Fogg v. Phelps
| Decision Date | 06 January 2011 |
| Docket Number | No. 08-4377,08-4377 |
| Parties | JEFFREY R. FOGG, Appellant v. *PERRY PHELPS, Warden; ATTORNEY GENERAL OF THE STATE OF DELAWARE |
| Court | U.S. Court of Appeals — Third Circuit |
*(Pursuant to Rule 43(c), F. R. A. P.)
On Appeal from the United States District Court
for the District of Delaware
(Honorable Sue L. Robinson)
Before: SCIRICA, STAPLETON and ROTH, Circuit Judges.
PETER A. LEVIN, ESQUIRE (ARGUED)
Attorney for Appellant
Delaware Department of Justice
Attorney for Appellees
After a joint jury trial with co-defendant Daryl Andrus, Appellant Jeffrey Fogg was convicted of murder in the first degree and conspiracy in the first degree for his role in the April 5, 1995 death of James Dilley. The Delaware Superior Court sentenced him to a mandatory term of life imprisonment without the benefit of parole or probation for the murder conviction. Fogg unsuccessfully pursued post-conviction remedies in the Delaware state court system, and the District Court denied his petition for a writ of habeas corpus. We granted a certificate of appealability with regard to four issues raised in Fogg's habeas petition. However, because Fogg cannot demonstrate an entitlement to relief on any of these grounds, we will affirm.
Fogg, Dilley, Cheryl Adams and John Cathell were among the guests at a party hosted by Andrus on April 4, 1995.1 At some point that afternoon, Fogg provoked a fightwith Cathell by kicking his leg and knocking off his hat. The party later migrated to the basement, where Fogg and Cathell recommenced their skirmish. Around 8:00 p.m., Andrus, Fogg and Adams rousted themselves and went to a bar, where they remained for approximately 90 minutes. Adams described the two men as rowdy and excited from the drinking and fighting. They stopped at a liquor store en route back to Andrus' residence, and Dilley was still at that destination when they arrived there between 10:00 and 10:30 p.m. Andrus and Fogg were in the kitchen pouring glasses of sambucca when Adams departed 20 minutes after their return. The three men were the only people remaining in the dwelling.
At approximately 7:30 a.m. the following morning, an ambulance from the local fire company responded to a call at Andrus' address. Emergency medical technicians found Dilley motionless on the floor. Fogg began mouth-to-mouth resuscitation efforts while the EMTs began CPR compressions. Paramedics arrived shortly thereafter, and Andrus directed them to the victim. The paramedics detected traces of rigor mortis in Dilley's jaw and finger and could not locate a pulse. CPR was discontinued, and Dilley was pronounced dead at 7:42 a.m.
Fogg told Detective Quinton Watson he had fallen asleep almost immediately after returning home from the bar the previous night. He claimed to have been awakened in themorning by Andrus calling his name from the hallway outside the bathroom where Dilley was lying face-up in the bathtub, cold and bloodied. Fogg told Watson he and Andrus lifted Dilley from the tub, dragged him to Andrus' bedroom, put blankets and a heater next to him, and began to perform mouth-to-mouth resuscitation. According to Fogg's account, Andrus went across the street to call for an ambulance while Fogg continued his revival efforts.
Fogg and Andrus were transported to police headquarters for further questioning. In his final interview, Fogg admitted to police he had struck Dilley with his hand. Fogg was then arrested and charged with both hindering prosecution and first-degree murder. While Andrus and Fogg were in police custody, other officers canvassed the Andrus residence for evidence. The living room and hallway walls, the floor, the refrigerator door, and the blinds, sink and shower in the bathroom were stained with apparent blood splatter. The bathtub was three-quarters filled with red-brown water and had several items floating in it. 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 Dilley's body. Police found pieces of broken dentures in the bathtub, on the living room floor, and on the bedroom floor next to the body; a tooth in the hallway; a pair of wet and bloody jeans on the door handle of a second bedroom; and a wet shirt and sock outside the basement on the ground.
