                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


KENNETH CHATONE MANOKEY,                
              Petitioner-Appellee,
                 v.
LLOYD L. WATERS, Warden of the                   No. 03-6932
Maryland Correctional Institution; J.
JOSEPH CURRAN, JR., The Attorney
General of the State of Maryland,
            Respondents-Appellants.
                                        
           Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
                Catherine C. Blake, District Judge.
                        (CA-02-1040-CCB)

                        Argued: May 4, 2004

                      Decided: December 2, 2004

     Before WILLIAMS and TRAXLER, Circuit Judges, and
        Pasco M. BOWMAN, Senior Circuit Judge of the
      United States Court of Appeals for the Eighth Circuit,
                     sitting by designation.



Reversed by published opinion. Senior Judge Bowman wrote the
opinion, in which Judge Traxler joined. Judge Williams wrote a sepa-
rate opinion concurring in part and concurring in the judgment.


                             COUNSEL

ARGUED: Mary Ann Rapp Ince, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Balti-
2                         MANOKEY v. WATERS
more, Maryland, for Appellants. Justin Sanjeeve Antonipillai,
ARNOLD & PORTER, L.L.P., Washington, D.C., for Appellee. ON
BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland, Balti-
more, Maryland, for Appellants. Robyn M. Holtzman, Susan L. Lynd-
rup, Geoffrey J. Michael, Kathryn E. Taylor, ARNOLD & PORTER,
L.L.P., Washington, D.C., for Appellee.


                               OPINION

BOWMAN, Senior Circuit Judge:

   The State of Maryland appeals an order of the district court grant-
ing habeas relief on a double-jeopardy ground to Kenneth Chatone
Manokey under 28 U.S.C. § 2254(d). We reverse.

   In 1998, Manokey went to trial in state court on various charges
relating to the stabbing of his former girlfriend, Phyllis Smith. The
charges included first-degree assault, second-degree assault, wearing
and carrying a dangerous weapon with intent to injure, and reckless
endangerment. At the end of the trial, Manokey moved for a judgment
of acquittal on all the charges. Pursuant to that motion, the trial judge
dismissed the weapon count and the reckless-endangerment count,
and the case was submitted to the jury on the first-degree-assault and
second-degree-assault charges. The jury found Manokey guilty of
first-degree assault and did not return a verdict on the second-degree-
assault charge. Manokey was sentenced to a twenty-five-year prison
term on the conviction for first-degree assault.

   Manokey appealed, raising a single issue: whether the evidence
was sufficient to support the first-degree-assault conviction. In an
unreported opinion, the Maryland Court of Special Appeals rejected
Manokey’s claim that the evidence was insufficient and affirmed his
conviction. Manokey v. State, No. 1465 (Md. Ct. Spec. App. Nov. 1,
1999). Manokey then pursued his post-conviction remedy (PCR),
asserting several grounds for relief and raising his double-jeopardy
claim for the first time in any court.1 The claim stands or falls on
    1
    The state has not argued that Manokey’s failure to raise this claim at
trial and in his direct appeal was a procedural default, so we consider the
issue as having been waived.
                          MANOKEY v. WATERS                            3
whether first-degree assault and reckless endangerment are one and
the same offense for double-jeopardy purposes. If they are, the trial
court’s grant of the motion for judgment of acquittal on the reckless-
endangerment count created a double-jeopardy bar to submitting the
first-degree-assault count to the jury. The state PCR court determined
that they are not one and the same offense and denied relief on the
double-jeopardy claim, as well as on all of Manokey’s other claims.2
Manokey then sought appellate review of the PCR court’s ruling. In
an unreported per curiam opinion, the Maryland Court of Special
Appeals summarily denied Manokey’s application for leave to appeal
the post-conviction court’s denial of relief. Manokey v. State, No.
2934 (Md. Ct. Spec. App. Dec. 14, 2001). Within the one-year statute
of limitations, see 28 U.S.C. § 2244(d)(1), Manokey filed his § 2254
petition, raising six grounds for habeas relief. The district court
granted the writ on the double-jeopardy ground but denied relief on
all the other grounds. The state’s timely appeal followed. Manokey
did not seek a certificate of appealability (COA) and has no appeal
before us.

