United States District Court, W.D. Pennsylvania
Barry Fischer Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE.
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.
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.
Facts Underlying Petitioner's Conviction
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
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,
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
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
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
[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 ...