United States District Court, D. New Jersey
OMAR N. DAVIS, Petitioner,
STEPHEN D'ILIO, et al., Respondents.
E. THOMPSON U.S. District Judge
Davis has submitted an amended petition for a writ of habeas
corpus pursuant to 28 U.S.C., § 2254. Amended Petition,
Docket Entry 3. Respondent Stephen D'Ilio opposes the
petition. Answer, Docket Entry 20. For the reasons stated
herein, the petition shall be denied as to all grounds. A
limited certificate of appealability shall issue.
Court reproduces the recitation of the facts as set forth by
the New Jersey Superior Court Appellate Division in its
opinion denying Petitioner's Direct Appeal:
At around 3:00 a.m. on April 8, 2000, the Egg Harbor Township
Police responded to a 911 call on Gravesmith Street. The 911
caller reported to police that he had looked out his window
after hearing people talking outside. He heard noises that he
thought were gunshots, and went outside and heard a man
saying "[p]lease, no.
I can't take much more of this." He then heard a
gunshot coming from across the street.
The police responded and found a body by the passenger side
of an Oldsmobile Cutlass Supreme in a residential driveway.
The property belonged to defendant's parents. The victim
was still alive when the officers arrived, but died soon
The investigation revealed that the victim was originally
shot while inside the car. A "drag mark" was found,
indicating that the body was brought around the back of the
vehicle to the passenger side where he was shot in the head.
There were also two entrance wounds on the victim's right
lower back, one of which matched up with a grazing wound on
the right arm, a wound on the right chest, which also grazed
the right arm, and a large wound to the left hand.
All wounds to the victim were caused by a shotgun found by
the hitch of a camper located on the property. It is
undisputed that defendant used the camper to watch television
and smoke marijuana. Defendant's parents denied ownership
of the shotgun, but there was evidence that at some point in
the past a member of the family had owned a shotgun.
Following Miranda warnings, defendant was interviewed by
the police. He was interviewed a second time because of
contradictions between his statements and statements by other
individuals. Defendant was thereafter arrested for murder. At
neither of these interviews did defendant confess to the
murder. But, following his arrest and during the transport to
the county jail, defendant volunteered: "I'm
twenty-three and I'm never going to see this again"
and "I fucked up."
State v. Davis, No. A-0058-03, 2006 WL 1000050, at
*1-2 (N.J.Super.Ct.App.Div. Apr. 18, 2006)
("Davis I") (alteration in original). In
June 2000, an Atlantic County grand jury indicted Petitioner
with first-degree murder, N.J. Stat. Ann. § 2C:11-
3a(1)(2) (Count One) and second-degree possession of a weapon
for an unlawful purpose, N.J. Stat. Ann. § 2C:39-4(d)
(Count Two). Answer at 2. Petitioner's first trial
resulted in a mistrial in September 2002. Id. at 3;
2T152:15 to 167:7.
State presented several witnesses who testified as to
Petitioner's incriminating statements:
Defendant's cousin, Jackie Davis, testified that shortly
before the murder, defendant arrived at his house. He was
nervous and asked for marijuana. He left, but then returned
around 3:30 a.m. Looking upset, he said he did something that
he regretted, saying "I 'murked' him. I shot
him." Davis testified that when he asked what defendant
was talking about, defendant replied that he had "killed
somebody" with a shotgun and that he did so because the
victim had taken money from him and had also taken a radio.
Donna Lyons, Davis's girlfriend, testified that when she
returned home from work at approximately 9:00 a.m. that
morning, defendant was there and told her: "I messed
up" and that "the guy was chumping him" which
means "treating him like a punk...." Calief Lyons,
Donna's son, also testified that he had spoken with
defendant who told him, "whatever he did he had to
do...." Two other individuals who had gone to
Davis's house to buy drugs heard defendant say that he
"smoked" the victim and that "[h]is head was
shot off." Additionally, Juanita Tutis, a bartender at a
nearby bar, testified that she saw both defendant and the
victim in the bar at approximately 2:30 a.m. on the morning
of the murder conversing for about ten minutes. Then the
victim left and defendant went upstairs. However, in her
statement made to the police a few days after the murder,
Tutis stated that the two left the bar together. She also
related that sometime prior to the murder, the victim had
taken defendant's radio which he had left in the bar.
Davis I, 2006 WL 1000050, at *2 (alterations and
omissions in original). Petitioner elected to testify on his
He stated that he was at the bar for most of the night until
it closed, leaving it briefly to go to a party. During the
night he had a brief conversation with the victim and did not
thereafter see him. After seeing multiple police cars driving
toward his parents' neighborhood, and because he had
outstanding warrants and was in possession of marijuana, he
caught a bus to Atlantic City where he stayed for
approximately five hours. Upon returning at approximately
10:00 a.m., and discovering that the victim had been shot on
his parents' property, he went to his cousin Jackie
Davis's house and bought some marijuana from him. It was
defendant's theory that his cousin testified against him
to get back at him for having a sexual relationship with
Donna Lyons. He denied volunteering any statements to the
police while being transported to the county jail following
ultimately convicted Petitioner on both counts in February
2003. Answer at 3; R19 at ¶ 5-Da6. Petitioner was
sentenced to a term of life imprisonment with a 30-year
period of parole ineligibility on Count One, and a concurrent
10 year sentence on count 2. Answer at 3.
appealed. Petitioner filed a pro se brief in support of his
appeal, and appellate counsel filed a formal brief. Pro Se
Appellate Brief, R20; Appellate Brief, R19. The State
responded. State's Appellate Brief, R21. On April 19,
2006, the Appellate Division denied the appeal. Davis
I, 2006 WL 1000050; see also R22. The New
Jersey Supreme Court denied certification. State v.