   A federal court may not grant habeas relief under § 2254 "with
respect to any claim that was adjudicated on the merits in State court
proceedings" unless the state-court ruling:

        (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 unreason-
      able determination of the facts in light of the evidence pre-
      sented in the State court proceeding.

28 U.S.C. § 2254(d).
  2
   Both at the post-conviction hearing and in the order denying post-
conviction relief, the PCR court described Manokey’s petition as "frivo-
lous." Manokey v. State, No. 9610 (Cir. Ct. Dorchester County, Md.)
Post-Conviction Hr’g Tr. at 28 (Dec. 7, 2000) and Mem. & Order at 3
(Jan. 4, 2001).
4                        MANOKEY v. WATERS
   The state PCR court decided the double-jeopardy claim on its mer-
its and held that as a matter of state law, the offenses of first-degree
assault and reckless endangerment are not the same. Applying Block-
burger v. United States, 284 U.S. 299 (1932), the PCR court found
that each offense required proof of an element the other offense did
not, and therefore the state trial court’s granting of the motion for
judgment of acquittal on the reckless-endangerment charge did not
raise a double-jeopardy bar to Manokey’s trial and conviction on the
first-degree-assault charge.

   Manokey, relying on Williams v. State, 641 A.2d 990 (Md. Ct.
Spec. App. 1994), contends the PCR court’s reading of state law was
clearly wrong, and hence the court’s application of Blockburger
resulted in a decision involving an unreasonable application of clearly
established federal law. That is the theory on which the district court
granted habeas relief. For its part, the state distinguishes Williams and
argues that the PCR court’s determination that first-degree assault and
reckless endangerment each required proof of an element that the
other did not was a correct statement of Maryland law.

   Williams is not a double-jeopardy case. Instead, it involves an
application of the common-law merger doctrine for purposes of sen-
tencing. As in the present case, in Williams the charges arose from the
same incident; the defendant had been convicted of both (1) assault
with intent to maim and (2) reckless endangerment, and he had been
sentenced on each conviction, the sentences to run concurrently. The
court, rejecting the contention that the convictions were mutually
inconsistent, went on to consider the merger question. After discuss-
ing the background of the reckless-endangerment statute, with addi-
tional discussion of actus reus, mens rea, and related matters, the
court held that for sentencing purposes the crime of reckless endan-
germent merged with the crime of assault with intent to maim. Having
so held, the court affirmed the sentence for assault with intent to
maim (ten years) and vacated the concurrent sentence for reckless
endangerment (five years). Williams does not say, nor, as far as we
know, has any Maryland state court ever said, that the granting of a
judgment of acquittal on a reckless-endangerment charge results in a
                          MANOKEY v. WATERS                              5
double jeopardy bar against trial and conviction on either an assault-
with-intent-to-maim charge or a first-degree-assault charge.3

   The Williams holding on merger of the two crimes for sentencing
purposes thus is not controlling on the double-jeopardy issue pre-
sented by Manokey. The question is not whether first-degree assault
and reckless endangerment merge as a matter of state law for sentenc-
ing purposes when both charges are based on the same incident but
whether the granting of a motion for a judgment of acquittal on the
reckless-endangerment charge results in a double-jeopardy bar against
trial and conviction on the first-degree-assault charge. Under Block-
burger, the answer depends on whether each crime requires an ele-
ment of proof the other crime does not. We believe that a proper
Blockburger analysis of the two crimes supports the state PCR court’s
denial of Manokey’s double-jeopardy claim.

