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Davis v. Wetzel

United States District Court, E.D. Pennsylvania

January 20, 2017

ELI DAVIS Petitioner
JOHN E. WETZEL, et al. Respondents




         On July 8, 2014, Petitioner Eli Davis (“Petitioner”), incarcerated in the State Correctional Institution in Frackville, Pennsylvania, filed a counseled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, averring that his constitutional due process and confrontation rights were violated by the ineffective assistance of trial counsel and the admission of certain evidence provided by Commonwealth witnesses Assistant District Attorney Carlos Vega, Philadelphia Police Officer Andrew Jericho, and Kalil Sephes at trial. [ECF 1]. By Order dated July 21, 2014, issued in accordance with Title 28 U.S.C. § 636(b) and Local Civil Rule 72.1.IV(c), the Honorable Mitchell S. Goldberg referred the habeas corpus petition to United States Magistrate Judge Marilyn Heffley (“the Magistrate Judge”), for a Report and Recommendation (“R&R”).[1] [ECF 2]. On September 30, 2015, the Magistrate Judge issued an R&R, which recommended that the habeas corpus petition be denied. [ECF 11]. Petitioner filed timely objections to the R&R. [ECF 13]. Thus, this matter is ripe for a de novo determination of the objections to the report.

         After a thorough and independent review of the state court record, the habeas corpus petition, the R&R, and Petitioner's specific objections, for the reasons stated herein, Petitioner's objections are overruled, the R&R is approved and adopted, and the petition for a writ of habeas corpus is denied.


         On January 28, 2008, following a jury trial before the Honorable Shelley Robins New of the Court of Common Pleas of Philadelphia County, Petitioner was convicted of first-degree murder[2] and a violation of the Uniform Firearms Act[3] for the shooting death of Kareem Sephes (“Sephes”). That same day, Petitioner was sentenced to life imprisonment for the murder conviction and to a concurrent term of two-and-a-half to five years for the firearms conviction.

         The factual background and procedural history underlying Petitioner's request for habeas relief are aptly described in both the R&R and the Superior Court's opinion denying Petitioner's direct appeal. The evidence underlying Petitioner's convictions was summarized by the Superior Court as follows:

On November 7, 2005, around 8:00 p.m., Kareem Sephes [hereinafter “Sephes”] and [Petitioner] got into a fistfight. Sephes was sixteen years old at the time and [Petitioner] in his twenties. There was evidence indicating the fight started over comments made at an earlier fight between youngsters in the neighborhood. A number of people gathered around the fight, including Kareem's twin brother, Kalil Sephes [hereinafter “Kalil”], Hakim Price [hereinafter “Price”], Lamar Robinson [hereinafter “Robinson”], and Dominique Taylor [hereinafter “Taylor”]. Although younger than [Petitioner], Sephes apparently got the better of Petitioner in the fight. Another person joined in the fight, hitting Sephes. Since most of the people surrounding the fight were friends of Sephes, this provoked a free-for-all with the person who intervened getting knocked down and stomped.
As the fistfight wound down, [Petitioner] produced a handgun. [As people fled, ] Petitioner took aim at the fleeing Sephes, and fired multiple shots. One of those shots struck Sephes in the back [. . .]. The police arrived on the scene very quickly and, rather than wait for an ambulance, transported Sephes to the hospital in a police car. Sephes died shortly thereafter.
Price, Robinson, Taylor, and Kalil all gave statements to the police describing what happened. Price, Robinson, and Kalil identified [Petitioner] from a photographic lineup. Taylor never identified the shooter other than to say it was the same person fighting Kareem Sephes. Kalil testified at the preliminary hearing, gave an account of the fight and the shooting, and that he identified [Petitioner] as the shooter from the lineup and in court.
Based upon the identifications provided by the witnesses, the police obtained an arrest warrant for [Petitioner], who was tracked down in New Jersey. On February 2, 2006, when police arrived at the second-floor apartment where Petitioner was staying, [Petitioner] jumped out of a bedroom window and attempted to flee. He was caught a short time later near the banks of the Newton Lake. Petitioner was extradited to Philadelphia where he stood trial.
[At trial, ] Price and Robinson “went south” and denied making statements to the police or identifying Petitioner as the gunman. Kalil Sephes apparently fled just prior to the trial and could not be located. Due to his unavailability, Kalil's preliminary hearing testimony, wherein he identified [Petitioner] as the person who was fighting his brother and as the gunman, was read into the record. In a “blurt out” statement made during the preliminary hearing, [Petitioner] admitted to being the person fighting Kareem Sephes, but denied shooting him.
At trial, Assistant District Attorney Carlos Vega testified regarding his interview with Price the night before, which disputed Price's trial testimony and that Price feared testifying. Police Officer Andrew Jericho testified that Price spoke to him at the scene and, at the time, was very upset, jumping up and down, screaming, “they shot my boy.” After settling down a bit, Price then told the officer what he had witnessed.

See Commonwealth v. Davis, 560 EDA 2008, slip op. at 2-4 (Pa. Super. Ct. June 12, 2009).

         Petitioner timely filed a direct appeal of his conviction to the Pennsylvania Superior Court, in which he argued that insufficient evidence was presented to support his conviction, and that the trial court made numerous erroneous evidentiary rulings. The appeal was denied.[4]

         On March 15, 2011, Petitioner filed a timely petition pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”), alleging that trial counsel was ineffective in failing to request a complete voluntary manslaughter instruction and, thus, his Sixth Amendment rights under the United States Constitution were violated.[5] The PCRA court dismissed the petition without a hearing on the basis that the petition presented no meritorious claims or genuine issues of material facts.

         Petitioner timely appealed, and on August 1, 2012, the PCRA court filed its Rule 1925(a) opinion which affirmed the dismissal of the PCRA petition on the basis that Petitioner's ineffective assistance of counsel claim lacked merit. On May 17, 2013, the Superior Court affirmed the dismissal of Petitioner's PCRA petition. Petitioner's application for reargument en banc was denied on July 10, 2013. Thereafter, Petitioner filed a petition for allowance of appeal with the Supreme Court of Pennsylvania, which was denied.

         On July 8, 2014, Petitioner filed his habeas corpus petition. In the habeas petition, Petitioner asserts two claims: (1) that his trial counsel was constitutionally ineffective for failing to demand that the trial court instruct the jury on imperfect self-defense; and (2) that the trial court's decision to allow the prosecution to introduce certain testimony from Commonwealth witnesses Vega, Jericho and Kalil Sephes violated his Sixth Amendment right to confrontation. In the R&R, the Magistrate Judge comprehensively addressed Petitioner's habeas claims, and recommended that the petition be denied.

         Petitioner timely filed objections to the R&R, and argued that the Magistrate Judge incorrectly concluded that (1) Petitioner's trial counsel was not ineffective, despite counsel's failure to challenge the trial judge's refusal to instruct the jury on the “mistaken belief, ” otherwise known as the “imperfect self-defense, ” prong of the lesser-included offense of voluntary manslaughter; and (2) that the trial court did not deprive Petitioner of his rights under the Fourteenth and Sixth Amendments of the United States Constitution when, over ...

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