                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-28-2006

Dozier v. Hendricks
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4539




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                                                 NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                   __________

                       No. 04-4539
                          _____

                      JOHN DOZIER,
                                 Appellant

                             v.

          ROY L. HENDRICKS; JOHN FARMER,
               The Attorney General of the
                   State of New Jersey

                       __________

      On Appeal from the United States District Court
                for the District of New Jersey
                (D.C. Civil No. 01-cv-04646)
      District Judge: Honorable Dennis M. Cavanaugh
                         __________

        Submitted Under Third Circuit LAR 34.1(a)
                    on July 13, 2006

Before: SLOVITER, McKEE, and RENDELL, Circuit Judges.

               (Filed: September 28, 2006)
                       __________

               OPINION OF THE COURT
                     __________
RENDELL, Circuit Judge.

         Petitioner John Dozier, a New Jersey state prisoner, appeals the District Court’s

denial of his federal petition for writ of habeas corpus. We granted a certificate of

appealability. Upon further review, however, and for the reasons set forth below, we

conclude that Dozier is not entitled to habeas relief and will affirm the District Court’s

denial of his petition.

                                               I.

         We granted Dozier’s request for a certificate of appealability as to the following

issue:

                Whether the District Court erred in denying a writ of habeas
                corpus as to Appellant’s claim that he was denied his
                constitutional right to due process, due to the trial court’s
                failure to instruct the jury on the State’s Drug Kingpin statute
                as required by State v. Alexander, 643 A.2d 996 (N.J. 1994).
                See Smith v. Horn, 120 F.3d 400, 409-19 (3d Cir. 1997).

Dozier v. Hendricks, No. 04-4539 (3d Cir. June 23, 2005)

         Dozier was convicted of violating New Jersey’s “Drug Kingpin” statute, N.J. Stat.

Ann. § 2C:35-3, and sentenced to life imprisonment with a twenty-five-year period of

parole ineligibility, in 1992. The trial court instructed the jury, inter alia, that “‘in order

for a defendant to be a leader of a narcotics trafficking network, defendant’s role must be

shown to be an organizer, supervisor, financier or manager of such a conspiracy. The

defendants needs [sic] not be the only or even the primary organizer, supervisor or

financier or manager.’” Dozier v. Hendricks, Civ. A. No. 01-4646, slip op. at 7 (D.N.J.


                                                2
Nov. 5, 2004) (quoting trial court’s instructions).

       Dozier first challenged the trial court’s instructions on direct appeal, arguing that

they did not comply with the requirements set forth by the New Jersey Supreme Court in

State v. Alexander, 643 A.2d 996 (N.J. 1994).1 The Appellate Division affirmed Dozier’s

conviction, emphasizing that Dozier’s jury instruction claim was “not a constitutional

one” and that “the evidence overwhelmingly supports his conviction.” State v. Dozier,

No. A-5276-92T4, slip op. at 15 (N.J. Super Ct. App. Div. Jan. 3, 1995). The New Jersey

Supreme Court denied certification. State v. Dozier, 663 A.2d 1361 (N.J. 1995) (table).

       Dozier next raised the issue in a petition for writ of habeas corpus in the United

States District Court for the District of New Jersey. There, he argued that the defect in

the jury instructions violated his constitutional due process rights. Then-District Court

Judge Barry dismissed the petition on the merits, holding that “‘Petitioner does not

present a federal constitutional claim here and, even if he did, his constitutional rights



  1
   In State v. Alexander, the New Jersey Supreme Court found that the plain language of
the Drug Kingpin statute did “not fully convey to the jury the nature of the actual
elements of the conduct that the Legislature intended to criminalize.” 643 A.2d at 1000.
Thus, it held that, in prosecutions involving the statute, the trial court must supplement its
instructions on the statutory elements of the offense with an instruction that the jury

       must find that the defendant occupies a high-level position, that is, a position
       of superior authority or control over other persons, in a scheme or organization
       of drug distribution (or manufacture or dispensing or transporting), and that in
       that position the defendant exercised supervisory power or control over others
       engaged in an organized drug-trafficking network.

Id.

                                              3
were not violated.’” Dozier, Civ. A. No. 01-4646, at 9 (quoting Dozier v. Morton, No.

95-cv-6224 (D.N.J. Sept. 4, 1997)). On appeal, we denied a certificate of appealability on

the ground that Dozier had failed to exhaust state remedies with regard to his

constitutional due process claim. Id. at 10.