   Williams itself recognizes that, although the mens rea of reckless
endangerment may merge with the mens rea of assault with intent to
maim, making it appropriate to sentence the defendant only on the
greater crime, each crime requires proof of a mens rea different from
the mens rea of the other crime. Assault with intent to maim requires
proof of a specific intent to inflict physical harm upon the person of
another. Reckless endangerment, however, is a lesser charge, requir-
ing only proof of reckless indifference to a harmful consequence. In
explaining its merger-for-sentencing-purposes holding, Williams goes
on to say that "the subjective mens rea of reckless indifference to a
harmful consequence at a certain point along the rising continuum of
  3
   Since Williams was decided in 1994, the Maryland General Assembly
has repealed the statute that established the assault-with-intent-to-maim
offense and has replaced it with Md. Code Ann., Crim. Law § 3-202,
assault in the first degree, which is the offense of which Manokey was
charged and convicted. This newly-defined offense is different in struc-
ture and language from the former assault-with-intent-to-maim offense
that was before the court in Williams, and it quite simply prohibits inten-
tionally causing or attempting to cause serious physical injury to another.
But we make little of this because the reasoning of Williams still would
seem applicable to a merger-for-sentencing-purposes question arising in
a case in which the defendant was convicted of violating both § 3-202
and the reckless-endangerment statute.
6                         MANOKEY v. WATERS
blameworthiness may ripen into the even more blameworthy specific
intent to inflict the harm." Id. at 1010. And at that point, the reasoning
continues, reckless endangerment merges, for sentencing purposes,
into the greater offense of assault with intent to maim. Implicit in this
reasoning in the idea that when a single act is sufficient to result in
convictions for both offenses, but the victim suffered only a single
harm as a result of that act, then as a matter of fundamental fairness
there should be only one punishment because in a real-world sense
there was only one crime.4 Though the Williams opinion cites Block-
burger, it does not purport to do a complete Blockburger-type analy-
sis of assault with intent to maim and reckless endangerment. Instead,
the opinion merely compares the mens rea of the two offenses and
does not compare other elements of the offenses that might differenti-
ate them for double-jeopardy purposes. The holding of Williams is
thus a far cry from a holding that the offenses are the same for
double-jeopardy purposes.

   The state PCR court was aware of Williams and did not consider
it to control the double-jeopardy analysis that Manokey’s claim
required it to undertake. Manokey v. State, No. 9610 (Cir. Ct. Dor-
chester County, Md., Dec. 7, 2000) Post-Conviction Hr’g Tr. at 19-
25, 27. Instead, the PCR court stated its conclusion that for purposes
of applying the Blockburger test, "there are different factors to be
proven, so far as, first-degree assault and reckless endangerment." Id.
at 27. We believe that conclusion is entirely correct. Aside from the
differences in the mens rea of the two crimes that the Williams court
noted, reckless endangerment requires proof, inter alia, "that a reason-
able person would not have engaged in that conduct," referring to
"‘conduct that created a substantial risk of death or serious physical
injury to another.’" Holbrook v. State, 772 A.2d 1240, 1247 (Md.
2001) (quoting Jones v. State, 745 A.2d 396, 406 (Md. 2000)); see
also Md. Pattern Jury Instructions-Crim. 4:26A (Reckless Endanger-
ment). Proof of that element is not required for conviction of first-
degree assault. On the other hand, first-degree assault requires, among
    4
    See Holbrook v. State, 772 A.2d 1240, 1252 (Md. 2001), where the
petitioner argued that for sentencing purposes, his reckless-endangerment
convictions should merge with his arson conviction as a matter of "fun-
damental fairness." The court declined to address this argument because
it had not been preserved for appellate review.
                          MANOKEY v. WATERS                              7
other things, proof of all the elements of second-degree assault, which
in turn requires proof, inter alia, that "the contact was not consented
to by" the victim, an element that was correctly included in the charge
to the jury at Manokey’s trial. Md. Pattern Jury Instructions-Crim.
4:01 (Second Degree Assault). Proof of this element is required when
the assault charged involves a battery, as in Manokey’s stabbing of
his victim, and is not required for conviction of reckless endanger-
ment. Thus, as the state PCR court held, the Maryland offenses of
reckless endangerment and first-degree assault each contain elements
not required for conviction of the other.5

