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Burchard v. Spitzer

February 24, 2010

TIMOTHY L. BURCHARD, PETITIONER,
v.
ELIOT SPITZER, RESPONDENT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

Pro se Petitioner, Timothy L. Burchard ("Petitioner"), has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered October 20, 2003, in New York State, County Court, Chemung County, convicting him, after a jury trial, of one count of murder in the Second Degree (intentional murder) (N.Y. Penal Law ("Penal Law") § 125.25[1]), and three counts of Murder in the Second Degree (felony murder) (Penal Law § 125.25[3]).

For the reasons stated below, habeas relief is denied and the petition is dismissed.

II. Factual Background and Procedural History

A. Introduction

In the early hours of October 5, 1997, Petitioner and Eric Weiskopff ("Weiskopff") entered the home of Constance Mauer ("Mauer" or "the victim") while her husband was out of town. Although they intended only to burglarize the home, when Mauer woke and startled them, Weiskopff raped her, then Petitioner raped and choked her, killing her. The two men threw her body down a flight of stairs to make her death appear accidental, and then set the curtains afire to hide any evidence left behind. A third accomplice, Jeremy Onsager ("Onsager"), waited outside in his car, and drove the two men away from the Mauer home, which burned down overnight.

The case remained unsolved until 2000 when Weiskopff was arrested in an unrelated matter. At that time, Weiskopff gave a statement to police that implicated Petitioner and Onsager.

On January 23, 2003, a Chemung County Grand Jury charged Petitioner with four counts of murder in the second degree. The first count charged intentional murder. The remaining three counts charged felony murder, under the theory that Petitioner had committed murder in the course of committing second degree burglary, first degree rape and first degree sexual abuse.

A jury trial commenced on June 11, 2003 before County Court Judge Peter C. Buckley. Petitioner did not testify.

B. The Trial

In October 1997, Rusty and Constance Mauer lived together at 1636 Ridge Road in Horseheads, New York. Trial Transcript [T.T.] 90-96. During the first week of October 1997, when the victim's husband was away from home, 18-year-old Onsager, 17-year-old Weiskopff, and 20-year-old Petitioner, cruised Ridge and Middle Roads in Onsager's car, breaking into parked cars, one of which belonged to the victim. T.T. 218, 225, 441-43, 456-58. Petitioner stole Mauer's purse from her truck, in which she kept a spare house key. T.T. 225-26, 313-14. They brought the purse to Weiskopff's house, split the money, and Petitioner took the spare house key. T.T. 227-28. They then returned the purse to Mauer's truck. T.T. 228-29, 230.

In the early morning hours of October 5, 1997, Petitioner, Weiskopff, and Onsager smoked marijuana and drank whiskey at Weiskopff's home. T.T. 222, 230, 330, 337, 460-62, 517. At some point, Petitioner pulled out Mauer's key and suggested that they "check out" the Mauer house. T.T. 222-223, 319-320, 337, 462. Onsager drove Petitioner and Weiskopff over to the Mauer house. The men planned to burglarize the house while Onsager waited outside in his car. T.T. 233, 464-65. When Petitioner and Weiskopff left his car, Onsager fell asleep. T.T. 233, 465.

Petitioner entered the Mauer house through the front door with the key, while Weiskopff searched through Mauer's unlocked car looking for valuables. T.T. 230, 317, 340. Weiskopff found and stole approximately $40 in cash. T.T. 231, 318. Weiskopff then entered the house and began searching the main floor for valuables. T.T. 234. He eventually went upstairs, where he found Mauer on the floor, and Petitioner holding her down. T.T. 237, 346.

Weiskopff and Petitioner then took turns holding Mauer down while the other raped her. T.T. 239-46. Weiskopff testified that it did not appear as though Petitioner ejaculated inside of Mauer. T.T. 241-42. When Mauer began to kick and scream, Petitioner choked her until she stopped moving. T.T. 244-46. They then carried her body to the top of the stairs, and pushed it down the stairs. T.T. 250-51, 371.

The men continued to search the home for valuables, and, when they were done, wiped their fingerprints from the home. T.T. 251-54. Both men then set the house on fire. T.T. 254-55, 372. As the men left the house, Petitioner locked the front door. T.T. 256, 374. Onsager drove Petitioner and Weiskopff away from the scene. T.T. 258, 374, 468-69, 470, 473.

Fire personnel and New York State Police processed the crime scene for almost a month. T.T. 169, 424. The police eventually recovered Mauer's body, which was badly burned and hardly recognizable. T.T. 544-45, 803-809.

While the police were investigating the case in October of 1997, Petitioner visited his girlfriend, Stacy Pronti ("Pronti"), and told her about the events of October 5, 1997. T.T. 551-52. Pronti testified that Petitioner told her that he and Weiskopff had attempted to burglarize a house, and that the victim "wasn't supposed to be home." Further, she testified that Petitioner told her that he loved her and that he "didn't mean to rape the [victim], but that she wouldn't stop screaming." T.T. 552-53. Pronti also testified that Petitioner told her that he and Wesikopff set the house on fire in order to "take care of what had happened." T.T. 554, 560. Additionally, Pronti testified that, on a subsequent occasion, she wore a wire when she went to speak to Petitioner while he was at work. T.T. 561-64.

Dr. Cynthia Hoeflinger, a forensic pathologist with the Monroe County Medical Examiner's Office, performed an autopsy on the victim's body on October 6, 1997. She testified that the victim had died before the fire had started because there was no evidence of soot in the victim's airways or carbon monoxide in her blood. She also testified that she had taken swabs from the victim's oral, vaginal and rectal cavities and found sperm heads in her vaginal cavity. She testified that strangulation could not be ruled out as the cause of death, but, given the condition of the body, she was unable to determine the exact cause of death. T.T. 803-27. The sperm heads found in Mauer's body later turned out to match Weiskopff's DNA. T.T. 587-89.

In 2000, Weiskopff, after having been arrested in an unrelated matter, gave a statement to police regarding the October 5, 1997 incident, wherein he explained his role in the crime and implicated Petitioner and Onsager. Weiskopff provided police with a blood sample and also partook in polygraph testing, which he failed.

T.T. 279-84. The police then met with Onsager, who had since moved to Texas. Onsager refused to speak with police about the crime, but took a polygraph test, which he failed. T.T. 479-80.

On January 26, 2002, Weiskopff was charged with Mauer's murder and related crimes. T.T. 287-88, 305. Onsager testified before the grand jury about the crimes in ...


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