United States District Court, D. New Jersey
Saunders, Petitioner pro se
A. Shashoua, Esq. Camden County Prosecutor's Office
Attorney for Respondents Stephen D'Illio and the Attorney
General of the State of New Jersey
B. SIMANDLE, U.S. DISTRICT JUDGE.
Omar Saunders has submitted a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Pet., ECF No. 1.)
Respondents Stephen D'Illio and the Attorney General of
the State of New Jersey oppose the petition. (Answer, ECF No.
9). For the reasons stated herein, the petition shall be
denied and no certificate of appealability shall issue.
opinion affirming Petitioner's conviction on direct
appeal, the New Jersey Superior Court, Appellate Division
provided the following summary of the facts underlying
On the evening of May 31, 2002, four young men, all Camden
residents and friends, went to a club in Philadelphia,
Pennsylvania. They were defendant [Petitioner Omar Saunders,
hereafter “Petitioner”], Donnell Jakes, Jose
Alvarez, and Angelo Lopez. They went in Alvarez's car, a
1991 white Chevy Lumina. [Petitioner] was wearing dark blue
shorts, a white t-shirt, and a white “do rag.” At
the club, Jakes suggested that [Petitioner] was not able to
hold his liquor, and the two argued. Alvarez and Lopez
intervened. When the four men left the club, [Petitioner] and
Jakes argued again over who should drive home, Jakes
contending that [Petitioner] was too drunk to drive. Alvarez
directed that [Petitioner] drive. During the trip,
[Petitioner] and Jakes resumed the argument, calling each
other names, and threatening each other. . . .
When the group returned to Camden, they made a stop at a bar,
and then dropped Lopez off at his home. [Petitioner] then
stopped the car near the intersection of Pierce and North
[Petitioner] got out of the car and walked toward a nearby
corner, while Alvarez and Jakes walked to a grassy area to
urinate. [Petitioner] had left the sight of the other men.
Alvarez walked to the corner and looked up and down the
block, but could not see [Petitioner]. Standing at the
corner, Alvarez began yelling and screaming
[Petitioner's] name. According to Alvarez, [Petitioner]
was holding a bottle of Corona beer. While Alvarez was in
that location calling for [Petitioner], Jakes remained near
A few minutes later, Alvarez saw [Petitioner] running down
the block toward him. Alvarez asked [Petitioner] for his car
keys. When [Petitioner] ran past Alvarez, he shoved the keys
at Alvarez and continued on toward Jakes.
When [Petitioner] reached Jakes, he began to talk to him,
then put his arm around Jakes's shoulders, hugged him and
began walking in Alvarez's direction. Suddenly,
[Petitioner] spun around, removed a gun from his pocket, and
shot Jakes twice in the head at point-blank range. When Jakes
fell to his knees, [Petitioner] fired one more shot. It was
later determined that two gunshot wounds entered Jakes's
head near his right ear, causing his death. The third shot
grazed the front of his throat.
[Petitioner] lived in the immediate area with his father,
Alphonso Harris, at 1123 North 26th Street. When a backyard
light turned on, [Petitioner] ran up Pierce Street around the
corner and down North 26th Street, in the direction of his
home. Alvarez got into his car and circled the area for
twenty to thirty minutes to see if Jakes was getting help.
Alvarez claimed that when he saw police arrive on the scene,
he left the area rather than talking to them because he was
on parole and did not want to be caught out after hours.
The shooting occurred in the early morning hours of June 1,
2002, between 3:00 and 3:30 a.m. Later that morning,
[Petitioner] approached Alvarez in Alvarez's backyard,
and asked him if he had talked to anyone about what happened
the night before. He told Alvarez, “we been friends for
a long time, I know where you rest your head at, and I know
where your son go to school at.” Alvarez interpreted
those comments as a threat. [Petitioner] left.
Alvarez later told his sister what happened and, on her
advice, Alvarez went to the prosecutor's office on June
3, 2002, and told them about the shooting. He consented to
have his car searched, and he agreed to place a cell phone
call to [Petitioner] and allow investigators to record the
Throughout the conversation (the tape recording of which was
played for the jury and placed in evidence, along with a
transcript, which is in the appellate record), [Petitioner]
repeatedly told Alvarez that he wanted to meet with him in
person. He suggested they needed to get their stories
straight. At the beginning of the conversation, Alvarez
accused [Petitioner] of “pop[ping] that boy, ”
but [Petitioner] denied it. Later, Alvarez said, “You
wild out on the kid you know what I mean?” [Petitioner]
responded, “True and deed now listen.” . . .