   Having so held, the state PCR court applied the Blockburger test,
found it satisfied, and concluded that Manokey’s double-jeopardy
claim must fail. The Blockburger test, simply stated, is whether each
of the two offenses "requires proof of a different element." Blockbur-
ger, 294 U.S. at 304. If each requires proof of a different element,
then "‘an acquittal or conviction under either statute does not exempt
the defendant from prosecution and punishment under the other.’" Id.
at 304 (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871),
and noting the Court’s previous adoption of this language in Gavieres
v. United States, 220 U.S. 338, 342 (1911)). Blockburger is control-
ling authority and is the seminal case establishing the federal standard
for deciding whether two separate offenses are the same. Manokey
sought leave to appeal the state PCR court’s denial of post-conviction
relief; the Maryland Court of Special Appeals (the same court that
several years earlier had issued the Williams decision) summarily
denied Manokey’s application. We believe the state PCR court’s
double-jeopardy ruling was based upon a correct understanding of
Maryland law and was also a correct application of Blockburger. At
the very least, we cannot say the state PCR court’s rejection of
Manokey’s double-jeopardy claim either was "contrary to, or
involved an unreasonable application of, clearly established Federal

  5
   The opinion of the district court recognizes the existence of these dis-
parate elements but fails to recognize their significance to a correct
Blockburger-type analysis. See Manokey v. Waters, No. CCB-02-1040
(D. Md. May 12, 2003) Memorandum Opinion at 10-11.
8                         MANOKEY v. WATERS
law." 28 U.S.C. § 2254(d)(1).6 Accordingly, we reverse the district
court’s grant of habeas relief to Manokey on his double-jeopardy claim.7

   We turn now to a separate matter. Manokey, who is, of course, the
appellee here, and who has not obtained a COA on any issue, argues
that he is entitled to habeas relief on an alternative ground. He con-
tends the district court erred in holding that a procedural default pre-
cluded habeas review of Manokey’s claim of ineffective assistance of
counsel. Ordinarily, an appellee may defend a judgment on any
ground that was raised in the lower court. Federal habeas, however,
is different. In a federal habeas proceeding, no claim with respect to
which the district court denied relief may be appealed to the court of
appeals unless the petitioner obtains a COA. See 28 U.S.C.
§ 2253(c)(1). A COA may issue "only if the applicant has made a
substantial showing of the denial of a constitutional right." 28 U.S.C.
§ 2253(c)(2). This requirement extends to claims that the district court
    6
    Factual determinations are not at issue in this appeal. Thus
§ 2254(d)(2) does not come into play.
  7
    The state, in a footnote in its brief, appears to suggest another basis
for reversal: that the state trial court’s dismissal of the reckless-
endangerment count was not based on insufficiency of the evidence.
Because the state did not develop an argument on this point, I elected not
to consider the matter in this opinion. Judge Williams, however, in her
concurring opinion has independently explored the matter and has con-
cluded that double jeopardy does not attach inasmuch as the dismissal of
the reckless-endangerment count was in fact not based on insufficiency
of the evidence. Having studied Judge Williams’s concurring opinion,
Judge Traxler and I both agree with Judge Williams’s conclusion that the
dismissal of the reckless-endangerment count was not a judgment of
acquittal for purposes of double jeopardy. Judge Traxler also concurs in
my conclusion that the first-degree-assault charge and the reckless-
endangerment charge are not the same for purposes of double jeopardy.
(Judge Williams simply prefers not to reach the "same offense" ground.)
Accordingly, my opinion and Judge Williams’s concurring opinion each
have captured the adherence of at least a majority of the panel; thus each
opinion, each on a different ground, operates as a reversal of the district
court’s grant of habeas relief.
   The panel unanimously agrees that the lack of a certificate of appeala-
bility precludes our consideration of Manokey’s ineffective-assistance
claim.
                          MANOKEY v. WATERS                              9
has rejected on grounds of procedural default. See Slack v. McDaniel,
529 U.S. 473, 484 (2000) (holding that "[w]hen the district court
denies a habeas petition on procedural grounds without reaching the
prisoner’s underlying constitutional claim, a COA should issue when
the petitioner shows, at least, that jurists of reason would find it debat-
able whether the petition states a valid claim of the denial of a consti-
tutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling").

