John Dozier v. Roy L. Hendricks

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 04-4539
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JOHN DOZIER,
Appellant
v.
ROY L. HENDRICKS; JOHN FARMER,
The Attorney General of the
State of New Jersey
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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
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Submitted Under Third Circuit LAR 34.1(a)
on July 13, 2006
Before: SLOVITER, McKEE, and RENDELL, Circuit Judges.
(Filed: September 28, 2006)
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OPINION OF THE COURT
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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.

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1In 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
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

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2We 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.
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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

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3Judge Van Antwerpen would have denied the request.
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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,

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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

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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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