Mannix v. Phillips

• Citation: 390 F.Supp.2d 280
• Decision Date: 09 September 2005
• Docket Number: No. 04CIV 1335RCC GWG.,04CIV 1335RCC GWG.
• Parties: John MANNIX, Petitioner, v. William PHILLIPS, Superintendent, Green Haven Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

390 F.Supp.2d 280

John MANNIX, Petitioner, v. William PHILLIPS, Superintendent, Green Haven Correctional Facility, Respondent.

No. 04CIV 1335RCC GWG.

United States District Court, S.D. New York.

September 9, 2005.

John Mannix, Pro Se.

Sheryl G. Feldman, Assistant District Attorney, New York City, NY, for Respondent.

ORDER ACCEPTING REPORT AND RECOMMENDATION

CASEY, District Judge.

On November 13, 2000, a New York State jury found Petitioner John Mannix ("Petitioner") guilty of murder and criminal possession of a weapon in the third degree. The trial court sentenced Petitioner to eighteen years in prison. On February 25, 2003, the Appellate Division upheld Petitioner's conviction and subsequently denied his request for leave to appeal to the New York Court of Appeals. This pro se petition for a writ of habeas corpus followed. The Court referred the matter to Magistrate Judge Gabriel W. Gorenstein for a report and recommendation ("Report").

In a reasoned and thorough Report dated May 25, 2005, Magistrate Judge Gorenstein recommended that the petition be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, Magistrate Judge Gorenstein warned the parties that they had ten days to file their objections to his Report. No objections have been filed. Accordingly, the Court may adopt those portions of the Report to which the parties do not object and with which it finds error. Pizarro v. Bartlett, 776 F.Supp. 815 (S.D.N.Y.1991).

The Court, having reviewed the Report, is satisfied that there is no clear error and accepts and adopts the Report in its entirety. As Petitioner has not made "a substantial showing of the denial of constitutional right," a certificate of appealability will not issue, 28 U.S.C. § 2253(c).

REPORT AND RECOMMENDATION

GORENSTEIN, United States Magistrate Judge.

John Mannix brings this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to set aside a judgment of conviction issued on November 13, 2000 by the New York State Supreme Court, New York County. Mannix was convicted following a jury trial of murder in the second degree (New York Penal Law ("N.Y.P.L.") § 125.25(2)) and criminal possession of a weapon in the third degree (N.Y.P.L. § 265.02(4)). He was sentenced to a prison term of 18 years on the murder conviction and a concurrent term of five years on the weapons possession charge. He is currently incarcerated at the Green Haven Correctional Facility in Stormville, New York. For the reasons stated below, Mannix's petition should be denied.

I. BACKGROUND

A. Evidence at Trial

1. The Prosecution's Case

At about three in the afternoon of February 25, 2000, Mannix entered McKenna's Tavern, a neighborhood bar on 14th Street between Seventh and Eighth Avenues in Manhattan. (McElduff: Tr. 241-42, 246). Bartender Kevin McElduff was working at the time. (McElduff: Tr. 245-46). McElduff had known Mannix "pretty much all [his] life" and saw Mannix two or three times a week at McKenna's. (McElduff: Tr. 244-45). He served Mannix beer and screwdrivers until his shift ended at approximately 7:00 p.m. and he was replaced by bartender Shane Rice. (McElduff: Tr. 246-48; Rice: Tr. 487-88). McElduff remained in the bar to have several drinks as a customer. (McElduff: Tr. 245-46; Rice: Tr. 488-89). Rice also knew Mannix personally and saw him several times a week at McKenna's and occasionally outside of the bar. (Rice: Tr. 485-86).

Matthew Torruella, a 23-year old student and production assistant at a local company that did multimedia presentations arrived at McKenna's Tavern between midnight and 12:30 a.m. accompanied by his friend Ivyn Tilo and her friend Kenneth Cabrera. (Tilo: Tr. 53-54, 61-63, 133; Cabrera: Tr. 308-10; C. Torruella: Tr. 3-4).

McKenna's was approximately 45 to 50 feet long and 15 to 20 feet wide. (McElduff: Tr. 249). A long bar ran along one side of the tavern and the back wall was lined with mirrors. (McElduff: Tr. 251, 257). Torruella, Tilo, and Cabrera sat at a cluster of tables towards the back of the bar. (Tilo: Tr. 64, 69, 73; Cabrera: Tr. 310).

The trio had been drinking and talking for less than an hour when Cabrera noticed Mannix at the next table. (Tilo: Tr. 70-72; Cabrera: Tr. 311-13). Cabrera knew Mannix from the neighborhood and considered him a friend. (Cabrera: Tr. 313-14). Cabrera and Torruella had been having a friendly disagreement about whether it was possible to have gay friends and when Cabrera recognized Mannix, he drew him into the conversation, asking, "By the way, you have some friends that are gay, right?" (Cabrera: Tr. 311-13; accord Tilo: Tr. 71-73). Mannix acknowledged that he did have gay friends and what began as a discussion between Torruella and Cabrera quickly escalated into a heated argument between Mannix and Torruella. (See Tilo: Tr. 76-79; Cabrera: Tr. 317-21). When Mannix asked Torruella, "[W]hat if your brother was a homo [?]" Torruella began to get "real angry." (Cabrera: Tr. 319-20; accord Tilo: Tr. 78-79). Torruella stood up and began pointing a finger at Mannix. (Tilo: Tr. 79; Cabrera: Tr. 320-21). Mannix also rose out of his seat and someone (either Torruella or Mannix) "flipped the table over." (Tilo: Tr. 79; accord Cabrera: Tr. 321-22). The two began to struggle — "wrestling" (Tilo: Tr. 80), pushing, and shoving each other (McElduff: Tr. 254; Cabrera: Tr. 324-26). Tilo saw Mannix and Torruella exchange punches. (Tilo: Tr. 80, 82).

