DAVIS v. D'ILIO et al
OPINION filed. Signed by Judge Anne E. Thompson on 11/30/2017. (mps)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NOV 3 0 2017
WILLIAM T. WAL~
HONORABLE ANNE E. THOMPSON
OMAR N. DAVIS,
No. 14-7797 (AET)
STEPHEN D'ILIO, et al.,
THOMPSON, 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.
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.
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 shot9un, 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)
original). !n June 2000, an Atlantic County grand jury indicted
Petitioner with first-degree murder, N.J. STAT. ANN. § 2C:ll-
Miranda v. Arizona, 384 U.S. 436 (1966).
(Count One) and second-degree possession of a weapon
for an unlawful purpose, N. J. STAT. ANN.
2C: 3 9-4 ( 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.
2 "R" refers to the exhibits submitted with Respondent's Answer,
Docket Entry 10.
lT - Transcript of grand jury presentment, dated June 28, 2000.
2T - Transcript of first trial, dated September 26, 2002.
3T - Transcript of pre-trial hearing, dated February 3, 2003.
4T - Transcript of second trial, dated February 4, 2003.
ST - Transcript of second trial, dated February 5, 2003.
6T - Transcript of second trial, dated February 6, 2003 (AM) .
7T - Transcript of second trial, dated February 6, 2003 (PM).
BT - Transcript of second trial, dated February 10, 2003.
9T - Transcript of second trial, dated February 11, 2003.
lOT - Transcript of second trial, dated February 13, 2003.
llT - Transcript of second triali dated February 19, 2003.
12T - Transcript of second trial, dated February 20, 2003 (Vol.
13T - Transcript of second trial, dated February 20, 2003 (Vol.
14T - Transcript of second trial, dated February 24, 2003.
lST - Transcript of second trial, dated February 25, 2003.
16T - Transcript of second trial, dated February 26, 2003 (not
17T - Transcript of sentencing, dated March 28, 2003.
18T - Transcript of post-conviction relief ("PCR") hearing,
dated October 22, 2012.
Donna Lyons, Davi~'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 Tu tis, · 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 poliGe a few days after the murder,
Tu tis 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
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 mari]uana 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
A jury ultimately convicted Petitioner on both counts in
February 2003. Answer at 3; R19 at Da5-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 45 days. Mason Notice, Docket Entry 5.
As Petitioner did not respond to the Court within the 45-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
III. STANDARD OF REVIEW
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
With 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; or
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.
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 "i£
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).
stat~-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
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).
Petitioner raises ten grounds for relief:
The Prosecutor's_ Improper Comments in His Opening
and Summation Violated the Petitioner's Right to a
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.
Trial Counsel was Ineffective in Her Assistance
Through Her Failure to Thoroughly Pursue and
Present a Passion/Provocation Defense.
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.
The Petitioner was Never Advised of the Sentence He
was Facing, If He went to Trial, which Violated His
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
VIII. The State Purposely Created the Initial Mistrial
Because the State Knew the Content of Detective
Hires' Improper Testimony Before Same Improper
Petitioner's Right to a Fair Trial and His Rights
to Due Process under the 14th Amendment of the U.S.
Petitioner's Right. to Confront and Cross-Examine
His Accuser was Violated when Detective Hires was
Petitioner's Second Trial and His Absence was not
Supported by Medical
Documentation and Trial
Counsel was Ineffective for Allowing to [sic] His
Previous Testimony read into the Record.
Appellate Counsel Was Ineffective.
Petition, Attachment page 2-17, Docket Entry 1. 3
In Ground One, Petitioner asserts that the prosecutor's
improper comments in the opening and summation deprived him of a
The prosecutor informed the jury in his opening statement
that no forensic evidence recovered from the scene would
directly tie Petitioner to the murder:
You'll hear about some evidence connecting the defendant
and his family to that gun. And you're also going to
hear from some experts from the State Police lab and the
DNA expert from a private lab, but I just want you to
forget-maybe what you heard on t.v. and all about
fingerprints, evidence and things like that because
you're not going to be hearing that. You're not going to
be hearing that the defendant's fingerprints were all
over everything, the gun and the car because you' re going
to hear that that's really a rarity in cases that you do
have that at a er ime scene, and you' re going to be
hearing from a fingerprint .expert who will tell you that.
So, you know don't be looking for all kinds of prints
over everything because we're just not going to have it.
