McCullough v. Filion

Citation378 F.Supp.2d 241
Decision Date31 March 2005
Docket NumberNo. 01-CV-6484.,01-CV-6484.
PartiesGerome McCULLOUGH, Petitioner, v. Gary H. FILION, Superintendent, Respondents.
CourtU.S. District Court — Western District of New York

Gerome McCullough, Coxsackie, NY, pro se.

Loretta S. Courtney, Monroe County District Attorney's Office, Rochester, NY, for Defendant.


BIANCHINI, United States Magistrate Judge.


Gerome McCullough ("McCullough") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on two counts of murder in the second degree and three counts of robbery in the first degree. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b).


Benny Lee Dukes ("Dukes") was shot at close range in the chest and killed while he was being robbed by McCullough, Dedric Chislum ("Chislum"), Larry Williams ("Williams"), and Anthony Latson ("Latson"). All four suspects were arrested on November 22, 1994, and all four gave statements to the police in which they inculpated each other.

As a result of the Bruton1 problems created by their statements, the co-defendants were tried separately from each other. McCullough was tried before a jury in Monroe County Court (Maloy, J.). A summary of the relevant trial testimony follows.

On the night of November 19, 1994, Dukes was visiting his friends Luz Roman ("Roman"), and her daughter, Maria Bermudez ("Bermudez"), at their apartment on Maria Street in the City of Rochester. Angela Timmons ("Timmons"), who lived next door, was also present. Timmons indicated that she, Roman and Bermudez were smoking crack cocaine that evening. T.394-95.2 Timmons testified that she had been high on crack for the previous three days and had only slept for thirty minutes during that time. T.423-24. However, she testified that she last smoked cocaine about an hour to an hour and a half before the shooting, and that by the time that she witnessed the incident, she was no longer high. T.413, 458.

At one point that night, Timmons's brother, Chislum (a/k/a "Deke"), entered the apartment. Bermudez testified that Chislum asked to borrow Dukes's car, which was parked outside in the driveway. T.501. Dukes refused, and Chislum left. Bermudez testified that Timmons's nephew, Williams (a/k/a "D'Nice"), later appeared and asked Roman if she had any money. Roman informed Chislum that she had none, and he left. T.501-02.

Dukes decided to leave Roman's house at around midnight. When he left, only Bermudez, Roman, and Timmons were in the apartment. Timmons testified that as Dukes stepped out onto the front porch, he "got grabbed." T.398. When Timmons ran to the window, she witnessed Chislum, McCullough, Williams, and Latson pushing Dukes around and demanding that he hand over his money. T.398-400, 405. Timmons said that her brother, Chislum, had a shotgun trained on Dukes. T.400. Timmons testified that Williams was her nephew, and that she only knew McCullough and Latson by their street names, "Chunky" and "Gilla", respectively. T.399. Bermudez identified McCullough, whom she knew by his street name of "Chunky," as one of the attackers and saw that Chislum had a gun pointed at Dukes. T.504.3 Roman also witnessed the incident, and testified that "Chunky" participated in the assault on Dukes. T.764.

Timmons testified that she heard Dukes say that he only had five dollars and that they could have it. T.405. During the ensuing struggle, Dukes fell over the porch railing, landing in the front yard, where Williams, McCullough and Latson continued the assault. Timmons heard Chislum yell, "Move, man, move," and his three cohorts moved away from Dukes. T.407. Timmons saw Chislum fire the shotgun at Dukes from close range, causing him to fall to the ground. T.408. She testified that Dukes and Chislum were "standing face to face and the gun was pointed dead at [Dukes]." T.479.

However, Dukes was able to get up and flee from his attackers. Timmons observed Latson follow Dukes through the "cut," a path leading from 21 Maria Street (located across the street from 18 Maria Street), to Theodore Street. She then heard more shots ring out in the area of either Theodore Street or Joseph Avenue. T.410. The resident at 21 Maria Street, Dhoretha Pass ("Pass"), heard the footsteps of someone running through her backyard; she then saw four men run through her yard. Pass recognized Williams and Chislum, who was carrying a shotgun over his shoulder, but she did not recognize the other two men. T.780. Pass testified that Chislum, Williams, and Latson were friends of hers, and that she knew McCullough as a friend of theirs. T.777. She knew McCullough only as "Chunky." T.778. Moments later, Pass heard two more shots fired.

