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Parsons v. Ercole

March 8, 2010

ERIC PARSONS, PETITIONER,
v.
ROBERT ERCOLE, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Pro se petitioner, Eric Parsons ("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 May 6, 2003, in New York State, Seneca County, County Court, convicting him, after a jury trial, of five counts of Murder in the Second Degree (N.Y. Penal Law ("Penal Law") § 125.25[3]), and five counts of Arson in the First Degree (Penal Law § 150.20[1]).

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

II. Factual Background and Procedural History

The charges arise out of an incident that occurred in the early morning hours of November 5, 2001 in Romulus, New York, wherein Petitioner intentionally started a fire in his wife's apartment that killed her and their four young children.

On November 3, 2001, Petitioner's wife, Cheryl Parsons ("Cheryl"), took their four children and moved to an apartment at 5692 Main Street in Romulus, New York. The following day, Petitioner appeared at her new apartment unannounced and uninvited, argued with her, and demanded that the children leave with him. Cheryl refused.

In the early morning hours of November 5, 2001, Petitioner intentionally started a fire in Cheryl's apartment, killing her and the four children who were inside the house at the time. Petitioner escaped from the fire unharmed.

Petitioner was arrested on November 28, 2001 after leading police on a high-speed car chase.

On April 12, 2002, Petitioner was indicted on five counts each of second degree murder (felony murder) and first degree arson.

Prior to trial, various suppression hearings were held.*fn1 A jury trial was held before Judge Dennis F. Bender beginning February 24, 2003 and ending March 19, 2003.

At trial, various witnesses for the prosecution testified about the long history of domestic violence Cheryl suffered at the hands of Petitioner, and how she had moved to a new apartment with her children to escape his abuse and obtain a divorce from Petitioner. Trial Transcript [T.T.] 1983-2045, 2055-2162.

Bobbie Sue Fox, the niece of Petitioner's sister's husband, testified that she was having a sexual relationship with Petitioner, and that he had moved some of his clothes and furniture into her apartment. She testified that Petitioner left her apartment on November 4, 2001 around noon, and did not indicate when he would be back, but asked her how many of his children could return with him to her apartment. She also testified that Petitioner had told her he was falling in love with her, and that he was getting divorced from Cheryl. T.T. 4068-80.

Various fire personnel also testified for the prosecution. Investigator Dale Moone ("Moone"), a fire investigator and canine handler in the New York State Office of Fire Prevention and Control ("OFPC"), testified that he brought his canine partner, Alex, who was trained to detect ignitable liquids, to search the scene for accelerants. T.T. 2880-83, 2902-05. Moone testified that Alex positively indicated the presence of accelerants in nine areas of the home. T.T. 2904-47. Moone and Alex also searched Petitioner's car, where ignitable liquid was found on the front side of the driver's seat and the driver's side floorboard. T.T. 2947-55.

Brian Meinweiser, a New York State Police Laboratory forensic scientist, testified that evidence from the scene and Petitioner's car were tested for heavy petroleum distillates and were recovered from Petitioner's jeans and sneakers, Cheryl's hair, and from one child's pajamas. T.T. 3031-68.

Leonard Hayes, a mechanical engineer of JDR Systems Corporation, testified that he tested a kerosene heater found in the kitchen area of Cheryl's home, and found it to be properly functioning. He determined that the kerosene heater was not the source of the fire because it had been externally damaged by the fire. T.T. 3075-3113.

Investigator Michael Knowlton ("Knowlton"), an OFPC fire protection specialist, was qualified as an expert for the prosecution, and testified that, based on the fire patterns inside the home, it was his opinion that the fire came from the rear bedroom and progressed toward the front of the structure, following an ignitable liquid trail that had been poured on the floor. T.T. 3160-3386. Knowlton also testified that, based on his investigation of the scene, he was able to eliminate all accidental and natural causes of the fire.

On November 7, 2001, Dr. Mary Jumbelic, the Onondaga County Medical Examiner, performed the autopsies on the five victims. A stipulation relating to the autopsies was read into the record stating that in each case, the cause of death was carbon monoxide intoxication due to the inhalation of smoke and soot from the house fire. T.T. 3499-500.

The defense's theory was that Petitioner was in the home when the fire started, but that the cause of the fire was unknown. Petitioner did not testify at trial.

The defense called Linda Van Curen, a former tenant at 5692 Main Street who testified that she had experienced problems with an electrical outlet when she lived at the premises, as well as the chain lock on the front door and unsafe steps leading out to the kitchen door. T.T. 4410-18.

Arlene Parsons, Petitioner's sister-in-law, testified that she had seen Petitioner and Cheryl several days before the incident, and that there did not appear ...


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