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Mull v. Racette

United States District Court, W.D. New York

March 13, 2002

ERIC MULL, Petitioner,
STEVEN RACETTE, Supt. GMCF, Respondent.


          MICHAEL A. TELESCA United States District Judge


         Proceeding 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)).


         On the 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." (T.224-25).

         Meanwhile, 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.

         That 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).

         Mrs. 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.

         At the 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.

         Coughlin 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 writing.

         Gregg 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.

         David 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.

         The defense played the 911 tape for the jury but did not call any witnesses.

         On 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 ...

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