Mandich v. Pinchak, Civ. No. 98-3813 (DRD) (D. N.J. 1998)
| Decision Date | 01 November 1998 |
| Docket Number | Civ. No. 98-3813 (DRD) |
| Parties | JOHN F. MANDICH, Petitioner, v. STEVEN PINCHAK and PETER VERNIERO, Respondents. |
| Court | U.S. District Court — District of New Jersey |
Mr. John F. Mandich, East Jersey State Prison, Lock Bag R, Rahway, NJ, Pro se Petitioner.
Marcy H. Geraci, Esq., Deputy Attorney General, New Jersey Department of Law & Public Safety Division of Criminal Justice, Appellate Bureau, Trenton, NJ, Attorneys for Respondents.
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.
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 After review of the trial record, the Appellate Division, in an unpublished opinion issued on November 17, 1987, reversed Mandich's conviction on all grounds and remanded the case to the Law Division for a new trial.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.
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...
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