Davis, 907 A.2d 1013 (N.J. 2006).
filed a timely post-conviction relief ("PCR")
petition on February 9, 2007. R24. PCR counsel submitted a
formal brief. R25. The PCR court conducted oral arguments on
the merits, and denied the petition without ordering an
evidentiary hearing. 18T. The Appellate Division affirmed the
order of the PCR Court. State v. Davis, No.
A-1511-12, 2013 WL 5729968 ( N.J.Super.Ct.App.Div. Oct. 23,
2013)("Davis II"). The New Jersey Supreme
Court denied certification on September 9, 2014. R35; State
v. Davis, 99 A.3d 831 (N.J. 2014).
submitted a § 2254 petition on December 9, 2014.
Petition, Docket Entry 1. The Court administratively
terminated the petition on March 5, 2015, and Petitioner
submitted his amended petition on April 29, 2015. Amended
Petition, Docket Entry 3. The Court notified him of his
rights and responsibilities under Mason v. Meyers,
208 F.3d 414 (3d Cir. 2000), and instructed Petitioner to
inform the Court how he wanted to proceed within 4 5 days.
Mason Notice, Docket Entry 5. As Petitioner did not
respond to the Court within the 4 5-day period, the Court
reviewed the amended petition as filed and ordered Respondent
to answer. Docket Entry 6. Respondent filed its answer on
July 11, 2016. Answer, Docket Entry 10. Petitioner filed his
traverse on October 11, 2016. Traverse, Docket Entry 13.
STANDARD OF REVIEW
28 U.S.C. § 2254 permits a federal court to entertain a
petition for writ of habeas corpus on behalf of a person in
state custody, pursuant to the judgment of a state court,
"only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2254 (a) .
respect to any claim adjudicated on the merits by a state
court, the writ shall not issue unless the adjudication of
(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;
(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) .
court decision is "contrary to" Supreme Court
precedent "if the state court applies a rule that
contradicts the governing law set forth in [Supreme Court]
cases, " or "if the state court confronts a set of
facts that are materially indistinguishable from a decision
of th[e] Court and nevertheless arrives at a result different
from [the Court's] precedent." Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). "[A]
state-court decision is an unreasonable application of
clearly established [Supreme Court] precedent if it correctly
identifies the governing legal rule but applies that rule
unreasonably to the facts of a particular prisoner's
case." White v. Woodall, 134 S.Ct. 1697, 1706,
reh'g denied, 134 S.Ct. 2835 (2014). The Court
must presume that the state court's factual findings are
correct unless Petitioner has rebutted the presumption by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
raises ten grounds for relief:
I. The Prosecutor's Improper Comments in His Opening and
Summation Violated the Petitioner's Right to a Fair
II. The Admission of Testimony About The Petitioner's
House Having been Raided for Drugs in the Past Created a
Degree of Prejudice not Curable by the Court's Limiting
III. Trial Counsel's Failure to Investigate Whether a
Psychologist or Psychiatrist Would have Offered an Opinion of
Petitioner's Legal Insanity Served to Deny Petitioner of
Effective Assistance of Counsel.
IV. Trial Counsel was Ineffective in Her Assistance Through
Her Failure to Thoroughly Pursue and Present a
V. Trial Counsel was Ineffective for Failing to Object to the
Trial Court's "Flight" Charge Which was
Incorrect and Not Supported by Any Evidence, Thereby Denying
Petitioner His Due Process of Law and a Fair Trial.
VI. The Petitioner was Never Advised of the Sentence He was
Facing, If He went to Trial, which Violated His Due Process.
VII. Petitioner [was] Denied Effective Assistance of Counsel
when Trial Counsel Failed to Object to the Admission of
Evidence Obtained in Violation of the Petitioner's Fifth
Amendment Right to Remain Silent.
VIII. The State Purposely Created the Initial Mistrial
Because the State Knew the Content of Detective Hires'
Improper Testimony Before Same Improper Testimony Was
Elicited, Which Violated the Petitioner's Right to a Fair
Trial and His Rights to Due Process under the 14th
Amendment of the U.S. Constitution.
IX. Petitioner's Right to Confront and Cross-Examine His
Accuser was Violated when Detective Hires was Medically
Excused from testifying at the Petitioner's Second Trial
and His Absence was not Supported by Medical Documentation
and Trial Counsel was Ineffective ...