And don't be longing for well, his fingerprints were on
.the clothes, all these bloody clothes the defendant had
on and the victims blood would be on those clothes
because you're not going to have that either. And you're
going to hear testimony about that, and bear in mind
also that any clothes that defendant did turn over to
police wasn't done for almost two days until after the
homicide. Because as I said, the homicide took place in
the early morning hours of Saturday about ten-of-three.
Petitioner's Amended Petition directs the reader to "see
attached" for each ground raised, however, no attachment was
sub~itted with the amended petition. The Court uses the grounds
attached to the Original Petition, which are repeated in his
Traverse, as the grounds of Petitioner's claims.
And the first time the police have any contact with the
defendant is Sunday night.
2006 WL 1000050, at *3 (emphasis in original). In his
closing statement, the prosecutor argued: "'You'll find him
guilty of murder because the facts support it, and justice
demands it,· and it's a verdict you won't regret.'" Id.
Petitioner did not object to the remarks at the time.
"[A] prosecutor's improper comments will be held to violate
the Constitution only if they 'so infected the trial with
unfairness as to make the resulting conviction a denial of due
process."' Parker v. Matthews, 567 U.S. 37, 45 (2012)
477 U.S. 168, 181 (1986); Donnelly v.
416 U.S. 637, 643 (1974)). "[I]t is not enough
that the prosecutors' remarks were undesirable or even
universally condemned." DQrden, 477 U.S. at 181 (internal
quotation marks omitted). "Supreme Court precedent requires the
reviewing court to weigh the prosecutor's conduct, the effect of
the curative instructions and the strength of the evidence."
Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001).
The Appellate Division's decision did not reach a decision
contrary to established Supreme Court precedent when it
concluded the prosecutor's comments did not deprive Petitioner
of a fair trial, nor was it unreasonable in light of the facts.
The comments made in the opening statement "merely pointed out
to the jury what evidence it would hear and what evidence it
would not hear and that the evidence it would hear would
establish defendant's guilt." Davis I, 2006 WL 1000050, at *4.
They "did not manipulate or misstate the evidence, rtor did
[they] implicate other specific rights of the accused such as
the right to counsel or the right to remain silent." Darden, 477
U.S. at 182.
The Appellate Division reasonably concluded that
Petitioner's fair trial rights were not violated even though the
prosecutor should not have made the challenged remarks in his
closing argument. See Moore, 255 F.3d at 117 (noting "appeals
for jurors to decide cases based on passion and emotion were
improper"). The statements that "justice demands" a guilty
verdict and the jurors "wouldn't regret" convicting do not rise
to the level of prejudice found in Moore, where the prosecutor
made racial and ethnically based comments as well as an
assertion that an acquittal would "perpetuate a worse assault"
on the sexual assault victim. See id. at 116-17. As noted by the
Appellate Division, "defendant's own admissions fairly well tied
him to the murder." Davis I, 2006 WL 1000050, at *5. Multiple
witnesses also testified that Petitioner admitted he killed the
victim. Petitioner did not object to the remarks at trial so
there were no specific curative instructions, but the jury was
instructed "summations were not to be considered as evidence."
Id. In the context of the trial as a whole, the comments in the
opening and closing statements did not deprive Petitioner of a
As the Appellate Division's decision was not contrary to
established Supreme Court precedent, nor is it unreasonable in·
light of the facts adduced at trial, Petitioner is not entitled
to habeas relief on this basis.
B. Prior Bad Acts Evidence
In Ground Two, Petitioner alleges that a testifying
detective's reference to Petitioner's home being previously
raided for a drug investigation was inadmissible and unduly
prejudicial under New Jersey Rule of Evidence 404(b).
The complained of testimony took place during the cross-.
examination of Officer Madeline Barefield. Trial counsel
questioned the officer about her interview of Petitioner's
mother, asking: "So she told you she had a bunch of guns?"
6Tl08:8. Officer Barefield responded: "She-there were other
weapons that belonged to one [of] the other sons. She said the
house was raided by the police for drugs, and they seized
whatever handguns they had there." 6T108:9-12. Defense counsel
moved for a mistrial, which the court denied. The trial court
instructed the jury to disregard the remark at the conclusion of
the sidebar, 6T114:1-2, and again after a short recess,
"Admissibility of evidence is a state law issue." Wilson v.
533 F.3d 208, 213 (3d Cir. 2008) . This Court cannot
grant habeas relief for violations of state law. Estelle v.
