Mills v. Girdich

• Citation: 614 F.Supp.2d 365
• Decision Date: 15 May 2009
• Docket Number: No. 03-CV-341.,03-CV-341.
• Parties: Rasheen MILLS, Petitioner, v. Superintendent Roy A. GIRDICH, Upstate Correctional Facility, Respondent.
• Court: U.S. District Court — Western District of New York

Page 365

614 F.Supp.2d 365

Rasheen MILLS, Petitioner, v. Superintendent Roy A. GIRDICH, Upstate Correctional Facility, Respondent.

No. 03-CV-341.

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

May 15, 2009.

COPYRIGHT MATERIAL OMITTED

Rasheen Mills, Pine City, NY, pro se.

Donna A. Milling, Erie County District Attorney's Office, Buffalo, NY, for Respondent.

ORDER

RICHARD J. ARCARA, Chief Judge.

This case was referred to Magistrate Judge Victor E. Bianchini, pursuant to 28 U.S.C. § 636(b)(1). On April 28, 2003, petitioner filed a petition for a writ of habeas corpus. On November 13, 2008, petitioner filed a motion to stay and amend the petition for a writ of habeas corpus On January 22, 2009, Magistrate Judge Bianchini filed a very thorough Report and Recommendation, recommending that the original petition for a writ of habeas corpus be dismissed and that the petitioner's motion to stay and amend the petition be denied.

Petitioner filed objections to the Report and Recommendation on March 20, 2009 and the respondent filed an affidavit in opposition to petitioner's objections.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions, the Court adopts the proposed findings of the Report and Recommendation.

Accordingly, for the reasons set forth in Magistrate Judge Bianchini's Report and Recommendation, petitioner's petition to stay and amend the petition for a writ of habeas corpus is denied and the petition for a writ of habeas corpus is dismissed.

The Court finds that petitioner has failed to make a substantial showing of the denial of a constitutional right and, therefore, no certificate of appealability shall issue. See 28 U.S.C. § 2253(c)(2).

SO ORDERED.

REPORT AND RECOMMENDATION

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. Introduction

Pro se petitioner Rasheen Mills ("Mills") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that his conviction on charges of second degree (depraved indifference) murder and criminal possession of a weapon was unconstitutionally obtained. This matter was referred to the undersigned for the purposes of hearing and deciding non-dispositive motions, and issuing a report and recommendation regarding the disposition of Mills' petition. (Docket No. 14).

II. Factual Background and State Court Procedural History

On July 22, 1999, sixteen-year-old Nola Okorougo ("Okorougo" or "Nola") was fatally shot once in the back while she was in front of her house at 295 Auburn Avenue in the City of Buffalo. The bullet lodged in Okorougo's body was from a .380-caliber semiautomatic gun, but the weapon was never recovered. Several eyewitnesses, including Okorougo's boyfriend, Edward Jaycox ("Jaycox" or "EJ"), identified Mills as the shooter. Ten days after the shooting, Mills turned himself in to the police. Mills was subsequently indicted by an Erie County Grand Jury on two charges of second degree murder—depraved indifference (N.Y. Penal Law § 125.25(2)), and intentional (N.Y. Penal Law § 125.25(1)). He was also indicted on one charge of second degree criminal possession of a weapon (N.Y. Penal Law § 265.03(2)). The trial court denied the defense's motion to suppress certain items seized from a consensual search of Mills' mother's house, as well as a line-up identification of him by Cheryl Fabbiano ("Fabbiano"), one of the decedent's neighbors. Mills' jury trial was conducted in Erie County Court (Amico, J.), in January 2000. The theory of the defense was that Mills acted in self-defense and was afraid that the decedent and/or Jaycox, with whom he had had a physical altercation two days prior to the shooting, were about to use deadly physical force against him.

A. The Prosecution's Case

Jaycox, nineteen years-old at the time of trial, had known Mills from school for about two years before the shooting. T.67. They got along at first, but "after awhile [they] fell apart," meaning they were not speaking any more. T.68. Jaycox stated that the only actual fight he recalled with Mills occurred on July 20th, two days before the incident. T.68. Kerry Eldridge ("Eldridge"), one of Mills' friends, said that Mills and Jaycox had fought "a few times in Jasper Parish projects," and there was a fight at the Regal Cinema, but Eldridge had not seen that one. T.218.

At the July 20th fight, which broke out when Mills and Jaycox got off the bus coming home from summer school, Mills hit Jaycox with a stick at the corner of Delevan and Grant streets. T.68-69. Okorougo was also was present at the fight. T.70.

