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Davilla v. Parish

United States District Court, D. Maryland, Southern Division

September 27, 2018

MANUEL DAVILLA, Petitioner,
v.
WARDEN CARROLL PARISH, et al., Respondents.

          MEMORANDUM OPINION

          GEORGE J. HAZEL UNITED STATES DISTRICT JUDGE

         Manuel Davilla petitions for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Respondents filed an Answer asserting, in part, that Petitioner's claims are procedurally defaulted and therefore not subject to substantive federal habeas corpus review. ECF No. 9; ECF No. 13.[1] Petitioner Manuel Davilla filed a Reply, addressing the allegation that his claims are procedurally defaulted. ECF No. 11. The Reply asserts that Respondents neglected to file his supplemental Application for Leave to Appeal the denial of post-conviction relief which Davilla maintains was filed with the Maryland Court of Special Appeals. ECF No. 12. The supplemental pleading includes claims raised in the post-conviction proceedings, but does not bear Davilla's signature, and is not dated. ECF No. 12-2. This Court finds that a hearing is not necessary to resolve the matters pending in this case. For the following reasons, the Petition is denied and a certificate of appealability shall not issue.

         I. BACKGROUND

         Davilla was tried before a jury in the Circuit Court for Montgomery County on charges of attempted first degree murder, first degree assault, carrying a deadly weapon with the intent to injure, and three counts of misuse of a telephone in connection with an assault on Sonia Calderon, his ex-girlfriend. ECF No. 13- 1. Davilla stood trial January 14 through 18, 2008. ECF Nos. 13-2-13-6. On April 25, 2008, Davilla was sentenced to an aggregate sentence of 40 years. ECF No. 13-7 at 37-46.

         A. Facts Produced at Trial

         The State produced evidence, mainly through the testimony of Sonia Calderon, Carlos Mejias, Ms. Calderon's sons, and two police officers, of the following facts. Ms. Calderon testified that she and Davilla began dating in November of 2004 and after a brief break up in July of 2006, began dating again in November 2006. ECF No. 13-3 at 86.[2] Ms. Calderon ended their relationship in January of 2007, but allowed Mr. Davilla to remain in the apartment because he was unemployed and had nowhere to live. Id. at 86-87. Also sharing the apartment was Mr. Davilla's sister, Gloria Torres. Id. at 87.

         Mr. Davilla moved out of the apartment he shared with Ms. Calderon and his sister, Gloria Torres, at the beginning of March, 2007. ECF No. 13-3 at 88. According to Ms. Calderon's testimony, she did not see him after he moved out, but he called on the phone stating he wanted to come back; she said these calls increased from two to three times a week to calls all day long by March 14, 2007. Id. at 88-89. Mr. Davilla called Ms. Calderon continuously on March 14, 2007 because he had seen her with Carlos Mejias. Id. at 90-91. Ms. Calderon twice told Mr. Davilla she did not want to speak to him, and then simply turned off her phone to avoid hearing the calls come in. Id.

         Over the defense counsel's continuing objection (see ECF No. 13-3 at 92-112; 161-62), Ms. Calderon testified that Mr. Davilla came to her apartment on March 14, 2007, where he confronted Ms. Calderon and Mr. Mejias about the nature of their relationship. ECF No. 13-3 at 168-69.[3] Ms. Calderon testified that she and Mr. Mejias denied they were involved romantically, but Mr. Davilla appeared agitated. The conversation took place on the deck outside of the apartment's kitchen; Mr. Davilla went into the kitchen and Ms. Calderon observed him approaching Mr. Mejias, whose back was to the sliding glass door, with a knife. Mr. Mejias talked Mr. Davilla out of using the knife to hurt Mr. Mejias. Id. at 171-75, see also ECF No. 13-5 at 16-18 (testimony of Carlos Mejias). Gloria Torres had let Mr. Davilla into the apartment on that day. Id. at 176.

         The following day, March 15, 2007, Ms. Calderon was going to work to return supplies given to her for her house-cleaning job when she saw Mr. Davilla driving his truck nearby and, subsequently, parked across the street when she was leaving to return home. ECF No. 13-3 at 198-200. Concerned, Ms. Calderon called one of her adult sons to ask that he convince Mr. Davilla to leave her alone. Id. at 201. Mr. Davilla then called Ms. Calderon while she was driving home and asked her what time she would be home because he had neglected to take some of his property from the apartment when he moved out. Id. Ms. Calderon informed him that she was going to the store before returning home. Id. Before going into the apartment, Ms. Calderon called her son to ask him to come over and called Gloria Torres to confirm that she was in the apartment. Id. at 202. Because Ms. Torres was in the apartment, Ms. Calderon felt it was safe to go inside with Mr. Davilla there. Id. at 203. As Ms. Calderon and Mr. Davilla were walking into the apartment she noticed that Mr. Davilla was carrying a black bag with a can in it. Id. When asked, Mr. Davilla claimed the items in the bag belonged to Ms. Calderon's sons with whom he had worked on occasion. Id. at 205. Through Ms. Calderon's testimony, the State introduced a can of paint thinner that looked similar to the one Mr. Davilla was carrying that day into evidence, but after defense counsel objected, the label indicating that it was paint thinner was obscured from the jury's view. Id. at 207-13.