502 U.S. 62, 67-68
(1991) ("[I]t is not the province of
a federal habeas court to reexamine
on state-law questions."). Petitioner did not argue before the
state courts, nor does he argue here, that his federal due
process rights were violated by this testimony. See, e.g.,
Traverse at 10 (citing State v. Cofield, 605 A.2d 230 (N.J.
1992)). As the only claim raised on this ground is a violation
of a state evidentiary rule, Petitioner is not entitled to
C. Ineffective Assistance of Counsel
Grounds Three through Five of Petitioner's claims are
allegations of ineffective assistance of trial counsels gov~rned
by the Strickland standard. Petitioner must first "show that
counsel's representation fell below an objective standard of
reasonableness." Strickland v. Washington, 466 U.S. 668, 688
(1984). He must then show "a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome." Id. at 694.
Furthermore, "[w]hen a federal habeas petition under§ 2254
is based upon an ineffective assistance of counsel claim,
pivotal question is whether the state court's application of the
unreasonable,' which 'is different from
asking whether defense counsel's performance fell below
Strickland's standard.'" Grant v. Lockett, 709 F.3d 224, 232 (3d
(quoting Harrington v. Richter, 562 U.S. 86, 101
(2011)). "Federal habeas review of ineffective assistance of
counsel claims is thus 'doubly deferential.'" Id.
Cullen v. Pinholster, 563 U.S. 170, 190 (2011)).
Whether trial counsel was ineffective for failing to
thoroughly pursue and present a voluntary intoxication defense
Petitioner asserts his trial counsel was ineffective for
failure to explore a voluntary intoxication defense in light of
the alcohol and marijuana he consumed on the night of the
Under New Jersey State law, a voluntary intoxication
defense is only viable if it "negates an element of the
offense." N.J. STAT. ANN. § 2C:2-8a. The PCR Court concluded
Petitioner had not shown trial counsel acted unreasonably as
Petitioner "testified under oath that he was not [under the
influence of drugs or alcohol].
that his faculties
[n]othing to suggest
prostrated to the point where he could
not form the mental states required for conviction of a charge
of murder." 18T51:10-14. The Appellate Division agreed,
"Defendant's asserted defense at trial, that he did
not shoot the victim, makes intoxication . . . irrelevant."
Davis II, 2013 WL 5729968, at *3.
Applying the appropriate standard of deference to the state
court's decision, the Court cannot say the Appellate Division
unreasonably applied Strickland. The record indicates trial
counsel considered an intoxication defense in connection with
pursuing the lesser included offense of manslaughter. The trial
court questioned the applicability of an intoxication defense,
noting Petitioner "described in great detail thus far his
activities, the rationale of his thinking and his conduct is
palpable based on his account of what he did, didn't do and so
forth." 14T11:21-24. After conferring with trial counsel,
Petitioner "specifically requested" trial counsel not to pursue
"the lesser included offense of aggravated manslaughter
specifically with the intoxication or diminished capacity
if it was marijuana rather than alcohol, a defense he has asked
[her] not to seek .
. " 14T94:16-21. Petitioner offered
nothing to the PCR court that would suggest it was unreasonable
for trial counsel not to have him evaluated by an expert in
light of Petitioner's keen memory of the night in question, or
that there was an reasonable
expert testimony would
have changed the result of the proceeding.
In light of the record below, the Appellate Division
reasonably concluded Petitioner had not met the Strickland
standard of ineffective assistance. He is therefore not entitled
to relief on this ground.
2. Whether .counsel was ineffective for failure to request a
passion/provocation charge (Ground Four)
Petitioner additionally argues that counsel was ineffective
for failing to pursue a passion/provocation defense to murder,
asserting that being beaten and robbed by the victim warranted
"Passion/provocation manslaughter, defined as '[a] homicide
which would otherwise be murder ...
[but] is committed in the
heat of passion resulting from a reasonable provocation,' is a
well-established lesser-included offense of murder." State v.
Carrero, 159 A.3d 1284, 1290 (N.J. 2017)
(alterations in original). Under New Jersey
law, the trial judge may "not charge the jury with respect to an
included offense unless there is a rational basis for a verdict
convicting the defendant of the included offense." N. J.
The Appellate Division concluded a passion/provocation
instruction would not have been warranted under New Jersey law
because Petitioner's defense at trial was that he did not shoot
the victim at all. Deferring to the state court's interpretation
of state law ·and in light of the evidence presented at trial,
the Court concludes the Appellate Division reasonably applied
Strickland in denying Petitioner's claim. An attorney cannot be
ineffective for failing to request a charge to which the
defendant was not entitled. See Gov't of Virgin Islands v.
