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McMullen v. Bush

United States District Court, W.D. Pennsylvania

October 5, 2017

ERIC MCMULLEN, Petitioner,
v.
ERIC BUSH, Superintendent of SCI Pine Grove, ATTORNEY GENERAL OF THE COMMONWEALTH OF PA, and DISTRICT ATTORNEY OF ALLEGHENY COUNTY, Respondents.

          Nora Barry Fischer Judge.

          REPORT AND RECOMMENDATION

          MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE.

         I. RECOMMENDATION

         It is respectfully recommended that the Petition for Writ of Habeas Corpus by a Person in State Custody (the “Petition”) filed pursuant to 28 U.S.C. § 2254, ECF No. 3, be dismissed and that a Certificate of Appealability be denied.

         II. REPORT

         Facing multiple criminal charges in three separate criminal cases based on three separate criminal incidents, occurring at different times, Eric McMullen (“Petitioner”) accepted a guilty plea agreement and pleaded guilty to all of the charges, with one charge of attempted homicide being dropped, and he was convicted of those charges. However, pursuant to the plea agreement, Petitioner was sentenced only for the conviction of Aggravated Assault on John Kirk, receiving a total of 10 to 20 years of imprisonment with no sentence imposed for any of the other convictions. Because Petitioner has not carried his burden to merit federal habeas relief, the Petition should be dismissed and a certificate of appealabity should be denied.

         A. Facts Underlying Petitioner's Conviction

         The following factual basis of the multiple crimes was recounted at the guilty plea hearing as follows:

Thank you, Your Honor. [At 200618191], [which is the Aggravated Assault on John Kirk, ] [t]he Commonwealth would have called as witnesses, Detective Cindy Smith, Detective Tom Leheny, John Kirk, as well as representatives from the Allegheny County Crime Lab.
In addition, we would have called Officer Perilla, Raymond Everett from the Allegheny County Crime Lab who would have testified [that] on October 24, 2006, while in Allegheny County the defendant along with Darcy Thurston conspired to rob John Kirk at the Day's Inn located on Banksville Road in the early a.m. hours.
Mr. McMullen approached John Kirk outside of the building, asked him to kick the cheese, referring to give up his money. A brief struggle ensued at which time Eric McMullen fired a .38 Smith & Wesson revolver striking Mr. Kirk in the midsection.
Mr. Kirk was transported to Mercy Hospital where he underwent extensive treatment. A bullet was recovered from his person. That was submitted to the Allegheny County Crime Lab. Later matching a firearm that was found by Baldwin Police Officer Perilla, to be in Mr. McMullen's possession on October 31, 2006. Those would be the lab case numbers following. 06LAB09902, .38 Smith & Wesson caliber H & R revolver serial number 8A20769. The firearm was test fired and found to be in good operating condition. As well as 19 .38 Smith & Wesson caliber cartridges at 06LAB09798.
At 06LAB09902, the .38 Smith & Wesson caliber, serial number 8A20769, the test bullets and cartridges were compared to bullets and cartridge cases, and matched a spent .38 Smith & Wesson caliber bullet submitted in the case of John Kirk at 06LAB09798. That was found to be a match.
* * * *
. . . [At] 06LAB09798, dated January 11, 2008, item one, one spent .38 Smith & Wesson caliber lead bullet, bullet described above had a weight of 141.9 grains, a classification of six lanes and grooves with a right-hand twist. The bullet surface was damaged, the bullet was found to have limited areas suitable for comparison purposes.
The bullet was compared to bullets in open case file without making an identification. The bullet will be placed in the open case file respectfully submitted, Robert T. Levine, Ph.D., manager.
At 06LAB09902 item 1A .38 Smith and Wesson, H&R revolver, serial number 8A20769, the test bullets and cartridge cases were compared to bullets and cartridge casings in the open case file and an identification was made. The test bullets from the H&R revolver matched the spent .38 caliber bullet submitted in the case listed in the table below.
Case number item 06LAB09798, one bullet, Pittsburgh Police Department, zone 3, assault 10-24-2006. Case name John Kirk.
[At] 06LAB09902; item 1A, a gun; Baldwin Borough Police Department. 200610-09210, incident date, VUFA, 10- 31-2006; case name Eric McMullen. Respectfully submitted, Raymond Everett, scientist, Allegheny County Crime Lab.
*****
Judge, the […] victim spent approximately two weeks in the hospital. We would argue this was an assault with a deadly weapon. That, in essence, would have been the Commonwealth's case.
In addition, there were statements made by the defendant indicating a furtherance of the conspiracy once he was in the car with Darcy Thurston.
*****
I would also, if I may, Your Honor, in addition the defendant has previously been conviction [sic] of a crime of violence, that being robbery, section 3701(A)(1), a felony one. And that would be at CC 200005435 wherein the defendant pled guilty to that count April 4, 2001. I would submit a certified copy of that conviction. The defendant is not a person to possess a firearm.
*****
[At] 200617000, that would be October 31, Baldwin Officer Perilla, at a traffic stop found the defendant to be in possession of said firearm in the previous lab. Again, the defendant being previously convicted of the crime of robbery.
In addition, the defendant did not have a valid license to carry in the State of Pennsylvania.
*****
. . . [I]n addition, the defendant had a prohibitive offensive weapon. It was a knife blade.
At CC 200802118, on January 7, 2008, the defendant was in possession of two firearms. The defendant had been previously convicted of said crime of robbery in 2000.
For the 2000 [sic, should be “2008”] case, Officer John Catullo (phonetic) would have testified along with other witnesses that shots were fired in the -towards the residence and the suspect was seen discarding a firearm and that, in essence, would have been the Commonwealth's case.
*****
[The firearm in that case was recovered and was determined to be] a Browning 380 semi-automatic pistol, 425NT04179, as well as a Taurus .40 caliber ...

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