[U]sing street jargon, Alvarez asked [Petitioner] whether he
threw the gun away, to which [Petitioner] responded,
Alvarez met again with investigators on June 12, 2002, and
gave a further statement, acknowledging that some of the
information he had previously provided was not accurate,
including where he was standing when the shooting took place.
Alvarez testified for the State at trial, relating the events
in the manner as we have described them.
Lopez also testified for the State. He described the argument
between [Petitioner] and Jakes regarding who would drive
home. According to Lopez, [Petitioner] said to Jakes,
“I'm letting you live right now. I'll kill
you.” Lopez said that he and Alvarez tried to make
peace, but [Petitioner] continued to instigate a fight with
Three individuals who lived in the immediate area of the
shooting testified for the State. David Monserrate said that
at about 3:00 a.m. on June 1, 2002, he heard someone on the
corner outside screaming, calling out for someone. He looked
out his window and saw a heavyset black man wearing jean
shorts, a white shirt and a white hat walking down 26th
Street toward the corner. A few minutes later, he heard four
gunshots. He then saw the same individual running up the
street in the opposite direction. When Monserrate looked out
his back window, he saw Jakes lying on the ground.
Paul Rodriguez woke up around 3:30 a.m. when he heard dogs
howling. Almost immediately, he heard three gunshots. He
looked out his window and saw a white, four-door car parked
near his house. An individual hurriedly got into it and drove
away. Aida Rodriguez testified that she heard and saw the
same thing. She added that after the police arrived she saw
the white car driving slowly around the neighborhood, passing
nearby three times, turning its headlights off as it neared
the crime scene.
Investigator Ronald Moten of the Camden County
Prosecutor's Office went to the crime scene. He found an
empty shell casing near Jakes's body and a Corona beer
bottle with some beer still in it across the street. Efforts
to obtain fingerprints or DNA evidence from either item were
unsuccessful. No murder weapon was ever recovered, and an
examination of Alvarez's car produced no relevant
According to [Petitioner's] father, [Alphonso] Harris, he
heard [Petitioner] come in around 3:00 a.m. He went
downstairs and saw [Petitioner] eating a snack at the dining
room table. Because [Petitioner] was intoxicated, Harris
helped him up to his bedroom, took his sneakers off and
“almost put him to bed.” He later checked on
[Petitioner] several times, but [Petitioner] was “out
like a light.” When Harris woke up later that morning,
[Petitioner] was gone.
Two days later, . . . Harris went to Philadelphia to meet
with [Petitioner], who told him Jakes had been killed and
there were rumors that [Petitioner] was involved in the
death. [Petitioner] told Harris he and Jakes had been arguing
on the night of the murder and he had threatened Jakes. He
explained, however, that the argument did not “go
anywhere” and he did not shoot Jakes. He said Lopez
started rumors about his involvement in Jakes's death by
telling people about the argument. . . .
The investigation went cold for about six months, until
December 12, 2002, when investigators learned [Petitioner]
was in custody on unrelated charges in Vineland. Moten and
another investigator went to Vineland to talk to
[Petitioner]. As they entered the interrogation room,
[Petitioner] blurted out, “I don't own a gun now
and I've never owned a gun.” He continued,
“Donnell [Jakes] and me not only argued at the club . .
. that night, but . . .we had several arguments and we made
peace and everything was dobby.” [Petitioner] said he
would never shoot his friend over something as trivial as who
was driving the car. He said that Jakes's family
“kicked my door in looking for me and that was-and that
is why I moved my family out of Camden.”
[Petitioner] did not testify at trial. He called his father[,
Alphonso Harris] as a witness. Harris testified that no one
threatened him in connection with Jakes's murder and no
one kicked in the door of his home, where he and [Petitioner]
lived. When asked if he ever told police that [Petitioner]
complained about being threatened, Harris responded:
“This is why [Petitioner] wasn't coming
back-that's why he didn't come home.” He
admitted, however, that he never told the police that
[Petitioner] was threatened.
State v. Saunders, No. A-1798-04T4, 2008 WL 538970,
at *1-4 ( N.J.Super.Ct.App.Div. Feb. 29, 2008).
further explained by the Appellate Division, “[t]he
defense strategy at trial was to attempt to raise a
reasonable doubt that [Petitioner] killed Jakes by suggesting
that Alvarez killed him.” Id. at *4.
(Accord July 1, 2014 Trial Tr. 32:24-33:4, ECF No.
9-38 (defense counsel stating, during closing, that
“it's not our job to prove that Jose Alvarez killed
anybody back on June 1st, 2002. I think you've had the
opportunity to meet a murder[er] in this courtroom. I just
don't believe that he's [Petitioner].”);
but cf. Jul 9. 2010 PCR Hr'g Tr. 53:25-55:4, ECF
No. 9-44 (defense counsel testifying, during evidentiary
hearing that “[Petitioner's] defense in the case
was that he was not present at the time the decedent was
actually shot. He had been . . . dropped off at home before
the shooting actually took place.”).)
