McCallum v. Graham

• Decision Date: 01 June 2016
• Docket Number: No. 6:14-cv-06571-MAT,6:14-cv-06571-MAT
• Parties: DAVID K. McCALLUM, Petitioner, v. SUPERINTENDENT HAROLD GRAHAM, Auburn Correctional Facility, Respondent.
• Court: U.S. District Court — Western District of New York

DAVID K. McCALLUM, Petitioner,
v.
SUPERINTENDENT HAROLD GRAHAM, Auburn Correctional Facility, Respondent.

No. 6:14-cv-06571-MAT

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

June 1, 2016

DECISION AND ORDER

I. Introduction

Proceeding pro se, David K. McCallum ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is unconstitutionally detained in Respondent's custody as the result of a judgment of conviction entered against him on February 11, 2010, in State of New York County Court, Erie County (Franczyk, J.), following a jury verdict convicting him of one count of Manslaughter in the First Degree (N.Y. Penal Law ("P.L.") § 125.20(1)). Petitioner is currently serving a determinate term of 18 years to be followed by 5 years of post-release supervision.

II. Factual Background and Procedural History

In February of 2008, Paul Krieger ("Krieger") and his girlfriend, Jennifer Rammacher ("Rammacher"), were tenants of the second-floor apartment at 890 East Eagle in the City of Buffalo, which was owned by Petitioner. On the night of February 7, 2008, Rammacher decided to stay at her parents' house, since Krieger had

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recently been incarcerated, and the lower apartment at 890 East Eagle was vacant. Upon arriving at the house to collect some of her things, Rammacher found the doorframe damaged and heard music coming from the attic. When she asked who was there, a man responded, "It's Puerto Rican Jimmy," i.e., James Urbinato ("Urbinato"). Rammacher was acquainted with Urbinato since she, Krieger, Petitioner, and Urbinato had hung out together in the apartment several times prior to February 7, 2008. However, Rammacher had not given Urbinato permission to be there, so she told him to leave. According to Rammacher, Urbinato was "running around like a maniac" and waving a gun that "[a]bsolutely" appeared to be real, not a toy. (T.450). Urbinato claimed that the door had been kicked in before he had arrived, that he was guarding the house, and that he was going to shoot the landlord, his dog, and anyone else who walked into the house. (T.473-74). Rammacher insisted that Urbinato leave or she would call the police. Eventually, Urbinato left on his own accord. Rammacher then called Jesse Halliday ("Halliday"), who did maintenance work at the apartment, and asked him to talk to Petitioner about fixing the door. She also mentioned her encounter with Urbinato and the gun, and the threats he had made about shooting Petitioner and his dog.

The following morning, Petitioner called Rammacher on his way to her apartment. About 20 minutes later, he called again, saying that he had found Urbinato in her bedroom and that Urbinato had

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attacked him with a hammer. Petitioner told her that he had disarmed Urbinato and punched him, knocking him to the floor. Urbinato then had reached for a screwdriver in the back pocket of his pants, but Petitioner had picked him up and carried him down the stairs. Petitioner told Rammacher to call 911 and report an intruder in her apartment. When Rammacher called the police, they asked her to come to 890 East Eagle, where she found the house being treated as a crime scene.

Rammacher's boyfriend, Krieger, testified for the prosecution in exchange for a reduction in the criminal charge pending against him. Krieger had known Petitioner for about 10 years and Urbinato for between 5 to 7 years. Urbinato was "just a drug addict basically," and Krieger allowed Urbinato to work with him to earn some money. About a month prior to Petitioner's encounter with Urbinato, Krieger was talking to a group of people, including Petitioner, and mentioned that the gun Urbinato carried around was fake. Krieger said Urbinato was not a "tough guy"; Krieger had never seen him become aggressive or violent.

Halliday testified for the prosecution that he had been friends with Petitioner for a long time, and had done construction work with him for about 10 years. Halliday had known Urbinato for about 10 years. He once saw Urbinato get into a fight, which Urbinato "didn't win[.]" (T.509).

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On the morning of February 8, 2008, Halliday met Petitioner at Rammacher's apartment where they found Urbinato standing in the rear bedroom, looking as though he had just woken up. Petitioner "advanc[ed]" on Urbinato and told him "'to get the "F" out of [there].'" (T.514). Urbinato retorted that he was there with Rammacher's permission; Petitioner replied that he had just spoken with Rammacher who said she did not want him there. Since they had been told by Rammacher that Urbinato had a gun, Petitioner kept asking Urbinato where it was. (T.538). Petitioner was "inching up, saying come on, . . . get the F out of here and that's when [Urbinato] reached for something in his pocket" that had a wooden handle. Whatever Urbinato was reaching for got stuck, and that is when Petitioner punched him hard in the face. (T.515). Urbinato "kind of flew back" and "did like a little somersault[.]" (T.516). Before Urbinato could get up, Petitioner "grabbed him and flipped him over and slammed him on his back into the kitchen area." (T.517). Halliday said that Urbinato was not moving at all while Petitioner was rapidly "flipping him" "back and forth" about 4 or 5 times. (T.518). During this time Petitioner removed a "couple screwdrivers" and the wooden-handled object, which was a hammer, from Urbinato's person. (T.518-19). Halliday said that Urbinato never landed a blow against Petitioner. (T.519). Urbinato "kind of lifted his arms" and said, "all right, all right, something of that nature." (T.521). Halliday did not have trouble understanding

