising him not to testify at trial, failing to present a steroid-based diminished capacity defense, and negligently failing to ask the court to provide funds to petitioner for an expert witness. In Ground Sixteen, Mandich argues that his appellate counsel did not meet with him and discuss the issue of ineffective assistance of trial counsel based upon trial counsel's failure to present a steroid-based diminished capacity defense. In Ground Twenty-Four, Mandich again argues that his trial counsel's "failure to adequately prepare for and avail, in an informed manner, petitioner of the defense of diminished capacity and intoxication . . . resulted in a denial of the effective assistance of counsel." Respondents argue that Mandich has failed to raise any legal or factual assertions that would entitle him to habeas corpus relief.
A petitioner bears the burden of proof to support a claim of ineffective assistance of counsel. United States ex rel. Johnson v. Johnson, 531 F.2d 169, 174 (3d Cir.), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976). In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984), the Supreme Court adopted a two-prong test for determining whether counsel's performance was so defective that a reversal of the defendant's conviction is required. First, the defendant must show that counsel's performance was deficient.Id. at 687, 104 S.Ct. at 2064. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. Second, the defendant must show that the deficient performance prejudiced the defense. Id. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id.
Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. Id.; see also Lewis v. Mazurkiewicz, 915 F.2d 106, 110 (3d Cir. 1990); United States v. Gray, 878 F.2d 702, 710 (3d Cir. 1989). The Strickland court further explained that the proper measure for evaluating the performance of counsel is "reasonableness under prevailing professional norms." 466 U.S. at 688, 104 S.Ct. at 2065. A defendant making a claim of ineffective assistance of counsel must "identify acts or omissions of counsel that are alleged not to have been the result of professional judgement." Id. at 690, 104 S.Ct. at 2066. In addition, the court held that a defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068. The defendant must "affirmatively prove prejudice." Id. at 693, 104 S.Ct. at 2067. Hence, even if counsel's conduct was unreasonable, it "does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691, 104 S.Ct. at 2066. Finally, the court warned that judicial scrutiny of counsel's performance must be highly deferential. Id. at 689, 104 S.Ct. at 2065.
Pursuant to the amended habeas corpus statute, an independent determination of whether Mandich has satisfied the two prongs of theStrickland test is not necessary. See 28 U.S.C. § 2254(d)(1); United States ex rel. Boyce v. Dobucki, 993 F. Supp. 652, 659 (N.D.Ill. 1998). All that is required is an "examin[ation of] the state court's decision to determine if it was `contrary to, or involved an unreasonable application of clearly established federal law.'" Hollman v. Wilson, ___ F.3d ___, 1998 WL 598813, at *3 (3d cir. 1998); Bey v. Morton, 124 F.3d 524, 528 (3d Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 864, 139 L.Ed.2d 762 (1998).
After reviewing the written opinions of the New Jersey courts with regards to this issue, it is clear that their decisions concerning the ineffective assistance of counsel claims were not deficient under this standard. The state court's conclusion that Mandich's counsel was not ineffective was a reasonable application of established federal law in the issue. In affirming the denial of Mandich's petition for post-conviction relief, the Appellate division of the New Jersey Superior Court specifically held that nothing in the record suggested that the trial attorney's performance was deficient nor that there was a reasonable probability that the result of the trial would have been different but for the lawyer's alleged errors. Additionally, the appellate court stated that the transcript of the post-conviction relief hearing did not support an inference that Mandich's steroid use tended to negate the mental element of murder. Finally, the court stated that it was completely reasonable for the trial attorney to conclude that the dangers associated with placing Mandich on the stand far outweighed the remote possibility of successfully advancing the claim of diminished capacity or voluntary intoxication. Trial counsel's strategic decision not to pursue either the defense of diminished capacity or voluntary intoxication was viewed as reasonable by the Appellate Division.
Mandich offers no reason in his petition to doubt the New Jersey appellate court's analysis of federal law. The post-conviction relief court and the appellate division both discussed the Strickland two-part test when making their respective decisions concerning Mandich's ineffective counsel claims. It is the petitioner's obligation to present this Court with substantial evidence suggesting that the state courts were unreasonable in their application of the Strickland standard. Mandich has failed to do so. Accordingly, these grounds for relief will all be denied.
Because Mandich failed to carry his burden with regards to his claims that his trial counsel was ineffective, his claims that his appellate counsel was ineffective by not raising an ineffective assistance of trial counsel argument on appeal is without merit. The state appellate courts, through a reasonable application of federal law, held that Mandich's trial counsel was not ineffective in their duties. Accordingly, Mandich's appellate counsel could not have been derelict in his duties by not arguing ineffectiveness of trial counsel.
III. CONCLUSION
For the reasons set forth above, the petition of John F. Mandich for a writ of habeas corpus will be denied without the issuance of a certificate of appealability. An appropriate order will issue.O R D E R
Petitioner, John F. Mandich, having filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2244, and the Court having considered all papers submitted; and in accordance with this Court's opinion of even date;
IT IS this day of November, 1998, hereby
ORDERED that John F. Mandich's petition for a writ of habeas corpus be and hereby is dismissed without the issuance of a certificate of appealability.