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Davis v. D'ilio

United States District Court, D. New Jersey

November 30, 2017

OMAR N. DAVIS, Petitioner,
STEPHEN D'ILIO, et al., Respondents.


          ANNE E. THOMPSON U.S. District Judge


         Omar N. 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.


         This 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 thereafter.
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[1] 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.[2]

         The 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 own behalf:

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 his arrest.


         A jury 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.

         Petitioner 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).

         Petitioner 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).

         Petitioner 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.


         Title 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) .

         With respect to any claim adjudicated on the merits by a state court, the writ shall not issue unless the adjudication of the 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) .

         A state 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).

         IV. ANALYSIS

         Petitioner raises ten grounds for relief:

I. The Prosecutor's Improper Comments in His Opening and Summation Violated the Petitioner's Right to a Fair Trial.
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 Instructions.
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 Passion/Provocation Defense.
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 ...

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