Lewis, 620 F.3d 359, 372 (3d Cir. 2010). Accordingly, Ground
Four of the Petition is denied.
3. Whether counsel was ineffective for failure to object to
the State's request for a "Flight Charge" (Ground Five)
In Ground Five, Petitioner asserts trial counsel was
ineffective for failing to object to the flight jury
instruction. The PCR Court did not address this argument, and
the Appellate Division found the claim to be "without sufficient
merit to require discussion in a written opinion." Davis II,
2013 WL 5729968 at *3. "Where a state court's decision is
unaccompanied by an explanation, the habeas petitioner's burden
still must be met by showing there was no reasonable
the state court to deny relief." Harrington v. Richter, 562 U.S.
Just prior to the conclusion of Petitioner's testimony, the
trial court stated "[i]t also occurs to me that given the
defendant's statement and his testimony that flight would be an
appropriate charge. Any objection exception [sic] to that?"
14T7:4-7. Trial counsel consented to the charge after the court
read the model charge to her and Petitioner, and she informed
the court as to the alternative explanation she wanted to
present to the jury. 14T10:7-21. The jury was ultimately
instructed as follows:
There has been some testimony in this case from which
you may infer that the defendant fled the area shortly
after the alleged commission of the crime. The defense
has suggested the following explanation:
defendant was aware of the existence of outstanding
municipal court bench warrants, and also that he was
aware of his possession of marijuana and was trying to
avoid police contact for those reasons. If you find the
defendant's explanation credible, you should not draw
any inference of defendant's consciousness of guilt from
the defendant's departure. If after a consideration of
all of the evidence you find that the defendant fearing
that an accusation or arrest would be made against him
for the charge involved in the indictment took refuge in
flight for the purpose of evading the . accusation or
arrest, then you may consider such flight in connection
with all other evidence in this case as an indication or
proof of consciousness of guilt on the defendant's part.
It is for you as judges of the facts to decide whether
or not evidence of flight shows a consciousness of guilt
and weight to be given such evidence. in light of a.11 the
other evidence in the case.
The Court finds that Petitioner has not met his burden of
proving that the Appellate Division had no reasonable basis to
deny him relief on this ground. By his own admission, Petitioner
"fled the area" after he saw police cars headed towards his
parents' home because he was carrying marijuana and believed
there were warrants out for his arrest. 13T78:13; 77:77-21. He
testified he "caught a bus over to Atlantic City." 13T78:24.
This was enough to support a flight charge; thus, there was no·
error in the failure to object. As trial counsel did not err,
the Appellate Division had a reasonable basis to conclude
Petitioner's ineffective assistance claim was without merit.
Petitioner is not entitled to relief on this ground.
4. Whether trial counsel was ineffective for failing to
object to the admission of Petitioner's statement to police
Petitioner asserts in Ground Seven 4 that he was denied
effective assistance of trial counsel when counsel failed to
object to the admission of his statement to police allegedly
obtained in violation of his Fifth Amendment right to remain
silent. Ground Seven was raised in Petitioner's PCR petition,
but was abandoned on appeal after the PCR court denied the
petition. As Petitioner failed to exhaust this claim in the
is now procedurally barred. See O'Sullivan v.
Boerckel, 52 6 U.S. 8 38, 8 4 8 ( 1999) (failure to present federal
habeas claims to state supreme court in a timely fashion
resulted in a procedural default); Lines v. Larkins, 208 F.3d
153, 160 (3d Cir. 2000). See also Sklodowsky v. Lushis, 11 A.3d
420, 426 (N.J. Super. Ct. App. Div. 2011)
("An issue not briefed
on appeal is deemed waived.n); accord L. H. v. Pittston Area
Sch. Dist., 666 F. App'x 213, 218,
(3d Cir. 2016)
Ground Six is discussed infra Part IV.F.
the failure to raise an issue in an opening brief waives the
issue on appeal."). This Court may not consider Ground Seven's
merits unless "the petitioner 'establishes "cause and prejudice"
or a "fundamental miscarriage of justice" to excuse the
default.'" Lines, 208 F.3d at 160 (quoting McCandless v. Vaughn,
172 F.3d 255, 260 (3d Cir. 1999)).
Petitioner has not submitted anything to this Court that
would constitute cause for failing to present this issue on
appeal, nor has he argued that a miscarriage of justice would
occur if this Court did not review the merits. See Traverse at
19 (citing arguments made to PCR court) . As Petitioner has not
established either cause and prejudice or a fundamental
miscarriage of justice to excuse the default, the Court cannot
consider the merits. See McCandless v. Vaughn, 172 F.3d 255, 263
( 3d Cir. 1999)
(noting court was not free to consider merits of
procedurally defaulted arguments when petitioner did not argue
cause and prejudice
miscarriage of justice exceptions).
