Gregorio v. Davis

• Decision Date: 05 August 2022
• Docket Number: Civil Action 19-14429 (BRM)
• Parties: RUMULO GREGORIO, Petitioner, v. BRUCE DAVIS, et. al., Respondents.
• Court: U.S. District Court — District of New Jersey

RUMULO GREGORIO, Petitioner,
v.
BRUCE DAVIS, et. al., Respondents.

Civil Action No. 19-14429 (BRM)

United States District Court, D. New Jersey

August 5, 2022

NOT FOR PUBLICATION

OPINION

HON. BRIAN R. MARTINOTTI UNITED STATES DISTRICT JUDGE

Before this Court is the petition for a writ of habeas corpus (“Petition”) of Petitioner Rumulo Gregorio (“Petitioner”) brought pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Following an order to answer, Respondents filed a response to the petition (ECF No. 9) and Petitioner filed a reply (ECF No. 10). For the reasons set forth below, Petitioner's habeas petition is DENIED, and no certificate of appealability shall issue.

I. Background

The New Jersey Superior Court, Appellate Division provided the following factual summary on direct appeal:^[1]

Some ten years before the homicide, [Petitioner] met Clarissa and her husband through a bowling league and became a friend of the family. He came to know all four of the Mariano children, who were adults at the time relevant to the charges. [Petitioner] went by the nickname “J.R.”

Clarissa's husband died in March 2008. Clarissa and some family members moved to a house in Jersey City that was within walking

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distance of [Petitioner]'s home. Clarissa lived on the second floor of her Jersey City house, her son Christopher lived with his wife and child on the first floor, and Clarissa's sister lived on the third floor. In 2009, the youngest of the children, Christine, graduated from culinary school in Florida and moved in with her mother on the second floor

Clarissa and [Petitioner] had begun dating in late 2008, but the relationship quickly faltered. Clarissa wanted [Petitioner] to pursue an education, get a job, and follow their religion. [Petitioner] did not comply with her wishes After a series of temporary breakups, Clarissa ended the dating relationship permanently during the first week of August 2009. Afterwards, [Petitioner] would wait at the end of her block and approach her “practically every day.” Clarissa rebuffed him repeatedly, but [Petitioner] refused to accept her decision

[Petitioner] called and sent many text messages to Clarissa each day in August 2009, totaling more than 300 texts through August 25th, at which time Clarissa changed her phone number. The messages expressed his desperation and anger about the breakup and his wish that she would suffer as he was suffering. When she told him to stop, he texted back that he would “not stop until one of us dies.”

In mid-August, Christine was outside walking her dogs and talking on her cell phone to her boyfriend, Brandon Bigham, who lived in another state. Bigham had spent time in the company of the Mariano family and [Petitioner], and so, he was familiar with [Petitioner]'s voice. During the mid-August telephone call, Bigham heard Christine say, “that's weird, I see J.R.” According to Bigham's testimony he then overheard [Petitioner] say, “if I don't get to talk to your mom, I'll burn the house down....” Uncertain of [Petitioner]'s exact words, Bigham added, “or something like that.” Bigham did not report what he heard to the police or anyone else at the time because he thought Christine and her mother would deal with it themselves.

When Clarissa decided to change her home phone number and all of the cell phone numbers on the family's plan, Christine persuaded her not to change Christine's cell phone number because she wanted to remain in touch with her out-of-state friends. [Petitioner] then began calling Christine as a way to reach Clarissa.

During August 2009, [Petitioner] attempted several times to enter Clarissa's house although he was not welcome. On one occasion when Clarissa returned from church, Christine was outside and

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frantically pulled her into the house because [Petitioner] was waiting outside. Christine then sent her brother Christopher out to confront [Petitioner]. After a tense but muted exchange between the two men, [Petitioner] left.

On the morning of September 1, 2009, Clarissa left for work early in the morning but first saw Christine briefly and spoke to her. At 7:36 a.m., Clarissa sent a text message to [Petitioner] asking “what he was up to.” Clarissa testified at the trial that she sent this message because she “had that fear that it was just too quiet, nothing was going on, and [she] really wanted to know what he was up to.” [Petitioner] did not respond to Clarissa's text until later that day.

