United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge
pro se, Eric Mull ("Petitioner") has filed
a petition for a writ of habeas corpus application pursuant
to 28 U.S.C. § 2254. Petitioner's state custody
arises from a judgment of conviction entered against him on
December 13, 2007, in the New York State Supreme Court,
Monroe County (Sirkin, J.) convicting him, after a jury
trial, of Burglary in the Second Degree (N.Y. Penal Law
("P.L.") § 140.25(2)).
BACKGROUND AND PROCEDURAL HISTORY
night of February 11, 2007, William and Loretta Darling were
at their home in the Town of Gates. Mr. Darling was watching
television on the first floor while Mrs. Darling was in the
upstairs bedroom. At about 10:30 p.m., the Darlings heard a
loud, crashing sound at the side door of their home. Mr.
Darling called out, "Who's there?" He then got
up, grabbed his handgun, and hid behind a wall. He heard a
man's voice call out, "Somebody's chasing me.
Somebody's shooting at me." (T.223-24, 238). Mr.
Darling testified that the man "kept coming" toward
him even though he told him to stop. Mr. Darling then fired
his gun in the man's direction. The man dropped to the
floor. Mr. Darling told him, "If you move an f'ing
[sic] muscle I'm gonna blow your head off."
Mrs. Darling was in her bedroom upstairs when she heard a
crashing noise on the side of the house. She heard her
husband call out and heard another voice mention something
about a shooting. She also heard her husband say,
"Stop." This was followed by a gunshot. Because the
house was dark, she did not know what happened. When she got
to the top of the staircase and saw Petitioner lying on the
floor, she recognized him as the person who had come to her
house a few days earlier and had offered to shovel their
driveway. Petitioner told Mrs. Darling that he lived on
Buffalo Road, that his furnace was broken, and that he was
trying to raise money to get the furnace repaired. She
declined his offer because they had a plow. Petitioner again
asked to shovel her driveway, saying that he would not charge
very much. Loretta said no and closed the storm door. As she
was closing the door, Petitioner reached for the door handle.
night, Mrs. Darling observed that Petitioner was wearing the
same clothing that he had worn the day he came to their house
and offered to shovel snow. Mrs. Darling told her husband,
"That's the man that was here Wednesday. . . .
That's the man who tried to open the door."
Petitioner said, "I did not." (T.183-84).
Darling called 911. When the police responded, they found
that the doorjamb and lock on the side door were broken, the
wood on the door was splintered, and there was what appeared
to be a footprint on the bottom of the door. When Sergeant
David Sapienza took Petitioner into custody, Petitioner said,
"They're shooting at me and they pushed me in
there." (T.253) . The sergeant testified that Petitioner
claimed that someone fired gun shots at him and, as he
approached the house, someone pushed him from behind, causing
him to crash into the house. Sergeant Sapienza searched the
area around the outside of the Darling house, including the
side yard and back yard. Although there was snow on the
ground, Sergeant Sapienza observed no human footprints. He
also spoke to people in the area where Petitioner said shots
had been fired, but no one had heard anything.
police station, Petitioner waived his rights and agreed to
speak with Officer Coughlin and Lieutenant VanBrederode.
Petitioner related that he had been walking down Buffalo Road
when a dark-colored vehicle passed by him three times. On the
third pass, a man in the back seat of the vehicle fired three
or four gun shots out of the window at him. The man then
chased Petitioner down a side street and kicked him through a
door at 936 Buffalo Road (the Darling's house).
Petitioner said that after he entered the house, the
homeowner took a shot at him, and he got on the ground and
remained there until the police arrived. VanBrederode
informed Petitioner that there were no calls from any of the
neighbors regarding shots fired. Petitioner insisted that
someone was trying to kill him.
and VanBrederode then escorted Petitioner to the area where
he claimed the shots had been fired. The officers searched
the area for shell casings and bullet damage but found none.
They also questioned people working at nearby businesses and
homes. In short, the officers did not find any evidence that
a gun had been fired. VanBrederode questioned Petitioner
further about how the door to the Darling's home opened.
Petitioner claimed that he was pounding on the door, and
while he was pounding, the door gave way and opened.
VanBrederode asked Petitioner if he had been to the
Darling's house before, and Petitioner said that he had
been there about a week earlier and offered to shovel their
driveway. The wife would not allow him to shovel the driveway
because the husband was not home. After searching the area,
the officers brought Petitioner back to the police station.
There, Coughlin asked Petitioner to recite his version of
events again while Coughlin memorialized his statement in
Roegner, a communications research supervisor at the City of
Rochester's 911 call center, examined the log of incoming
911 calls for February 11, 2007, for the period from 10:00
p.m. to midnight, in the area of Buffalo Road in the Town of
Gates. Roegner discovered that there was only one 911 call
that night, and it was made by Mrs. Darling.
Eschleman, who lived at 1004 Buffalo Road, was at home on the
night of February 11, 2007. He did not hear any gunshots or
anything else unusual outside his home between 10:30 p.m. and
11:00 p.m. that night. Similarly, Ronald Antonow lived at 964
Buffalo Road and was at home between 10:00 p.m. and midnight
on February 11, 2007. He did not hear anything unusual, and
heard no gunshots outside his home at that time.
defense played the 911 tape for the jury but did not call any
September 12, 2007, the jury convicted Petitioner as charged
of second-degree burglary. On December 13, 2007, the trial
court adjudicated Petitioner a second felony offender and
sentenced to a determinate prison term ...