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Saunders v. D'illio

United States District Court, D. New Jersey

March 12, 2018

OMAR SAUNDERS, Petitioner,
STEPHEN D'ILLIO, et al., Respondents.

          Omar Saunders, Petitioner pro se

          Linda A. Shashoua, Esq. Camden County Prosecutor's Office Attorney for Respondents Stephen D'Illio and the Attorney General of the State of New Jersey




         Petitioner 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.


         In the opinion affirming Petitioner's conviction on direct appeal, the New Jersey Superior Court, Appellate Division provided the following summary of the facts underlying Petitioner's conviction:[1]

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 26th Streets.
[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 the car.
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 conversation.
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, “Hell yeah!”
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 Jakes.
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 evidence.
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).

         As 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.”).)

         On July 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. 9-42.)

         Petitioner 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[2] (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.)

         The 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. 2008) (table).

         Petitioner 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. 9-16.)

         The 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).

         Petitioner 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.[3] (ECF No. 4.) Respondents filed their answer on September 24, 2015. (ECF No. 9.)

         On 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.[4] (Sept. 7, 2016 Op. and Order, ECF Nos. 19 and 20, respectively.)


         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 ...

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