Meanwhile, Christopher and his wife also went to work, and Clarissa's sister was the last to leave the Jersey City house that morning, activating the house alarm as she left. Bigham called Christine at about 10:00 a.m. and woke her from her sleep. He was on the phone with her when he heard the doorbell ring at Christine's house. He then overheard Christine speaking with [Petitioner] over the door intercom. He heard [Petitioner] say, “I have something to give your mom,” and Christine answered, “give it to me and I'll give it to her.” At that point, the “phone call disconnected without Christine saying goodbye. Bigham never spoke to Christine again. Near mid-day on September 1, 2009, [Petitioner] called Clarissa on her new cell number, which she testified she had not realized he would have as a result of the text she sent earlier that morning. During the conversation, Clarissa heard hammering noises. [Petitioner] said he was fixing a roof leak.

When Clarissa returned home from work on September 1, she noticed that Christine's car was parked outside although she expected Christine to have left by then to start her 4:00 p.m. work shift in a restaurant. As Clarissa stepped out of her car, [Petitioner] greeted her. He said he was not going to hurt her; he was there to help Clarissa with her bags. She refused his offer. When Clarissa approached the house, she heard the security system saying the word “fire.” [Petitioner] asked Clarissa to give her house keys to him. He opened the door, and she followed him into the house.

[Petitioner] and Clarissa searched the house for fire and for Christine. Christine was not in the kitchen, in her room, or in the bathroom. [Petitioner] re-leased Christine's dogs from a balcony, which was an indication to Clarissa that Christine must be in the house because she would not leave her dogs outside on the balcony when she was not home. Clarissa went to her own room and was surprised to see her door closed. She had trouble opening the door,

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and when she did, the room was filled with black smoke. [Petitioner] pulled Clarissa outside by her clothing, saying at the same time, “I'm so sorry if Christine is there.”

Construction workers at the house next door called 911. Clarissa wanted to call her children but did not have her cell phone. [Petitioner] handed her a cell phone that Clarissa recognized as Christine's phone. Clarissa asked him where he got the phone, and [Petitioner] said he had just found it.

Firefighters arrived and put out the fire. In Clarissa's bedroom, lying face up on the bed, they found Christine's charred body. Later, an autopsy revealed that Christine had been killed before the fire started. There was no evidence of smoke in her lungs or bronchial tubes. She had a traumatic injury to the back of her head and evidence that her throat had been compressed. The medical examiner concluded that Christine had been killed by strangulation but could not determine a time of death. No DNA other than her own was found on Christine's body, thus negating a theory that she had been sexually assaulted. There was no evidence of theft from the home.

Police and fire investigators concluded the fire had been deliberately set at two locations in the bedroom, on the bed under Christine's legs and in a closet. Evidence of acetone, a flammable substance commonly found in nail polish remover, was detected in the area where the fire originated on the bed. The investigators found a cigarette lighter discarded in a waste basket in the bedroom. A smoke alarm was on the floor in the hallway, and it appeared to have been removed from the ceiling. Also, what appeared to be the remains of an open bible were found on the bed.

Later that night, [Petitioner] was arrested at the scene of the fire. No cigarettes were found on [Petitioner]'s person, but he was known to be a smoker, and he had a lighter in his possession when he was arrested.

(ECF No. 9-6, State v. Gregorio, No. A-5383-11T1 at 3-8 (N.J.Super.Ct.App.Div. April 24, 2015).)

The Hudson County Grand Jury returned Indictment No. 334-02-2010, charging Petitioner with murder, N.J.S.A. § 2C:11-3(a)(1) or (2) (count one); second-degree aggravated arson,

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N.J.S.A. § 2C:17-1(a)(2) (count two); fourth-degree stalking, N.J.S.A. § 2C:12-10(b) (count three); and third-degree terroristic threats, N.J.S.A § 2C:12-3(a) (count four). (ECF No. 9-2.)

Before trial, Petitioner moved to sever the murder and arson charges from the stalking and terroristic threats charges. The trial court held a hearing and denied Petitioner's motion, finding the evidence of stalking and threats would be admissible as relevant to motive for the murder and arson charges even if the stalking and threats were tried separately. (See ECF Nos. 9-19, 9-20.)

On January 19, 2012, Petitioner's jury trial began before the Honorable Paul M. DePascale, J.S.C. (See ECF Nos. 9-21, 9-22, 9-23, 9-24, 9-25, 9-26, 9-27.) On February 2, 2012, the jury found Petitioner guilty on all counts. (See ECF No. 9-27.) On April 30, 2012, Petitioner was sentenced to a total term of fifty-years imprisonment, subject to the No Early Release Act (“NERA”). (See ECF No. 9-28.)

Petitioner filed a Notice of Appeal with the Appellate Division. (ECF No. 9-4.) On April 24, 2015, the Appellate Division affirmed...