DAVIS v. BALICKI

Filing 32

OPINION. Signed by Judge Robert B. Kugler on 10/17/2013. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
DEON R. DAVIS,
:
:
Petitioner,
:
:
v.
:
:
KAREN BALICKI,
:
:
Respondent.
:
_________________________________________ :

Civ. No. 08-3672 (RBK)
OPINION

ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. On July 27, 2011, this Court denied the habeas petition. The
United States Court of Appeals for the Third Circuit denied a certificate of appealability on
December 13, 2011. Currently pending before the Court is petitioner’s motion for relief from
judgment filed pursuant to Federal Rule of Civil Procedure 60(b). 1 For the following reasons,
the motion will be denied.
II.

BACKGROUND

The factual and procedural background of this case was stated in this Court’s July 27,
2011 Opinion. (See Dkt. No. 23.) Therefore, the Court will only provide a brief recital of the
factual and procedural background relevant to deciding the instant motion.
The facts giving rise to the state charges against petitioner arose from petitioner’s
stabbing of his former girlfriend at her place of employment with a screwdriver. After petitioner

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Along with his Rule 60(b) motion, petitioner filed an application to proceed in forma pauperis.
The application will be granted based on the information petitioner provides therein.
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was detained by a security guard, police arrived at the scene and petitioner repeatedly told them
that he “tried to kill the bitch.” (See Dkt. No. 22-2 at p. 2-3.)
Petitioner was found guilty by a jury in 2000 of second-degree aggravated assault, thirddegree possession of a weapon for an unlawful purpose, fourth-degree unlawful possession of a
weapon, third-degree terroristic threats and first-degree attempted murder. After pursuing a
direct appeal and post-conviction relief (“PCR”) petition, petitioner’s sentence ended up being
twenty-five years imprisonment with a seventeen year parole disqualifier.
In 2008, petitioner filed a federal habeas petition in this Court pursuant to 28 U.S.C. §
2254. Most relevant to the instant motion, petitioner argued that his Confrontation Clause rights
were violated when statements the victim’s family made to police were admitted at trial. At trial,
a police officer testified that he was told by the victim’s family that she had been transported to
Christiana Hospital and that she had puncture wounds of the bladder and intestine. The police
officer then testified that he relayed that information to the assistant prosecutor who told him to
charge petitioner with attempted murder.
In analyzing petitioner’s Confrontation Clause claim, the Court’s previous Opinion
recited the state court’s analysis of this claim; specifically that court stated as follows:
With respect to his Crawford argument, defendant contended that
“[t]he victim’s family statement to police went directly to the
extent of the offenses charged.” He claims that since there was no
medical evidence admitted at trial on the extent of the victim’s
injuries, the allegations of the aggravated assault and attempted
murder were based solely upon the family’s statement which he
was not permitted to cross examine in violation of Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004). There is no merit to this argument.
We first note that defendant was sentenced on April 25, 2000. Our
decision on direct appeal was rendered on December 17, 2001 and
the Supreme Court denied certification on April 25, 2002.
Consequently, defendant’s appeals were not in the pipeline when
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Crawford was decided on March 8, 2004 and it cannot be applied
retroactively. Whorton v. Bockting, 549 U.S. -, 127 S. Ct. 1173,
167 L. Ed. 2d 1 (2007).
Even if we were to address the merits of defendant’s Crawford
claim, we find no merit in it. In Crawford, the Court determined
that a testimonial statement, which cannot be cross-examined by
the defendant, violates the Sixth Amendment confrontation clause
of the United States Constitution. Defendant maintains that the
charge of attempted murder was added after the victim’s family
notified the police that the victim underwent surgery for her
wounds. He claims that there was no other basis for the attempted
murder charge. The record indicates, however, that there is
substantial first-hand evidence of attempted murder. The victim,
herself, testified that defendant inflicted nine stab wounds to her
head, chest, arms, stomach and back. She testified that she went
from Salem Memorial Hospital, where she was first treated, to
Christiana Hospital in Delaware, where she had surgery to repair
puncture wounds to her small intestines. Photographs of the
victim’s wounds were admitted into evidence and defendant had
the opportunity to fully cross-examine the victim with respect to
the seriousness of her wounds.
The officer on the scene testified to the nature and extent of the
victim’s wounds based upon his first-hand observations.
Defendant had the opportunity to fully cross-examine the officer.
Moreover, the arresting officers testified that while defendant was
in the police car, he said, “I tried to kill the bitch,” and as
defendant was being escorted from the store, he repeatedly said, “I
tried to kill the bitch,” “I wanted to kill the bitch.” When he was
placed in the police car, defendant said, “You better move out of
the way because I’ll take your gun, I’ll go back in and kill the
bitch” or “I’ll go back in and shoot her.” Defendant had the
opportunity to fully cross-examine the officers.
The record demonstrates that there was sufficient evidence to
prove attempted murder beyond a reasonable doubt without
reference to the family’s statement, and there was no Crawford
violation with respect to that charge.
(Dkt. No. 22-2 at p. 9-11.) After reciting the state court’s analysis of this claim, this Court held
that the state court’s decision did not result in a decision that was contrary to or involved an
unreasonable application of clearly established federal law as determined by the United States
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Supreme Court or resulted in a decision that was based on an unreasonable determination of the
facts. (See Dkt. No. 23 at p. 8-9.)
Approximately seventeen months after the Third Circuit denied a certificate of
appealability, petitioner filed the instant Rule 60(b) motion in this Court. In the motion,
petitioner claims that he is entitled to relief under Rule 60(b)(5) and 60(b)(6) because the Court
did not rule on whether his Confrontation Clause rights were violated through the admission of
the victim’s family members statements to police. Additionally, he claims that Crawford should
be applied retroactively. The Court will consider these arguments in turn.
III.