Ground Seven is procedurally defaulted.
D. Procedurally Defaulted Claims
The Court finds that Petitioner has also procedurally
defaulted on Grounds Eight and Nine.
This type of procedural default "occurs when a state court
determines that 'the prisoner .
. failed to meet a state
procedural requirement.'" Collins v. Sec'y of Pa. Dep't of
Corr., 742 F.3d 528, 540 (3d Cir. 2014)
(quoting Coleman v.
Thompson, 501 U.S. 722, 730 (1991)). If the state court decision
"involving a federal question . . . is based on a rule of state
law that is independent of the federal question and adequate to
support the judgment[,]" Fahy v. Horn, 516 F.3d 169, 187 (3d
(citing Nara v. Frank, 488 F.3d 187, 199 (3d Cir.
2007)), federal courts may not review the merits of the claim
unless "the petitioner establishes 'cause and prejudice' or a
'fundamental miscarriage of justice' to excuse the default."
Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000)
Lines, 208 F.3d at 159-60).
The Appellate Division held Grounds Eight and Nine should
have been raised on direct appeal. Davis II, 2013 WL 5729968 at
*3. 5 See also N.J. Ct. R. 3:22-4 (a) (1)
("Any ground for relief
not raised in the proceedings resulting in the conviction .
or in any appeal taken in any such proceedings is barred from
s The Appellate Division incorrectly noted Grounds Eight and
Nine, to the extent it challenges the admission of Detective
Hires' testimony, were not raised before the PCR court as
Petitioner raised these claims in his brief dated August 13,
2012. R25. However, the procedural default stands because the
Appellate Division concluded the "more important" reason to
bar the claims was that "these arguments should have been raised
on direct appeal and thus cannot be raised in a PCR petition."
Davis II, 2013 WL 5729968 at *3 (citing N.J. Ct. R.3:224 (a) (1)). Petitioner did fail to raise Ground Nine in the PCR
court to the extent that it argues trial counsel was ineffective
for failing to object t6 the admission of Detective Hires'
assertion in a proceeding under this rule unless the court . .
finds that the ground for relief not previously asserted could
not reasonable have been raised in any prior proceeding"). Thus,
"the last state court rendering a judgment in the case 'clearly
and expressly' state[d] that its judgment rest[ed] on a state
procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989)
(quoting Caldwell v. Mississippi,
U.S. 320, 327 (1985)).
has been recognized as a firmly established,
regularly followed independent state ground precluding federal
habeas review. See, e.g., Cabrera v. Barbo, 175 F.3d 307 (3d
The Court construes the petition as arguing that appellate
counsel's failure to raise these claims on appeal excuses the
default. "[C]ounsel's ineffectiveness in failing properly to
preserve the claim for review in state court" may serve as cause
excusing a procedural default only in situations in which
appellate counsel's actions were "so ineffective as to violate
the Federal Constitution." Edwards v. Carpenter, 529 U.S. 446,
A51 (2000). "In other words,
assistance adequate to
establish cause for the procedural default of some other
constitutional claim is itself an independent constitutional
(emphasis in original).
However, appellate counsel's alleged ineffective assistance
may only be used to excuse the procedural default of the other
claims if Petitioner properly exhausted that separate,
independent ineffective assistance of appellate counsel claim in
the state courts. Id. at 451-52
(citing 28 U.S.C. § 2254(b)-(c);
Carrier, 477 U.S. at 489). Petitioner did not argue before the
PCR court that appellate counsel was ineffective for failing to
raise Grounds Eight and Nine on direct appeal. See Re24; Re25.
Petitioner therefore cannot use ineffective assistance of
appellate counsel as the "cause" of his procedural default.
Petitioner makes no argument regarding miscarriage of justice,
and nothing in the record indicates one would occur in the event
the Court fails to review the merits of these claims. Grounds
Eight and Nine are dismissed as procedurally defaulted.
