Mull v. Racette

Filing 10

DECISION AND ORDER that Eric Mulls request for a writ of habeas corpus is denied and the petition is dismissed. (Clerk to close case.) (Copy of Decision and Order sent by first class mail to Eric Mull.) Signed by Hon. Michael A. Telesca on 3/13/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ERIC MULL,
Petitioner,

No. 1:13-cv-00888-MAT
DECISION AND ORDER

-vsSTEVEN RACETTE, Supt. GMCF,
Respondent.

INTRODUCTION
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)).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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).

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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

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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.

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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 of 11 years, to be followed by 5 years
of post-release supervision.
Petitioner’s counseled direct appeal was unsuccessful. People
v. Mull, 89 A.D.3d 1445 (4th Dep’t 2011), lv. denied, 19 N.Y.3d 965
(2012).1
In his petition, Petitioner appears to raise a single claim
for relief—that the trial court abused its discretion when reaching
its

Sandoval

ruling

and

thereby

prevented

Petitioner

from

1

In his exhibits submitted to the Court in reply to Respondent’s answer to
the petition, Petitioner included copies of what appears to be the entire state
court record on appeal, plus a copy of a motion to vacate pursuant to New York
Criminal Procedure Law (“C.P.L.”) § 440.10 filed in 2013. However, he did not
provide a copy of any decision issued in connection with this motion. The Court
notes that Respondent did not reference this motion when recounting the
procedural history of Petitioner’s proceedings in state court. This discrepancy
is of no moment, since none of the claims in the C.P.L. § 440.10 motion are
presented in the pending petition.

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exercising his constitutional right to testify in his own behalf.
Respondent answered the petition, asserting that the Sandoval claim
is unexhausted because, although it was raised on direct appeal, it
was

not

fairly

presented

in

federal

constitutional

terms.

Respondent argues that the claim must be deemed exhausted but
procedurally defaulted because if Petitioner were to return to
state court and assert the claim now, the claim would be subject to
dismissal based on a state procedural bar. Moreover, Respondent
contends, the claim is not cognizable on federal habeas review. In
reply, Petitioner filed what appears to be the state court record
on direct appeal, plus a copy of a pro se motion to vacate the
judgment pursuant to New York Criminal Procedure Law (“C.P.L.”)
§ 440.10 that he filed in Monroe County Supreme Court in 2013.
However, Petitioner did not provide the Court with a copy of the
decision, if any, issued in that matter.2 Petitioner did not
respond substantively to Respondent’s arguments.
For the reasons discussed below, Petitioner’s request for a
writ of habeas corpus is denied, and the petition is dismissed.
MERITS OF THE PETITION
I.

Overview of the Sandoval Claim
Prior to the start of trial, the trial court conducted a

hearing pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974), to
determine whether the prosecutor would be permitted to impeach
2

The Court notes that Respondent did not reference this motion in the
section of his brief setting forth the procedural history of Petitioner’s case
in state court.

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Petitioner with evidence of his prior criminal convictions, if
Petitioner took the stand. Over defense counsel’s objections, the
trial

court

ruled

that

if

Petitioner

chose

to

testify,

the

prosecutor would be permitted to cross-examine him with respect to
his 2001 conviction for fifth-degree criminal possession of a
controlled substance and his 2006 conviction for false personation.
The trial court also ruled that the prosecution would be permitted
to

question

him

regarding

the

underlying

facts

of

those

convictions. Defense counsel pointed out that the false personation
conviction arose from an incident in which Petitioner provided the
police with false identification information when he was arrested
for possession of burglar’s tools. Defense counsel argued that,
given

the

nature

of

the

current

charge

against

Petitioner,

testimony regarding the circumstances of that arrest would be
unduly prejudicial. The trial court was unconvinced and tentatively
ruled

that

Petitioner

the

prosecution

about

the

would

underlying

be

permitted

circumstances

to
of

question
the

false

personation conviction. (T.4-6).
After

the

conclusion

of

the

prosecution’s case-in-chief,

defense counsel asked the trial court to reconsider its Sandoval
ruling

and

preclude

any

cross-examination

of

Petitioner

with

respect to his arrest for possession of burglar’s tools, which
ultimately led to his conviction for false personation. When the
trial court adhered to its original ruling, Petitioner announced
that he would not testify at trial. (T.393-94).

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II.

Discussion
The Court need not decide whether Petitioner’s Sandoval claim

has been properly exhausted or is procedurally defaulted because it
is not cognizable on federal habeas review due to Petitioner’s
failure to testify at trial. E.g., Grace v. Artuz, 258 F. Supp.2d
162, 171-72 (E.D.N.Y. 2003) (in absence of petitioner taking the
stand to testify at trial, “claim as to the impropriety of the
Sandoval ruling [did] not raise a constitutional issue cognizable
on habeas review”) (citing Carroll v. Hoke, 695 F. Supp. 1435, 1440
(E.D.N.Y. 1988) aff’d, 880 F.2d 1318 (2d Cir. 1989)). The relevant
Supreme Court precedent to such a claim is Luce v. United States,
469 U.S. 38 (1984), in which the court considered a defendant’s
claim based on a district court’s in limine ruling under Federal
Rule of Evidence 609(b) permitting impeachment of the defendant by
a prior conviction. The defendant urged reversal of his conviction
on the basis that the ruling had the effect of dissuading him from
taking

the

stand

and

exercising

his

constitutional

right

to

testify. The Supreme Court noted that a defendant’s failure to
testify makes it impossible to weigh the probative value of a
conviction as impeachment against its prejudicial effect, that is,
to determine whether any error in the in limine ruling was harmful
to the verdict. See Luce, 469 U.S. at 42. The Supreme Court adopted
the rule that “to raise and preserve for review the claim of
improper impeachment with a prior conviction, a defendant must
testify.” Luce, 469 U.S. at 43. Federal habeas courts in this

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Circuit have applied Luce to reject as speculative and meritless
claims

by

non-testifying

state

habeas

petitioners

based

on

allegedly improper Sandoval rulings. E.g., Grace, 258 F. Supp.2d at
171-72 (“The reviewing court must know the precise nature of the
defendant’s testimony, which is unknowable when the defendant does
not testify. Thus, petitioner’s claim as to the impropriety of the
Sandoval ruling does not raise a constitutional issue cognizable on
habeas review.”); accord, e.g., Brathwaite v. Duncan, 271 F.
Supp.2d 400, 401 (E.D.N.Y. 2003) (holding Sandoval claim not
cognizable on federal habeas review where petitioner did not
testify at trial). Petitioner’s claim based on the allegedly
erroneous Sandoval ruling is accordingly dismissed for failure to
raise a federal constitutional issue cognizable on habeas review.
CONCLUSION
For the foregoing reasons, Eric Mull’s request for a writ of
habeas corpus is denied and the petition is dismissed. Because
Petitioner has failed to make a substantial showing of a denial of
a constitutional right, the Court declines to issue a certificate
of appealability. See 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
DATED:

March 13, 2017
Rochester, New York

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