7, 2004, i.e., the ninth day of trial, the jury
found Petitioner guilty of the first-degree murder of Donnell
Jakes, N.J. Stat. Ann. § 2C:11-3a(1) or (2) (Count One);
second-degree possession of a handgun for an unlawful
purpose, N.J. Stat. Ann. § 2C:39-4a (Count Two);
third-degree unlawful possession of a handgun, N.J. Stat.
Ann. § 2C:39-5b (Count Three); third-degree terroristic
threats, N.J. Stat. Ann. § 2C:12-3a or 3b (Count Four);
third-degree hindering apprehension or prosecution by
concealment or destruction of evidence, N.J. Stat. Ann.
§ 2C:29-3b(1) (Count Five); third-degree tampering with
witnesses and informants, N.J. Stat. Ann. § 2C:28-5a(1)
(Count Seven); and second-degree certain persons not to have
weapons, N.J. Stat. Ann. § 2C:39-7 (Count Eight).
(See, e.g., July 7, 2004 Trial Tr.
11:12-17:3, 65:24-67:8, ECF No. 9-40.) The jury acquitted
Petitioner of third-degree hindering apprehension or
prosecution by preventing or obstructing a witness from
providing testimony, N.J. Stat. Ann. § 2C:29-3b(2) and
(3) (Count Six). (See, e.g., id.
at 15:13-16:3.) On October 7, 2004, the trial court sentenced
Petitioner to an aggregate term of thirty-five years'
imprisonment, with an 85% parole disqualifier. (See,
e.g., Oct. 7, 2004 Sentencing Tr. 4:10-5:11, ECF No.
appealed his conviction and sentence to the Appellate
Division, arguing, inter alia, that the trial court:
(i) erroneously excluded a portion of Alphonso Harris's
December 12, 2003, statement to investigators from being
introduced into evidence at trial (see
Pet'r's Appeal Br. at Point II, ECF No. 9-5); (ii)
erred in precluding Mr. Harris from testifying at trial that
on June 3, 2002, Petitioner told Mr. Harris that he had left
the Camden area out of fear of retaliation from the
victim's family (see id.); and (iii) improperly
permitted extraneous considerations about the jurors'
personal safety to factor into their deliberations. (See
Id. at Point III.)
Appellate Division affirmed Petitioner's conviction and
sentence on February 29, 2008. Saunders, 2008 WL
538970, at *17. The New Jersey Supreme Court denied
certification of Petitioner's direct appeal on September
5, 2008. State v. Saunders, 957 A.2d 1170 (N.J.
thereafter filed a post-conviction relief (“PCR”)
petition in the state court challenging, inter alia,
his trial counsel's: (i) failure to call four individuals
as witnesses during trial; and (ii) failure to interview
three of those individuals before trial. (See
Pet'r's PCR Brs. ECF Nos. 9-11, 9-12, and 9-14.) The
PCR court held an evidentiary hearing regarding these claims
on July 9, 2010. (PCR Hr'g Tr., ECF No. 9-44.) The PCR
court issued a written opinion and order denying
Petitioner's PCR petition on January 14, 2011. (ECF No.
Appellate Division affirmed the denial of Petitioner's
PCR petition “substantially for the reasons set forth
by [the PCR court] in [its] comprehensive and thorough
twenty-page written decision.” State v.
Saunders, No. A-6164-10T3, 2014 WL 1686841, at *2 (
N.J.Super.Ct.App.Div. Apr. 30, 2014). The New Jersey Supreme
Court denied certification of Petitioner's PCR appeal on
January 7, 2015. State v. Saunders, 104 A.3d 1077
(N.J. 2015) (table).
filed his § 2254 petition on April 14, 2015. (ECF No.
1.) On July 13, 2015, this Court entered an order requiring
Respondents to file an answer addressing the merits of
Grounds One, Two, and Three of Petitioner's habeas
petition. (ECF No. 4.) Respondents filed their
answer on September 24, 2015. (ECF No. 9.)
January 27, 2016, Petitioner filed a motion to amend and
supplement his habeas pleadings. (ECF No. 16.) On September
7, 2016, the Court granted the motion in part and permitted
Petitioner to amend his petition to include additional
arguments and facts with respect to Ground Three only,
i.e., as to Petitioner's previously asserted
ineffective assistance of counsel claim. (Sept. 7, 2016 Op. and
Order, ECF Nos. 19 and 20, respectively.)
STANDARD OF REVIEW
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 ...