       In the meantime, Dozier sought post-conviction relief in the New Jersey courts.

The trial court denied his petition after a hearing, finding that the due process claim had

been addressed on direct appeal and that the rule announced in Alexander could not be

applied retroactively.2 The Appellate Division affirmed the denial of post-conviction

relief, agreeing with the trial court that Dozier’s claim was procedurally barred because it

had been addressed on direct appeal. The state Supreme Court again denied certification.

State v. Dozier, 762 A.2d 218 (N.J. 2000) (table).

       Having exhausted all of his state remedies, Dozier once again filed for habeas

relief in the District Court for the District of New Jersey. The District Court denied

Dozier’s habeas petition, and declined to issue him a certificate of appealability. Dozier,

Civ. A. No. 01-4646, at 20-21. We granted Dozier’s request for a certificate of




  2
   We note that the trial court’s ruling in this regard conflicts with the New Jersey
Supreme Court’s holding in State v. Afanador, 697 A.2d 529, 536 (N.J. 1997), that
Alexander applies retroactively where a correctly charged jury could reasonably have
concluded that the defendant was not a drug kingpin, and the absence of an Alexander
instruction constituted plain error capable of bringing about an unjust result. Because this
aspect of the trial court’s ruling did not form the basis for the Appellate Division’s
decision, however, it is not before us.

                                               4
appealability as to the federal constitutional due process issue.3

                                             II.

       The federal habeas statute, as amended by the Antiterrorism and Effective Death

Penalty Act of 1996, provides that 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 the adjudication of the petitioner’s 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). Dozier seeks relief under the first of these two standards, arguing

that the Appellate Division’s adjudication of his constitutional due process claim resulted

in a decision that was contrary to a clearly established principle of federal law, namely

that jury instructions that omit or materially misdescribe an element of an offense violate

due process. See Appellant’s Br. at 13.

       Dozier’s claim is predicated on the New Jersey Supreme Court’s opinion in State v.

Alexander, 643 A.2d 996 (N.J. 1994), and one of our cases, Smith v. Horn, 120 F.3d 400

(3d Cir. 1997). In Smith, we held that jury instructions that omit or materially misdescribe

an element of an offense lift the government’s burden of proving that element and, thus,

   3
    Judge Van Antwerpen would have denied the request.

                                              5
violate due process. Id. at 415. We made very clear, however, that our decision was not

based on existing Supreme Court precedent, but, rather, on our prediction of what the

Supreme Court would do if it was presented with the issue:

              The dissent notes that the Supreme Court has never expressly
              held that a jury charge that eases the state’s burden of proof on
              an element of an offense by omitting or materially
              misdescribing it violates the Due Process Clause. The
              proposition is true as far as it goes. If our duty as a court of
              appeals were simply to sustain only those claims the legal
              bases for which have already been settled by the Supreme
              Court, the dissent’s observation would have some relevance.
              However, our duty also extends to predicting, in circumstances
              where there is no specific guidance, how that Court would
              decide if it were to consider the case before us.

Id. at 416. See also id. at 425-26 (Alito, J., dissenting) (distinguishing Supreme Court

cases cited by the majority to support its holding and stating that “the Supreme Court

opinion that appears to be most closely on point, Henderson v. Kibbe, 431 U.S. 145

(1977), cuts against the majority’s argument”).

       Therefore, the principle that Dozier urges is not a “clearly established” rule of

“Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1) (emphasis added). Smith was decided before the AEDPA standard came into

effect, see id. at 420 n.1, 422-23 (Alito, J., dissenting), when predictions of what the

Supreme Court would do were permissible considerations in habeas cases. Given the

AEDPA standard recited above, we cannot grant habeas petitions based on our

“prediction” of what the Supreme Court would do, but must find applicable Supreme



                                              6
Court precedent that has not been properly followed. Dozier has not cited, and we have

not found, any Supreme Court case that addresses the specific problem that he identifies

here or establishes the legal principle on which he relies. Thus, he cannot demonstrate

that the Appellate Division’s ruling “resulted in a decision that was contrary to . . . clearly

established Federal law, as determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1).

       Dozier’s reliance on the New Jersey Supreme Court’s ruling in Alexander is

similarly unavailing, as it is not premised on established United States Supreme Court

jurisprudence.

                                              III.

       Accordingly, Dozier is not entitled to habeas relief, and we will AFFIRM the order

of the District Court.




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