Fogg v. Phelps
| Decision Date | 30 September 2008 |
| Docket Number | Civ. No. 03-558-SLR. |
| Citation | 579 F.Supp.2d 590 |
| Court | U.S. District Court — District of Delaware |
| Parties | Jeffrey FOGG, Petitioner, v. Perry PHELPS, Warden, and Attorney General of the State of Delaware, Respondents.<SMALL><SUP>1</SUP></SMALL> |
Jeffrey Fogg, pro se petitioner.
Kevin M. Carroll, Deputy Attorney General, Delaware Department of Justice, Wilmington, DE, for respondents.
Petitioner Jeffrey Fogg ("petitioner") is an inmate in custody at the James T. Vaughn Correctional Center in Smyrna, Delaware. Petitioner filed a habeas application in June 2003, an amended application in May 2006, and a second amended application in August 2007. (D.I. 2 D.I 64; D.I. 105) Petitioner asks the court to review the claims asserted in the second amended application. For the reasons that follow, the court concludes that the application does not warrant relief.
As reported by the Delaware Supreme Court on direct appeal, the facts of petitioner's case are as follows:
On April 4, 1995, there was a party at 407 7th Street, Holloway Terrace, the residence of Daryl "Babe" Andrus. John "Dwayne" Cathell brought over a case of beer around noon and sat on the porch drinking with Andrus and two other men. [Petitioner] arrived around 2:30 p.m. with a 12-pack of beer and Cheryl Adams. James "JD" Dilley ("Dilley") was there also. Dilley and [Andrus] had been friends for years, although two weeks earlier Andrus had severely beaten Dilley on the face. Dilley was a small man, weighing about 150 pounds and five feet three inches tall. He had a clawed right hand.
The party migrated from the front porch to the back where [petitioner] provoked Cathell into fighting by kicking Cathell's leg and knocking his hat off. Subsequently, the party moved down to the basement where Cathell and [petitioner] fought again. Dilley got between the two men, but Andrus hit Dilley out of the way and broke up the fight.
Around 8:00 p.m., Andrus, [petitioner] and Adams went to a tavern. They stayed there for about an hour and a half. According to Adams, [petitioner] and Andrus were rowdy and excited from the drinking and earlier fighting. On their way back to Andrus's residence, they stopped at a liquor store. They arrived at Holloway Terrace at approximately 10:00 or 10:30 p.m. Dilley was there. When Adams left approximately 20 minutes later, only three people remained in the dwelling: Dilley, who was in the living room trying to get a fire started in a wood stove, and Andrus and [petitioner], who were in the kitchen pouring glasses of black sambucca.
The next morning at approximately 7:30 a.m., an ambulance from the local fire company responded to 407 7th Street. When they arrived on the scene, [petitioner] directed them inside where they found a body wearing boxer shorts and socks. There was blood all over the walls and carpets of the house. [Petitioner] started mouth-to-mouth resuscitation while the emergency medical technicians began CPR compressions. [Petitioner] told them, "I don't understand what happened, we were talking to him this morning."
A short time later, paramedics arrived. Andrus directed them to the victim. Examining Dilley, the paramedics found signs of rigor mortis in the jaw and finger and no pulse. CPR was discontinued and Dilley was pronounced dead at 7:42 a.m.
When Officer Romi Allen of the New Castle County Police Department arrived, the paramedics informed Allen that this was a crime scene. The victim's face was a bloody pulp. As described by the medical examiner at trial, Dilley had suffered multiple severe injuries caused by "kicking, punching, stomping and striking or being struck with blunt objects as well as hands and shod feet," to the extent that some of these actions left imprints on his body. The injuries to his face were so severe that his nose was torn away from his cheek and his ears were torn away from the back of his head. A false plate inside his mouth was broken into multiple pieces because he had been kicked. The hyoid bone underneath his chin was fractured. According to the medical examiner, Dilley died as a result of extreme blood loss complicated by the inhalation of blood and vomit into his airway.
After inspecting the residence, Officer Allen separated [petitioner] and Andrus since they were possible witnesses. Allen asked [petitioner] to have a seat in the police vehicle. When a second officer arrived at the scene, Andrus was placed in the second vehicle.
Detective Quinton Watson of the New Castle County Police Department arrived at approximately 8:30 a.m. He spoke with [petitioner] who was seated in the back seat of the patrol vehicle. [Petitioner] told Watson that the previous evening, after Adams had brought the [ ]men back to Andrus's residence, he had come inside and "crashed on the couch." He was awakened in the morning by Andrus calling his name from the hallway outside the bathroom. He went to the bathroom and saw Dilley lying face up in the bathtub, cold and bloody. [Petitioner] and Andrus pulled him out of the tub and dragged him by the arms to Andrus' bedroom. They put blankets and a heater next to him. Andrus started mouth-to-mouth resuscitation. Then Andrus went across the street to call for an ambulance. [Petitioner] continued to perform mouth-to-mouth breathing on Dilley who was making gurgling sounds. Shortly thereafter, the police then transported Andrus and [petitioner] to police headquarters for more questioning. Andrus was arrested and charged with hindering prosecution. In his final interview which started at 8:40 p.m., [petitioner] admitted to the police that he had struck Dilley with his hand. [Petitioner] was arrested and charged with first degree murder and hindering prosecution. On May 1, 1995, Andrus and [petitioner] were jointly indicted on charges of Murder in the First Degree and Conspiracy in the First Degree.