Timmons testified that about twenty minutes later, Williams returned to 18 Maria Street carrying the shotgun. T.412. Williams said to the three women, "[Y]ou all ain't [sic] seen nothing [sic], you all ain't [sic] heard nothing [sic], right?" T.412. Williams, Roman, and Bermudez all said, "[R]ight," because they were scared. T.412. No one called the police.

Dukes's body was discovered on November 21, 1994, at about noon, slumped against the back door of a vacant house on Theodore Street, about a block away from Maria Street. T.342-43. It was later determined that Dukes died of massive internal bleeding from a gunshot wound to the chest.

McCullough, nineteen years-old at the time of trial, testified that he had reached the eleventh grade, but that he could not write and did not understand what defense counsel meant by "printing." T.844. McCullough's special education teacher testified that he was classified as mentally retarded and that his verbal comprehension was approximately at the second grade level. T.811. McCullough testified that on the night of the murder, he had gone to a friend's party on Joseph Avenue and had seen Deke (i.e., Chislum), D'Nice (i.e., Williams) and another person named "Chicken." T.851. He claimed not to have seen Gilla (i.e., Latson), whom he did not know very well, at the party. He described Chislum and Williams as his friends, but said that he did not hang out with them very often. T.889.

McCullough testified that at some point, he, Chislum, Williams and Chicken left the party and went to Chislum's house on Maria Street. T.852. McCullough related that Chislum started acting strangely, pacing the floor and saying that "people owed him money." T.855. He directed Williams to go retrieve his gun, and Williams brought it to him. T.855-56. McCullough testified that Chislum did not say anything about the gun or a robbery, but on cross-examination he testified that Chislum said that "he was going to get his money." T.860, 879. When asked what he thought Chislum was going to do with the gun, McCullough stated that he did not know and that "[e]verybody got a mind of their own." T.889.

McCullough recounted that Chislum, Williams and Chicken went next door to 18 Maria Street while he remained standing on the front porch of Chislum's house. T.857. McCullough testified that a man exited the house and was accosted immediately by Chislum, who stuck a gun in his face. T.857. McCullough said that when he saw this, he stepped off the porch and walked to the sidewalk in front of 18 Maria Street where he stood by some bushes and listened to them "tussling." T.859-60.

McCullough testified that he heard the gun go off and saw Dukes tumble through the bushes, get up, and run across the street. T.863. He said that Chislum "came to the bushes and the gun was sort of pointed at [him]." T.863. McCullough told Chislum to "chill," that is, to stop what he was doing. T.863. McCullough said that Chislum then chased after Dukes. Shortly thereafter, McCullough heard several more gunshots. McCullough testified that he then got his coat from Chislum's house and walked home. T.865.

When he was brought in for questioning by the police, McCullough initially stated that he was home all night with his mother. T.886-87. Upon learning that his mother would not corroborate his alibi, he testified that he told the police that he was present at Maria Street but did not move from the porch. T.888. McCullough conceded that he gave the police a third version of that evening's events in which he stated that he walked down to the sidewalk and stood near some bushes during the struggle. T.888. This was reduced to a written statement which was introduced at trial.4

McCullough claimed at trial that the statement was incorrect in that there was no one named "Gilla" at 18 Maria Street. McCullough indicated that the fourth perpetrator had a "funny" name that he could not remember, and he only agreed that it was "Gilla" after the police suggested the name to him. T.870. McCullough testified that he had only been in the neighborhood of 18 Maria Street on two occasions prior to the shooting. T.874. He testified that he had known Timmons for quite a while. T.873. At trial, upon being shown the rights waiver card used by the police, McCullough testified that he did not know what those warnings meant. T.883. He also stated that he "couldn't read [his statement] at that time." T.884.

On January 30, 1996, the jury returned a verdict convicting him two counts of second degree murder (intentional murder and felony murder) and three counts of first degree robbery. McCullough was sentenced on February 28, 1996, to indeterminate terms of imprisonment of 25 years to life for each murder count, and 8 1/3 to 25 years for each robbery count. All sentences were to be served concurrently.

McCullough appealed his conviction to the Appellate Division, Fourth Department, of New York State Supreme Court. Appellate counsel raised the same grounds on direct appeal as McCullough now raises in his habeas petition. The Fourth...

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