Mungo v. Duncan, s. 02-CV-5586 (JBW), 03-MISC-0066 (JBW).

• Citation: 277 F.Supp.2d 176
• Decision Date: 08 August 2003
• Docket Number: Nos. 02-CV-5586 (JBW), 03-MISC-0066 (JBW).,s. 02-CV-5586 (JBW), 03-MISC-0066 (JBW).
• Parties: Marcus MUNGO (98-A-4470), Petitioner, v. George DUNCAN, Superintendent of Great Meadow Correctional Facility, Respondent.
• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

277 F.Supp.2d 176

Marcus MUNGO (98-A-4470), Petitioner, v. George DUNCAN, Superintendent of Great Meadow Correctional Facility, Respondent.

Nos. 02-CV-5586 (JBW), 03-MISC-0066 (JBW).

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

August 8, 2003.

COPYRIGHT MATERIAL OMITTED

Amy Merrill Appelbaum, Office of the D.A., Kings County, Brooklyn, NY, for Respondent.

MEMORANDUM, JUDGMENT & ORDER

WEINSTEIN, Senior District Judge.

A hearing was held in this matter to determine whether petitioner is entitled to a writ of habeas corpus. Petitioner was present by telephone. The petition for a writ of habeas corpus is denied for the reasons stated orally on the record. Like so many cases, this one leaves the impression that petitioner may well be innocent— as are in the order of one percent, or many thousands, of the millions of individuals in criminal custody in the United States. The limited power of this court does not permit it to release a prisoner on the hunch that he is one of the innocent in our prisons. This memorandum briefly addresses petitioner's claims.

I. Facts and Procedural History

The following facts are taken from the trial record.

On June 23, 1997, at approximately 1:20 a.m., Brent Arthur was shot on Euclid Avenue in Brooklyn. He died approximately one hour later. The cause of death was a gunshot wound resulting from a bullet that entered his lower right chest and perforated his chest, liver, and one of his lumbar vertebrae. Petitioner was put on trial primarily for the murder of Arthur. The only evidence identifying petitioner as the shooter were statements made by Arthur before his death and admitted at trial under the excited utterance exception to the hearsay rule.

Testifying at trial as part of the state's case were two individuals on Euclid Avenue at approximately the time of the shooting (the "bystanders"), two police officers arriving shortly after shots were fired, several detectives, and the medical examiner.

The two bystanders testified to hearing what they described as firecrackers or gunshots. They then saw Arthur running up the street holding his stomach as he was chased by a male in a light colored shirt with hair variously characterized as puffy, fuzzy, wild, an Afro, or dreadlocks. One of the bystanders described the second man as African-American and saw a "flame" coming from his hands.

The two police officers, Sergeant Robert Delaney and Police Officer Dante Cavallo, were plainclothes officers working on an unrelated case. They heard gunshots while sitting in an unmarked police car disguised as a yellow taxi cab at the corner of Euclid Avenue and Pitkin Avenue. They responded to the gunshots, and were waved down by Arthur on Euclid Avenue approximately three-quarters of a block away from where they had been parked. Arthur said, "Officer, I've been shot," and got into their cab. The officers also saw two figures in light colored shirts running away. Sergeant Delaney at trial further described the figures as black males, one of whom had hair that stood "on end." When asked by Sergeant Delaney, Arthur identified the men running away as his assailants.

It is not surprising that the deceased treated the "cab" as a police patrol car. Based on judicial notice of trial and habeas corpus proceedings as well as knowledge of Brooklyn, this court recognizes what most residents of ethnic neighborhoods in this borough know—that police personnel sitting in plainclothes in vehicles of various descriptions are police officers on duty.

Testimony by the bystanders and the officers was inconsistent with respect to the number of people observed and the relative locations of the parties during this period of time, and to the amount of time that elapsed before the officers drove away. Neither the bystanders nor the police were able at any time to identify petitioner as one of the individuals present on Euclid Avenue at the time Arthur was shot.

The officers attempted to follow the men running away, but immediately lost sight of them. At Arthur's direction, the officers drove toward the "projects," a building at 1220 Sutter Avenue several blocks from where Arthur got into the officers' cab. When they reached Sutter Avenue just past Euclid, they saw two African-American men standing on the service entrance road to the projects. One of the men had short dreadlocks and wore a gray t-shirt; the other wore a white multicolored t-shirt. When asked by Sergeant Delaney "How about those guys?," Arthur identified the two as the men who had shot him.