While Andrus and [petitioner] were at police headquarters being questioned, other police officers were gathering evidence inside the Andrus residence. The living room wall facing the front door had what the police described as an enormous amount of blood on it. The floor was stained with apparent blood, as were the hallway and walls leading to the back of the residence. Similar stains were found on the refrigerator door in the kitchen and on the Venetian blinds, sink, and shower in the bathroom. The bathtub was three-quarters filled with red-brown water and numerous items were floating in it, including a pillow, beer can, and shampoo containers. A pair of black boots was discovered in the living room and a pair of cowboy boots and a single black boot were located in the bedroom a few feet away from the body. The police found pieces of broken denture in the bathtub, on the living room floor, and on the bedroom floor next to the victim's body. A tooth was located in the hallway. A pair of wet and bloody jeans was found on the door handle of a second bedroom, and a wet shirt and sock were discovered outside the basement on the ground. On the back deck, the police found a tshirt, lamp base, and a comforter stained with blood that DNA analysis later matched to Dilley.
The day following the defendants' arrests, the Medical Examiner's Office called the police to ask whether any jewelry had been seized at the scene or from the defendants. The police provided the Medical Examiner with a wizard ring belonging to Andrus, [petitioner]'s ring that had on it a skull's face wearing a Viking helmet, and also several pairs of boots. At trial, the Assistant Medical Examiner, Dr. Adrienne Perlman, testified that Dilley had very distinct "patterned injuries" on his body. She ultimately identified four distinct "patterned injuries" that were caused by the defendants' rings, and the cowboy boots and single black boot recovered from Andrus's bedroom. The cowboy boots, State's Exhibit No. 74, were later identified by a podiatrist as matching casts of Andrus's feet. Dr. Perlman also stated that one ring had to have had a stone in it to have caused the "patterned injuries" she saw on Dilley's body, even though when she saw the ring, the stone was missing.
On April 5, 1995, the police had observed fingerprints, smears and palm prints in reddish-brown stains on the south wall of the living room. Corporal Ronald Webb lifted several palm prints off that wall, the east wall at the corner of the hallway, and from the outside of the door of the master bedroom. At trial, he testified that the ten palm prints that were of value for identification purposes belonged to Andrus and [petitioner].
Robert Richmond, an inmate at the Delaware Correctional Center, was called as a witness by the State. Richmond testified that he had met Andrus at Gander Hill. Andrus had told Richmond about his crime, stating that the victim, who lived with Andrus, had slapped Andrus in the face and that Andrus had started fighting. The victim fell to the floor, and Andrus and the co-defendant, who was staying there at the time, kicked and stomped the victim. Andrus said that he had hit the man in the face and apparently was concerned that his ring, which was taken from him by the police, would match 17 cuts to the man's face. According to Richmond, Andrus had claimed that his co-defendant, whose name Richmond did not remember, had gotten carried away with the beating and went too far. The incident took place in the living room and afterward, they dragged the victim to the bathroom. Their main concern was to clean up the house. They had plans of getting rid of the body, but too many people knew that Dilley had been there and that they had been fighting. Andrus told Richmond that he went to bed and, the next morning after sobering up, he called 911.
The defense for Andrus presented evidence that he had...
To continue reading
Request your trial
-
Johnson v. Folino
...admitted was merely cumulative of other overwhelming and essentially uncontroverted evidence properly admitted"); Fogg v. Phelps, 579 F.Supp.2d 590, 610 (D.Del.2008) (holding that Bruton violation stemming from admission of co-conspirator statement constituted harmless error because it was ......
-
Nickerson v. Wesley
...ineffective assistance, counsel's alleged inaction has no bearing on the "full and fair opportunity" analysis. See Fogg v. Phelps, 579 F. Supp. 2d 590, 604 (D. Del. 2008). In other words, the fact that Nickerson could have presented the instant Fourth Amendment claim to the Superior Court u......
-
Davis v. Pierce
...not constitute a structural defect. See, e.g., Winn v. Phelps, 2011 WL 4543968, at *9-10 (D. Del. Sept. 29 2011); Fogg v. Phelps, 579 F. Supp. 2d 590, 604 (D. Del. 2008). For all of these reasons, the Court will deny Claim One as barred by Stone. B. Claim Two: Procedurally Barred In Claim T......
-
Fogg v. Phelps
...denial of a constitutional right" as mandated by 28 U.S.C. § 2253(c)(2), declined to issue a certificate of appealability. 579 F. Supp. 2d 590, 616 (D. Del. 2008). Positing that "jurists of reason" could conceivably disagree with the district court's resolution of Fogg's constitutional clai......