E. Ineffective Appellate Attorney
Petitioner asserts in Ground Ten that his appellate
attorney was ineffective. Petitioner contents that "the claims
argued supra have substantial merit" and "Appellate counsel
therefore could have had no sound strategic reason to not
present these claims on petitioner's direct appeal." Traverse at
21. Petitioner does not distinguish to which claims he is
referring. The Court notes that of the nine other claims
presented in petitioner's habeas corpus petition, five were
brought on direct appeal and the four remaining claims were
presented on PCR. This Court will assume that Petitioner is
referring to Grounds Eight and Nine in this petition, which when
presented to the PCR Court were found to be procedurally barred
by the Appellate Division.6
As previously noted, Petitioner did not properly exhaust
his ineffective assistance of appellate counsel claim in state
court. Although he briefly mentioned an unidentified claim that
appellate counsel purportedly did not raise on direct appeal in
his Notice of Petition, R24 at 1, Petitioner did not set forth
the factual or legal substance of his claim. See McCandless v.
Vaughn, 172 F.3d 255, 261 (3d Cir. 1999)
("To 'fairly present' a
claim, a petitioner must present a federal claim's factual and
legal substance to the state courts in a manner that puts them
on notice that a federal claim is being asserted."). He also did
not argue before the Appellate Division that appellate counsel
was ineffective after the PCR court denied the
Appellate Brief, R27. Even though this claim is unexhausted, the
Court will deny it on the merits. 28 U.S.C.
Petitioner's assertion that the State purposely created the
mistrial, and appellate counsel was therefore ineffective for
6 In Petitioner's Original Petition, he noted that Grounds Eight
and Nine were not brought on direct appeal because "Appellate
Counsel failed to raise it." Petition at 15-16. H6wever, in
Petitioner's Amended Petition, in the same section, Petitioner
wrote "N/A" as to why Grounds Eight and Nine were not brought on
direct appeal. Amended Petition at 12-13. Petitioner's Traverse
offers little guidance as to why Petitioner makes the blanket
statement that his appellate attorney was ineffective for
failing to bring claims on direct appeal without indicating
which claims he is referring. Traverse at 21.
raising the issue on appeal, is
by the record. The
improper testimony occurred during cross-examination when
Detective Hires stated he compared impressions made by
Petitioner's boots with impressions made by another pair of
boots that were in police custody. 2T130:11-24. The prosecutor
indicated he was unaware of any alleged comparison and candidly
informed the court such a comparison would not have been
possible in any event. 2T163:4-6. Trial counsel requested the
mistrial, 2T158:23, and the State objected to that request,
2T165:3-8, 167:3-5. 7 There is no factual support in the record
that the State purposefully created the mistrial; therefore,
has not carried his burden of showing appellate
counsel erred by failing to raise it on direct appeal. "Counsel
dannot be deemed ineffective for failing to raise a meritless
claim." United States v. Saunders, 165 F.3d 248, 253 (3d Cir.
Furthermore, Petitioner's claim that his right to confront
his accuser was violated when Detective Hires was medically
excused from testifying is also not supported by the record. At
the time of Petitioner's first trial, established federal law
permitted the "admission of non-testifying declarants' out of
At a hearing before Petitioner's second trial, the trial court
noted the prosecutor "vigorously" resisted the mistrial and had
a strong reaction to the declaration, convincing the court that
the state did not intend to create a mistrial. 3T17:1-5.
court statements where the prosecution establishes that (i) the
declarant is 'unavailable' and (ii) the statement bears adequate
'indicia of reliability.'" McCandless, 172 F.3d at 264-65
(quoting Ohio v. Roberts, 448 U.S. 56, 65-66 (1980), abrogated
by Crawford v. Washington, 541 U.S. 36 (2004)) . 8 Petitioner
argues only that the trial court incorrectly determined
Detective Hires was unavailable to testify.
The record reflects that the trial court, along with
defense counsel and prosecutor, conducted a detailed hearing
with Detective Hires prior to the start of Petitioner's second
trial regarding his availability to testify. 5T3:2 to 17:25.
Detective Hires supplemented his testimony with a letter from
his physician explaining Detective Hires' medical condition,
medications, and why the condition made Detective Hires unable
to testify. 10T81:5-12. Trial counsel raised an objection to
Detective Hires being declared medically unavailable. See
10T81:19 to 84:18.
Although not argued by Petitioner, his claim would fail on the
second point as well as the testimony entered into evidence at
the second trial was from Detective Hires' testimony during the
first trial when he was under oath and subject to cross~
examination. McCandless, 172 F.3d at 265 ("[T]o satisfy the
'indicia of reliability' requirement, the prosecution must
demonstrate that the defendant had an adequate opportunity to
cross-examine the declarant . . . . ").