The day after the arrests, the Medical Examiner called police to ask whether any jewelry had been confiscated from the scene or from the defendants' persons. Policeprovided the M.E. with a wizard ring belonging to Andrus and a ring bearing the image of a skull's face wearing a Viking helmet belonging to Fogg. At trial, Dr. Adrienne Perlman, the Assistant M.E., testified Dilley had distinct "patterned injuries" on his body that were caused by the defendants' rings and the cowboy boots and single black boot recovered from Andrus' bedroom. The cowboy boots were later identified by a podiatrist as matching casts of Andrus' feet. Police lifted palm prints from the reddish-brown stains on the walls in the living room, hallway and master bedroom, and Corporal Ronald Webb testified they were of value for identification purposes as belonging to Fogg and Andrus.
On May 1, 1995, Fogg and Andrus were jointly indicted on charges of Murder in the First Degree and Conspiracy in the First Degree. Fogg filed a pre-trial motion to sever the charges, which the Superior Court denied. On May 3, 1996, following a joint trial, a Delaware Superior Court jury found Fogg and Andrus guilty on both charges. The court sentenced Fogg to a mandatory term of life imprisonment without the benefit of probation or parole for the murder conviction, and to five years in prison, suspended after four years for probation, for the conspiracy conviction. See Fogg, 1998 Del. LEXIS 360, at *1-*2.
Fogg filed a direct appeal, claiming (1) his statements to police were obtained in violation of his Fifth Amendment Miranda rights; and (2) the Superior Court mistakenly concluded the statement to police was the product of a voluntary, knowing and intelligentwaiver of his Miranda rights. The Delaware Supreme Court sua sponte identified a third issue under Bruton v. United States, 391 U.S. 123 (1968), and requested supplemental briefing regarding the Confrontation Clause implications of Andrus' statements as related to and testified to by Robert Richmond, an inmate at a Delaware correctional facility. On February 20, 1998, the Delaware Superior Court acknowledged admission of Andrus' statement via Richmond was inappropriate under Bruton but concluded redaction — and not severance — would have been the proper remedy. State v. Fogg, 1998 Del. Super. LEXIS 238, at *16 (Del. Super. Ct. Feb. 20, 1998). On October 1, 1998, the Delaware Supreme Court affirmed Fogg's conviction and sentencing, holding the Bruton error harmless beyond a reasonable doubt when considered in context of the admissible evidence of his guilt. Fogg, 1998 Del. LEXIS 360, at
On September 30, 1999, Fogg filed a motion for state post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61. On August 1, 2000, the Superior Court summarily dismissed several claims raised in the Rule 61 motion as procedurally barred and denied the remaining ineffective assistance of counsel claims as meritless. State v. Fogg, 2000 Del. Super. LEXIS 263 (Del. Super. Ct. Aug. 1, 2000). On appeal, the Delaware Supreme Court remanded for further development of the record. The Superior Court subsequently conducted an evidentiary hearing and concluded Fogg failed to demonstrate counsel was ineffective. State v. Fogg, 2002 Del. Super. LEXIS 211 (Del. Super. Ct. Sept. 10, 2002). On December 23, 2002, the Delaware Supreme Court affirmed the Superior Court's decision. Fogg v. State, 817 A.2d 804 (Del. 2002).
The District Court for the District of Delaware denied Fogg's habeas petition on September 30, 2008, and, concluding Fogg had failed to make a "substantial showing of the 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 claims, on June 22, 2009, we issued a certificate of appealability with regard to the four issues outlined below. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) ().4
The first set of issues surrounds Richmond's trial testimony. Recounting conversations he had with Andrus when both were incarcerated in Gander Hill Prison, Richmond testified Andrus had implicated both himself and Fogg in Dilley's murder. According to Richmond, Andrus told him he and Fogg kicked and stomped Dilley; Fogg "got way out of hand with it and just went too far;" and the incident transpired in the living room, after which the two men dragged Dilley to the bathroom. He also testified Andrus told him he and Fogg had attempted to resuscitate Dilley when they placed him in the bathtub and that the two had plans to dispose of the body but refrained because too many people knew Dilley had been at the party and had been in a tiff with Andrus. Richmond had provided a tape-recorded statement to the police and prosecution; the tape was played before the jury, and a written transcript of the statement was entered into evidence.
The State has acknowledged the introduction of such evidence violated Fogg's Confrontation Clause rights under Bruton, but the Delaware courts and the District Court have concluded such error was harmless. Here, Fogg seeks habeas relief on the grounds that (1) the Bruton violation had a "substantial and injurious effect or influence" on the jury's verdict; and (2) his...
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