         Once inside the apartment, Ms. Calderon testified that Mr. Davilla put the can down on the floor and removed “some kind of rope” from the bag. Id. at 214. She stated that he kept the black bag in his hand as he walked back toward her bedroom. Id. at 215. Ms. Calderon followed him and asked Mr. Davilla why he was going to the bedroom as he had no right to do so. Id. at 216. She stated that Mr. Davilla replied that he did have that right and that he squatted down to remove something from the bag, grabbed Ms. Calderon by the arm, and began trying to pull her into the bedroom. Id. In a defensive move, Ms. Calderon bent over to prevent Mr. Davilla from pulling her into the bedroom. Id. at 217. As she did so, Mr. Davilla hit her on the head with the object he had removed from the bag. Id. Ms. Calderon screamed for Ms. Torres to call the police because Mr. Davilla was hitting her. Id. Ms. Torres came out of her bedroom and Ms. Calderon went into that room, and closed the door to escape Mr. Davilla. Id. at 218. As she waited, Ms. Calderon felt the blood from her wound begin to come down onto her face. Id. at 219.

         Once convinced that Mr. Davilla had left, Ms. Calderon opened the door and saw Ms. Torres. ECF No. 13-3 at 220-21. Ms. Torres provided a compress to Ms. Calderon to apply to the wound to her head, but did not comply with Ms. Calderon's request to call the police. Id. at 224-25. Ms. Calderon's cell phone was in another area of the apartment, but after she looked at her head wound in the mirror and saw that it was very deep, she retrieved her phone and called her son who was on his way to the apartment. Id. at 225-26. She changed her shirt before going to the hospital because the one she was wearing was soaked in blood; the blood-soaked shirt was gone from the apartment when she returned later. Id. at 232-33. Ms. Calderon did not call the police because she was undocumented and afraid that she would face immigration consequences. Id. at 233.

         Ms. Calderon testified that when she arrived at the hospital medical staff administered anesthesia, cauterized a vein, and closed the wound to her head with staples and sutures. ECF No. 13-3 at 245. Over objection by defense counsel, pictures of Ms. Calderon's wound were entered into evidence despite their graphic nature as the defense intended to argue that her wound was self-inflicted. Id. at 245-51. Additional photographs taken of Ms. Calderon's injuries five days after the assault at a crisis center were introduced through her testimony. ECF No. 13-4 at 6-10. The additional photographs depicted bruises in the shape of a hand to Ms. Calderon's arm, id. at 9; bruising to her shoulders, id. at 10; and a picture of bruising and swelling to her face, id. at 11-12.

         On March 20, 2007, Mr. Davilla left Ms. Calderon eighteen phone messages, which were authenticated through Ms. Calderon and played for the jury. ECF No. 13-4 at 14-16. The transcript of Ms. Calderon's testimony does not provide the content of those messages.

         Cross examination of Ms. Calderon focused on her credibility. She lied on her applications for employment and to obtain a Maryland state identification card regarding both her name and her immigration status. ECF No. 13-4 at 55-59. At a hearing outside the presence of the jury, the State objected to defense counsel's anticipated questions indicating that Ms. Calderon was a drug dealer in Guatemala prior to coming to this country. Id. at 74-76. During that hearing, the State developed that Ms. Calderon's husband went to prison for dealing drugs in Guatemala before she came to the United States. Id. at 76. Ms. Calderon denied fleeing prosecution for offenses similar to her husband's and denied transporting drugs between Guatemala and the United States or Mexico. Id. at 76-78. The court then sustained the State's objection to the line of questioning. Id. at 78. Defense counsel also focused on Ms. Calderon's failure to call the police and her delay in applying for an order of protection as well as the alleged promise that her immigration status would be changed to legal status if she pursued and cooperated in charges against Mr. Davilla.[4] Id. at 97-141.

         Carlos Mejias testified for the State and provided an account of the events occurring on March 14, 2007, consistent with Ms. Calderon's testimony. ECF No. 13-5 at 5-17. Mr. Mejias also testified that Ms. Calderon called him from the hospital on March 15, 2007, and that he went with her to the police station to assist in filing a complaint against Mr. Davilla. Id. at 20-21. Mr. Mejias acted as an interpreter and wrote in English what Ms. Calderon told him in Spanish. Id. at 23.

         Nicholas Cardillo Calderon (Nicholas Cardillo), one of Ms. Calderon's two adult sons, testified for the State. He verified that on March 15, 2007, Ms. Calderon called him to say that Mr. Davilla was at her work place and from the parking lot of her apartment complex asked him to come there quickly so he could speak with Mr. Davilla. ECF No. 13-5 at 42-44. During the call from the apartment complex parking lot, Nicholas Cardillo related that his mother told him she was going into the apartment because Gloria Torres was inside. Id. at 45. The third phone call he received from his mother was after she had been hit. Id.