The trial court found Detective Hires to be medically
excused from testifying, basing its decision on Detective Hires'
demeanor during his testimony and letter from the physician
which stated that Detective Hires was "suffering from
emotional, psychiatric condition .
. from which he will suffer
as to the duration of his condition."
N.J.R.E. 804(a) (4).
Def erring to the factual findings of the trial court
regarding Detective Hires' demeanor while testing, the Court
finds no constitutional error in the decision to excuse
Detective Hires from Petitioner's second trial. Detective Hires
provided objective medical evidence for his claim that he was
too ill to testify in the form of a letter from his treating
physician. See Finizie v. Principi,
69 F. App'x 571, 573 (3d
·cir. 2003). There is no federal requirement for a specific form
of clinical documentation. See id. Having found no error by the
declaring Detective Hires to be unavailable to
testify, there is not a reasonable probability that the appeal
would have turned out differently had appellate counsel raised
the issue on direct appeal. Petitioner has not carried his
burden on this ground, and the Court denies habeas relief on
F. Awareness of Maximum Sentencing Exposure
Petitioner's final claim, Ground Six, alleges trial counsel
was ineffective for failing to inform him of his maximum
sentence exposure if he proceeded to trial.9 He asserts that had
he known the sentence he was facing, he would have accepted a
plea agreement with the State. The Court will deny relief on
this basis but will issue a certificate of appealability.
"Defendants have a Sixth Amendment right to counsel, a
right that extends to the plea-bargaining process." Lafler v.
Cooper, 566 U.S. 156, 162 (2012). Clearly established federal
law at the time of Petitioner's trials held that in the context
of ineffective assistance claims arising out of plea
negotiations, Strickland's prejudice prong "focuses on whether
counsel's constitutionally ineffective performance affected the
outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 59
(1985). The relevant question specific to Petitioner's claim is
whether but for trial counsel's ineffective performance, there
is a reasonable probability the trial court and Petitioner would
9 Petitioner's traverse mentions trial counsel also may have
neglected to inform him of a plea offer. The Court will not
construe this as a separate ineffective assistance of counsel
claim because it was not raised in the original or amended
petition. Petitioner was notified in this Court's Mason notice
that all claims must be presented in the petition or would be
have accepted the plea, and that the sentence would have been
less severe than the life sentence imposed after trial.
Petitioner submitted a sworn statement to the PCR court
that trial counsel had never informed him that he was facing a
life sentence if he went to trial. R29 at 76. No pre-trial
memorandum or transcript of a pre-trial conference wherein
Petitioner was informed of the maximum sentencing exposure was
submitted to the PCR court. Petitioner argued he could not
obtain an affidavit from his trial counsel as she was now a
sitting judge in Pennsylvania. The PCR Court expressed disbelief
that anyone "would have wanted to engage in a trial of this
difficult after a mistrial . . . that there was no effort to
settle the case, that there was no offer made and that he didn't
know that he stood to face life in prison if here were
convicted? I meant that really - I mean that's almost akin to
saying prove the sun didn't rise yesterday." 18T17:16-23.
Ultimately, the PCR court denied relief after determining that
Petitioner had not met Strickland's prejudice prong because he
maintained his innocence:
And in face of the protestations of innocence, every
reason to believe he would still go forward with his
trial. There is not a scintilla of evidence in this case
to suggest that there was any desire to pursue a guilty
plea. There's everything contrary to that. His testimony
at trial, his testimony at time of sentencing and his
position con- presumably continues today that he's
innocent of this. So how can we say there is reasonable
probability that .but for counsel telling him that he
faced a life sentence, that there would have been a
different result, when we have nothing to reasonably,
reasonably compare it to.
18T54:15 to 55:11.
On appeal, the parties were able to locate a transcript of
a pre-trial conference dated November 7, 2001. Ra 33 at 11. The
prosecutor indicated during that conference that "[t]he State
has made a proffered - a tentative offer in this case which was
discussed with counsel, and my understanding is that there
really isn't a meeting of the minds close to resolving along the
terms proposed by the State." Id. at 12. There is no indication
what the offer was or whether Petitioner was present at this
hearing. There is no mention of the maximum sentencing exposure
should Petitioner proceed to trial. The Appellate Division
concluded this transcript indicated Petitioner was "likely"
aware of the plea offer. Davis II, 2013 WL 5729968 at *2 n.1.