RULE 60(B)(5) & (6) STANDARD

Rule 60(b)(5) provides in relevant part that a court “may relieve a party . . . from a final
judgment, order or proceeding” if “it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable.” FED. R. CIV. P. 60(b)(5). “Rule
60(b)(5) may not be used to challenge the legal conclusions on which a prior judgment or order
rests, but the Rule provides a means by which a party can ask a court to modify or vacate a
judgment or order if ‘a significant change either in factual conditions or in law’ renders
continued enforcement ‘detrimental to the public interest.’” Horne v. Flores, 557 U.S. 433, 447
(2009) (quoting Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 384 (1992)). The moving
party bears the burden of establishing that changed circumstances exists. See id.
Rule 60(b)(6) is a catch-all provision and provides that a party may be relieved from a
final judgment or order for “any other reason that justifies relief.” FED. R. CIV. P. 60(b)(6).
However, obtaining relief under Rule 60(b)(6) requires extraordinary and special circumstances.
See Pridgen v. Shannon, 380 F.3d 721, 728 (3d Cir. 2004) (citation omitted). “Such

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circumstances rarely occur in the habeas context.” See Gonzalez v. Crosby, 545 U.S. 524, 535
(2005).
A petitioner seeking to invoke Rule 60(b)(5) or (6) must file his motion “within a
reasonable time.” FED. R. CIV. P. 60(c)(1). The amount of time that constitutes a “reasonable
time” is not defined by the Rule and turns on the circumstances of each case. In re Diet Drugs
(Phentermine/Fenfluramine/Dexfednfluramine) Product Liability Litig., 383 F. App’x 242, 246
(3d Cir. 2010).
IV.

DISCUSSION

For purposes of this Opinion, the Court will assume, without deciding, that petitioner
filed his Rule 60(b) motion within a “reasonable time.” For the following reasons, the motion
will be denied on the merits.
In the July 27, 2011 Opinion, the Court recited the state court’s adjudication of
petitioner’s Confrontation Clause claim. Contrary to petitioner’s argument, the state court
properly interpreted petitioner’s argument as one relating to the out-of-court statements the
victim’s family members made to the police. It then determined that Crawford was not
retroactively applicable, but that even if it was, petitioner still would not be entitled to relief.
Subsequently, this Court determined that the state court’s decision was not an unreasonable
application of clearly established federal law nor resulted in a decision based on an unreasonable
determination of the facts. Neither the state court nor this Court mistook petitioner’s specific
argument as relating to the victim or the officers’ statements as petitioner claims in his Rule
60(b) motion. Indeed, this Court specifically recited to the state court’s decision that analyzed
whether petitioner’s Confrontation Clause rights were violated by the introduction of the victim’s
family statements to police.

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Additionally, contrary to petitioner’s argument in the motion, Crawford is not
retroactively applicable to his case for the reasons stated by the state court. Indeed, the state
court specifically cited to the applicable United States Supreme Court decision in Whorton v.
Bockting, 549 U.S. 406, 421 (2007) that holds that Crawford is not applicable to petitioner on
collateral review in this case.
Accordingly, neither of petitioner’s arguments in his motion has merit. Therefore, the
motion will be denied.
V.

CERTIFICATE OF APPEALABILITY

To appeal an order disposing of petitioner’s Rule 60(b) motion, a certificate of
appealability must issue. See Hickman v. Cameron, No. 13-1917, 2013 WL 3802394, at *1 (3d
Cir. July 23, 2013) (citing Morris v. Horn, 187 F.3d 333, 341 (3d Cir. 1999); 28 U.S.C. §
2253(c)(2)). A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies
this standard by demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). Applying this standard, the Court finds that a certificate of appealability shall not issue
in this case.
VI.

CONCLUSION

For the foregoing reasons, petitioner’s Rule 60(b) motion will be denied and a certificate
of appealability shall not issue. An appropriate order will be entered.

DATED: October 17, 2013
s/Robert B. Kugler
ROBERT B. KUGLER
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United States District Judge

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