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DAVIS v. KELLY

April 10, 1998

JULIUS DAVIS, Petitioner,
v.
WALTER R. KELLY, Superintendent, Attica Correctional Facility, Respondent.



The opinion of the court was delivered by: HECKMAN

DECISION AND ORDER

 In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is dismissed.

 BACKGROUND

 Petitioner Julius Davis ("petitioner") was indicted on two counts of Murder in the Second Degree under N.Y. Penal Law § 125.25(1), and one count of Criminal Possession of a Weapon in the Second Degree under N.Y. Penal Law § 265.03. *fn1" Those charges arose out of the shooting deaths of Darryl Collins and Stanley Collins on May 21, 1986. *fn2"

 Petitioner had spent the previous night as a guest at Stanley Collins' home. During the day, Stanley Collins left and when he returned home, he found things missing. Witnesses testified that Stanley Collins threatened to harm petitioner and then went looking for petitioner brandishing a large bed post. Stanley Collins went to a busy intersection in Buffalo where many people were gathered. Petitioner's sister drove him by the intersection and petitioner got out of the car to talk to Stanley Collins.

 This confrontation turned deadly when petitioner drew a pistol and shot Stanley Collins. Petitioner argued that the victim had threatened him with the bedpost. Testimony from eyewitnesses indicated that petitioner walked away towards his sister's car, turned back and shot the victim twice more while he lay on the ground. Stanley Collins died as a result of the shooting.

 Petitioner then reentered the car and his sister drove a few blocks further. Petitioner jumped from the car when he saw Darryl Collins standing in front of a store with several other people. Petitioner chased Darryl Collins and shot him. Darryl Collins also died as a result of this incident.

 On April 16, 1987, following trial, the jury returned a verdict finding petitioner guilty on all three counts. On May 26, 1987, petitioner was sentenced to consecutive twenty-five-year-to-life terms for the murder charges, and a concurrent five-to-fifteen year term for the weapons charge.

 Davis appealed his conviction to the Appellate Division, Fourth Department, and raised five arguments, including that the trial court improperly denied defendant's motion for severance of the two counts of murder, and that the trial court erred in denying a motion for a mistrial based upon the prosecutor's misconduct during the questioning of a defense witness (see Brief and Appendix for Appellant, Item # 6, Exhibit C). On February 1, 1991, the Fourth Department unanimously affirmed petitioner's conviction. People v. Davis, 170 A.D.2d 956, 566 N.Y.S.2d 892 (4th Dept. 1991). *fn3" On April 30, 1991, the New York State Court of Appeals denied leave to appeal. People v. Davis, 77 N.Y.2d 960, 570 N.Y.S.2d 493 (1991) (table).

 In this petition for habeas corpus relief, petitioner raises two arguments that are similar to two of those raised in the state court proceedings. Petitioner asserts that the trial court's denial of his motion for severance of the two counts of murder deprived him of his right to a fair trial, and his right to present evidence on his own behalf. Petitioner also asserts that prosecutorial misconduct occurring during cross examination of a defense witness was so prejudicial that it violated petitioner's rights to due process and a fair trial.

 DISCUSSION

 I. Exhaustion

 Before a federal court may address the merits of any constitutional issue on petition for a writ of habeas corpus, the petitioner must have exhausted all available state remedies as to that issue. 28 U.S.C. § 2254(b) (1998); Jones v. Vacco, 126 F.3d 408, 413-14 (2d Cir. 1997). ("It is well settled that all state remedies must be exhausted before a federal court may consider a state prisoner's petition for a writ of habeas corpus."). Exhaustion of state remedies requires presentation of the claim to the highest state court from which a decision can be obtained. Daye v. Attorney General of the State of New York, 696 F.2d 186, 190 n. 3 (2d Cir.1982), cert. denied, 464 U.S. 1048, 104 S. Ct. 723, 79 L. Ed. 2d 184, (1984).

 The exhaustion doctrine also requires that a habeas petitioner seeking to upset his or her state conviction on federal grounds must first give the state courts a fair opportunity to pass upon all of the federal claims asserted in the petition. Id. at 191; Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379, (1982). In order to have fairly presented federal claims to the state courts, the petitioner must set forth in state court all of the essential factual allegations and legal doctrines asserted in the federal petition. Daye, supra, 696 F.2d at 192-93. This requirement is satisfied, even where specific federal constitutional provisions or ...


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