Like the PCR court, the Appellate Division found that "defendant
maintained his innocence throughout the trial and sentencing and
cannot now argue he would have taken a favorable plea." Id. at
This Court must apply AEDPA deference to the state court's
decision unless it was contrary to or an unreasonable
application of Strickland. Branch v. Sweeney, 758 F.3d 226, 233
(3d Cir. 2014). The Appellate Division correctly identified
Strickland as the governing standard and concluded Petitioner
could not meet the prejudice requirement. 1 0 The decision was
therefore not contrary to Strickland.
The state court relied on a New Jersey Supreme Court case
holding a defendant was "'legally disabled from taking a plea
offer'" because he testified at a PCR hearing he was innocent
but would have lied under oath in order to plead guilty. Davis
II, 2013 WL 5729968 at *2 (quoting State v. Taccetta,
928, 935 (N.J. 2009)). Similarly, Petitioner testified under
oath at trial that he had no involvement whatsoever in the
shooting. A reasonable inference from that fact is that
Petitioner would have had to commit perjury in order to plead
guilty to any plea offer. The Appellate Division concluded
Petitioner could not argue that he would have accepted a
favorable plea deal as a matter of New Jersey law. The Court
"cannot review this determination of state law by a state court
. . . Thus it was not unreasonable to conclude that [Petitioner]
failed to show prejudice if counsel's deficient performance
merely deprived him of the opportunity to do something that
In reciting the Strickland standard the state court mistakenly
stated "[t]he second component is shown by establishing a
reasonable probability that the defendant would not have pled
guilty, but for his counsel's errors." Davis II, 2013 WL
5729968, at *2 (emphasis added).
Petitioner, of course, did not
plead guilty. However, the finding that Petitioner was barred
under state law from arguing he would have taken the plea
indicates the court ultimately applied the correct prejudice
would have been legally prohibited." Taccetta v. Ad.m'r N.J.
State Prison, 601 F. App'x 165, 168 (3d Cir.), cert. denied sub
nom. Taccetta v. D'Ilio, 136 S. Ct. 187 (2015).
"The question 'is not whether a federal court believes the
state court's determination' under the Strickland standard 'was
incorrect but whether that determination was unreasonable substantially higher threshold.'" Knowles v. Mirzayance,
U.S. 11 (2009)
(quoting Schriro v. Landrigan, 550 U.S. 465, 473
(2007)). "Because the Strickland standard is an especially
'a state court has even more latitude to
reasonably determine' whether a petitioner has satisfied it."
Mathias v. Superintendent Frackville SCI, No. 14-4694, 2017 WL
5563004, at *10 (3d Cir. Nov. 20, 2017)
Knowles, 556 U.S. at 123). "A state court's determination that a
claim lacks merit precludes federal habeas relief so long as
'fairminded jurists could disagree' on the correctness of the
state court's decision." Harrington v. Richter, 562 U.S. 86, 101
(quoting Yarborough v. Alvarado, 541 U.S. 652,
(2004)). The Court finds that the Appellate Division's decision
was not an unreasonable application of Strickland and will deny
relief on this claim. It will grant a certificate of
appealability on the issue, however.
Pursuant to 28 U.S.C.
2253(c), a petitioner may not
appeal from a final 6rder in a habeas proceeding where that
petitioner's detention arises out of his state court conviction
unless he has "made a substantial showing of the denial of a
constitutional right." "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 that the issues presented here are
adequate to deserve encouragement to proceed further." Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003).
For the reasons expressed above, Petitioner has failed to
make a substantial showing that he was denied a constitutional
right as to Grounds One through Five and Seven through Ten. As
jurists of reason could not disagree with this Court's
resolution of those claims, the Court shall deny
certificate of appealability. The Court will grant a certificate
of appealability on Ground Six on the issue of whether the
applied Strickland because
jurists could disagree as to the Court's resolution.
See, e.g., Hines v. Ricci, No. 10-4130, 2013 WL 1285290, at *21
(D.N.J. Mar. 26, 2013)
("An inquiry solely involving whether or
not [petitioner] proclaimed innocence, however, is not the
correct means by which to address prejudice when assessing a
claim of ineffective assistance of counsel in the plea
For the reasons stated above, Grounds One, Two, Three,
Four, Five, Six, and Ten are denied with prejudice. Grounds
Seven, Eight, and Nine are dismissed as procedurally defaulted.
A certificate of appealability is denied, except on the
limited issue of whether the Appellate Division unreasonably
applied Strickland to Petitioner's Ground Six.
An accompanying Order will be entered.
U.S. District Judge
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