   We are unaware of any decision from this circuit that addresses the
question of whether a COA is required when a habeas petitioner, as
appellee, seeks appellate review of a rejected claim, but the Second
Circuit and the Eighth Circuit have answered this question in the
affirmative. See Jones v. Keane, 329 F.3d 290, 296-97 (2d Cir.) (hold-
ing that habeas petitioner who is appellee, with state appealing district
court’s grant of habeas relief on one or more grounds, may not seek
habeas relief on alternative grounds rejected by district court without
obtaining a COA specifying those grounds) (citing Grotto v. Herbert,
316 F.3d 198, 209 (2d Cir. 2003) ("[W]e conclude that a habeas peti-
tioner to whom the writ has been granted on one or more grounds
may not assert, in opposition to an appeal by the state, any ground
that the district court has not adopted unless the petitioner obtains a
certificate of appealability permitting him to argue that ground.")),
cert. denied 124 S. Ct. 804 (2003); Fretwell v. Norris, 133 F.3d 621,
623 (8th Cir.) (dismissing habeas petitioner’s cross appeal where
COA had been denied), cert. denied, 525 U.S. 846 (1998). But see
Ramirez v. Castro, 365 F.3d 755, 762 (9th Cir. 2004) (stating, where
habeas petitioner was appellee without a COA, and with no discus-
sion of COA requirement, that "[w]e may affirm the decision to grant
a petition ‘on any ground supported by the record, even if it differs
from the rationale of the district court’") (citations omitted)). We
agree with the Second and the Eighth Circuits, and we hold that
Manokey’s appellate arguments concerning his ineffective-assistance
claim cannot be reached in the absence of a COA. In addition, even
if we were to consider his appellee’s brief as a request for a COA, we
would deny the request because he has failed to make "a substantial
showing of the denial of a constitutional right," 28 U.S.C.
§ 2253(c)(2), with respect to the rejected ineffective-assistance claim.
Indeed, Manokey’s brief is devoid of any argument whatsoever that
would bear on the merits-of-the-claim portion of the Slack test for
10                       MANOKEY v. WATERS
issuance of a COA on a claim, such as this one, that the district court
has denied on procedural grounds. See Slack, 529 U.S. at 484.

   For the reasons stated, we reverse the order of the district court
insofar as it grants habeas relief and remand with instructions to dis-
miss Manokey’s petition.

WILLIAMS, Circuit Judge, concurring in part and concurring in the
judgment:

   I concur fully in the portion of the majority opinion holding that
habeas petitioners must obtain a certificate of appealability to raise
alternate grounds for affirming a district court’s grant of a habeas
writ, and in the majority’s judgment that the district court erred in
granting a writ of habeas corpus to Manokey in this case. I write sepa-
rately, however, because I do not believe we must resolve the close
question of whether reckless endangerment and first degree assault
are the "same offense" within the meaning of Blockburger v. United
States, 284 U.S. 299 (1932). Even assuming reckless endangerment
is a lesser-included offense of first degree assault, I would reverse the
grant of habeas relief to Manokey because the trial court did not actu-
ally acquit Manokey of reckless endangerment, and, accordingly,
Manokey was not "twice put in jeopardy of life or limb." U.S. Const.
amend. V. See 28 U.S.C.A. § 2254(a) (permitting a circuit judge to
grant a writ of habeas corpus only on the ground that a petitioner is
"in custody in violation of the Constitution or laws or treaties of the
United States").