According to Jaycox, the fight started from a confrontation they had a couple weeks before when Mills "had said some words to" Jaycox when they were walking towards Okorougo's house at 295 Auburn Avenue. T.71. Robin Bell ("Bell"), one of Okorougo's friends, also witnessed the July 20th fight starting while she and Okorougo were still on the bus. T.184. Jaycox was chasing after Mills, who dropped his pager on the ground. T.184. Kerry Eldridge, one of Mills' friends, said that as Jaycox was chasing after Mills, Mills "turned around and jabbed him right in the face." T.217.

Nevertheless, Jaycox testified that he threw the first punch on July 20th, hitting Mills in the face. T.71. Mills "then gets on the phone and starts calling people and starts running towards Grant Street and Delevan." T.71. "[T]hen a car pulls up and his brother and some older guy gets out of the car." T.72. Mills "exchanged words with them, and then the older guy told him to handle his business, and that's when they tried to jump [Jaycox]." T.72. Mills and his brother Elliott jumped Jaycox and they got into a fight right there on the corner. T.72.

Jaycox said he was hit a "[c]ouple times" during the fight. T.73. At one point, Jaycox said, "I was grabbed by Rasheen from the back side and he was telling his brother to hit me, but when his brother went to punch me, I moved out of the way and his punch went past my face." During the fight, Okorougo was trying to get Mills off of Jaycox, and "was punching him in the face too." T.73. Bell said that Okorougo was wearing rings, and when she hit Mills in the face, his eye was bleeding. T.182. She had a "big ring," big enough to hurt somebody with. T.187. Bell also said that Mills was holding Jaycox at one point, telling the other guy to hit him. T.182. Bell started kicking Mills and telling him to let go. T.182. Eldridge testified that Mills had a "big stick" "like a 12-foot stick, like a four-by-four" piece of lumber. T.246.

Mills then let Jaycox go, and Jaycox punched Elliott in the face, "and that was the end of it." T.73. Jaycox testified that he and Okorougo left.

Two days later, on July 22nd, at about 7:15 p.m., Jaycox and Okorougo were walking down her driveway at 295 Auburn so that Jaycox could smoke a cigarette. T.75, 76. As he was having his cigarette, Jaycox noticed Mills on a silver "trick bike" coming up Auburn Avenue from Parkdale towards Grant Street. T.76-78. Mills was with a "small, dark-skinned female" with a "glass eye" wearing a "gray dress." T.77. Upon seeing Mills, Okorougo walked further down the driveway, and Mills said, "there go that bitch ass Nigger, and goes in his right pocket and pulls out a gun." T.78. It was a "small black handgun," an automatic. T.79. Jaycox claimed that he did not hear Okorougo say anything to Mills. However, on crossexamination, Jaycox did admit that Okorougo "was going to confront him about what [Mills] said on the 20th, that he was going to get his sister or somebody to beat her up." T.123. Upon being questioned as to whether Okorougo had said anything to him about that, Jaycox said no and that he did not know why Okorougo was walking out to the street. T.124.

When Mills yelled out, Okorougo was "past the sidewalk, going almost into the street in the driveway area." T.78. Mills was diagonally across the street from them, on the sidewalk. T.80.

Jaycox said that when Okorougo saw the gun, she started to run back up the driveway. Mills fired the first shot "[m]ore angled towards the ground" as if "he was fidgeting with it[.]" T.81. After that, "that's when he started just shooting it." T.81. After the "first shot rang off" was when Jaycox started running. T.81. As he was running, Jaycox heard four to five shots coming from behind him. T.82.

When they got to the porch, Jaycox asked Okorougo if she was hit, and she said yes. T.82. Jaycox took of his t-shirt and wrapped it into a knot, and was holding it against her gunshot wound (on her upper right shoulder, more on her back). T.83. Okorougo did not speak anymore and did not regain consciousness. By the time the police arrived, Okorougo did not have a pulse. T.139.

Because a crowd was gathering and Jaycox was getting more upset, the officers put him in the back of the patrol car. Before doing so, they did a routine patdown of Jaycox down when they arrived, and found no weapon. Jaycox testified that he never possessed a handgun before or during the shooting, and never threatened Mills with a handgun at any time. T.75. Neither did Okorougo. T.76.

During their investigation of the scene, the police found five shell casings in the street on Auburn Avenue and on the sidewalk in front of Okorougo's house. T.144, 284, 307. The casings came from a 380 caliber semiautomatic weapon. T.284, 286. However, the weapon used was never recovered. T.144. By the time they arrived, the shooter had left the scene. T.176. The police recovered from Mills' residence at 91 Parkdale certain items that the shooter was described as wearing at the time of the shooting, a blue and silver football jersey with the number 89 in black. T.312. The police also found the "trick bike" described by Jaycox, a 20-inch "dyno" bike which was lime-green, On August 1 about 10 days after...