Mannix initially ended the confrontation by pinning Torruella against a wall. (Cabrera: Tr. 325-26). Cabrera said a few times, "Jack, don't hit him." (Cabrera: Tr. 326; accord Cabrera: Tr. 328). Mannix replied, "I'm not going to." (Cabrera: Tr. 326; accord Cabrera: Tr. 328). The two men separated and the fight appeared to be over. (Tilo: Tr. 80-81, 83; McElduff: Tr. 255; Cabrera: Tr. 326-28). As Mannix began backing away, however, Torruella "sucker-punched" him in the face. (Tilo: Tr. 83-85; Cabrera: Tr. 326-29; Rice: Tr. 496-98, 532). Mannix's nose began to bleed and he appeared angry. (Rice: Tr. 497-98).

Tilo grabbed Torruella and pulled him inside the ladies' room in the back of the tavern, locking the door. (Tilo: Tr. 85-88; Rice: Tr. 498-501). The ladies' room was a one-person restroom, approximately four feet by eight feet in size. (McElduff: Tr. 249-50). The room had a sink facing the door, a toilet to the right of the sink, and a mirror on the wall. (Tilo: Tr. 88-89, 115; McElduff: Tr. 250). Once in the bathroom, Tilo leaned against the wall and partially on the door, while Torruella stood in front of the sink facing her. (Tilo: Tr. 90-92, 115).

About a minute after Torruella fled to the bathroom, Mannix followed. (McElduff: Tr. 258; Rice: Tr. 501). He began pounding and kicking the door for between thirty seconds and two minutes. (McElduff: Tr. 258-59, 261; Cabrera: Tr. 392-93; Rice: Tr. 503-05, 507). Cabrera testified that he heard a bang on the door, saw Mannix turn and face him, then heard a big "pound noise." (Cabrera: Tr. 336-37). Rice, however, testified that she heard three sounds, at least one which sounded like a gunshot, while Mannix was still in front of the door. (Rice: Tr. 506-08, 630-34). From inside the bathroom, Tilo heard two loud noises that sounded like someone throwing himself against the door. (Tilo: Tr. 90-92).

At the time Mannix was pounding on the bathroom door, Cabrera estimated that there were 30 other people in McKenna's at the time and he could not see if anyone else touched the bathroom door. (Cabrera: Tr. 334-36, 338-39). McElduff and Rice gave different estimates as to the number of people in the bar but neither saw anyone as close to the bathroom as Mannix. (McElduff: Tr. 260; Rice: Tr. 502-03, 588-89, 623-25, 627). Rice reported that the other patrons had left the bathroom area "trying to stay away from the commotion." (Rice: Tr. 588).

Right after the noise stopped, Torruella said to Tilo, "I got shot," and pulled up his shirt to show Tilo a gunshot wound in his chest. (Tilo: Tr. 92-95). Tilo testified that Torruella walked a few steps, leaned heavily against the wall of the bathroom, and then slumped to the floor. (Tilo: Tr. 96). Cabrera came over to the bathroom and knocked on the door, but Tilo did not respond for several minutes as she was trying to "wake Torruella up." (Tilo: Tr. 98, 104; Cabrera: Tr. 341). When Tilo finally opened the door a few minutes later, she was "hysterical" and yelling for someone to call the police. (Rice: Tr. 521; accord McElduff: Tr. 262-63).

The witnesses testified that Mannix had turned around and walked away when the noises stopped. (McElduff: Tr. 260-61; Cabrera: Tr. 338-40; Rice: Tr. 509-10). Sometime after leaving the scene, Mannix called the bar. (Rice: Tr. 524-25). When Rice picked up the phone, Mannix asked, "Did I hit anyone?" (Rice: Tr. 525). Rice answered, "Yes." (Rice: Tr. 525). Mannix replied, "[G]ood," and Rice hung up the phone. (Rice: Tr. 525).

Responding to a call, an ambulance arrived at the intersection of West 14th Street and Eighth Avenue at 2:51 a.m. (Storey: Tr. 15). A few seconds after arriving, a man waived toward the paramedics. (Storey: Tr. 16). The paramedics approached and the man pointed toward McKenna's and told them that someone had been shot inside. (Storey: Tr. 17). One paramedic, concerned for his safety and the safety of his partner, asked if the shooter was "still around." (Storey: Tr. 18). The man on the street pointed west and said "he went that way." (Storey: Tr. 19).

The paramedics found Torruella on the floor of the ladies' room of McKenna's with a single gunshot wound to his chest and noted that he had no pulse, was not breathing, and was apparently unconscious. (Storey: Tr. 21-26). The paramedics put him on a stretcher and wheeled him out to the ambulance. (Storey: Tr. 29). They attempted to resuscitate Torruella to no avail. (See Storey: Tr. 25-33). By the time the ambulance reached the hospital, Torruella...