         Nicholas Cardillo also testified that he never kept any work supplies at his mother's apartment and that there would be no reason why Mr. Davilla would bring rope to the apartment for him to use at work. ECF No. 13-5 at 51-53. While he was at the police station with his mother, Nicholas testified that Mr. Davilla messaged him indicating he wanted Nicholas to call him so he could explain his side of the story. Id. at 54. Nicholas testified that he called Mr. Davilla because his mother had asked him to in the hope Nicholas could convince Mr. Davilla to leave her alone. Id. at 56. When Nicholas spoke to Mr. Davilla, Mr. Davilla said that he was going to hit Ms. Calderon until she couldn't take it anymore; tie her up; pour paint thinner on her body and burn her because she deserved it. Id. Mr. Davilla told Nicholas he planned to take these same actions against Mr. Mejias before then castrating Mr. Mejias, forcing Ms. Calderon to eat the genitals, and then killing them both. Id. at 57-62. Mr. Davilla further explained to Nicholas Cardillo that on March 15, 2007, his plan to beat Ms. Calderon, tie her up, and burn her, was thwarted because Ms. Calderon ran off and Gloria Torres stopped him. Id. at 65-67. Cross-examination of Nicholas Cardillo focused on bias in favor of his mother. Id. at 67-80.

         Ms. Calderon's other adult son, Rafael Cardillo, also testified for the State. During his testimony he recalled seeing a can, similar to that introduced as demonstrative evidence during his mother's testimony, inside his mother's apartment on March 15, 2007. ECF No. 13-5 at 86-89. Rafael also stated that he works as a painter and that cans similar to the one he saw contain paint thinner. Id. at 89. He also confirmed that he did not keep work materials at his mother's apartment. Id. at 90.

         The final two witnesses for the State were police officers for Montgomery County. Detective Karen Carvajal testified that her limited involvement in the case came about because she works in the Family Crimes Unit and is a certified Spanish language interpreter. ECF No. 13-5 at 104-09. Detective Carvajal translated Ms. Calderon's account of what had occurred for Detective Anthony Chuckeral and confirmed that Ms. Calderon reported that Mr. Davilla grabbed something out of the bag and hit her with it. Id. at 112. Detective Chuckeral also testified, but provided no additional evidence that differed from what had already been produced. Id. at 120-31.

         The only witness to testify during the defense's case-in-chief was Gloria Torres, Mr. Davilla's sister. ECF No. 13-5 at 144-51. Ms. Torres testified on direct examination that she was in the kitchen of the apartment when Ms. Calderon and Mr. Davilla entered the apartment together on March 15, 2007. Id. at 146-47. She claimed that the two of them walked back to Ms. Calderon's bedroom “very calmly” and that no one screamed while the two were in that area of the apartment. Id. She further claimed that Ms. Calderon came back into the kitchen where Ms. Torres was and that she did not have any blood on her. Id. Then Ms. Torres testified that Ms. Calderon went into Ms. Torres's bedroom and Ms. Torres heard a noise like someone had bumped into something; she claimed Ms. Calderon stayed in her bedroom for ten minutes. Id. After her brother left, Ms. Torres said that Ms. Calderon came into the kitchen and Ms. Torres observed “a little thread of blood” on her forehead. Id. at 148. Ms. Torres claimed there was a lot of furniture in the hallway and that she saw Ms. Calderon on the floor, picking herself up after falling down. Id. at 149-50.

         Ms. Torres's testimony did not hold up to cross-examination. ECF No. 13-5 at 151-70. The State established that if Ms. Torres had been standing in the kitchen she could not see the door into the apartment (id. at 153) and that in her statement to police, she said she was in her bedroom when her brother and Ms. Calderon entered the apartment. Id. at 159-70. Ms. Torres was so upset after the State discredited her on cross-examination that defense counsel described her as “freaking out, ” and the court discussed whether she required medical treatment. ECF No. 13-5 at 172-73. During sentencing, the court referred to Ms. Torres' testimony as “preposterous”, ECF No. 13-7 at 28, and commented that there was “a lot of evidence” to support a perjury charge, id. at 41. During closing argument, defense counsel conceded that Ms. Torres' testimony “was disastrous.” ECF No. 13-6 at 72.

         B. Procedural History

         Davilla filed a direct appeal of his conviction asserting that it was error for the trial court to deny a motion to sever and it was error for the trial court to admit other crimes evidence regarding an alleged assault that occurred against a different individual on the day before the Calderon assault. ECF No. 13-8 (brief of appellant). On January 6, 2010, in an unreported opinion, the Maryland Court of Special Appeals affirmed Davilla's conviction. ECF No. 13-10 (opinion and mandate). Davilla did not seek certiorari ...


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