    A trial court’s ruling constitutes a judgment of acquittal for pur-
poses of double jeopardy "only when it is plain that the [trial court]
. . . evaluated the Government’s evidence and determined that it was
legally insufficient to sustain a conviction." United States v. Scott,
437 U.S. 82, 97 (1978) (internal quotation marks omitted). A review-
ing court must independently determine "whether the [trial court’s]
ruling . . . actually represents a resolution, correct or not, of some or
all of the factual elements of the offense charged." United States v.
Martin Linen Supply, 430 U.S. 564, 571 (1977). In other words, "what
constitutes a judgment of acquittal may not be determined simply by
                           MANOKEY v. WATERS                              11
the form or caption of the court’s order." United States v. Alvarez, 351
F.3d 126, 129 (4th Cir. 2003).1

   It is clear from the record in this case that the trial court was refus-
ing to charge the lesser-included offense of reckless endangerment,
not issuing Manokey a judgment of acquittal. At the close of the
state’s case, Manokey moved for acquittal on the reckless endanger-
ment charge, arguing that the state had failed to show a substantial
risk of death or serious injury. (J.A. at 187.) As defense counsel
explained, "[t]his is not like a stab wound to the heart or in the lung."
(J.A. at 187.) Manokey renewed this motion at the close of his case.
(J.A. at 209.) The trial court, after reiterating that a conviction for
reckless endangerment required the state to prove Manokey engaged
in conduct that created a substantial risk of harm and that he acted
recklessly in doing so, concluded, "I feel that there is evidence that
would support a finding that what he did would have been intentional.
I’ll grant your motion as to reckless endangerment." (J.A. at 209.)
Although the trial court purported to grant a motion of acquittal, its
analysis does not meet the dictates of Martin Linen and Scott. Instead,
the trial court’s ruling is best described as a refusal to give an instruc-
tion on a lesser-included offense.

   Under Maryland law, a trial court is required to give an instruction
on a lesser-included offense charged in the indictment only "so long
as it was a permissible verdict generated by the evidence." Dishman
v. State, 721 A.2d 699, 705 (Md. 1998). Thus, "a defendant is not
entitled to a lesser-included offense instruction unless the evidence
adduced at the trial provides a rational basis upon which the jury
could find him not guilty of the greater offense but guilty of the lesser
offense." Id. (quoting United States v. Elk, 658 F.2d 644, 648 (8th Cir.
1981)). The record makes clear that the trial court’s ruling, right or
wrong, was a finding that, because the state had entered evidence that
  1
   For instance, in Alvarez, following a mistrial, the district court granted
the defense’s motion for judgment of acquittal, explaining "there is little
likelihood that any jury will ever convict either of the defendants on the
charges." United States v. Alvarez, 351 F.3d 126, 129 (4th Cir. 2003).
We held that this order was not a judgment of acquittal for double jeop-
ardy purposes because the district court "never expressly addressed the
sufficiency of the [government’s] evidence." Id. at 130.
12                       MANOKEY v. WATERS
Manokey acted intentionally and Manokey had presented no evidence
to the contrary, no jury could find Manokey not guilty of first degree
assault but guilty of reckless endangerment.2

   Accordingly, because the trial court’s ruling does not constitute a
judgment of acquittal on the reckless endangerment count, the limita-
tions imposed by the Double Jeopardy Clause are not implicated in
this case and Manokey cannot show that he is entitled to habeas relief
under § 2254(a).
  2
    Such a reading of the trial court’s ruling is buttressed by the trial
court’s failure to address Manokey’s sufficiency of the evidence argu-
ment that stabbing an individual all the way through the arm with a but-
ter knife does not create a substantial risk of death or serious injury.