As the officers' cab approached, the men ran into the building. The officers followed on foot. Marcus Mungo, the petitioner, and LeShawn Stewart were found standing in a recessed door frame in a side hallway on the fourth floor, which was the floor on which Stewart lived. Petitioner was wearing a gray t-shirt and had dreadlocks. Stewart was wearing a white multicolored t-shirt and had short hair. Both were wearing shorts.

Petitioner and Stewart were handcuffed and frisked. No gun was found. No property at all was found on petitioner. The area was searched extensively, but no weapon was recovered. Four .22 caliber shell casings and one .22 caliber live cartridge were found on the ground in front of where the bystanders were when they saw Arthur running on Euclid Avenue. Ballistics showed that all four casings were fired from the same firearm. The bullet recovered from Arthur's body was also .22 caliber. Without recovering the weapon, it was not possible to tell whether that bullet was fired from the same weapon as were the casings.

Officer Cavallo took Stewart and petitioner downstairs and outside to where Arthur was lying on the ground next to the cab, bleeding and in pain. Cavallo took Stewart over to Arthur, and asked "Is that the guy who shot you?". Arthur answered, "yes." Cavallo then escorted petitioner to Arthur, asked the same question, and got the same answer. When Cavallo told Arthur that he had to know exactly which of the two men had shot him, Arthur answered that it was the "guy in gray." Arthur said subsequently "they" tried to rob me. Arthur remained lying on the ground during this entire exchange. An ambulance was called either shortly before or shortly after the identifications were made. Arthur died at the hospital, less than an hour after accusing the petitioner.

Petitioner and Stewart were arrested. They were taken to the police precinct. The court did not allow testimony at trial, constituting indirect hearsay, concerning why Stewart was arrested.

Starting at about 6:00 p.m. on the day of the shooting and continuing to early the next morning, petitioner made several statements to the police; they provided an independent connection between petitioner and the deceased and buttressed the identification by showing that the deceased knew petitioner well enough so as not to have misidentified him, as he might a never-before-seen stranger. Petitioner said that he knew Arthur, who had given him money for food on occasion and a room to live in at 523 Euclid in exchange for keeping the second floor of the building clean. A police detective testified at trial that tax records indicated Arthur owned the building at 523 Euclid. Petitioner stated that he had decided to move out of that room and was going to spend the night with Stewart in his apartment at 1220 Sutter Avenue. He left 523 Euclid at around 11:00 on the evening of June 22nd. According to petitioner's story, early in the morning on the 23rd he was standing outside the projects with Stewart. Stewart began to run, so he ran with him. The remainder of petitioner's statements, concerning his arrest and Arthur's identification of him, essentially mirror the testimony given by the police officers at trial.

Stewart was brought before the grand jury, but was not indicted. Petitioner was charged with two counts of murder in the second degree (intentional murder and depraved indifference murder), one count of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the third degree. Following a jury trial, petitioner was convicted of one count of murder in the second degree (depraved indifference murder) and sentenced to a term of imprisonment of twenty-five years to life.

On direct appeal petitioner argued first that the trial court improperly permitted the state to introduce into evidence Arthur's statements after he was shot identifying defendant as his assailant and second that his sentence was excessive. Petitioner's conviction and sentence were affirmed by the Appellate Division. See People v. Mungo, 287 A.D.2d 523, 731 N.Y.S.2d 632 (2d Dep't 2001). Leave to appeal to the New York Court of Appeals was denied, and petitioner's application for reconsideration of the denial of his application for leave to appeal was dismissed. See People v. Mungo, 97 N.Y.2d 685, 738 N.Y.S.2d 301, 764 N.E.2d 405 (2001); People v. Mungo, 98 N.Y.2d 639, 744 N.Y.S.2d 768, 771 N.E.2d 841 (2002). No state collateral attack on the judgment of conviction has been made.

In the instant application for a writ of habeas corpus, petitioner claims (1) that the trial court erred in allowing the introduction into evidence of statements made by the victim identifying petitioner as his assailant; and (2) that his sentence was excessive.

II. AEDPA

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

An ...