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Urbinato. Petitioner repeatedly told him, "[T]hen get the F out of here, get going, beat it." (T.521). When Urbinato did not move from where he was lying on the floor, Petitioner grabbed him by the shoulders with both hands and dragged him down the stairs. (T.522). Because Urbinato was "bleeding pretty badly" and "too stubborn" to go to the hospital, Halliday phoned one of Urbinato's friends to let him know of Urbinato's condition. (T.522-23).

After getting off the phone with Urbinato's friend, Halliday left because of all the blood; "it was just kind of gory[.]" (T.524). At that point, Urbinato was standing on the front steps and holding onto the railing. His pants, which were too big for him, had fallen down around his ankles when he was being dragged down the stairs. Halliday heard Urbinato remark to Petitioner, "[W]hy [are] you doing this to me[?]" (T.523). Petitioner was on the phone with 911 when Halliday left.

Later, Petitioner asked Halliday for advice about what to do. Halliday advised him to go back to Rammacher's apartment, even though he would be arrested if he did so. (T.539).

Officer Paul Sobkowiak ("Sobkowiak") of the Buffalo Police Department ("BPD") responded to a 911 call about a burglary at 890 East Eagle. Arriving about 10 minutes after the call had come in, he found Urbinato, not wearing shoes or pants, lying in a "contorted position" in blood-stained snow. Urbinato was "in bad condition" and looked as though he "might have been run over."

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(T.545). When Sobkowiak tried to speak with him, Urbinato made only a "gurgling sound" and lost control of his bowels. (T.545).

Paramedic Sue McMahon ("McMahon") found Urbinato unresponsive to any stimuli. His left eye was swollen shut and had a "deviated gaze" when she lifted up the eyelid; his right eye did not react to stimuli. He was exhibiting decorticate and decerebrate posturing, and he did not flinch when she inserted a large needle into his arm. (T.575-77). McMahon suggested to the lieutenant that he call in homicide detectives because she felt that Urbinato "probably wouldn't make it." (T.578).

Several days later, Detective James Lonergan of the BPD searched the interior of 890 East Eagle. While he was there, he encountered a woman who handed him a cell phone; Petitioner was on the line. Lonergan told Petitioner that the police wanted to speak to him about an assault that had occurred at the house. Petitioner told Lonergan that Urbinato had come after him with a hammer and screwdriver, so Petitioner hit him. Lonergan told Petitioner to come down to the station to give a statement, but Petitioner did not do so that day.

After Detective Mark Vaughn issued a "be on the lookout" notice for Petitioner, attorney James DeMarco, Esq. ("DeMarco") contacted the BPD about having Petitioner give a statement. On February 21, 2008, Petitioner and DeMarco went to the BPD, but Petitioner did not bring the hammer and screwdriver with which

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Urbinato allegedly had threatened him. After waiving his rights, Petitioner gave a written, signed statement. Petitioner said that when he first encountered Urbinato at Rammacher's apartment, he wanted him to stay "calm because [Rammacher] said he had a gun" and had threatened to shoot Petitioner and his dog. (T.623-24). Petitioner told Urbinato he had to leave; Urbinato kept asking why. Petitioner

told [Urbinato] that [Rammacher] didn't want him there. We were close to each other now. I put my hand up to wave him out of the apartment. All of a sudden he reached towards his waist and grabbed the hammer he had there. I thought I was going to have my head split open. I just threw a punch. It connected with his face. [Urbinato] fell back.
. . .

At that point, Petitioner stated, Urbinato was on his knees, trying to get to the back bedroom. Thinking Urbinato might have a weapon in that room, Petitioner grabbed him and pulled him back, taking the hammer away from him as well as two screwdrivers. After frisking Urbinato front and back, Petitioner did not find a gun. (T.624). Even though he told Urbinato to go, Urbinato "wasn't making any effort to get up." (Id.). At this point, Petitioner said, Urbinato's eyes were open and he was speaking coherently. He picked Urbinato up by his shoulders and "guided him down the stairs." (T.625). Once he got Urbinato...